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CASES  IN  EQUITY 


SELECTED  FROM  DECISIONS  OF 


ENGLISH  AND  AMERICAN  COURTS 


BY 

GEORGE  H.  BOKE 

EXCHANGE  PROFESSOR  AT  YALE  UNIVERSITY  1914-15 

AND 

PROFESSOR  OF  LAW  IN  THE   UNIVERSITY 
OF  CALIFORNIA 


AMERICAN  CASEBOOK  SERIES 
WILLIAM  R.  VANCE 

GENERAL  EDITOR 


ST.  PAUL 

WEST  PUBLISHING  COMPANY 

1915 


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Copyright,  1915 

BY 

WEST  PUBLISHING  COMPANY 
(Boke  Eq.) 


in 


THE  AMERICAN  CASEBOOK  SERIES 


The;  first  of  the  American  Casebook  Series,  Mikell's  Cases  on  Crim- 
inal Law,  issued  in  December,  1908,  contained  in  its  preface  an  able 
argument  by  Air.  James  Brown  Scott,  the  General  Editor  of  the  Se- 
ries, in  favor  of  the  case  method  of  law  teaching.  This  preface  has 
appeared  in  each  of  the  volumes  published  in  the  series  up  to  the 
present  time.  But  the  teachers  of  law  have  moved  onward,  and  the 
argument  that  was  necessary  in  1908  has  now  become  needless.  That 
such  is  the  case  becomes  strikingly  manifest  to  one  examining  three  im- 
portant documents  that  fittingly  mark  the  progress  of  legal  education 
in  America.  In  1893  the  United  States  Bureau  of  Education  pub- 
lished a  report  on  Legal  Education  prepared  by  the  American  Bar  As- 
sociation's Committee  on  Legal  Education,  and  manifestly  the  work 
of  that  Committee's  accomplished  chairman,  William  G.  Hammond, 
in  which  the  three  methods  of  teaching  law  then  in  vogue — that  is,  by 
lectures,  by  text-book,  and  by  selected  cases — were  described  and  com- 
mented upon,  but  without  indication  of  preference.  The  next  report 
of  the  Bureau  of  Education  dealing  with  legal  education,  published 
in  1914,  contains  these  unequivocal  statements. 

"To-day  the  case  method  forms  the  principal,  if  not  the  exclusive, 
method  of  teaching  in  nearly  all  of  the  stronger  law  schools  of  the 
country.  Lectures  on  special  subjects  are  of  course  still  delivered  in 
all  law  schools,  and  this  doubtless  always  will  be  the  case.  But  for 
staple  instruction  in  the  important  branches  of  common  law  the  case 
has  proved  itself  as  the  best  available  material  for  use  practically  ev- 
erywhere. *  *  *  The  case  method  is  to-day  the  principal  method 
of  instruction  in  the  great  majority  of  the  schools  of  this  country." 

But  the  most  striking  evidence  of  the  present  stage  of  development 
of  legal  instruction  in  American  Law  Schools  is  to  be  found  in  the 
special  report,  made  by  Professor  Recllich  to  the  Carnegie  Foundation 
for  the  Advancement  of  Teaching,  on  "The  Case  Method  in  American 
Law  Schools."  Professor  Redlich,  of  the  Faculty  of  Law  in  the  Uni- 
versity of  Vienna,  was  brought  to  this  country  to  make  a  special  study 
of  methods  of  legal  instruction  in  the  United  States  from  the  stand- 
point of  one  free  from  those  prejudices  necessarily  engendered  in 
American  teachers  through  their  relation  to  the  struggle  for  supremacy 
so  long,  and  at  one  time  so  vehemently,  waged  among  the  rival  sys- 
tems.    From  this  masterly  report,   so   replete  with  brilliant  analysis 

(iii) 


2761 


IV  PREFACE 

and  discriminating  comment,  the  following  brief  extracts  are  taken. 
Speaking  of  the  text-book  method  Professor  Redlich  says : 

"The  principles  are  laid  down  in  the  text-book  and  in  the  profes- 
sor's lectures,  ready  made  and  neatly  rounded,  the  predigested  essence 
of  many  judicial  decisions.  The  pupil  has  simply  to  accept  them  and 
to  inscribe  them  so  far  as  possible  in  his  memory.  In  this  way  the 
scientific  element  of  instruction  is  apparently  excluded  from  the  very 
first.  Even  though  the  representatives  of  this  instruction  certainly  do 
regard  law  as  a  science — that  is  to  say,  as  a  system  of  thought,  a  group- 
ing of  concepts  to  be  satisfactorily  explained  by  historical  research  and 
logical  deduction — they  are  not  willing  to  teach  this  science,  but  only 
its  results.  The  inevitable  danger  which  appears  to  accompany  this 
method  of  teaching  is  that  of  developing  a  mechanical,  superficial  in- 
struction in  abstract  maxims,  instead  of  a  genuine  intellectual  probing 
of  the  subject-matter  of  the  law,  fulfilling  the  requirements  of  a 
science." 

Turning  to  the  case  method  Professor  Redlich  comments  as  follows : 
"It  emphasizes  the  scientific  character  of  legal  thought;  it  goes  now 
a  step  further,  however,  and  demands  that  law,  just  because  it  is  a 
science,  must  also  be  taught  scientifically.  From  this  point  of  view  it 
very  properly  rejects  the  elementary  school  type  of  existing  legal  edu- 
cation as  inadequate  to  develop  the  specific  legal  mode  of  thinking,  as 
inadequate  to  make  the  basis,  the  logical  foundation,  of  the  separate 
legal  principles  really  intelligible  to  the  students.  Consequently,  as  the 
method  was  developed,  it  laid  the  main  emphasis  upon  precisely  that 
aspect  of  the  training  which  the  older  text-book  school  entirely  neg- 
lected— the  training  of  the  student  in  intellectual  independence,  in  in- 
dividual thinking,  in  digging  out  the  principles  through  penetrating 
analysis  of  the  material  found  within  separate  cases ;  material  which 
contains,  all  mixed  in  with  one  another,  both  the  facts,  as  life  creates 
them,  which  generate  the  law,  and  at  the  same  time  rules  of  the  law 
itself,  component  parts  of  the  general  system.  In  the  fact  that,  as  has 
been  said  before,  it  has  actually  accomplished  this  purpose,  lies  the 
great  success  of  the  case  method.  For  it  really  teaches  the  pupil  to 
think  in  the  way  that  any  practical  lawyer — whether  dealing  with  writ- 
ten or  with  unwritten  law — ought  to  and  has  to  think.  It  prepares  the 
student  in  precisely  the  way  which,  in  a  country  of  case  law,  leads  to 
full  powers  of  legal  understanding  and  legal  acumen ;  that  is  to  say, 
by  making  the  law  pupil  familiar  with  the  law  through  incessant  prac- 
tice in  the  analysis  of  law  cases,  where  the  concepts,  principles,  and 
rules  of  Anglo-American  law  are  recorded,  not  as  dry  abstractions,  but 
as  cardinal  realities  in  the  inexhaustibly  rich,  ceaselessly  fluctuating, 
social  and  economic  life  of  man.  Thus  in  the  modern  American  law 
school  professional  practice  is  preceded  by  a  genuine  course  of  study, 
the  methods  of  which  are  perfectly  adapted  to  the  nature  of  the  com- 
mon law." 


PREFACE 


The  general  purpose  and  scope  of  this  series  were  clearly  stated  in 
the  original  announcement : 

"The  General  Editor  takes  pleasure  in  announcing  a  series  of  schol- 
arly casebooks,  prepared  with  special  reference  to  the  needs  and  limi- 
tations of  the  classroom,  on  the  fundamental  subjects  of  legal  educa- 
tion, which,  through  a  judicious  rearrangement  of  emphasis,  shall  pro- 
vide adequate  training  combined  with  a  thorough  knowledge  of  the 
general  principles  of  the  subject.  The  collection  will  develop  the  law 
historically  and  scientifically;  English  cases  will  give  the  origin  and 
development  of  the  law  in  England ;  American  cases  will  trace  its  ex- 
pansion and  modification  in  America ;  notes  and  annotations  will  sug- 
gest phases  omitted  in  the  printed  case.  Cumulative  references  will  be 
avoided,  for  the  footnote  may  not  hope  to  rival  the  digest.  The  law 
will  thus  be  presented  as  an  organic  growth,  and  "the  necessary  con- 
nection between  the  past  and  the  present  will  be  obvious. 

"The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. *  *  *  If  it  be  granted  that  all,  or  nearly  all,  the  studies  re- 
quired for  admission  to  the  bar  should  be  studied  in  course  by  every 
student — and  the  soundness  of  this  contention  can  hardly  be  seriously 
doubted— it  follows  necessarily  that  the  preparation  and  publication  of 
collections  of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine 
and  by  no  means  unimportant  service  to  the  cause  of  legal  education. 
And  this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief.     *     *     * 

"The  following  subjects  are  deemed  essential  in  that  a  knowledge  of 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  universally  required  for  admission  to  the  bar : 

Administrative  Law.  Evidence. 

Agency.  Insurance. 

Bills  and  Notes.  International  Law. 

Carriers.  Jurisprudence. 

Contracts.  Mortgages. 

Corporations.  Partnership. 

Constitutional  Law.  Personal  Property. 


Criminal  Law.  Real  Property.  f  Jf  Ye"' 
Criminal  Procedure.  [  3d 

Common-Law  Pleading.  Public  Corporations. 

Conflict  of  Laws.  Quasi  Contracts. 

Code  Pleading.  Sales. 

Damages.  Suretyship. 

Domestic  Relations.  Torts. 


Equity 


Trusts. 


Equity  Pleading.  Wills  and  Administration. 


VI  PREFACE 

"International  Law  is  included  in  the  list  of  essentials  from  its  in- 
trinsic importance  in  our  system  of  law.  As  its  principles  are  simple 
in  comparison  with  municipal  law,  as  their  application  is  less  technical, 
and  as  the  cases  are  generally  interesting,  it  is  thought  that  the  book 
may  be  larger  than  otherwise  would  be  the  case. 

"As  an  introduction  to  the  series  a  book  of  Selections  on  General 
Jurisprudence  of  about  500  pages  is  deemed  essential  to  completeness. 

"The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  classroom  and  the  needs  of  the  students  will  furnish 
a  sound  basis  of  selection." 

Since  this  announcement  of  the  Series  was  first  made  there  have 
been  published,  or  put  in  press,  books  on  the  following  subjects: 

Administrative  Laic.  By  Ernst  Freund,  Professor  of  Law,  Univer- 
sity of  Chicago. 

Agency.  By  Edwin  C.  Goddard,  Professor  of  Law,  University  of 
Michigan. 

Bills  and  Xotcs.  By  Howard  L.  Smith,  Professor  of  Law,  Univer- 
sity of  Wisconsin,  and  William  U.  Moore,  Professor  of  Law, 
University  of  Chicago. 

Carriers.  By  Frederick  Green,  Professor  of  Law,  University  of  Ill- 
inois. 

Conflict  of  Lazes.  By  Ernest  G.  Lorenzen,  Professor  of  Law,  Uni- 
versity of  Minnesota. 

Constitutional  Law.  By  James  Parker  Hall,  Dean  of  the  Lniversity 
of  Chicago  Law  School. 

Corporations.  By  Harry  S.  Richards,  Dean  of  the  University  of  Wis- 
consin Law  School. 

Criminal  Laic.  By  William  E.  Mikell,  Dean  of  the  University  of 
Pennsylvania  Law  School. 

Criminal  Procedure.  By  William  E.  Mikell,  Dean  of  the  Lniversity 
of  Pennsylvania  Law  School. 

Damages.  By  Floyd  R.  Mechem,  Professor  of  Law.  Chicago  Univer- 
sity, and  Barry  Gilbert,  Professor  of  Law,  Lniversity  of  Cali- 
fornia. 

Equity.  By  George  H.  Boke,  Professor  of  Law,  L'niversity  of  Cali- 
fornia. 

Insurance.  By  W.  R.  Vance,  Dean  of  the  University  of  Minnesota 
Law  School. 

Partnership.  By  Eugene  A.  Gilmore,  Professor  of  Law,  University  of 
Wisconsin. 

Persons  (including  Marriage  and  Divorce).  By  Albert  M.  Kales,  Pro- 
fessor of  Law,  Northwestern  University,  and  Chester  G.  Vernier, 
Professor  of  Law,  University  of  Illinois. 


PRKFACE  Vll 

Pleading  (Common  Late).     By  Clarke  B.  Whittier,  Professor  of  Law, 

Stanford  University. 
Sales.     By  Frederic  C.  Woodward,  Dean  of  Stanford  University  Law 

School. 
Suretyship.     By  Crawford  D.  Hening,  Professor  of  Law,  University 

of  Pennsylvania. 
Torts.     By  Charles   M.   Hepburn,   Professor  of   Law,  University  of 

Indiana. 
Trusts.     By  Thaddeus  D.  Kenneson,  Professor  of  Law,  University  of 

New  York. 
Wills  and  Administration.     By  George  P.  Costigan,  Jr.,  Professor  of 

Law,  Northwestern  University. 

It  is  earnestly  hoped  and  believed  that  the  books  thus  far  published 
in  this  series,  with  the  sincere  purpose  of  furthering  scientific  training 
in  the  law,  have  not  been  without  their  influence  in  bringing  about  a 
fuller  understanding  and  a  wider  use  of  the  case  method. 

The  following  well-known  teachers  of  law  are  at  present  actively 
engaged  in  the  preparation  of  casebooks  on  the  subjects  indicated  be- 
low : 

Frank  Irvine,   Dean,  Cornell  LTniversity  Law   School.     Subject,  Evi- 
dence. 

Charles   Thaddeus    Terry,   Professor   of   Law,   Columbia   University. 
Subject,  Contracts. 

James  Brown  Scott,  Professor  of  International  Law,  Johns  Hopkins 
University.     Subject,  International  Lazv. 

Edward   S.    Thurston,   Professor  of   Law,   University  of   Minnesota. 
Subject,  Quasi  Contracts. 

Henry  Wade  Rogers,  Dean,  Yale  Law  School.     Subject,  Public  Cor- 
porations. 

Albert  M.  Kales,  Professor  of  Law,  Northwestern  University.     Sub- 
ject, Property. 

Harry  A.  Bigelow,  Professor  of  Law,  University  of  Chicago.     Subject, 
Property. 

Ralph  W.  Aigler,  Professor  of  Law,  University  of  Michigan.    Subject, 
Property. 

William  R.  Vance;, 

General  Editor. 
Minneapolis,  July,  1915. 


INTRODUCTION 


A  book  must  speak  for  itself,  and  any  comment  of  its  author  can  as- 
sist it  but  little.  In  the  preparation  of  this  collection  of  cases  the 
author  has  taken  the  primal  question  to  be :  How  can  the  student's 
mind  be  brought  to  function  according  to  the  nature  of  equity?  There 
is,  behind  the  principles  that  we  call  equitable,  a  place  in  the  mind 
from  which  arises  all  equity.  It  is  a  way  of  seeing  these  specific  forms 
of  legal  problems.  It  is  the  life  itself  of  those  forms  and  those  prin- 
ciples. It  may  be  called  the  spirit  of  equity.  That  it  is  approached 
through  an  observation  and  understanding  of  the  forms  and  princi- 
ples of  the  past  is  immaterial.  Equity  is  ever  new.  It  must  be  living 
law,  which  is  the  only  law.  The  student  must  catch  the  fire  of  its 
flame. 

To  this  primary  viewpoint  these  cases  are  to  respond.  A  case  of 
an  inferior  court  or  a  bad  decision  is  frequently  a  better  way  to 
bring  the  mind  to  its  proper  attrition,  under  the  safe  guidance  of  the 
instructor,  than  the  well-reasoned  and  more  perfected  case.  Each  has 
its  place.  One  case  is  needed  as  a  mere  problem;  another,  to  lead 
the  way  into  the  true  view  of  the  law. 

In  the  conflict  of  views  as  to  the  proper  form  of  notes  and  cited 
cases,  the  author  has  followed  that  view,  which — at  least  in  a  subject 
so  well  settled  as  are  the  leading  principles  of  equity — seems  to  him 
to  accord  best  with  the  art  of  the  teacher.  That  view  is,  not  to  put 
into  the  student's  hand  the  key  to  his  cases  from  the  notes,  nor  to 
attempt  to  make  a  treatise  or  collection  of  authorities  in  note  form. 
The  instructor  knows  his  equity,  and  it  can  be  safely  left  to  him  to 
work  out  the  ultimate  statements  of  the  principles. 

The  experience  of  the  author  as  a  teacher  has  led  him  to  believe 
there  is  danger  in  going  too  quickly  to  new  points  in  opening  up  a 
virgin  field.  For  that  reason  an  elaborated  and  intensive  treatment 
has  been  given  to  the  fore  part  of  the  subject,  not  considered  necessary 
after  some  degree  of  equitable  equilibrium  has  been  established. 

The  practical  utility  that  may  be  had  from  section  1  of  the  first 
chapter — on  the  basis  of  equity — will  depend  upon  the  manner  of  its 
use.  It  is  believed  that  the  instructor  can  find  it  an  invaluable  way 
of  bringing  the  student  home  to  the  fundamental  conception  of  eq- 
uity as  a  totality.  It  may  be  best  to  use  section  1  at  the  close  of  chap- 
ter 1,  rather  than  at  the  beginning,  after  some  slight  concreteness  from 
actual  cases  gives  the  student  a  place  to  stand. 

The  author  desires  to  acknowledge  his  great  personal  indebtedness 
to  his  former  instructor  in  equity,  the  late  Dean  Ames,  whose  teach- 
ing ever  pointed  the  way  to  a  true  understanding  of  the  law. 

Acknowledgment  is  made  to  the  courtesy  of  the  Banks  Publishing 
Company  of  New  York  City,  publishers  of  Bispham's  Principles  of 
Equity,  in  allowing  extended  excerpts  to  be  used  from  that  text. 

(ix)* 


TABLE  OF  CONTENTS 


CHAPTER  I 

Basis  of  Equity  Jurisdiction 
Section  ^age 

1.  Rise  of  Equity   Jurisdiction 1 

2.  Development  of  Equity  Jurisdiction 18 

3.  Grounds  of  Equitable   Relief 27 

4.  Extent  and  Limitation  of  Equity  Jurisdiction  through  its  Mode  of 

Operation     47 

CHAPTER  II 
Specific  Performance  of  Contracts 

1.  Contracts  Subject  to  Specific  Performance 91 

I.  Positive    Contracts i 91 

(A)  Grounds  of  Equity   Jurisdiction    91 

(B)  Equity  Jurisdiction  from  Nature  of  the  Contract— Sub- 

ject-Matter         97 

(C)  Other  Elements  Influencing  Equity  Jurisdiction 126 

II.  Negative    Contracts 173 

(A)     General  Nature  of  Negative  Contracts 173 

(a)     Trade    Contracts 1~:>> 

(B)'  Where  Agreement  is  Nonenforceable  against  Complain- 
ant   . . . 202 

(C)     Enforcement  of  Part  of  Defendant's  Contracts  Not  En- 
forceable as  a  Whole 213 

(a)  Indirect    Enforcement 213 

(b)  Subsidiary  or  Interdependent  Parts  as  Distin- 

guished from  Substantial  or  Equal  and  Inde- 
pendent Parts  of  Positive  and  Negative  Con- 
tracts      218 

(c)  Enforcement    of    Negative    Parts    of    Contract 

where  Affirmative  Part  is  Unenforceable,  with 
Particular  Reference  to  Contracts  for  Service  224 

2.  Equitable  View  of  the  Contract  Compared  with  the  Legal  "View.  . .   258 

I.     Consideration     258 

II.  Title  in  Land  Contracts 261 

III.  Certainty     267 

3.  Equitable  Interests  and  Burdens  of  Vendor  and  Purchaser  and  Their 

Representatives  Arising  from  the  Contract— So  Called  Conversion  270 

4.  Equitable  Interests  and  Burdens  of  Third  Persons  ruder  the  Contract  306 

5.  Equitable  Interests  and  Burdens  Arising  from  Restrictive  Agreements  311 

6.  Performance  in  Part  with  Compensation  for  Deficiency 350 

7.  The  Statute  of  Frauds  in  Equity— Oral  Contracts  Partly  Performed  371 

8.  Equitable  Defenses  to  Prima  Facie  Claim  to  Specific  Performance..  407 

I.     Delay  Causing  Loss  of  Equity's  Interposition 407 

(A)  Delay    in   Performance -107 

(B)  Delay    in    Bringing    Suit;     Laches;     Statute    of   Limi- 

tations       423 

II.     Lack    of    Mutuality 447 

Boke  Eq.  (xi) 


Xii  TABLE   OP   CONTENTS 

Section  Page 

III.     Inadequacy  of  Consideration 480 

IV.     Mistake    490 

V.     Misrepresentation  and  Fraud 527 

VI.     Concealment    551 

VII.     Hardship  583 

9.     Rights  of  Purchaser  for  Value  without  Notice 050 

CHAPTER  III 

Reformation,  Re-execution,  Rescission,  and  Cancellation 

1.  Reformation    and    Re-execution 074 

I.     Basis  and  Grounds  of  Equity  Jurisdiction <<74 

(A)  Mutual  Mistake  of  Fact,  Fraud  and  Mistake 674 

(B)  Mutual  Mistake  of  Law 715 

(C)  Admissibility    of   Parol    Evidence 735 

II.     Relation  of  Reformation  to  Statutory  Requirements 745 

(A)  Statute  of  Frauds 745 

(B)  Statute  of  Wills 763 

(C)  Statute  of  Limitations 767 

2.  Cancellation   and   Rescission 77-'! 

CHAPTER  IV 
Injunction  in  Relation  to  Torts 

1.  Nature   of    Injunction 79S 

2.  Waste    '841 

3.  Trespass     888 

4.  Nuisance     930 

5.  Disturbance    of   Easement 1007 

6.  Interference  with  Contract  and  Business  Relations 1024 

7.  Infringement  of  Trade  Rights;   Trade-Name,  Trade-Mark,  and  Trade 

Secret    1057 

8.  Violation  of  Common-Law  Rights  Relating  to  Literary  and  Similar 

Productions     1061 

9.  Invasion  of  So-Called  Right  of  Privacy 1094 

10.  Infringement  of   Statutory   Monopoly   Rights 1102 

11.  Libel    1119 

CHAPTER  V 
Bills  of  Peace 1137 

CHAPTER  VI 
Bills  Quia  Timet 1155 

CHAPTER  VII 
Interpleader    118S 

CHAPTER  VIII 
Bills  of  Account 1 209 

APPENDIX  I 
Position  of  Equity  in  the  Legal  System 1239 

APPENDIX  II 
Modern  Equity  in  Administrative  Tribunals 1243 


TABLE  OF  CASES 


[cases  cited  in  footnotes  are  indicated  by  italics] 


Page 

v.  White 593 

Aaron's  Reefs  v.  Twiss 541 

Abbey  v.  Gutteres 345 

Abernethy  v.  Hutchinson 1077 

Adderley  v.   Dixon 117 

Albro  v.  Gowland 6S3 

Aleck  v.  Jackson 119S 

Allen  v.  Elder  &  Son 718 

Alley  v.  Deschamps 426 

Almy   v.  Daniels 1221 

Altinan  v.  Royal  Aqua  Hum  Soc .  174 
American  Malting  Co.  v.  Keitel.  .  .1130 
American  Malting  Co.  v.  Keitel..     20 

Amsterdam  v.  Chicago 9S3 

Andrews  v.  Kingsbury 184 

Anonymous 1,  119,  S41,  1190 

Arlington    Heights    Fruit    Co.    v. 

Southern  Pac.  Co. 813 

Ashton  v.  Corrigan 141 

Atchison  v.  Peterson 973 

Atchison,  T.  &  S.  F.  R.  Co.  v.  Fos- 
ter Lumber  Co 1250 

Atherton   v.    Roche 729 

Atkinson   v.    John   E>.   Dohertv    & 

Co 1090 

Atlanta,  K.  &  N.  R.  Co.  v.  McKin- 

ney     339 

Attorney  General  v.  United  King- 
dom Electric  Tel.  Co 1000 

Attorney  General  v.  Wilkins 656 

Avery  v.  Griffin 458 

Bade  v.  Stacey 1015 

Baden  (Countess)  v.  Pembroke.  . .  270 

Baldridge    v.    Centgraf 386 

Ball  v.  Goggs 46 

Barkley    v.    Hibernia    Savings    & 

Loan    Soc 796 

Barnard  v.  Lee 407 

Barney    v.    Everard 325 

Bamum  v.  Randall 231 

Beardsley  v.  Duntley 760 

Bcauchamp   v.    Winn 677,   719 

Beech  Creek  R.  Co.  v.  Olanta  Coal 

Min.    Co 815 

Benson  v.  Benson 300 

Bernard     v.    Willamette     Box    & 

Lumber  Co 945 

Bernard   Edward  De   Reco,   Peti- 
tion   of 4 


Page 

Berney  v.  Pitt 585 

Berry,  Demonille  &  Co.  v.  Sowell  701 

Best   v.   Stamford 271 

Betts    v.    Gunn 6S7 

Bingham   v.    Bingham 716 

Birmingham.    Dudley    &    District 

Banking  Co.  v.  Boss 1015 

Bishop   v.  Moorman 1156 

Bissell  v.  Kellogg 1175 

Blake  v.  Flaharty " 103 

Blakemore  v.  Glamorganshire  Ca- 
nal Navigation S19 

Bliss    v.    Anaconda    Copper   M in. 

Co • 973 

Bolingbroke's  (Lord)  Case 356 

Bond  v.  Hopkins 15 

Bonnard  v.  Perryman 1123 

Bosley  v.  McLaughlin 1052 

Boston    Diatite    Co.    v.    Florence 

Mfg.    Co 1121 

Boston  &  M.  R.  R.  v.   Sullivan.  .  920 

Bower  v.  Cooper 4S2 

Braine    v.    Hunt 1190 

Brandlyn  v.   Ord 666 

Breen   v.    Donnelly 767 

Britain  v.  Rossiter 403 

Brooke  (Lord)  v.  Rounthwaite. .  •  536 

Brown,  Petition  of 4 

Brown  v.  Fagan 707 

Brown  v.  Reichling    413 

Brown  v.  Smith   105,  548 

Brown  v.  Smith     550 

Brown  &  Sons  v.  Boston  &  M.  R. 

R 132 

Browne  v.  Coppinger 604 

Brims  v.  Huseman 380,  3S9 

Buckhout  v.  Witicer 168 

Buckmaster  v.   Harrop 284 

Buford's  Heirs  v.  McKee 260 

B urges  v.  Lamb 862 

Burgess  v.  Triebert 119 

Burnell  v.  Brown 354 

Burns  v.  Casken 725 

Butler    v.    Galletti 232 

Buxton    v.    Lister 31 

Buxton  v.  Lister  and  Cooper....  539 
Byrne   v.   Jones 66 

Calcraft  v.  Thompson 1012 

Caldwell  v.  Baylis 847 


Boke  Eq. 


(xiii) 


XIV 


TABLE   OP   CASES 


Page 

Campbell  v.  Seaman 938 

Carlisle,  Corporation  of,  v.  Wil- 
son      1212 

Carskaddon  v.   Kennedy 451 

Carteret    v.    Petty 56 

Cary-Elwes'  Contract,   In  re 149 

( Jhambers  v.   Cramer 913 

Champion    v.    Brown ;.   277 

Chapman  v.  Scott 819 

( Jhapman  v.  Toy  Long 920 

( 'lieale  v.  Kenward 113 

Ghristensen    v.   Hollingsivorth. .. .   697 

Chute  v.  Quincy '. .   510 

City  of  Hutchinson  v.  Beckham.  .1152 
City    of   Lee's    Summit   v.   Jewel 

Tea    Co 837 

City  of  London  v.  Nash 142 

City  of  Madison  v.  Madison  das  & 

Electric    Co S24 

City  of  Mansfield   v.   Humphreys 

Mfg.    Co 820 

City  of  Pittsburgh  v.  Van  Essen.  .   805 

Clapham    v.    Sh  illito 109 

Clark  v.  Rosario  Min.  &  Mill.  Co.  131 

Clayton  v.  Newberry 269 

Clifford      (Lady)      v.      Burlington 

(Earl)     675 

Close  v.  Wheaton 51 

Coast   r.    McCaffery 737 

Coles  v.  Feeney 280 

Colgate  v.  Janies  T.  White  &  Co.  S09 

Collart  v.  Fisk H75 

Collett    v.    Prazier 770 

Columbia  College  of  Music  and 
School  of  Dramatic  Ait  v.  Tun- 
berg  196 

Columbus  &  Xenia  R.  Co.  v.  Ohio 

Southern    />'.    Co 4S5 

Commonwealth  v.  McGovern 947 

Commonwealth  of  Pennsylvania  v. 

East    Washington 957 

Conaway   v.    Gore 747 

Cooke   v.   Chilcott 336 

Cooper   v.    Jarman 290 

Copple    v.    Aigeltinger 474,    476 

Corliss   v.    E.   W.   Walker  Co 1087 

Corporation  of  Carlisle  v.  Wilson  1212 

Coulson   v.    White 888 

( 'ourthope  v.  Mapplesden S4I 

Courtright   v.    <  'oiirtright 682 

<  lowper  v.  Cowper  (Earl) ±3 

C>,ir per  r.   Laidler «)T4 

Cox    v.   Douglass 906 

Cox    v.   Middleton 532 

Crawshay    v.    Thornton 1190 

Cross   v.   Mayo 417 

Crowe   v.    Lewin us 

Crowe  v.  Wilson 881 

Cud   v.    Rutter 1 1 1_* 

Curre   v.   Bowyer 292 


Pa  Re 

Dalby  v.  Ma.rfield 389 

Dalton  v.  ATanderveer 18 

Dalton  Adding  Mach.  Co  v.  State 

Corp.    Commission 826 

Dameron  v.  Rowland  Lumber  Co.  705 

Daniel  v.   Grumpier :'»94 

Danielson   v.    Neal 681 

Darbey   v.    Whi taker 125 

Daubenspock  v.  Grear. . . : 894 

Davids    Co.    v.    David* 1068 

Da  vies   v.    Seattle K 129 

Davis    v.    Hone 429 

Davis    v.  -/ones :;;;<; 

Day  Land  &  Cattle  Co.  v.  State..  1180 

Debs'    Case ' 973 

Dennett  v.  Dennett 869 

De  Reco,  Petition  of 4 

Detroit  v.  Martin 1165 

De  Wilton  (Lord)  v.  Saxon 842 

De    York,    Petition    of 3 

Diffenderffer  v.  Knoehe 513 

Dinwiddle  v.  Bailey 1209 

Dinwiddie    v.    Self 731 

Doherty  v.  Allman S48 

Dominion    Coal   Co.   v.   Dominion 

Iron  d  Steel  Co 130 

Dorn  v.  Fox TJ!  > 4 

Douglass  v.  Wiggin 842 

Downey  v.   Seib 263 

Dowson  v.   Solomon 596 

Drewe  v.   Hanson ">57 

Drummond  v.   Altemus 1089 

Dudley  (Lord)  v.  Dudley  (Lady)..       7 

Duff  v.  Fisher 10? 

Dumont  v.  Fry 35,  114 

Dunker  v.  Field  &  Tule  Club 913 

Dupre  v.   Thompson 717 

Durell  v.   Pritehard 1007 

Duvall  v.   Simpson 7tJ9 

Eaton    v.    Wilkins 268 

Ebert  v.  Arends 368 

Edison  v.   Edison  Polyform    Mfg. 

Co 1005 

Edwards  v.  West 288 

Ehrman   v.    Bartholomew 214 

Elder    v.     Elder 739 

Eldridge  v.  Hill  &  Murray IKis 

Eliot  v.   Circle  Pub.  Co 1101 

Eliot    v.    Jones 1  HH 

Ellison    v.    Moffatt 4:!4 

Emerzian    v.    Asato 97 

Fmir.zian   r.    Asato 166 

Equitable     Life     As.sur.     Soe.     v. 

Brennan   316 

Erkens  v.  Nicolin 520 

Erwin   v.   Parham 483 

Escambia       County      v.       Blount 

Const.    Co 1223 


TABLE   OF   CASES 


XV 


Page 

Faloke  v.  Gray 91,  579 

Falrhe    V.    (inn/ 481 

Fells  v.   Read 27 

Felton    v.    Justice 902 

Fessler  v.  Union 990 

Fielden  v.  Cox S88 

Fister  r.  Kutztown   Borough....     17 

Fitzgerald  v.   Burl: 666 

Fitzpatriek  v.  Dorland 615 

Fletcher    v.    Ash-burner 271 

Flight  v.  Holland 448 

Fond  Du  Lac  Lund  Co.  v.  M< 

John  780 

Fortcsruc  r.  Bowler 884 

Fonts  v.  Roof 396 

Fowle   v.   Lawrason 1219 

Fowle  v.   Lawrason 1231 

Frame  v.  I  >awson 389 

Frazier  v.  Broadnax 306 

Freeman  v.   Miller 1226 

Freeman    v.    Fnited    States    Talc 

Co 886 

Frohman  v.  Ferris 1104 

Frue   v.    Houghton 42 

Fuller   v.    Percival 11S0 

Gannon    v.    Peterson S54 

Gardner  v    Trustees  of  Village  of 

Newburgh    934 

Garr   v.   Redman 1222 

Gartrell  v.   Stafford 94 

Gee  v.  Pitehard 15 

Gee    v.    Pritchard 1075 

George  Hanger  v.  Eyles 354 

George  Jonas  Glass.  Co.   v.   Glass 

P>ottle  Blowers'   Ass'n 1025 

Gilbert  v.  California  Portland  Ce- 
ment   Co 964 

Gillespie  v.   Moon 744 

Goding  v.  Bangor  &  A.  R.  Co 644 

Goldslu-ough,  Mort  &  Co.  v.  Quinn  515 
Gompers  v.  Buck's  Stove  «&  Range 

Co 831 

Goodwin  Gas-Stove  &  Meter  Co., 

Appeal    of 114 

Gottschalk    v.    Stein 44 

Graham  v.  Dahlonega  Gold  Min. 

Co 1142 

Grand  Rapids.  G.  H.  &  M.  R.  Co. 

v.    Stevens 549 

Green    v.    Piper 827 

Grey  v.  Tubbs 416 

Grey   Pe  Wilton  (Lord)   v.   Saxon  842 

Griffin,   v.    Coleman 267 

Gross  Const.  Co.  v.  Hales 722 

Grothlich  v.   Klein  &,  Conn 938 

Guess  v.  Stone  Mountain  Granite 

&  R.  Co 1145 

Guest    v.    Homfray 42.'! 

Haile  v.  Lillingstone 1024 


Page 

Hale  v.    Wilkinson 638 

Hall    v.    Ewin oil 

Hall  v.   Hardy 366 

Hall   v.    Rood 923 

Hall  v.    Warren 83 

Halliwell    v.    Phillips 861 

Hamilton  St.  R.  Co.  v.  Hamilton  159 

Hamlin   v.    Stevens 646 

Hampton,    Petition    of 3 

Hanger  v.   Eyles 354 

Hanson  v.  Gardiner 70S 

Hardingham    v.    Nicholls 666 

Hare  &   O'More's  Contract.   In   r« 
Harlow  v.   Oregonian   Pub.    Co...  206 
Harris  v.  Boots,  Cash  Chemists..   178 

Harrison   v.    Forth 666 

Harrison  v.  Jameson 725 

Hart   v.    Brown 629 

Ilatton  v.  Cray 449 

Hatton  v.   Gran 449 

Haughwout  &  Pomeroy  v.  Murphy  295 

Hawkins    v.    Pearson 714 

Hayes    v.    Stiger 517 

Haywood  v.  Brunswick  Perma- 
nent Ben.  Bldg.  Soc 335 

Haywood   v.    Cope 551,  020 

Haywood  v.  Cope 15 

I  lea  rue    v.    Tenant 428 

Heckman's  Estate.  In  re 421 

Helling   v.   Lumley 593 

Hemings    v.    Pugh 1216 

Henderson  v.  Henfie 398 

Hennessy  v.  Carmony 976 

Hermann    v.    Hodges 119 

Hetfield  v.  Willey 573 

Higgins  v.  Samels 533 

Hill  v.  Bowie 868 

Hill  v.   Buckley 350 

Hipgrave   Case 159 

Hirsch  v.  Military-Naval  Corp..  .  .1199 

Hodge  v.   Giese 1020 

Hollenbeck  v.  St.  Mark's  Luther- 
an Church 817 

Holmes'   Appeal 531 

Holt  v.  Holt 690 

Home  &  Colonial  Stores  v.  Colls.  .1015 

Hope  v.  Walter 614 

How  v.  Tenants  of  Bromsgrove.  .  .1137 

Howt  11    v.   George 366 

Hulbert    v.     California     Portland 

Cement   Co 964 

Hunt  v.  White 765 

Hunter  v.    Seton 430 

Indianapolis  Northern  Traction 
Co.   v.   Essington 147 

Inhabitants  of  Cranford  Tp.  v. 
Watters    1233 

Innes  v.  Mitchell 57 

Innes  v.  Mitchell 60 


XVI 


TABLE   OF   CASES 


Page 

Interstate  Commerce  Commission 
v.  Illinois  Cent  R.  Co 124S 

Interstate  Commerce  Commission 
v.  Southern  Pac.  Co 810 

Interstate  Commerce  Commission 
v.  United  States  ex  rel.  Hum- 
boldt S.  S.  Co 1247 

Iron  Aire  Pub.  Co.  v.  Western 
Union  Tel.  Co 465 

Iron  Age  Pub.  Co.  v.  Western 
Union  Tel.  Co 25? 

Jackson  v.  Normanby  Brick  Co...   S18 

Jack. son    v.    Torrence 17 

Jamaica  Sav.  Bank  v.  Tayler...  737 
James   Jones   &   Sons   v.  Tanker- 

ville    (Earl) <. 194 

Jared  v.  Clements 670 

J.  B.  Brown  &  Sons  v.  Boston  & 

M.  R.  R 132 

Jerrard  v.  Saunders 654 

Jesus   College  v.   Bloom 863 

John  Hampton,  Petition  of 3 

Johnson  v.  Bragge 74(.) 

Johnston  v.  Blanchard 185 

Jonas  Glass    Co.   v.   Glass   Bottle 

Blowers'  Ass'n 1025 

Jones  v.  Chappell    843 

Jones  v.  Evans    367 

Jones  v.  Bobbins    410 

Jones  v.  Stewart    ', 563 

Jones  &  Sons  v.  Tankerville  (Karl)  194 

Joyner  v.  Crisp 150 

Joynes  v.  Statham 745 

Karno  v.  Pa  the  Ereres,  London..  1061 

Keinble    v.    Kean 227 

Eemble  v.  Kean 174 

Kendall  v.  Alma 268 

Kenney  v.  Wexham 4(J4 

Kettlewell  v.    Watson 667 

Keupler   v.   Eisele 1200 

Kien   v.    Stukeley 583 

Kiinber    v.    Barber 556 

Kimberley   v.    Jennings 224 

Kimberley  v.   Jennings 606 

Kimbrough  v.  Curtis 309 

K'nnsey  v.  Posey 300 

King  v.  Rossett 1217 

Kirby  v.  Railroad  Co 1231 

Kirchner  &  Co.  v.  Gruban.  .  .249,  1059 

Knight  V.   Cohen S09 

Kronmeyer  v.  Buck 783 

Kryptok  Co.  v.  Stead  Lens  Co 1112 

Lacy  v.  Heuck 191 

Ladd  v.  Pleasants 689 

Lamb    v.    Hinman 387 

Lane  v.  Newdigate 213 

Langdon  v.   Sherwood 84 


Page 
Lansdowne     (Marquis)     v.     Lans- 

downe    (Marchioness    Dowager)  865 

Larkins  v.  Biddle 720 

Lassence  v.  Tierney 371 

La  wes    v.    Bennett 286 

Lawrenson   v.   Butler 449 

Lear  v.  Chouteau 468 

Leather    Cloth    Co.    v.    American 

Leather  Cloth  Co 1057 

Lechmere  v.  Carlisle  (Earl) 27."> 

Lee  v.  Alston S63 

Lee  v.  Chicago  League  Ball  Club  458 

Lee  v.  Washburn 1224 

Leslie    v.    O'Neil 735 

Leslie   v.   Tompson 499 

Lester  v.  Foxcrof t 376 

Lewis  v.  Bond 603 

Lewis  v.  Lechmere  (Lord)  423.  447.  480 
Lindsay  &  Co.  v.  Montana  E'eder- 

ation    of   Labor 1031 

Lippincott  v.   Barton 867 

Livesley   v.   Heise 110 

Livingston  v.  Livingston 891 

Livingston  v.  Peru  Iron  Co. ..570.  774 

Loner gan  v.  Daily 269 

Lone  Star  Salt  Co.  v.  Texas  Short 

Line  R.  Co 137 

Lonsdale  Co.  v.  Woonsocket 1139 

Los  Angeles  &  Bakersfield   Oil  & 

Development  Co.  of  Arizona   v. 

Occidental  Oil  Co 124 

Louisville  It.  Co.  v.  Kellner-Dehler 

Fealty  Co 17 

Lowndes   v.    Bettle 873 

Luinbert    v.     Hill 726 

Luinley    v.    Wagner 233 

McCaull  v.  Braham 253 

Macclesfield  (Earl)   v.   Davis 33 

Mackreth    v.    Symmons 658 

McManus  v.  Boston 559 

McPherson  v.  Kissee 578 

Macy   v.    Nantucket 120:: 

Mander  v.  Ealcke 324 

Mann   v.    Stephens 311 

Manners  (Lord)  v.  Johnson .  i. .  160,  315 
Mansell   v.   Valley  Printing  Co... 1091 

Manser  v.  Back 497 

Marble   Co.   v.    Ripley 136 

Margraf  v.  Muir 572 

Martin   v.  Graves 1155 

Martin  v.  Mitchell     365 

Martin  v.  Peile    365 

Mason  v.  Armitage 492 

Massie   v.   Watts 64 

Mastin  v.  Halley 456 

Matteson   v.    Scofield 82 

Matthes  v.   Wier 381 

Mayall  v.  Higbey 1086 

Mayor,  Aldermen,  and  Burgesses 
of    Wolverhampton   v.   Emmons  143 


TABLE   OP   CASES 


XVI 1 


Page 
Measures  Bros.  v.  Measures. ......  252 

Memphis  Keeley  Institute  v.  Les- 
lie R.  Keeley  Co »27 

Merchants'  Trading  Co.  v.  Banner  188 
Metropolitan  Electric   Supply  Co. 

v.  Cinder -J-™ 

Micklethwait  v.  Micklethwait 80S 

Miller  v.  Beardslee "°3 

Miller  &  Aldworth  v.  Sharp 391 

Mills  v.  McLanahan 445 

Milward  v.  Thanet  (Earl) 423 

MisenJieimer  v.  Alexander 114 

Moetzel  &  Muttera  v.  Koch 606 

Mollineux    v.    Powell 841 

Montgomery  Light  &  Power  Co.  v. 

Montgomery  Traction  Co 210 

Moore  v.   Blake 17,   435 

Moore  v.  Blake 43b 

Moore  v.   Small '■' ^ 

More  v.  Mayhow 665 

Moreland  v.  Atchison "92 

Morgan  v.   Dod 697 

Morley  v.  Clavering 618 

Morris  v.  Colman 226 

Morris  v.  Lessees  of  Lord  Berke- 
ley     

Moss  &  Raley  v.  Wren 

Moss  &  Raley  v.  Wren 

Mostyn  v.  Fabrigas 

Muller  v.  Lows 

Murdfeldt  v.  New  York,  W.  S.  & 

B.  R.  Co 604 

Murietta  v.  South  American,  etc. 


798 

166 

167 

60 

70 


Co. 


.1196 


Murphy  v.  Lincoln 901 

Murphy  v.  Rooney 6<o 

Murray  v.  Knapp .•  ■  807 

Mutual   Film   Corp.   v.   Industrial 

Commission  of  Ohio •  .1044 

Mutual  Reserve  Fund  Life  Ass'n 

v.  New  York  Life  Ins.  Co 239 

National  Tel.  News  Co.  v.  Western 

Union  Tel.  Co 10<0 

Neap  v.  Abbott f^O 

Neininger  v.   State <»* 

Nelson  v.  Gibe obS 

Newbery  v.  James 838 

New  England  Cement  Gun  Co.  v. 

McGivern   1°?2 

New  Fiction  Pub.  Co.  v.  Star  Co...  1115 
New  York  Juvenile  Guardian  Soc. 

v.    Roosevelt 1H9 

H.  &  H.  R.  Co.  v. 


New  York,  N. 

Long    !003 

Nichols  v.  Jones 

Nisbet  &  Potts'  Contract,  In  re 


Page 
Olivella  v.  New  York  &  H.  R.  Co.  900 

Olley   v.   Fisher 753 

Oppenheiruer  v.  Van  Raalte 1232 

Osborne  v.  Missouri  Pae.  R.  Co...  973 

Owen    v.    Da  vies 81 

Owens  v.  Carthage  &  W.  R.  Co..  .  145 
Oxford's    (Earl),    Case 8 

Pacific  Telephone  &  Telegraph  Co. 

v.    Eshleman 1244 

Paddock  v.  Davenport 95 

Paget    v.    Marshall 677 

Palmer  v.  Hartford  Fire  Ins.  Co.  708 

Palmer   v.    Young 878 

Park    &    Tollard    Co.    v.    Keller- 

strass    H2" 

Parker  v.  Shannon 1171 

Parker    v.     Winnipiseogee     Lake 

Cotton  &  Woolen  Co 973 

Pavesich    v.    New    England    Life 

Ins.    Co 1°®8 

Pawling    v.    Pawling. ., 378 

Peacock  v.  Penson 601 

Peale  v.  Marian  Coal  Co 127 

Peek  v.  Peek 400 

Peer  v.  Wadsworth i 885 

Peerless  Pattern  Co.  v.  Gauntlett 

Dry  Goods  Co 186 

Tegg  v.  Wisden 440 

Pegge    v.    Skynner 81 

Penn  v.  Baltimore  (Lord) 5«3 

People   v.   Davidson 994 

People  v.  Mould 996 

Peperno  v.  Harmiston 173 

Perkins   v.    Lyons ^94 

Perkins    v.    Perkins , ^>S4 

Perkins    v.    Wakeham 118- 

Perrot  v.   Perrot 857 

Pixley  v.   Huggins 11«W 

Poertner  v.  Russel 8<l 

Pollard  v.  Clayton l-b 

Pollard   v.   Greenvil ^4 

Pollard  v.  Photographic  Co 10S3 

Pollock  v.  Brook-over 479 

Pope-Turnbo  v.  Bedford 180 

Porter  v.  Frenchman's  Bay  &  Mt. 

Desert  Land  &  Water  Co 36 

Port  Royal  R.  Co.  v.  Hammond.  .     60 

Potter  v.  Potter 282 

Potter  v.  Sanders 6o0 

Powers  v.  Flansburg 9ol 

Powers'    Appeal 21 

Powys  v.  Blagrave 84b 

Preston  v.  Preston 918 

Pusey  v.  Desbouvrie 715 

Puse'y  v.  Pusey 27 


331 


O'Connor  v.    Spaight 1214 

Ogden   v.    Fossick 4 

Oldfield  v. 


Round 540 


Randolph   V.    Kinney 1131 

Randolph  v.   Tandy '      Tio 

Rayner  v.   Stone Ho 

Reco,  Petition  of 4 


Boke  Eq.— b 


SV111 


TABLE   OF  CASES 


Page 

Redgrave  v.    Hurd 580 

Redgrave  r.  Hurd 44,"} 

Reece  Folding  Mach.  Co.   v.   Karl 

&  Wilson 110s 

Reiehardt  v.  Sapte 1081 

Reinnian  v.  Little  Rock 985 

Renals  v.  Cowlishaw 316 

Revell  v.  Hussey 623 

Rhoades,  In  re ollt 

Rhoades  v.   Schwartz 152 

Rhodes    Bros.    Co.    v.    Musicians' 
Protective  Union,  Local  No.  198, 

A.  F.  of  M.,  of  Providence 1037 

Rich  v.  Jackson 758 

Richards,  Appeal  of 960 

Richards  v.  North  London  R.  Co.  502 

Rilevs  v.   Halifax 928 

Roake  v.  Kidd 261 

Roherson    v.     Rochester    Folding 

Box    Co 1094 

Robinson  v.  Baugh 936 

Roff ey  v.  Shallcross 350 

Rogers   Mfg.   Co.   v.    Rogers 199 

Rohde  v.  Heselden 157 

Rooke's    Case 10 

Rourke  v.    McLaughlin 74 

Routh    v.    Webster 10S0 

Rowe  v.  Hewitt 801 

Royal    Bristol    Permanent    Bldg. 

Soc.  v.  Bomash 359 

Royal  League  v.  Kavanagh 70 

Ruhling  v.  Hackett 694 

Ryan  v.  Mutual  Tontine  Westmin- 
ster Chambers  Ass"n 219 

St.  Louis  Life  Ins.  Co.  v.  Alliance 

Mut.   Life  Ins.  Co 1195 

Salisbury   (Earl)    v.  Cecil 1209 

Sanford  v.   Keer 346 

Scarborough    v.    Scotten 37 

Schroeder  v.  Gemeinder 471 

Scott  v.  Alvarez 10.  262 

Scott  v.   Menasha 1184 

Scott  v.  Onderdonk 1160 

Scott  v.  Rayment 21:7 

Seton  v.   Slade 430 

n<  ton  v.  Slade 27."> 

Severson  v.   Kock 781 

Sevin  v.  Deslandes 176 

Sharp  v.   Ropes 322 

Sharp  v.  Wakefield 16 

Sheffield  Waterworks  v.  Yeomans  1149 

Sherry    v.    Perkins 1 1  >28 

Shirey  v.  All  Night  &  Day  Bank .  .   168 

Shirley    v.    Stratton 553 

Shivers   v.    Shivers 1023 

Silbon  v.  Pacific  Brewing  &  Malt- 
ing   Co. 738 

Simmons  Creek  Coal  Go.  v.  Doran  7-":; 

simon    v.    Nance 800 

Sir  George  Hanger  v.  Eyles 354 


Page 
Smith  v.  Bank  of  New  England.  .1146 
Smith  v.  Flathead  River  Coal  Co.  117 

Smith    v.    Smith 836 

Smith  v.  Turner 386 

Sneve  v.  Schwartz 796 

Snook  v.  Snetzer 72 

Soltau  v.  De  Held 930 

Somerset  iDuke)  v.  Cookson 30 

South  African  Territories  v.  Wal- 

lington    122 

Southard  v.  Citric;/ 738 

Southern  Pac.  R.  Co.  v.  Allen.  .  .  .  43S 
Southern    R.    Co.    v.    Franklin    & 

P.  R.  Co 625 

South  Wales  R.  Co.  v.  Wythes...   218 

Sparks  v.   Pittman 7.">4 

Stallard    v.   Cashing 1019 

Stamper  v.   Miller 277 

Standard  Steel  Car  Co.  v.  Stamm  566 

Stanford    v.    Hurlstone 903 

Stantop  v.  Tattersall 773 

Starr  v.  Woodbury  Glass  Works. .  917 

State  v.  O'Leary    162 

State  v.  Olsen    803 

State  v.  Weide     301 

state  ex  rel.  Terminal  R.  Ass'n  of 

St.  Louis  v.  Tracy S37 

St ead  v.  Fortner 953 

Stockpridge   iron    Co.   r.    Hudson 

I  rent   Co 691 

Stocker  v.   Planet  Bldg.   Soc 916 

Stone  v.  Godfrey 523 

Stromme  v.  Rieck 154 

Sullivan     v.     Jones     &     LaughUn 

Steel    Co IS 

Sutphen  v.   Fowler 79 

Swedesboro     Loan      &      Building 

Ass'n  v.  Gans 789 

Talmash  v.  Mngleston 445 

Taylor   v.   Baker 655 

Taylor  v.  Neville     126 

Taylor  v.  Neville    46 

Teal  v.  Collins 1174 

Tenham  v.    Herbert 1137 

Tenham    (Lord)    v.    Herbert' 1138 

Texas  Co.  v.  Central  Fuel  Oil  Co. 

99,  133 
T<  xas  Co.  v.  Central  Fuel  Oil  Co.  166 
Thaddeus  Davids  Co.  v.  Davids-  .1068 
Third     Nat.     Bank     v.     Skillings, 
Whitnevs     &     Barnes     Lumber 

Co 1202 

Thomas  v.  <  Oakley 896 

Thomas  De  York,  Petition  of 3 

Thompson  v.   Etowah  Iron  Co. ...1166 

Tilh  ry  v.   Land 80 

Tillis    v.    Smith 692 

Tilton  V.   Titton 744 

Torrance  v.  Bolton 776 

Townseud    v.    Fentou 395 


TABLE   OF  CASES 


XIX 


Page 

Triebert  v.   Burgess 110 

Trinidad  Asphalte  Co.  v.  Coryat.  667 
Trustees  of  Columbia    Ooilege    v. 

Thacher    633 

Tulk   v.   Moxhay 313 

Tumlinson's      Adiu"r      v.      York's 

Adm'r    258 

Turley  v.  Nowell 637 

Turn  Verein  Eiehe  v.  Kiorika. .. .  439 

Tutbill  v.   Katz 700 

Twining  v.  Neil 525 

Tyler  v.  Beversham 676 

Uhlinan   v.    New   York   Life   Ins. 

Co 1227 

Usborne  v.  Usborne 887 

Vanderbilt    v.    Mitchell 785 

Van  Doren  v.  New  York 1170 

Vane  v.  Barnard  (Lord) 843 

Van  Praagh  v.  Everidge 505 

Vansant  v.  Rose 32S 

Waddingham   v.    Robledo 1139 

Wait  v.  Kern  River  Mining,  Mill- 
ing &  Developing  Co 87 

Waite  v.  O'Neil 609 

Waldron  v.   Marsh 894 

Walker   v.   Kelly 369 

Wall  v.  Meilke 770 

Wallace  v.  Chicago,   St.  P.,  M.  & 

O.  R.  Co 710 

Waller  v.  Village  of  River  Forest  825 

Walter  v.  Ashton 1126 

Walter  Brown,   Petition  of 4 

Walters    v.    Morgan 553 

Walton  v.   Coulson 455 

Waratah  Oil   Co.   v.   Reward   Oil 

Co 680 

Ward  v.  Spelts  &  Klosternian ....  712 

Washington  v.   Soria 393 

Waterbury  Savings  Bank  v.  Law- 

ler    1163 

Watson  v.  Marston 521 

Watson  v.  Sutherland 40 

Watt  v.  Evans 375 

Wehrman  v.  Conklin 1175 

Weidenbaum   v.   Raphael 304 

Welch's  Adm'r  v.  Welch 7.20 

Welton   v.   Tizzard 704 

Welty   v.   Jacobs 202 


Page 

Western  v.  Russell 450 

Western  New  York  &  Pennsylva- 
nia Traction  Co.  v.  Stillman...   811 
Western  Union  Tel.  Co.  v.  Penn- 
sylvania  Co 140 

Western  Wagon  &  Property  Co.  v. 

West    140 

West  Ham  Central  Charitv  Board 

v.  East  London  Waterworks  Co.  851 
West  Jersey  R.  Co.  v.  Thomas.  . . .   73S 

Wetherell  v.  Gorman 395 

Wetmore  v.  Bruce 265 

Wheelock   v.   Noonan 909 

Whitfield  v.   Bewit 862 

Whitney  v.  Port  Huron 1165 

WhittaJcer  v.  Hone 219 

Whittaker  v.   Whittaker 293 

Whitted  v.  Fuquay 576 

Whitwood  Chemical  Co.  v.  Hard- 
man   243 

Wigg  v.  Wigg 666 

Willan  v.  Willan 586 

Willard  v.  Tayloe 640 

William  by  the  Brook  v.  (Mies. .  .       3 
Wm.  Rogers  Mfg.  Co.  v.  Rogers..   199 

Williams  v.  Bolton  (Duke) 864 

Wilmarth  v.  Woodcock 940 

Wilton  (Lord)  v.  Saxon 842 

Wing  v.   Spaulding 1188 

Winslow   v.    White 453 

Wise  v.  Brooks 687 

Withy  v.  Cottle 453 

Wood  v.   Nicolson 1173 

Wood  v.   Scarth 494 

Wood  v.   White 766 

Woodhouse  v.  Newry    Navigation 

Co 924 

Woollam  v.  Hearn 755 

Woollums  v.  Horsley 560 

Worth  v.  Watts 485 

Wren  v.  Cooksey 479 

Wright    v.    Brooks 442 

Wykle  v.  Bartholomew 767 

Yates  v.  Cole 763 

York,  Petition  of 3 

Yorkshire  Miners'  Ass'n  v.   1  low- 
den    215 

Young  v.  Clerk 591 

Zeringue  v.  Texas  &  P.  R.  Co....  270 


CASES  ON  EQUITY 


CHAPTER  I 
BASIS  OF  EQUITY  JURISDICTION 


SECTION  1.     RISE  OF  EQUITY  JURISDICTION 


ANONYMOUS. 
(Tear  Book  4  Henry  VII,  Hilary  Term,  1489.    Plaeitum  8,  pages  4  and  5.H 

A  subpoena  in  Chancery  was  sued  for  this :  There  were  two  execu- 
tors, and  one  without  the  consent  of  his  companion  released  to  a  man 
who  was  indebted  to  their  testator ;  and  it  was  surmised  that  for  this 
cause  the  will  of  their  testator  could  not  be  performed,  and  a  sub- 
poena was  sued  against  the  executor,  who  released,  and  the  man  to 
whom  the  release  was  made,  etc. 

Fineux  said  that  this  was  not  remediable ;  for  each  executor  had 
entire  power  by  himself  (a  par  luy),  and  one  can  do  all  that  his  com- 
panion can  do,  and  so  the  release  made  by  him  is  good. 

Chancellor.  No  man  may  leave  the  Court  of  Chancery  without  a 
remedy,  and  it  is  against  reason  that  one  executor  should  have  all  the 
goods  and  make  a  release  alone. 

Fineux:  Sir,  if  no  one  may  leave  without  a  remedy,  then  no  one 
need  go  to  confession ;  but,  sir,  the  law  of  the  land  is  for  many  things, 
and  many  things  are  to  be  sued  here  which  are  not  remediable  at  com- 
mon law,2  and  a  considerable  number  are  in  conscience  between  a  man 
and  his  confessor,  and  so  is  this  thing,  etc. 

Chancellor.  To  make  a  remedy  for  such  a  thing  is  well  done  ac- 
cording to  conscience.3 

i  The  translation  is  taken  from  Bispharn,  Principles  of  Equity  (7th  Ed.)  note 
3,  page  11. 

-  "In  this  court  of  chancery  a  man  shall  not  be  prejudiced  by  his  misplead- 
ing, or  defect  of  form,  but  according  to  the  truth  of  the  matter;  for  the  de- 
cision should  be  made  according  to  conscience  and  not  according  to  the  rigour 
of  law."  Dyversyte  des  courtes  (Ed.  1534)  fol.  29G,  297.  Bro.  Abr.  tit.  Juris- 
diction.    Quoted  3  Bl.  Com.  446. 

s  See  the  discourse  on  conscience  in  "Doctor  and  Student"  (1518),  where 
the  learned  Doctor  is  thus  reported: 

"This  word  conscience,  which  in  Latin  is  called  conscientiu,  is  compounded 

Boke  Eq. — 1 


BASIS   OF   EQUITY  JURISDICTION  (Ch.  1 


THE  CHANCERY. 

(From  'The  Mirronr  of  Justices,"  presumedly  written  by  Andrew  Horn  of 

London  about  1290,  and  translated  from  the  French  by  William 

Hughes  of  Gray's  Inn  in  1646.     Robinson's  Edition, 

Washington,  1903,  pp.  291,  29S,  299,  300.) 

The  King  is  the  fountain  of  Justice     *     *     * 

And  note,  that  the  Court  of  Chancery  is  a  court  of  a  high  nature, 
*  *  *  and  in  that  court  a  man  shall  have  remedy  for  that  which  he 
can  have  no  remedy  at  the  common  law ;  and  it  is  called  by  the  common 
people  "the  Court  of  Conscience." 

And  therefore  see  of  matters  in  conscience,  how  the  party  shall  have 
remedy.  *  *  *  If  a  man  infeoffeth  another  of  certain  lands  to  his 
use,  and  the  feoffee  selleth  the  land  to  another,  if  he  giveth  notice  to 
the  vendee  at  the  time  of  the  sale  of  the  intent  of  the  first  feoffment, 
he  is  bounden  to  perform  the  will  of  the  first  feoffer,  as  it  seemeth  in 
the  Chancery.     *     *     * 

In  the  Court  of  Chancery  a  man  shall  not  be  prejudiced  by  misplead- 
ing, or  for  want  of  form,  but  according  to  the  truth  of  the  cause,  judg- 
ment ought  to  be  given  according  to  equity,  and  not  ex  rigore  juris. 
And  note  that  there  are  two  jurisdictions,  ordinary,  and  absolute ;  ordi- 
nary is  as  positive  law,  and  absolute  is  omnibus  modis  quibus  Veritas 
sciri  poterit. 

If  a  man  be  bounden  by  obligation  unto  two  men  unto  the  use  of  one 
of  them,  and  one  of  them,  viz.  is  he  to  whose  use  it  is  not,  releaseth 
to  the  obligor  all  actions,  so  as  the  obligation  is  discharged,  he  to  whose 
use  the  obligation  was  made  hath  good  remedy  in  Chancery  by  sub- 
poena against  his  companion  who  released  him,  but  against  the  obligor 
it  seemeth  he  hath  no  remedy,  for  every  man  is  bounden  to  help  him- 
self, and  it  is  lawful  to  get  a  discharge  of  that  which  he  is  charged 
withall,  and  in  danger  to  others.     *     *     * 

It  is  said,  that  the  Chancellor  of  England,  wheresoever  he  shall  be 
in  England,  hath  power  to  command  a  man  to  prison,  and  he  shall  not 
be  bailed. 

of  this  preposition  cum,  that  is  to  say  in  English  with;  and  of  this  noun 
scientia,  that  is  to  say  in  English,  knowledge:  and  so  conscience  is  as  much 
to  say  knowledge  of  one  thing  with  another  thing:  and  conscience  so  taken 
is  nothing  else  but  an  applying  of  any  science  or  knowledge  to  some  particular 
act  of  man.  And  so  conscience  may  sometime  err,  and  sometime  not  err.  And 
of  conscience  thus  taken,  doctors  make  many  descriptions.  Whereof  one  doc- 
tor saith,  that  conscience  is  the  law  of  our  understanding.  Another,  that  con- 
science is  an  habit  of  the  mind  discerning  between  good  and  evil.  Another, 
that  conscience  is  the  judgment  of  reason  judging  on  the  particular  acts  of 
man.  All  which  sayings  agree  in  one  effect,  that  is  to  say,  that  conscience 
is  an  actual  applying  of  any  cunning  of  knowledge  to  such  things  as  are  to 
be  done ;  whereupon  it  followeth,  that  upon  the  most  perfect  knowledge  of 
any  law  or  cunning,  and  of  the  most  perfect  and  most  true  applying  of  the 
same  to  any  particular  act  of  man.  followeth  the  most  perfect,  the  most  pure, 
and  the  most  liest  conscience.  And  if  there  be  default  in  knowing  of  the  truth 
of  such  a  law,  or  in  the  applying  of  the  same  to  particular  acts,  then  there- 


Sec.  1)  RISE   OF   EQUITY   JURISDICTION 


Petition  of  THOMAS  DE  YORK. 

(Before  the  King  and  the  Great  Council,  1337.    Select  Cases  in  Chancery, 

Case  134.) 

Petitioner  alchemist  was  imprisoned  in  house  and  made  to  sign  bonds 
for  200  marks,  and  then  imprisoned  in  Newgate  and  his  goods  detain- 
ed.    Relief  ordered. 


WILLIAM  BY  THE  BROOK  v.  GILES. 

(Petition  to  Edmund  de  Stafford,  Bishop  of  Exeter,  Chancellor  of  England, 
About  1394.     Select  Cases  in  Chancery,  Case  83.) 

To  the  most  gracious  Lord  and  most  reverend  Father  in  God,  the 
Bishop  of  Exeter,  Chancellor  of  England,  Showeth  William  by  the 
Brook,  and  complaineth  of  John  Giles  of  Longdon,  that  whereas  the 
said  William  and  John  made  an  agreement  before  Sir  Thomas  Daston, 
James  Arblaster  and  others,  last  year  at  Lichfield  in  manner  following, 
that  is  to  say,  the  said  John  should  sue  at  common  law  for  certain 
lands  and  tenements,  formerly  Thomas  Colman's,  in  the  fee  of  Elm- 
hurst,  which  the  said  William  purchased  of  Richard  Colman,  son  and 
heir  of  the  said  Thomas  in  exchange  for  half  a  virgate  of  bond-land 
in  Longdon,  at  their  joint  costs,  and  thereupon  the  said  William  should 
release  to  the  said  John  his  right  in  the  same,  on  this  condition,  that 
after  the  said  lands  were  recovered  from  William  Bird,  his  adversary, 
the  said  John  should  have  enfeoffed  the  said  William  therein  for  the 
term  of  his  life;  and  the  said  John  will  not  now  fulfil  his  covenant 
with  the  said  William  touching  the  said  lands  and  tenements  so  recover- 
ed at  their  joint  costs,  but  hath  entered  into  the  said  lands  and  tene- 
ments and  keepeth  (William)  out  of  them,  against  right :  May  it  please 
your  most  gracious  Lordship  to  command  the  said  John  Giles  to  come 
before  you,  and  to  compel  him  to  fulfil  his  said  covenant  with  the  said 
William;  For  God  and  in  way  of  charity. 


Petition  of  JOHN  HAMPTON. 

(To  the  Lord  Chancellor  of  England,  About  1337.     Select  Cases  in  Chancery, 

Case  133.) 

May  it  please  his  most  honoured  and  most  gracious  Lord,  the  Chan- 
cellor of  England,  to  grant  a  writ  to  make  to  come  before  you  and  the 
Council  of  our  most  redoubted  Lord,  the  King,  Walter  Crawford  of 
the  County  of  Buckingham,  to  answer  to  (Margaret,  mother  of)  John 
Hampton,  touching  great  wrongs  and  damages  which  he  hath  done  to 

upon  followeth  an  error  or  default  in  conscience."     American  Edition,  Cin- 
cinnati, 1874,  pp.  41,  42. 


4  BASIS   OF   EQUITY   JURISDICTION  (Ch.  1 

your  said  suppliant ;  understanding,  most  gracious  Lord,  that  the  said 
Walter  is  so  great  in  that  country  that  no  one  can  have  right  or  reason 
against  him  :   in  way  of  charity. 

At  the  foot. — The  same  John  hath  sworn  that  his  complaint  is  true, 
and  he  hath  granted  to  satisfy  the  said  Walter  for  his  expenses  of 
coming  before  the  Council  of  the  King  for  the  cause  aforesaid  in  case 
he  shall  not  be  able  to  prove  his  said  complaint  to  be  true. 


Petition  of  BERNARD  EDWARD  DE  RECO. 

(Before  Thomas  de  Arundel,  Archbishop  of  York  and  Chancellor  of  England. 
13S9.     Select  Cases  in  Chancery,  Case  9,  English  Translation.) 

To  the  most  reverend,  gracious  and  merciful  Father  in  Christ,  the 
Archbishop  of  York  and  Chancellor  of  England,  Humbly  beseecheth 
your  servant  Bernard  Edward  de  Reco4  of  your  charity  that  if  it  be 
possible  to  do  that  which  I  crave  of  you,  of  your  mercy  let  it  be  speedy, 
because  six  months  are  now  elapsed  since  those  merchants  held  my 
moneys  and  would  not  return  them  to  me,  and  my  ship  remains  un- 
freighted  in  the  dock,  and  I  cannot  load  her,  and  I  cannot  go,  nor  yet 
stay  for  a  long  prosecution,  and  my  creditors  in  London  wish  to  be 
paid :  Wherefore,  most  reverend  father  and  lord,  you  who  are  the 
mother  of  Justice,  deign  to  provide  right  and  justice,  and  may  your 
holiness  please  to  send  for  the  said  merchants  that  they  may  appear  be- 
fore you  to  pay  to  the  said  Bernard  what  shall  seem  just  according  to 
your  discretion. 

Writ  directed  to  Reginald  Grille,  Ciprian  de  Maris  and  Benedict 
Lomelyn,  merchants  of  Genoa,  commanding  their  appearance  before 
the  King  and  his  Council  in  the  Chancery,  on  Friday  next,  to  answer, 
etc.,  on  pain  of  our  grave  indignation  and  the  peril  which  will  thereby 
ensue.    Dated  15  Feb.  1389.5 


Petition  of  WALTER  BROWN  and  Margaret.  His  Wife. 

(To  Edmund  de  Stafford,  Bishop  of  Exeter,  Chancellor  of  England,  About 
1394.     Select  Cases  in  Chancery,  Case  Tvi 

May  it  please  the  most  reverend  Father  in  God  the  Bishop  of  Ex- 
eter and  Chancellor  of  England,  To  provide  a  remedy  to  Walter 
Brown  and  Margaret  his  wife  touching  certain^  lands  and  tenements 
in  Winford,  Saltford,  and  elsewhere  in  the  County  of  Somerset,  of 

*  Both  parties  to  the  suit  were  aliens.  The  Council  always  assumed  juris- 
diction in  cases  between  aliens,  or  between  aliens  and  subjects;  the  reason 
being,  no  doubt,  that  an  alien  plaintiff  could  not  sue  in  the  ordinary  law 
courts,  while  in  the  case  of  an  alien  defendant  it  would  be  difficult  in  most 
cases,  and  impossible  in  many,  to  enforce  a  judgment  by  ordinary  process. 

See  Select  Cases  in  Chancery,  Introduction,  page  xlii. 

b  This  bill  seems  to  refer  to  a  former  complaint  made  to  the  Chancellor,  and 
to  urge  expedition  in  the  matter.  The  three  names  at  the  end  are  probably 
those  of  the  merchants  complained  of. 


Sec.  1)  RISE   OF   EQUITY   JURISDICTION  5 

which  they  are  deforced  because  of  the  delay  in  the  execution  of  a 
judgment  given  in  an  action  against  one  Edmund  Basset  in  the  King's 
Bench  for  the  said  Walter  and  Margaret,  in  respect  of  the  rightful  in- 
heritance of  the  said  Margaret  as  daughter  and  heir  of  one  John  Bas- 
set, who  died  seised  thereof,  as  was  found  by  an  office  taken  before  the 
Escheator  of  Somerset,  by  virtue  of  a  writ  of  mandamus;  (which 
Margaret)  is  now  of  full  age  and  20  years  more ;  and  by  force  of  that 
judgment  the  King  had  possession  of  the  wardship  and  lands  because 
of  the  nonage  of  the  said  Margaret,  by  his  prerogative,  and  by  the  said 
recovery  of  the  said  lands  held  of  Lord  le  Spencer  (and)  of  the  manor 
of  Lasborough  held  of  the  King  in  chief,  of  which  lands  so  recovered 
the  King  had  the  profits  for  a  long  time  notwithstanding  the  command- 
ments of  the  King  by  his  letters  close  and  by  his  privy  seal :  Where- 
upon the  said  suppliants  humbly  request  to  have  livery  of  the  said 
lands  and  tenements  by  your  advice  and  that  of  the  Chief  Justice  of 
the  King,  who  gave  judgment  on  the  verdict  of  the  inquest,  as  to  the 
right  of  the  said  Margaret  and  the  profit  of  the  King,  which  is  pending 
before  you  in  the  Chancery ;  having  regard,  most  gracious  Lord,  that 
the  said  Edmund  is  for- judged  of  the  said  lands  by  the  said  recovery, 
and  that  no  other  stranger  claims  title  of  right,  and  considering,  most 
gracious  Lord,  that  (the  said  Walter)  hath  nothing  whereon  to  live  and 
maintain  his  wife  and  his  six  young  children;  For  God  and  in  way 
of  charity ;  Considering  that  the  King  took  the  profits  of  the  said  lands 
for  six  years  and  more  after  the  full  age  of  the  said  Margaret,  which 
amounteth  to  four  score  pounds  and  more  for  the  said  term. 

Indorsed. — The  King  hath  commissioned  the  Chancellor  to  make 
due  remedy  and  right  in  this  behalf  by  the  authority  of  Parliament, 
according  to  what  shall  seem  best  to  him  in  his  good  discretion  with 
the  advice  and  counsel  of  those  to  whom  it  shall  seem  needful  to  him 
to  appeal  in  the  matter. 


DISCOURSE  ON  EQUITY  BETWEEN  DOCTOR  AND 

STUDENT. 

("Doctor  and  Student,"  1518.     American  Edition,  Cincinnati,  1S74, 
pp.  44,  48,  49.) 

Student. — But  I  pray  thee,  show  me  what  is  that  equity  that  thou 
hast  spoken  of  before,  and  that  thou  wouldst  that  I  should  keep. 

Doctor. — I  will  with  good-will  show  thee  somewhat  thereof.  Equity 
is  a  right  wiseness  that  considereth  all  the  particular  circumstances 
of  the  deed,  the  which  also  is  tempered  with  the  sweetness  of  mercy. 
And  such  an  equity  must  always  be  observed  in  every  law  of  man,  and 
in  every  general  rule  thereof :  and  that  knew  he  well  that  said  thus, 
Laws  covet  to  be  ruled  by  equity.     *     *     * 

But  yet  it  is  to  be  understood,  that  most  commonly  where  anything 
is  excepted  from  the  general  customs  or  maxims  of  the  laws  of  the 


6  BASIS   OF   EQUITY  JURISDICTION  (Ch.  1 

realm  by  the  law  of  reason,  the  party  must  have  his  remedy  by  a  writ 
that  is  called  subpoena,  if  a  subpoena  lie  in  the  case.  But  where  a  sub- 
poena lieth  and  where  not,  it  is  not  our  intent  to  treat  of  this  time. 
And  in  some  cases  there  is  no  remedy  for  such  an  equity  by  way  of 
compulsion,  but  all  remedy  therein  must  be  committed  to  the  con- 
science of  the  party. 

Doctor. — But  in  case  where  a  subpoena  lieth,  to  whom  shall  it  be 
directed,  whether  to  the  judge  or  to  the  party? 

Student. — It  shall  never  be  directed  to  the  judge,  but  to  the  party 
plaintiff,  or  to  his  attorney;  and  thereupon  an  injunction  commanding 
them  by  the  same,  under  a  certain  pain  therein  to  be  contained  that  he 
proceed  no  farther  at  the  common  law  till  it  be  determined  in  the 
king's  chancery }  whether  the  plaintiff  had  title  in  conscience  to  recover, 
or  not :  and  when  the  plaintiff  by  reason  of  such  an  injunction,  ceaseth 
to  ask  any  farther  process,  the  judges  will  in  likewise  cease  to  make 
any  farther  process  in  that  behalf. 

Doctor. — Is  there  any  mention  made  in  the  law  of  England  of  any 
such  equities? 

Student. — Of  this  term  equity,  to  the  intent  that  is  spoken  of  here, 
there  is  no  mention  made  in  the  law  of  England :  but  of  an  equity  de- 
rived upon  certain  statutes  mention  is  made  many  times,  and  often  in 
the  law  of  England ;  but  that  equity  is  all  of  another  effect  than  this. 
But  of  the  effect  of  this  equity  that  we  now  speak  of,  mention  is  made 
many  times :  for  it  is  oft-times  argued  in  the  law  of  England,  where  a 
subpoena  lieth,  and  where  not,  and  daily  bills  be  made  by  men  learned 
in  the  law  of  this  realm  to  have  subpoenas.  And  it  is  not  prohibited  by 
the  law,  but  that  they  may  well  do  it,  so  that  they  make  them  not  but 
in  case  Avhere  they  ought  to  be  made,  and  not  for  vexation  of  the 
party,  but  according  to  the  truth  of  the  matter.  And  the  law  will  in 
many  cases,  that  there  shall  be  such  remedy  in  the  chancery  upon  di- 
vers things  grounded  upon  such  equities,  and  the  lord  chancellor  must 
order  his  conscience  after  the  rules  and  grounds  of  the  law  of  the 
realm;  insomuch  that  it  had  not  been  inconvenient  to  have  assigned 
such  remedy  in  the  chancery  upon  such  equities  for  the  seventh  ground 
in  the  law  of  England.  But  forasmuch  as  no  record  remaineth  in  the 
king's  court  of  no  such  bill,  nor  of  the  writ  of  subpoena  or  injunction 
that  is  used  thereupon ;  therefore  it  is  not  set  as  for  a  special  ground 
of  the  law,  but  as  a  thing  that  is  suffered  by  the  law. 


Sec.  1)  RISE   OF   EQUITY  JURISDICTION  7 

LORD  DUDLEY  and  Ward,  an  Infant,  bv  the  Honourable  THOM- 
AS NEWPORT,  v.  LADY  DOWAGER  DUD- 
LEY, &c.  &  econt'. 

(In  Chancery,  1705.     Free.  Ch.  241,  24  E.  R.  118.) 

Sir  John  Trevor,  M.  R.6  *  *  *  The  great  question,  contended 
between  the  mother  and  son  (for  the  other  demands  on  both  sides  will, 
I  presume,  easily  be  determined)  is,  whether  the  lady  dowager,  the 
plaintiff  in  the  cross  bill,  shall  have  the  benefit  of  the  trust  of  the  term, 
as  to  a  third  part  of  the  profits  above  the  charge  of  annuities,  during 
their  respective  continuance,  and  after  the  determination,  a  third  part 
of  the  whole  profits  as  her  dower. 

And  as  this  case  is,  I  am  of  opinion  she  ought.     *     *     * 

My  reasoning  shall  be  drawn  from  the  original  institution  of  this 
court  of  equity  and  conscience ;  and  also  from  the  rules  and  common 
law  principles  of  that  which  is  regular  law,  which  is  bound  to  rules,  to 
which  equity  in  general  may  be  said  to  be  opposite:  for  all  kingdoms 
in  their  constitution,  says  my  Lord  Hobart,  are  with  the  power  of  jus- 
tice, both  according  to  the  rule  of  law  and  equity.  These  are  the 
gFOunds  which  I  shall  go  upon,  and  not  upon  any  notions  or  arbitrary 
rules  of  my  own. 

My  first  reason  is,  that  the  right  a  dowress  has  to  her  dower  is  not 
only  a  legal  right,  so  adjudged  at  law,  but  is  also  a  moral  right,  to  be 
provided  for,  and  to  have  a  maintenance  and  sustenance  out  of  her 
husband's  estate  to  live  upon ;  she  is  therefore  in  the  care  of  the  law, 
and  a  favourite  of  the  law ;  and  upon  this  moral  law  is  the  law  of  Eng- 
land founded,  as  to  the  right  of  dower. 

Now  equity  is  no  part  of  the  law,  but  a  moral  virtue,  which  qualifies, 
moderates,  and  reforms  the  rigour,  hardness,  and  edge  of  the  law,  and 
is  an  universal  truth ;  it  does  also  assist  the  law  where  it  is  defective 
and  weak  in  the  constitution  (which  is  the  life  of  the  law)  and  defends 
the  law  from  crafty  evasions,  delusions,  and  new  subtilties,  invented 
and  contrived  to  evade  and  delude  the  common  law,  whereby  such  as 
have  undoubted  right  are  made  remediless ;  and  this  is  the  office  of  eq- 
uity, to  support  and  protect  the  common  law  from  shifts  and  crafty 
contrivances  against  the  justice  of  the  law.  Equity  therefore  does  not 
destroy  the  law,  nor  create  it,  but  assists  it.     *     *     * 

I  must  therefore  decree  the  lady  dowager  the  benefit  of  this  trust 
term.     *     *     * 

6  Parts  of  the  opinion  are  omitted. 


8  BASIS  OF  EQUITY  JURISDICTION  (Ch.  1 

EARL  OF  OXFORD'S  CASE. 

(In  Chancery  before  Lord  Ellesmere,  Chancellor,  1615.     1  Ch.  1,  21  E.  R.  485.) 

*  *  *  7  The  present  Master  of  the  College  having  by  undue 
Means  obtained  the  Possession  of  one  of  the  130  Houses,  whereof  one 
Castillion  was  Lessee,  who  being  secure  of  his  Title  both  in  Law  and 
Equity,  sealed  a  Lease  thereof  for  three  Years  to  one  Warren,  who 
thereupon  brought  an  Ejectment  against  one  John  Smith,  for  Trial  of 
the  Title  in  B.  R.  wherein  a  Special  Verdict  was  had;  and  while  that 
depended  in  Argument  the  Lease  ended,  and  so  no  Possession  could  be 
awarded  for  the  Plaintiff,  nor  Fruit  had  of  his  Suit. 

Yet  he  proceeded  to  have  the  Opinion  of  the  Judges  to  know  the  Law 
(which  was  a  voluntary  Act  of  his),  to  the  Intent,  if  the  Law  were  with 
him,  he  might  begin  a  new  Suit  at  Law,  and  spare  to  proceed  in  Equity ; 
and  if  the  Law  were  against  him,  that  then  he  might  proceed  in  Chan- 
cery. And  the  Judges  of  that  Court  having  delivered  their  Opinions 
against  his  Title,  before  any  Judgment  entred  upon  the  Roll,  the  Earl 
and  Mr.  Wood,  for  themselves,  and  their  Lessees,  preferred  their  Bill 
in  Chancery ;  and  then  Judgment  was  entred,  Quod  Querens  nil  capiat 
per  Billam. 

To  which  Bill  in  Chancery  the  Defendant  put  in  a  Plea  and  Demur- 
rer, alledging  the  Conveyance  to  be  void  by  the  Statute  of  13  Eliz.  and 
that  they  evicted  one  House,  Parcel  of  the  Premisses  by  Judgment  at 
Law;  which  Plea  and  Demurrer  were  referred  by  Order  to  Sir  John 
Tindal  and  Mr.  Woolridge,  who  reported,  That  they  thought  it  fit  the 
Cause  should  proceed  to  Hearing,  notwithstanding  the  Plea  and  De- 
murrer; and  afterwards  in  Default  of  an  Answer,  an  Attachment  was 
awarded  against  the  Defendants,  whereupon  they  were  attach'd,  and  a 
Cepi  Corpus  return'd,  and  by  Order  of  the  22d  of  Octob.  13,  Jac.  1 
[1615],  they  were  committed  to  the  Fleet  for  their  Contempts,  in  re- 
fusing to  answer;  and  do  now  stand  bound  over  to  answer  their  Con- 
tempts, they  still  refusing  to  answer. 

And  now  this  Term  it  was  argued,  That  the  Defendants  thus  stand- 
ing in  Contempt,  &c,  may  be  sequestred  until  Answer. 

1.  The  Law  of  God  speaks  for  the  Plaintiff.    Deut.  28. 

2.  And  Equity  and  good  Conscience  speak  wholly  for  him. 

3.  Nor  does  the  Law  of  the  Land  speak  against  him.  But  that  and 
Equity  ought  to  join  Hand  in  Hand,  in  moderating  and  restraining  all 
Extremities  and  Hardships. 

By  the  Law  of  God,  He  that  builds  a  House  ought  to  dwell  in  it ;  and 
he  that  plants  a  Vineyard  ought  to  gather  the  Grapes  thereof ;   and  it 

7  Parts  of  the  opinion  are  omitted.  For  a  full  note  to  this  case  see  1  White 
&  Tudor's  Leading  Cases  in  Equity,  page  773.  The  facts  of  the  case,  which 
are  not  clear  in  the  report,  are  explained  in  this  note. 


Sec.  1)  RISE   OF   EQUITY   JURISDICTION  9 

was  a  Curse  upon  the  Wicked,  that  they  should  build  Houses  and  not 
dwell  in  them,  and  plant  Vineyards  and  not  gather  the  Grapes  thereof. 
Deut.  28,  v.  30. 

And  yet  here  in  this  Case,  such  is  the  Conscience  of  the  Doctor,  the 
Defendant,  That  he  would  have  the  Houses,  Gardens  and  Orchards, 
which  he  neither  built  nor  planted :  But  the  Chancellors  have  always 
corrected  such' corrupt  Consciences,  and  caused  them  to  render  quid 
pro  quo ;  for  the  Common  Law  it  self  will  admit  no  Contract  to  be 
good  without  quid  pro  quo ;  or  Land  to  pass  without  a  valuable  Con- 
sideration and  therefore  Equity  must  see  that  a  proportionable  Satis- 
faction be  made  in  this  Case.     *     *     * 

And  Equity  speaks  as  the  Law  of  God  speaks.  But  you  would  silence 
Equity. 

1st.  Because  you  have  a  Judgment  at  Law. 

2dly.  Because  that  Judgment  is  upon  a  Statute-Law. 

To  which  I  answer, 

First,  As  a  Right  in  Law  cannot  die,  no  more  can  Equity  in  Chan- 
cery die,  and  therefore  nullus  recedat  a  Cancellaria  sine  remedio,  4  E. 
4,  11,  a.  Therefore  the  Chancery  is  always  open,  and  although  the 
Term  be  adjourned  the  Chancery  is  not;  for  Conscience  and  Equity  is 
always  ready  to  render  to  every  one  their  Due,  and  9  E.  4,  11,  a.  The 
Chancery  is  only  removable  at  the  Will  of  the  King  and  Chancellor ; 
and  by  27  E.  3,  15.  The  Chancellor  must  give  Account  to  none  but 
only  to  the  King  and  Parliament. 

The  Cause  why  there  is  a  Chancery  is,  for  that  Mens  Actions  are  so 
divers  and  infinite,  That  it  is  impossible  to  make  any  general  Law 
which  may  aptly  meet  with  every  particular  Act,  and  not  fail  in  some 
Circumstances. 

The  Office  of  The  Chancellor  is  to  correct  Mens  Consciences  for 
Frauds,  Breach  of  Trusts,  Wrongs  and  Oppressions  of  what  Nature 
soever  they  be,  and  to  soften  and  mollify  the  Extremity  of  the  Law, 
which  is  called  Summum  Jus. 

And  for  the  Judgment,  &c,  Law  and  Equity  are  distinct,  both  in 
their  Courts,  their  Judges,  and  the  Rules  of  Justice ;  and  yet  they  both 
aim  at  one  and  the  same  End,  which  is,  to  do  Right ;  as  Justice  and 
Mercy  differ  in  their  Effects  and  Operations,  yet  both  join  in  the  Mani- 
festation of  God's  Glory.     *     *     * 

The  Chancellor  sits  in  Chancery  according  to  an  absolute  and  un- 
controlable  Power,  and  is  to  judge  according  to  that  which  is  alleged 
and  proved ;  but  the  Judges  of  the  Common  Law  are  to  judge  accord- 
ing to  a  strict  and  ordinary  (or  limited)  Power.     *     *     * 

And  the  Statute  of  4  H.  4,  cap.  23,  was  never  made  nor  intended  to 
restrain  the  Power  of  the  Chancery  in  Matters  of  Equity,  but  to  re- 
strain the  Chancellor  and  the  Judges  of  the  Common  Law,  only  in  mat- 
ters meerly  determinable  by  Law,  in  legal  Proceedings,  and  not  in  equi- 
table, and  they  should  be  constant  and  certain  in  their  own  Judgments, 


10  BASIS   OF   EQUITY  JURISDICTION  (Ch.  1 

and  not  play  Fast  and  Loose.  For  by  37  H.  6,  13,  and  divers  other 
Authorities ;  no  Writ  of  Error  or  Attaint  lieth  when  the  Suit  is  by  Sub- 
poena, and  the  Party  only  seeks  to  Equity  for  the  Equity  of  his  Cause. 


SUITS  IN  CHANCERY  BY  SUBPCENA. 

(Found  in  the  Appendix  to  "Doctor  and  Student,"  1518.     American  Edition, 
Cincinnati,  1874,  p.  343  et  seq.)9 

A  serjeant  of  the  law  of  England  hearing  the  communication  and 
dialogue  between  a  doctor  of  divinity,  and  a  student  in  the  laws  of 
England,  saith  to  the  doctor  in  this  wise: 

Serjeant — Mr.  Doctor,  after  my  mind  you  have  right  well  declared 
divers  laws,  that  is  to  say,  the  law  eternal,  the  law  of  reason,  the  law  of 
God,  and  the  law  of  man.     And  you,   Mr.  Student,  have  right  well 

8  This  case  had  a  leading  part  in  the  controversy  between  Lord  Chancellor 
Ellesmere  and  Lord  Coke,  in  which  Chancery  was  victor  by  the  decision  of 
the  king  (James  I),  an  account  of  which  is  reported  at  the  end  of  volume  1, 
Chancery  Reports,  21  English  Reprint,  570,  as  follows: 

"ARGUMENTS  Proving  from  ANTIQUITY  the  Dignity,  Power  and  Juris- 
diction of  the  COURT  OF  CHANCERY. 

"A  question  being  raised  in  the  Court  of  King's  Bench,  Whether  after  a 
Judgment  given  at  the  Common  Law,  the  Chancery  could  in  any  case  give 
Relief  in  Equity?  Or,  Whether  it  were  not  debarred  thereof  by  the  Statutes 
of  27  E.  3,  cap.  1,  and  of  4  H.  4,  cap.  23.  King  James  taking  Notice  of  that 
Difference  (and  taking  himself  to  be  the  Judge  of  the  Jurisdictions  of  his 
Courts  of  Justice)  did  seriously  advise  thereupon  with  his  Learned  Counsel, 
upon  whose  Opinions  and  Certificate,  he  did  give  Judgment  for  the  Chancery; 
and  accordingly  all  Things  were  in  Peace.  The  Chancery  Court  went  on  in 
the  Times  of  the  Lord  Ellesmere,  Lord  St.  Albans,  Lord  Coventry,  and  all 
others  that  were  Lord  Keepers  of  the  Great  Seal  of  England  ever  since  (as 
it  had  formerly  done).  And  (Lord  Coke)  the  then  Lord  Chief  Justice  of  the 
King's  Pench  did  never  question  that  Judgment,  although  he  lived  many 
Years  after,  and  was  of  four  Parliaments,  wherein  he  had  both  Opportunity 
and  Power  to  have  done  it,  if  he  had  not  known  that  Judgment  to  have  been 
given  according  to  Justice  and  the  Laws  of  the  Realm ;  but  he  desisted,  and 
did  openly  profess  before  the  Lords  of  the  Privy  Council.  That  he  would  not 
maintain  a  Difference  between  the  Two  Courts,  nor  bring  it  into  question, 
whereof  Entry  was  made  in  the  Council-Book  20  Junii,  1010. 

"Notwithstanding  the  Publisher  of  his  third  and  fourth  Books  of  the  Insti- 
tutes finding  (as  it  should  seem)  some  old  Notes  collected,  when  the  Question 
was  on  Foot  and  undecided,  hath  taken  the  Boldness  to  print  them  long  after 
the  Author's  Death,  and  therein  hath  made  him  to  question  all  again,  by 
mentioning  many  Cases,  wherein  divers  Persons  had  been  indicted  in  Prae- 
munire upon  the  Statute  of  27  E.  3,  for  seeking  Relief  in  Chancery  after  Judg- 
ments given  between  the  Parties  at  the  Common  Law,  and  concluding  with 
LSee  a  Privy  Seal  to  the  contrary,  IS  Julii,  1010,  obtained  by  the  Importunity 
of  the  Lord  Chancellor,  being  vehemently  afraid:  Sed  judicandum  est  legibus, 
and  no  Precedent  can  prevail  against  an  Act  of  Parliament.  And  Besides  the 
supposed  Precedents  (which  we  have  seen)  are  not  Authentical,  being  most 
in  torn  papers,  the  rest  of  no  Credit]." 

There  follow  several  pages  of  historical  review  of,  and  argument  on,  the 
[lower  of  Chancery. 

n  'I  he  dialogue  here  given  is  selected  from  several  parts  of  the  text,  and  is 
found  on  the  pages  indicated  at  the  close  of  each  excerpt. 


Sec.  1)  RISE   OF   EQUITY   JURISDICTION  11 

showed  how  the  law  of  England  is  grounded  upon  the  law  of  reason, 
and  have  showed  your  mind  therein  right  well,  against  which  I  intend 
not  to  reply.  But  my  intent  is,  Mr.  Student,  to  reply  against  your  opin- 
ion in  one  point  in  a  case  demanded  of  you  by  Mr.  Doctor,  which  is  this. 
If  a  man  be  bound  in  single  obligation  to  pay  a  certain  sum  of  money 
at  a  day  to  the  obligee,  and  the  obligor  payeth  the  money  at  the  day  and 
taketh  none  acquittance  neither  the  obligation  wherein  he  is  bound ; 
and  notwithstanding  this  he  that  hath  the  obligation  bringeth  an  action 
of  debt  upon  the  said  obligation  against  the  obligor ;  you  have  said,  that 
in  this  case  the  obligor  hath  no  remedy  by  the  common  law  at  (of)  the 
realm,  and  you  have  showed  the  cause  why  right  well,  as  it  appeareth 
by  your  declaration,  the  which  I  need  not  to  rehearse.  But  you  say 
further  in  this  case,  that  the  defendant  may  be  helped  by  a  subpoena 
in  the  King's  chancery ;  and  to  that  I  intend  to  reply.  Notwithstanding 
I  shall  first  of  all  move  you,  that  in  this  case  after  my  mind  the  defend- 
ant may  have  remedy  at  the  common  law.    (Page  343.) 

Student — It  appeareth  in  the  King's  chancery  in  the  time  of  so  many 
noble  princes  and  kings  of  this  realm,  and  in  the  time  of  so  many  of 
their  chancellors,  whereof  some  have  been  spiritual  men,  and  some 
temporal  men,  that  so  many  have  been  put  to  answer  upon  writs  of  sub- 
poena in  the  chancery,  that  it  is  not  to  presume  that  the  chancellors 
have  directed  them  temerously  in  the  King's  name  without  authority, 
but  rather  by  good  authority,  and  by  commandment  of  the  King  and 
his  council,  and  by  knowledge  of  all  the  realm.  *  *  *  And  me 
thinketh  that  all  these  things  well  considered,  no  man  ought  to  marvel, 
what  authority  the  chancellor  hath  to  make  such  a  writ  of  subpoena  in 
the  King's  name;  for  the  old  custom,  not  restrained  by  any  statute, 
warranteth  him  by  reason  of  his  office  so  to  do,  after  certain  grounds, 
and  under  certain  manner.     (Pages  354-356.) 

Serj. — But  if  reformation  be  had  in  this  case  in  the  said  chancery 
by  a  subpoena,  it  must  needs  follow,  that  this  good  common  law  must 
be  made  as  void  and  set  at  nought.  For  by  a  subpoena  the  plaintiff  is 
prohibited  to  sue  (at)  the  common  law,  and  is  compelled  to  make  an- 
swer in  the  chancery,  where  the  obligor  shall  be  admitted  to  plead  a 
payment  of  the  debt  contained  in  a  single  obligation  without  writing, 
which  is  clean  contrary  to  the  common  law ;  so  that  if  that  be  admit- 
ted for  law,  the  common  law  that  is  contrary  to  this  must  needs  be  no 
law.  For  these  two  laws,  one  being  contrary  to  the  other,  cannot 
stand  together,  but  one  of  them  must  be  as  void.  Wherefore  it  must 
need  follow,  that  if  this  law  be  maintained  in  the  chancery  by  a  sub- 
poena, the  common  law,  which  is  contrary  to  that,  must  needs  be  as 
void  and  of  none  effect.  I  marvel  much  what  authority  the  chancellor 
hath  to  make  such  a  writ  in  the  King's  name  and  how  he  dare  to  pre- 
sume to  make  such  a  writ  to  let  (hinder)  the  King's  subjects  to  sue  his 
laws,  the  which  the  King  himself  cannot  do  righteously;    for  he  is 


12  BASIS   OF   EQUITY  JURISDICTION  (Ch.  1 

sworn  the  contrary,  and  it  is  said,  "hoc  possumus  quod  de  jure  possu- 
mus."    (Page  345.) 

Student— First  he  saith,  that  he  marvelleth  how  the  chancellor  may 
make  such  a  writ  to  let  (hinder)  the  King's  subjects  to  sue  his  laws, 
the  which  the  King  himself  cannot  do  righteously,  for  he  is  sworn  to 
the  contrary. — To  that  it  may  be  answered,  that  the  King's  oath  in 
that  point  is  this,  that  he  shall  grant  to  hold  the  laws  and  customs  of 
the  realm;  and  then  if  the  laws  and  customs  of  the  realm  shall  be 
understood  as  well  as  the  laws  and  customs  used  in  the  chancery  as  at 
the  common  law,  as  I  suppose  they  be,  then  it  is  not  against  the 
King's  oath,  though  the  chancellor  by  means  of  a  subpoena  minister 
justice  unto  the  subjects.    (Page  379.) 

Serj. — But  if  the  subjects  of  any  realm  shall  be  compelled  to  leave 
the  law  of  the  realm,  and  to  be  ordered  by  the  discretion  of  one  man, 
what  thing  may  be  more  unknown  or  more  uncertain  ?  But  if  this  man- 
ner of  suit  by  a  subpoena  be  maintained,  as  you,  Mr.  Student,  would 
have  it,  what  uncertainty  shall  the  King's  subjects  stand,  when  they 
shall  be  put  from  the  law  of  the  realm,  and  be  compelled  to  be  ordered 
by  the  discretion  and  conscience  of  one  man.  And,  namely,  foras- 
much as  conscience  is  a  thing  of  great  uncertainty,  for  some  men  think 
that  if  they  tread  upon  two  straws  that  lie  across,  that  they  offend  in 
conscience ;  and  some  man  thinketh  that  if  he  lack  money  and  another 
hath  too  much,  that  he  may  take  part  of  his  with  conscience ;  and  so 
divers  men,  divers  conscience ;  for  every  man  knoweth  not  what  con- 
science is  as  well  as  yon,  Mr.  Doctor. 

Student — How  is  it  then,  that  the  chancellors  of  England  have  used 
this? 

Serj. — Verily  I  think  for  lack  of  knowledge  of  the  goodness  of  the 
laws  of  the  realm  ;  for  most  commonly  the  chancellors  of  England  have 
been  spiritual  men,  that  have  had  but  superficial  knowledge  in, the  laws 
of  the  realm.    (Pages  346-347.) 

Student — In  what  uncertainty  (saith  he)  shall  the  King's  subjects 
stand,  when  they  shall  be  put  from  the  law  of  the  realm,  and  be  com- 
pelled to  be  ordered  by  the  discretion  and  conscience  of  one  man :  and 
namely  forasmuch  as  conscience  is  a  thing  of  great  uncertainty,  for 
some  men  (he  saith)  think,  that  if  they  tread  upon  two  straws  that  lie 
across  that  they  offend  in  conscience,  and  that  some  man  thinketh  that 
if  he  lack  money,  and  another  hath  too  much,  that  he  may  take  part 
of  his  with  conscience,  and  so  divers  men  divers  conscience ;  for  every 
man  knoweth  not  what  conscience  is  as  well  (saith  he)  as  Mr.  Doctor. — 
And  to  that  he  may  be  answered,  that  the  said  two  consciences  by 
him  before  remembered,  whereof  the  one  is  a  scrupulous  conscience 
and  the  other  an  erroneous  conscience,  are  not  such  a  conscience  as 
the  chancellor  or  any  other  are  bound  to  follow.  *  *  *  But  the  con- 
science, which  the  chancellor  is  bound  to  follow,  is  that  conscience, 


Sec.  1)  RISE   OP   EQUITY  JURISDICTION  13 

which  is  grounded  upon  the  law  of  God  and  the  law  of  reason  and  the 
law  of  the  realm  not  contrary  to  the  law  of  God  and  the  law  of  rea- 
son. And  therefore  to  be  ruled  by  such  a  conscience  seemeth  neither 
to  be  against  the  law  of  God  nor  the  law  of  reason,  nor  the  common- 
wealth of  the  realm,  as  in  that  said  treatise  it  is  supposed  to  be.  And 
that  the  chancellor  is  bound  to  order  his  conscience  after  the  law  of 
God  and  the  law  of  reason  is  evident  of  itself,  and  needeth  no  further 
proof.    (Pages  380-381.) 

Serj. — Yet  this  notwithstanding,  if  the  King's  subjects,  upon  a  sur- 
mised bill  put  into  the  chancery,  shall  be  prohibited  by  a  subpoena 
to  sue  according  to  the  law  of  the  realm,  and  be  compelled  to  make 
answer  before  my  lord  chancellor,  then  shall  the  law  of  the  realm  be 
set  as  void  and  taken  as  a  thing  of  none  effect,  and  the  King's  sub- 
jects shall  be  ordered  by  the  discretion  of  the  chancellor  and  by  no 
law,  contrary  to  all  good  reason  and  all  good  policy.  And  so  seemeth, 
that  such  a  suit  by  subpoena  is  not  only  against  the  law  of  the  realm, 
but  also  against  the  law  of  reason.    (Page  346.) 

Student- — For  what  praise  were  it  to  the  law  to  prohibit  all  writs 
of  subpoena,  and  yet  no  remedy  to  be  therein  at  the  common  law?  But 
if  remedy  were  provided  at  the  common  law,  it  were  the  less  force 
(consequence),  if  writs  of  subpoena  were  put  away.  But  in  some  cases 
where  subpoenas  lie,  it  were  very  hard  to  provide  any  remedy  to  be  at 
the  common  law,  as  in  the  case  of  the  evidences  whereof  the  party 
knowTeth  not  the  number,  and  whereof  mention  is  made  in  the  2nd 
chapter.     (Page  367.) 

Student- — It  hath  been  used,  that  when  feoffees  have  been  seized  to 
that  use  of  a  man  and  his  heirs,  and  that  they  have  been  required  to 
make  estate  according  to  the  use  that  they  were  infeoffed  to  do  it,  that 
then  he  to  whose  use  they  be  so  seized,  should  have  a  subpoena  to  cause 
them  to  make  the  re-feoffment  unto  him.     (Page  364.) 

Serj.- — Moreover,  Mr.  Student,  I  marvel  much  that  you  say  that 
men  that  have  wrong  may  be  helped  in  many  cases  by  a  subpoena,  in- 
somuch as  you  have  in  your  Natura  Brevium  several  writs  and  (of) 
divers  natures  for  the  reformation  of  every  wrong  that  is  done  and 
committed  contrary  to  the  laws  of  the  realm ;  and  among  all  your  writs 
that  you  have  in  your  Natura  Brevium,  you  have  none  there  called  a 
subpoena,  neither  yet  the  nature  of  him  (it)  declared  there,  as  you  have 
all  of  the  writs  specified  in  the  said  book.  Wherefore  me  seemeth  it 
standeth  not  with  your  study,  neither  yet  with  your  learning  of  the 
laws  of  the  realm,  that  any  man  that  is  wronged  should  have  his  rem- 
edy by  a  subpoena.  If  a  subpoena  had  been  a  writ  ordained  by  the  law 
of  the  realm  to  reform  a  wrong,  as  other  writs  in  the  said  book  be,  he 
(it)  should  have  been  set  in  the  book  of  Natura  Brevium.     (Page  348.) 

Student — (Your)  meaning  is,  that  because  a  subpoena  is  not  in  Natura 
Brevium,  therefore  there  should  be  no  such  writ.     And  this  should 


14  BASIS   OP   EQUITY   JURISDICTION  (Ch.  1 

seem  to  be  but  a  slender  objection.  For  the  said  book  is  not  taken 
of  such  authority,  that  all  things  that  is  in  it  is  clear  law,  nor  that  it 
is  not  so  perfect  that  all  writs  that  pertain  to  law  should  be  contained 
therein.  And  therefore  I  suppose  that  it  will  be  hard  to  find  in  Natura 
Brevium,  where  an  action  upon  the  case  or  a  writ  of  forcible  entry  lie ; 
and  so  I  suppose  it  will  be  of  divers  other  actions  upon  statutes  if  it 
were  thoroughly  searched. 

And  so  I  think,  that  the  said  objections  be  but  of  small  strength 
and  of  small  effect  to  prove  that  a  subpoena  may  not  lie  in  some  cases. 
(Page  384.) 

And  also  in  divers  other  cases,  whereof  I  intend  to  touch  briefly  by 
certain  cases  and  grounds,  a  man  sometime  may  have  a  right  to  a 
thing  in  conscience,  and  where  he  has  no  means  to  come  unto  it  at  the 
common  law,  and  yet  there  lieth  no  subpoena.     (Page  367.) 


THE  FUNCTION  OF  THE  COURT  OF  EQUITY. 

The  institution  of  Courts  of  Equity,  as  Lord  Mansfield  has  express- 
ed it,  is  to  prevent  substantial  justice  from  being  entangled  in  the  net 
of  form.  Is  the  court  by  a  form,  instituted  by  itself,  to  prevent  a 
party  having  a  legal  remedy  from  availing  himself  of  it?  *  *  * 
Could  the  court  suffer  itself  to  be  made  the  instrument  of  inequity? 

Counsel  in  Pulteney  v.  Warren  (1801)  6  Ves.  Jr.  73,  78,  31  E.  R. 
944,  947. 


COWPER  v.  EARL  COWPER. 

(In  Chancery  before  Sir  Joseph  Jekyll.  Master  of  the  Eolls,  1734.     2  P.  Wins. 
720,  754,  24  E.  R.  930,  942.) 

*  *  *  10  The  law  is  clear,  and  courts  of  equity  ought  to  follow 
it  in  their  judgments  concerning  titles  to  equitable  estates;  otherwise 
great  uncertainty  and  confusion  would  ensue;  and  though  proceedings 
in  equity  are  said  to  be  secundum  discretioncm  boni  viri,xl  yet  when 
it  is  asked,  vir  bonus  est  quisf  the  answer  is,  qui  consulta  patrum  qui 
leges  juraque  scn'at;  and  as  it  is  said  in  Rook's  Case,  5  Rep.  99  b,  that 
discretion  is  a  science,  not  to  act  arbitrarily  according  to  men's  wills 
and  private  affections :    so  the  discretion  which  is  exercised  here,  is  to 

10  Parts  of  the  opinion  are  omitted. 

n  Selden.  in  Table  Talk,  tit.  Equity,  said:  "For  law  we  have  a  measure, 
and  know  what  to  trust  to:  equity  is  according  to  the  conscience  of  him  that 
is  chancellor:  and  as  that  is  larger  or  narrower,  so  is  equity.  'Tis  all  one 
as  if  they  should  make  the  standard  for  the  measure  a  chancellor's  foot. 
What  an  uncertain  measure  would  this  be!  One  chancellor  has  a  long  foot, 
another  a  short  foot,  a  third  an  indifferent  foot.  It  is  the  same  thing  with 
the   cliamellor's  conscience." 


Sec.  1)  RISE   OF   EQUITY  JURISDICTION  15 

be  governed  by  the  rules  of  law  and  equity,  which  are  not  to  oppose, 
but  each,  in  its  turn,  to  be  subservient  to  the  other  ;  this  discretion, 
in  some  cases,  follows  the  law  implicitly,  in  others  assists  it,  and  ad- 
vances the  remedy;  in  others  again,  it  relieves  against  the  abuse,  or 
allays  the  rigour  of  it ;  but  in  no  case  does  it  contradict  or  overturn 
the  grounds  or  principles  thereof,  as  has  been  sometimes  ignorantly 
imputed  to  this  Court.12  That  is  a  discretionary  power,  which  neither 
this  nor  any  other  Court,  not  even  the  highest,  acting  in  a  judicial 
capacity,  is  by  the  constitution  intrusted  with.13     *     *     * 

12  in  the  often  quoted  case  of  Gee  v.  Pitchard  (ISIS)  2  Swanst.  402,  414. 
Lord  Eldon  expressed  the  now  accepted  view  of  equity  as  a  legal  system,  there 
remarking:  "The  doctrine  of  this  ('curt  ought  to  be  as  well  settled,  and  made 
as  uniform  almost  as  those  of  the  common  law,  hiving  down  fixed  principles, 
but  taking  care  that  they  are  to  be  applied  according  to  the  circumstances  of 
each  case.  I  cannot  agree  that  the  doctrines  of  this  Court  are  to  be  changed 
with  every  succeeding  judge.  Nothing  would  inflict  on  me  greater  pain,  in 
quitting  this  place,  than  the  recollection  that  I  had  done  anything  to  justify 
the  reproach  that  the  equity  of  this  Court  varies  like  the  Chancellor's  foot." 

is  In  Bond  v.  Hopkins  (1S02)  1  Sch.  &  Let".  413,  4:JS,  Lord  Redesdale.  L.  C, 
said:  "The  cases  which  occur  are  various:  but  they  are  decided  on  fixed 
principles.  Courts  of  equity  have,  in  this  respect,  no  more  discretionary 
power  than  courts  of  law.  They  decide  new  cases  as  they  arise  by  the  princi- 
ples on  which  former  cases  have  been  decided,  and  may  thus  illustrate  or  en- 
large the  operation  of  those  principles:  but  the  principles  are  as  fixed  and 
certain  as  the  principles  on  which  the  courts  of  common  law  proceed." 

In  Haywood  v.  Cope  (1S5S)  25  Beav.  140,  53  E.  R.  5S9,  595,  Sir  John  Romilly, 
M.  R.,  said:  "Then  it  is  said  that  this  is  an  extremely  hard  case,  that,  in  point 
of  fact,  the  Plaintiff  is  insisting  iipon  the  Defendant  paying  him  £1400.  for 
a  thing  that  has  turned  out  to  be  literally  worth  nothing,  and  that  according 
to  the  discretion  which  the  Court  exercises  in  such  cases,  it  cannot  compel 
specific  performance  of  the  contract.  Upon  this  subject,  which  is  one  upon 
which  I  have  before  made  several  reservations,  I  will  refer  again  to  a  pas- 
sage which  I  have  always  considered  binding  upon  me,  for  it  is  most  import- 
ant that  the  profession,  and  those  who  have  to  advise  in  reference  to  this 
subject,  should  understand  the  ru;e  which  is  adopted  in  this  and  the  other 
Courts,  which  is,  that  the  discretion  of  the  Court  must  be  exercised  according 
to  fixed  and  settled  rules;  you  cannot  exercise  a  discretion  by  merely  con- 
sidering what,  as  between  the  parties,  would  be  fair  to  be  done;  what  one 
person  may  consider  fair,  another  person  may  consider  very  unfair;  you  must 
have  some'  settled  rule  and  principle  upon  which  to  determine  how  that  dis- 
cretion is  to  be  exercised.  Lord  Eldon  observes  in  the  case  of  White  v. 
Damon.  [1S02]  7  Yes.  35:  T  agree  with  Lord  Rosselyn,  that  giving  specific 
performance  is  matter  of  discretion;  but  that  is  not  an  arbitrary  capricious 
discretion.  It  must  be  regulated  upon  grounds  that  will  make  it  judicial." 
I  also  refer,  as  1  believe  I  have  upon  former  occasions,  to  a  passage  in  the 
celebrated  argument  of  the  Master  of  the  Rolls  in  Burgess  v.  Wheate,  [1759] 
1  Eden,  214,  where,  at  the  conclusion,  he  cites  a  well-known  passage  from  Sir 
Joseph  Jekyll's  judgment  (in  Cowper  v.  Earl  Cowper,  |17.'!4|  2  Peere  W.  752, 
753),  upon  the  subject  of  the  discretion  of  the  Court,  and  gives  his  own  opinion. 
He  says:  'And  though  proceedings  in  equity  are  said  to  be  secundum  discre- 
tionem  boni  viri.  yet,  whe^n  it  is  asked  vir  bonus  est  quis,  the  answer  is,  qui 
consulta  patrum,  qui  leges  juraque  servat.  And  as  it  is  said  in  Rooke's  Case, 
[1598]  5  Coke  Rep.  99  b,  that  discretion  is  a  science,  nut  to  a<4  arbitrarily  ac- 
cording to  men's  wills  and  private  affections,  so  the  discretion  which  is  to  be 
exercised  here  is  to  be  governed  by  the  rules  of  law  and  equity,  which  are 
not  to  oppose,  but  each,  in  its  turn,  to  be  subservient  to  the  other.  This  dis- 
cretion in  some  cases  follows  the  law  implicitly;  in  others  assists  it  and  ad- 
vances the  remedy;  in  others,  again,  it  relieves  against  the  abuse  or  allays 
the  rigour  of  it;  but  in  no  case  does  it  contradict  or  overturn  the  grounds 
and  principles  thereof,  as  have  been  sometimes  ignorantly   imputed  to  this 


16  BASIS   OF   EQUITY  JURISDICTION  (Ch.  1 

ROOKE'S  CASE. 

(Common  Pleas,  1598.     5  Coke,  99  b,  77  E.  R.  209.) 

*  *  *  14  Notwithstanding  the  words  of  the  commission  give  au- 
thority to  the  commissioners  to  do  according  to  their  discretions,  yet 
their  proceedings  ought  to  be  limited  and  bound  with  the  rule  of  rea- 
son and  law.15  For  discretion  is  a  science  or  understanding  to  dis- 
cern between  falsity  and  truth,  between  wrong  and  right,  between 
shadows  and  substance,  between  equity  and  colourable  glosses  and  pre- 
tences, and  not  to  do  according  to  their  wills  and  private  affections ; 
for  as  one  saith,  talis  discretio  discretionem  confundit.     *     *     *  1G 

Court.  That  is  a  discretionary  power  which  neither  this  nor  any  other  Court, 
not  even  the  highest,  acting  in  a  judicial  capacity,  is  by  the  constitution  en- 
trusted with.  This  description  is  full  and  judicious,  and  what  ought  to  be  im- 
printed upon  the  mind  of  every  Judge.'  [1759]  1  Eden,  214.  If,  therefore,  in 
a  case  of  this  description,  I  were  to  say  that  according  to  my  discretion  I 
ought  to  leave  these  persons  to  their  action  at  law,  upon  what  principle  or 
ground  could  I  do  it,  except  that  in  a  matter  of  speculation  it  has  turned  out 
very  favourable  to  one  party,  and  very  unfavourable  to  the  other.  It  is  ob- 
vious that  in  the  case  of  a  sale  by  auction,  if  the  property  is  sold  for  an  ex- 
tremely inadequate  value,  it  is  impossible  for  the  person  to  repudiate  the  con- 
tract. The  mere  principle  of  what  might  have  been  fair,  or  what  might  have 
been  a  right  thing  to  do  between  the  parties,  had  all  the  elements  of  value 
been  known  which  have  since  transpired,  cannot  be  a  ground  for  exercising 
or  regulating  the  discretion  of  the  Court  when  all  the  facts  which  were  then 
in  existence  were  known  to  both  parties.  I  can  understand  that  the  Court 
will  exercise  a  discretion,  and  will  not  enforce  the  specific  performance  of  a 
contract,  where  to  decree  the  performance  of  the  contract  will  be  to  compel 
a  person,  who  has  entered  inadvertently  into  it,  to  commit  a  breach  of  duty, 
such  as  where  trustees  have  entered  into  a  contract,  the  performance  of 
which  would  be  a  breach  of  trust.  Those  are  cases  where,  by  a  fixed  and 
settled  rule,  the  Court  is  enabled  to  exercise  its  discretion ;  but  the  mere  in- 
adequacy or  excess  of  value  is  not  in  my  opinion  a  ground  for  exercising  any 
such  discretion  as  that  which  is  suggested  in  this  case.  That  this  is  a  very 
hard  case  there  is  no  doubt,  and  it  may  be  extremely  proper  for  the  Plaintiff 
to  make  an  abatement  in  respect  of  it,  but  that  is  a  totally  different  matter, 
one  which  is  in  the  forum  of  his  own  conscience,  but  not  one  which  I  can  no- 
tice judicially.  In  my  opinion,  this  is  a  contract  which  was  fairly  entered 
into  between  the  parties ;  there  is  nothing  to  invalidate  it,  and  the  usual  de- 
cree must  therefore  be  made  for  the  specific  performance  of  the  contract, 
with  costs  to  the  present  time.  A  reference  must  be  directed  to  Chambers  to 
settle  the  lease  in  case  the  parties  differ." 

i*  Part  of  the  case  is  omitted. 

is  in  Sharp  v.  Wakefield,  [1S91]  A.  C.  173,  the  Lord  Justices  discussed  the 
extent  of  their  discretion  to  refuse  the  renewal  of  a  license  to  sell  intoxicat- 
ing liquors  under  the  Licensing  Acts  of  1828,  1872,  and  1874.  Lord  Halsbury, 
L.  C,  said:  "An  extensive  power  is  confided  to  the  justices  in  their  capacity 
as  justices  to  be  exercised  judicially;  and  'discretion'  means  when  it  is  said 
that  something  is  to  be  done  within  the  discretion  of  the  authorities  that  that 
something  is  to  be  done  according  to  the  rules  of  reason  and  justice,  not  ac- 
cording to  private  opinion  (Rooke's  Case  [1598]  5  Coke  Rep.  100  a) ;  according 
to  law,  and  not  humour.  It  is  to  be,  not  arbitrary,  vague,  and  fanciful,  but 
Legal  and  regular.  And  it  must  be  exercised  within  the  limit,  to  which  an 
honest  man  competent  to  the  discharge  of  his  office  ought  to  confine  himself. 
Wilson  v.  Rastall  [1792]  4  T.  R.  757." 

is  There  is  no  sentence  more  often  spoken  by  courts  of  equity  than  that 
found  (as  an  instance)  in  Scott  v.  Alvarez,  L1S95]  2  Ch.  003,  at  page  012,  where 


SeC.  1)  RISE   OF   EQUITY  JURISDICTION  17 

MOORE  v.  BLAKE. 

(In  Chancery  before  Lord  Manners,  Chancellor,  180S.    1  Ball  &  B.  62-G9.) 

*  *  *  it  a  bill  of  this  description  (that  is,  for  the  specific  per- 
formance of  an  agreement)  is  an  application  to  the  discretion,  or  rath- 
er to  the  extraordinary  jurisdiction  of  this  court,  which  I  apprehend 
can  not  be  exercised  in  favour  of  persons,  who  have  so  long  slept  upon 
their  rights,  and  acquiesced  in  a  title  and  possession  adverse  to  their 
claim.  Due  diligence  is  necessary  to  call  this  court  into  activity,  and 
where  it  does  not  exist,  a  court  of  equity  will  not  lend  its  assistance,  it 
always  discountenances  laches  and  neglect ;  and  here  the  plaintiff  does 
not  offer  by  his  bill  to  pay  the  money  he  owes,  he  only  seeks  to  set  off 
his  debts  against  the  rents  and  profits.  Is  a  plaintiff  so  conducting 
himself  entitled  to  call  on  this  court,  to  exercise  its  discretion,18  using 
that  discretion  according  to  the  facts  and  circumstances  of  the  case? 
Upon  the  principles  adopted  by  courts  of  equity  in  respect  to  cases 
seeking  a  specific  execution,  1  think  the  laches  equally  as  strong  against 
a  plaintiff  in  not  prosecuting,  as  in  not  commencing  a  suit.19     *     *     * 

Lindley,  L.  J.,  said:  "The  extraordinary  remedy  by  specific  performance  is 
always  more  or  less  open  to  discretion." 

The  extra-legal  order  of  a  court  of  equity  is  not  to  be  issued  peremptorily, 
as  the  legal  remedy  would  be  administered,  but  may  be  withheld  if  in  the 
opinion  of  the  court  it  will  resalt  in  injustice. 

i"  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 

is  Discretion  is  here  used  as  the  equivalent  of  grace,  as  of  the  sovereign's 
grace  by  virtue  of  his  royal  prerogative  to  do  justice.  See  Jackson  v.  Tor- 
rence  (1890)  S3  Cal.  521,  23  Pac.  695,  where  Chief  Justice  Beatty  states  basic- 
position  of  equity  most  succinctly:  "The  specific  enforcement  of  contracts  is 
allowed  as  a  matter  of  grace,  and  not  of  right." 

In  a  court  of  law  the  plaintiff  came  asserting  his  right  and  claiming  his 
remedy  out  of  his  light.  In  equity  the  suitor  petitioned  the  King  or  Chan- 
cellor to  move  his  grace  to  operate  as  special  or  extraordinary  favor. 

i9  In  Louisville  By.  Co.  v.  Kellner-Dehler  Bealty  Co.  (Ky.  1912)  147  S.  W. 
424.  426,  the  court  speaking  through  Nunn,  J.,  said:  "A  decree  for  the  specific 
performance  of  a  contract  for  the  sale  of  real  estate  does  not  go  as  a  mat- 
ter of  course,  but  is  granted  or  withheld  accordingly  as  equity  and  justice 
seem  to  demand,  in  view  of  all  the  circumstances  in  the  case.  In  the  case  of 
Bluegrass  Bealty  Co.  v.  Shelton,  148  Ky.  666,  147  S.  W.  33,  41  L.  K.  A.  (N. 
S.)  384,  the  opinion  in  which  was  delivered  May  31,  1912,  the  court  said:  'In 
Story's  Equity  (section  750)  the  author  says:  "Indeed,  the  proposition  may  be 
more  generally  stated  that  courts  of  equity  will  not  interfere  to  decree  a  spe- 
cific performance,  exceot  in  cases  where  it  would  be  strictly  equitable  to  make 
such  a  decree."  In  Woollums  v.  Horsley  (1S92)  93  Ky.  582  [20  S.  W.  781], 
it  was  said  that  a  specific  execution  was  not  a  matter  of  absolute  right  in  a 
party,  but  of  sound  discretion  of  the  court ;  that  a  hard  or  unconscionable 
bargain  would  not  be  specifically  enforced,  nor  if  the  decree  would  produce 
injustice  or  under  the  circumstances  be  inequitable:  that  a  court  of  equity 
would  allow  a  defendant  to  resist  a  decree,  where  the  plaintiff  might  not  be 
allowed  relief  upon  the  same  evidence;  and  that  a  contract  ought  not  to  be 
carried  into  a  specific  performance,  unless  it  should  be  just  and  fair  in  all 
respects.'  " 

The  court  by  Bice,  Presiding  Judge,  in  Fister,  AppeUant,  v.  Kutztown  Bor- 
ough (1912)  49  Pa.  Super.  Ct.  483,  at  492,  considers  "grace"  has  ripened  in 

Boke  Eq. — 2 


IS  BASIS   OF   EQUITY  JURISDICTION  (Ch.  1 

SECTION  2.— DEVELOPMENT  OF  EQUITY  JURISDICTION 


DALTON  v.  VANDERVEER. 

(Supreme  Court  of  New  York,  1894.    S  Misc.  Rep.  4S4,  29  N.  Y.  Supp.  342, 
31  Abb.  N.  C.  430,  23  Civ.  Proc.  R.  443.) 

Gayxor,  J.  The  complaint  alleges  in  sum  and  substance  that  the  de- 
fendant owned  a  tract  of  65  acres  of  land,  and  in  order  to  secure  the 
experience  and  assistance  of  the  plaintiff  in  laying  it  out  in  lots  and 
streets,  and  selling  it  off  by  lots  at  auction  or  private  sale,  entered  into 
an  agreement  of  copartnership  with  the  plaintiff,  whereby  the  plaintiff 
was  given  a  certain  interest  in  common  with  the  defendant  in  the  lands 
and  the  future  proceeds  of  sales  thereof ;  that  out  of  such  proceeds 
the  defendant  was  first  to  be  paid  the  moneys  expended  in  preparing 
the  land  for  sale  by  lots,  as  aforesaid,  the  agreement  requiring  him  to 
advance  it  all,  and  then  $3,000  an  acre  for  the  tract,  after  which  the 
overplus,  if  any,  should  be  divided  between  the  parties,  the  plaintiff's 
share  to  be  one-quarter;  and  that  after  the  plaintiff  had  so  plotted 
and  prepared  the  land  for  sale,  and  a  large  number  of  lots  had  been  ac- 
tually sold,  the  defendant  notified  the  plaintiff  that  he  dissolved  the 
partnership,  and  refused  to  go  any  further  with  the  enterprise  as  a 
joint  one;  and  the  prayer  is  for  a  judgment  declaring  the  plaintiff  to 
be  a  part  owner  of  the  land,  for  the  appointment  of  a  receiver  to  sell 
the  land,  and  for  an  accounting  and  division.  The  answer  denies  the 
copartnership,  and  alleges  that  the  plaintiff  was  only  the  employe  of 
the  defendant.  The  proof  shows  that  there  was  no  copartnership,  but 
that  the  plaintiff  was  employed  as  an  agent  by  the  defendant  to  prepare 
the  land  for  sale  and  sell  it,  as  aforesaid ;  and  that  for  his  services 
he  was  to  be  paid  one-quarter  of  the  overplus,  as  already  stated ;    and 

modern  times  into  an  equitable  right.  It  interprets  the  modern  view  of  grace 
in  the  following  language:  "While  it  is  often  said  that  an  injunction  is  mat- 
ter of  grace,  yet  that  phrase  lias  acquired  a  definite  meaning,  which  does  not 
leave  the  exercise  of  the  power  to  t\m  mere  pleasure  or  will  of  the  chancellor. 
'Certainly  no  chancellor  in  any  English-speaking  country  will  at  this  day  ad- 
mit that  he  dispenses  favors  or  refuses  rightful  demands,  or  deny  that  when 
a  suitor  lias  brought  his  cause  clearly  within  the  rules  of  equity  jurispru- 
dence, the  relief  he  asks  is  demandable  ex  debito  justitiae,  and  needs  not  to 
be  implored  ex  gratia.'  Walters  v.  McElroy  (1892)  151  Pa.  549,  25  Atl.  125. 
And  in  the  very  recent  case  of  Sullivan  v.  Jones  &  Laughlin  Steel  Co.  (1904^ 
208  Pa.  540.  57  Atl.  1065,  66  L.  R.  A.  712,  Justice  Brown  said:  'It  is  urged 
that  as  an  injunction  is  a  matter  of  grace,  and  not  of  right,  and  more  injury 
will  result  in  awarding  than  refusing  it,  it  ought  not  to  go  out  in  this  case. 
A  chancellor  does  act  as  of  grace,  but  that  grace  sometimes  become  a  matter 
of  right  to  the  suitor  in  his  court,  and,  when  it  is  clear  that  the  law  cannot 
give  protection  and  relief — to  which  the  complainant  in  equity  is  admittedly 
entitled— the  chancellor  can  no  more  withhold  his  grace  than  the  law  can  deny 
protection  and  relief,  if  able  to  give  them.  This  is  too  often  overlooked  when 
it  is  said  that  in  equity  a  decree  is  of  grace,  and  not  of  right,  as  a  judgment 
at  law.'  " 


Sec.  2)  DEVELOPMENT   OP   EQUITY  JURISDICTION  19 

that  after  the  contract  had  been  partly  performed,  a  large  number  of 
sales  having  been  made,  the  defendant  discharged  the  plaintiff.  The 
cause  of  action  which  the  proof  presents  is  therefore  one  for  damages 
for  breach  of  contract  for  services.  The  amount  already  realized  from 
sales  is  easily  ascertained.  Past  sales  furnish  evidence  of  the  time  and 
effort  it  would  take  to  sell  off  all  of  the  lots,  and  also  of  the  price  for 
which  the  lots  can  be  sold,  and  it  would  not  be  difficult  to  otherwise 
prove  their  value ;  so  that  no  difficulty  would  be  encountered  in  prov- 
ing the  damages  which  the  plaintiff  has  sustained  by  the  breach  of  the 
contract.  In  this  state  of  tbe  case,  may  the  court  go  on  and  assess  the 
damage  in  this,  or  must  the  complaint  be  dismissed?  The  complaint 
states  a  case  which  is  within  the  jurisdiction  of  equity,  and  is  not  an 
action  at  law,  but  the  evidence  fails  to  sustain  the  complaint,  and  also 
fails  to  make  out  any  case  which  is  within  the  jurisdiction  of  equity. 
This  being  so,  must  not  the  complaint  be  dismissed  ? 

The  origin  of  the  high  court  of  chancery  in  England  was  due  wholly 
to  the  inability,  and,  to  a  limited  extent,  the  unwillingness,  of  the  com- 
mon-law courts  to  entertain  and  give  relief  in  every  case,  and  thus 
meet  all  the  requirements  of  justice.  The  common-law  courts  paid 
such  deference  to  forms  and  precedents  that  they  became  slaves  to 
them.  Their  jurisdiction  was  thus  circumscribed.  They  adhered  to 
certain  precise  writs  and  rigid  forms  of  action  which  were  not  suffi- 
ciently comprehensive  to  enable  them  to  give  adequate  redress  in  some 
cases  of  injustice  and  wrong,  or  to  give  any  redress  in  many  others. 
In  such  cases  the  aggrieved  person  was  remediless,  except  he  could 
get  a  hearing  of  the  king  himself.  Petitions  by  those  in  such  case 
were,  therefore,  frequently  presented  to  the  king,  asking  for  relief  of 
him  as  matter  of  grace,  because  it  could  not  be  got  of  his  courts.  From 
the  fact  that  the  king  usually  referred  such  petitions  to  his  secretary, 
called  his  "chancellor,"  they  came  in  course  of  time  to  be  presented  to 
the  chancellor  directly  by  the  suitors  themselves ;  and  thus,  gradually 
and  at  a  time  which  history  cannot  enable  us  to  precisely  fix,  the  court 
of  chancery  came  to  be  established.  As  is  seen,  its  jurisdiction  was 
wholly  extraordinary.  Relief  was  afforded  by  it  only  in  those  cases 
wherein  the  common-law  courts  either  could  give  no  redress  at  all,  or 
could  not  give  adequate  redress ;  and  any  one  coming  to  chancery  with 
a  case  which  did  not  need  its  extraordinary  jurisdiction,  but  could  be 
adequately  dealt  with  in  the  common-law  courts,  was  dismissed  for 
lack  of  jurisdiction.  Thus,  side  by  side  there  existed  the  court  of 
chancery  and  the  common-law  courts,  each  with  a  distinct  jurisdiction, 
the  test  of  chancery's  jurisdiction  in  any  given  case  being  that  the  suit- 
or could  either  get  no  relief,  or  could  not  get  adequate  relief,  in  a  court 
of  common  law ;  and,  therefore,  necessarily,  there  also  grew  up,  not 
only  two  distinct  systems  of  practice  in  these  courts,  but  also  two  dis- 
tinct systems  of  substantive  jurisprudence,  that  in  the  court  of  chan- 
cery being  the  system  which  we  call  "equity."  In  the  formation  of  the 
government  of  this  state  these  two  distinct  kinds  of  courts  and  systems 


20  BASIS  OF  EQUITY  JURISDICTION  (Ch.  1 

were  given  a  place  from  the  beginning,  and  the  court  of  chancery  here 
was  clothed  with  the  general  jurisdiction  and  powers  of  the  high  court 
of  chancery  in  England.20  Separate  courts  thus  administered  these 
separate  systems  of  jurisprudence  in  this  state  until,  by  the  constitu- 
tion of  1846,  the  court  of  chancery  was  abolished,  and  its  jurisdiction 
and  powers  were  devolved  upon  the  supreme  court.  From  that  time 
on  the  same  court  has  administered  justice  under  both  systems;  but, 
all  the  same,  the  two  systems  have  necessarily  preserved  their  identity 
and  continued  to  exist.  The  court  of  chancery  is  gone,  but  the  system 
of  equity  jurisprudence  remains,  and  is  still  administered,  but  by  the 
same  court  which  also  administers  the  common-law  system.  There  is 
only  one  court  to  administer  both  systems,  but  they  remain  distinct 
systems. 

This  much  have  I  said,  because  we  seem  sometimes  to  lose  sight  of 
it,  and  think  otherwise.  The  cause  of  this  is  no  doubt  the  enactment 
in  our  first  Civil  Procedure  Code  of  1848,  and  found  in  our  present  re- 
vised Code  of  Civil  Procedure,  namely  : 

"There  is  only  one  form  of  civil  action.  The  distinction  between  actions  at 
law  and  suits  in  equity,  and  the  forms  of  those  actions  and  suits,  have  been 
abolished."     Section  3039. 

But  this  enactment  relates  only  to  the  two  systems  of  practice,  and 
has  no  reference  to  the  two  systems  of  substantive  jurisprudence.  They 
still  exist  side  by  side,  but  the  separate  systems  of  practice  under  which 
they  were  formerly  administered  have  been  abolished,  and  the  one  sys- 
tem of  our  practice  statute  substituted.  It  is  in  this  view  that  our 
court  of  appeals  has  said  that  "the  distinction  between  legal  and  equi- 
table actions  is  as  fundamental  as  that  between  actions  ex  contractu 
and  ex  delicto,  and  no  legislative  fiat  can  wipe  it  out"  (Gould  v.  Bank, 
86  N.  Y.  83);  and,  again,  that  "the  names  of  actions  no  longer  exist, 
but  we  retain  in  fact  the  action  at  law  and  the  suit  in  equity''  (Stevens 
v.  Mayor,  etc.,  84  N.  Y.  304) ;  and,  again,  that,  "although  the  distinc- 
tion between  actions  at  law  and  suits  in  equity  is  alolished,  the  distin- 
guishing features  between  the  two  classes  of  remedies,  legal  and  equi- 
table, are  as  clearly  marked  and  rigidly  observed  as  they  ever  were, 
and  this  is  necessary  to  the  administration  of  justice  in  an  orderly 
manner  and  the  preservation  of  the  substantial  rights  of  suitors" 
(Chipman  v.  Montgomery,  63  N.  Y.  230).     In  a  word,  the  forms  are 

20  In  American  Malting  Co.  v.  Keitel  (Circuit  Court  of  Appeals,  Second  Cir- 
cuit, 1913)  209  Fed.  351,  at  353,  126  C.  C.  A.  277,  Rogers,  Circuit  Judge,  speak- 
ing for  the  court,  said:  "Courts  of  equity  like  courts  of  law  follow  estab- 
lished precedents.  They  cannot  usurp  powers  they  do  not  possess.  We  recog- 
nize the  fact  that  equity  is  an  elastic  system;  that  its  procedure  is  progres- 
sive and  is  capable  of  accommodating  itself  to  the  changing  emergencies  and 
demands  of  the  age.  If  it  were  otherwise  it  could  not  so  well  have  met  the 
needs  of  our  civilization.  At  the  same  time  courts  are  not  to  usurp  powers 
they  do  not  possess.  In  a  country  which  has  constitutional  guaranties  of 
freedom  of  speech  and  of  the  press  and  of  trial  by  jury,  courts  of  equity 
should  be  slow  to  assume  that  they  possess  a  power  to  deal  with  the  publica- 
tion of  libels  that  the  High  Court  of  Chancery  in  England  disclaimed." 


Sec.  2)  DEVELOPMENT   OF   EQUITY   JURISDICTION  21 

all  that  are  changed.  The  two  distinct  systems  of  justice  still  remain, 
though  they  are  administered  by  the  same  court,  under  one  system  of 
practice.21 

This  brings  me  down  to  saying  what  must  be  done  with  this  action. 
Under  our  existing  system,  both  actions  at  law  and  suits  in  equity  being 
brought  in  the  same  court,  they  are  in  regular  course  placed  upon  sep- 
arate calendars  by  the  parties  themselves  ;  namely,  actions  at  law  upon 
the  calendar  of  causes  to  be  tried  by  a  jury,  and  equity  actions  upon 
the  calendar  of  causes  to  be  tried  by  the  court  without  a  jury.  When 
chancery  existed  as  a  separate  court,  if  a  suitor  came  there  with  a  com- 
mon-law action  he  was  dismissed  for  lack  of  jurisdiction;  but  now, 
if  a  plaintiff  place  an  action  at  law  upon  the  equity  calendar,  and  no- 
tice it  for  trial  there,  he  may  not  be  dismissed  out  of  court.  The  court 
may,  of  its  own  motion,  refuse  to  hear  it,  and  send  it  to  the  jury  cal- 
endar; or,  if  the  court  be  willing  to  hear  it,  the  defendant  may,  never- 
theless, by  demanding  a  jury  trial,  have  the  cause  sent  to  the  jury  cal- 
endar;  and,  if  he  did  not  so  demand,  he  waives  the  right  to  a  jury 
trial,  and  confers  jurisdiction  upon  the  court  to  hear  it  without  a  jury ; 
and  the  rule  is  the  same  whichever  side  has  so  placed  it  upon  the  cal- 
endar and  noticed  it.  Code  Civ.  Proc.  ,§  1009.  The  cause  of  action 
stated  in  the  complaint  in  this  action  being  wholly  equitable,  and  in  no 
aspect  constituting  an  action  at  law,  the  case  was  properly  placed  upon 
the  equity  calendar  and  noticed  for  trial  there  by  the  parties.  For  the 
same  reason  the  defendant  had  no  right  to  demand  a  jury  trial.  The 
case  presented  by  the  complaint  was  not  one  which  entitled  the  plain- 
tiff to  a  jury  trial,  and  he  was  bound  by  the  complaint  in  that  respect. 
It  cannot  therefore  be  claimed  that  he  has  waived  a  trial  by  the  jury 
of  the  cause  of  action  presented  by  the  evidence.  Nor  can  it  be  said 
that,  by  failure  to  plead  in  his  answer  that  the  defendant  had  an  ade- 
quate remedy  by  an  action  at  law,  he  has  waived  his  right  to  so  claim 
now.  When  chancery  existed  as  a  separate  court,  and  a  suitor  came 
there  asking  for  equitable  relief  upon  a  statement  of  facts  in  his  bill 
upon  which  he  could  get  full,  complete,  and  adequate  relief  in  an  ac- 
tion at  law,  the  chancellor  was  free  to  so  inform  him,  and  refuse  to  be 
vexed  by  his  suit ;  but  in  order  that  the  defendant  might  so  insist,  and 
have  the  suit  dismissed  on  his  motion,  it  was  necessary  for  him  to  so 

21  In  Powers'  Appeal  (1889)  125  Pa.  175,  186,  17  Atl.  254,  11  Ain.  St.  Rep. 
882,  the  court  said:  "The  maxim  of  the  common  law  that  wherever  there  is 
a  right  there  is  a  remedy  for  its  infraction  has  never  heen  adopted  by  courts 
of  equity.  A  party  whose  right  is  clear  may  sleep  upon  it  until  his  demand 
becomes  stale.  He  may  look  on  while  valuable  structures  are  erected,  when 
he  might  successfully  object,  and  remain  silent  until  large  sums  have  been 
expended  or  important  intervening  interests  have  grown  up.  In  such  cases 
the  fact  that  he  might  have  objected  at  the  outset  will  not  avail  him.  A 
suitor  must  not  only  appear  in  a  court  of  equity  with  clean  hands,  but  he 
must  come  with  reasonable  promptness,  in  good  faith,  and  with  a  just  and 
equitable  demand  ;  otherwise  the  conscience  of  the  chancellor  will  not  be 
moved.  If  an  injunction  is  prayed  for  where,  upon  a  consideration  of  the 
whole  case,  it  ought  not  in  good  conscience  to  issue,  a  mere  legal  right  in 
the  plaintiff  will  not  move  the  chancellor." 


22  BASIS   OF   EQUITY   JURISDICTION  (Ch.  1 

plead  in  his  answer,  in  default  of  which  he  was  held  to  have  waived 
that  defense,  and  submitted  the  cause  to  the  chancery  for  equitable  dis- 
position, provided  that  court  could  in  the  end  make  any  such  disposi- 
tion of  it;  and  such  is  still  the  rule  of  pleading.  Grandin  v.  Le  Roy, 
2  Paige,  509;  Wiswall  v.  Hall.  3  Paige,  313;  Le  Roy  v.  Piatt,  4  Paige, 
77;  Truscott  v.  King,  6  X.  Y.  147;  Town  of  Mentz  v.  Cook,  108  N. 
Y.  504,  15  X.  E.  541 ;  Ostrander  v.  Weber.  114  X.  Y.  95.  21  X.  E.  112; 
Watts  v.  Adler.  130  X.  Y.  646,  29  X.  E.  131.  But  the  facts  stated  in 
the  complaint  made  the  action  at  bar  an  equitable  one  solely,  and  not 
of  legal  cognizance,  and  therefore  the  defendant  could  not  properly 
have  pleaded  that  the  plaintiff  had  an  adequate  remedy  in  an  action  at 
law.  He  was  not  required  to  plead  that,  upon  the  actual  facts  which 
the  plaintiff  had  not  pleaded,  the  plaintiff  could  get  adequate  redress 
in  an  action  at  law.  He  was  only  required  to  plead  to  the  complaint ; 
and  the  complaint  being  framed  solely  for  equitable  relief,  it  being 
found  upon  trial  that  the  plaintiff  is  not  entitled  to  such  relief,  the 
court  cannot  entertain  the  action  to  give  judgment  for  damages  or  to 
amend  the  complaint  so  as  to  change  the  action  into  one  at  law. 
Wheelock  v.  Lee,  74  X.  Y.  495  ;  Oakville  Co.  v.  Double-Pointed  Tack- 
Co.,  105  X.  Y.  658,  11  X.  E.  839;  Bockes  v.  Lansing,  74  X.  Y.  437. 
The  complaint  is  therefore  dismissed,  with  costs.-2 

22  "Principles  of  E'luity  Adopted  in   the  United  States 

"It  has  already  been  stated  that  the  principles  of  justice,  as  administered 
by  the  Hitch  Court  of  Chancery  in  England  in  the  exercise  of  its  extraordi- 
nary jurisdiction,  have  been  adopted  in  nearly  all,  it  would  not  be  too  much 
to  say  in  o/?,  of  tbe  United  States.  While  this  is  true,  it  must  be  remembered 
tbat  the  practical  application  of  these  principles  through  the  machinery  of 
the  courts  has  varied  very  much  throughout  the  Union,  and  has  received 
many  modifications  at  different  periods. 

"Jurisdiction  of  Federal  Courts 

"The  federal  courts  have  equity  powers  within  the  scope  of  the  jurisdiction 
conferred  upon  them  by  the  Constitution. 

"By  the  ('(institution  of  the  United  States  it  is  provided  that  the  judicial 
power  of  the  federal  government  shall  extend  to  all  cases  at  law  or  in  equity 
arising  under  the  Constitution  and  laws  of  the  United  States,  and  treaties 
made  or  which  shall  be  made  under  their  authority.  This  jurisdiction,  as  ex- 
plained in  the  judiciary  act,  is  not  to  be  exercised  in  either  of  the  courts  of 
the  United  States  in  any  case  where  a  plain,  adequate,  and  complete  remedy 
may  lie  had  at  law,  but  this  enactment  is  declaratory  merely  of  the  existing 
law.  It  has  also  been  said  that  the  practice  of  the  English  1 1  IlcIi  Court  of 
Chancery  forms  the  basis  of  the  equity  practice  of  the  courts  of  the  United 
States. 

"Not  only  are  both  the  principles  and  practice  of  the  High  Court  of  Chan- 
cery recognized  in  the  administration  of  equity  in  the  federal  courts,  but  the 
administration  of  chancery  doctrines  under  chancery  forms  is  uniform 
throughout  the  Union. 

"At  the  time  the  Constitution  was  formed,  the  distinction  between  law  and 
equity  as  known  in  the  country  from  whence  our  ancestors  came  was  recog- 
nized by  the  ('(institution;  and  the  courts  of  the  United  States  have  uni- 
formly held  that  the  rules  of  decision  in  equity  cases  were  the  same  in  all  the 
states,  and  they  are  the  equity  law  which  we  derived  from  England.  It  is, 
moreover,  settled  law  that  the  courts  of  the  United  States  do  not  lose  any 
of  their  equitable  jurisdiction  in  these  states  where  no  such  courts  exist,  but, 
on  the  contrary,  are  bound  to  administer  equitable  remedies  in  cases  to  which 


Sec.  2)  DEVELOPMENT   OF   EQUITY   JURISDICTION  23 

they  are  applicable,  and  which  are  not  adapted  to  a  common-law  action. 
Equitable  titles,  therefore,  though  allowed  to  be  set  up  in  state  courts,  iu 
common-law  suits,  cannot  be  recognized  in  such  suits  in  the  federal  courts. 
They  must  be  made  the  subjects  of  suits  in  equity. 

"Changes  of  Procedure  in  Some  States 

"After  the  separation  of  the  American  Colonies  from  the  British  Crown,  the 
Constitutions  of  many  of  the  states  provided  for  the  establishment  of  courts 
of  chancery,  after  the  model  of  the  High  Court  of  Chancery  in  England. 
Such  was  the  case  in  New  York,  New  Jersey,  Maryland,  Delaware,  South 
Carolina,  and  also  Michigan. 

"In  other  states,  as  in  Pennsylvania,  there  were  no  separate  courts  of  chan- 
cery, and  the  equity  powers  conferred  upon  the  common  law  courts  were  ex- 
tremely limited.  Changes  were,  however,  made  from  time  to  time  in  most  of 
the  states.  In  1840  the  state  convention  which  revised  the  Constitution  of 
New  York  abolished  the  courts  of  chancery,  and  conferred  upon  the  Supreme 
Court  a  general  jurisdiction  in  law  and  equity ;  while,  on  the  other  hand,  in 
Pennsylvania  enlarged  equity  powers  were  conferred  upon  the  courts  iu  obedi- 
ence to  the  suggestions  contained  in  the  report  to  revise  the  Civil  Code,  made 
in  1S35. 

"The  example  of  New  York  in  abolishing  the  distinction  between  legal  and 
equitable  forms  of  action,  and  substituting  a  general  form  of  civil  action  in 
their  place,  has  been  followed  by  very  many  Western  states  of  the  Union,  and 
even  the  state  of  South  Carolina,  so  justly  celebrated  for  the  learning  and 
ability  of  its  chancellors,  has  given  in  its  adherence  to  the  new  system,  and 
has  adopted  a  code  whereby  separate  courts  of  equity  are  abolished,  and  all 
civil  injuries  are  redressed  by  one  form  of  action. 

"But  even  in  those  states  where  this  sweeping  change  has  been  effected  it 
has  still  been  found  necessary  to  make  provisions  for  certain  equitable  reme- 
dies, the  absence  of  which  would  inevitably  result  in  a  failure  of  justice  in 
many  cases.  Thus,  injunctions  and  writs  of  ne  exeat  are  issued,  specific  per- 
formance enforced,  and  receivers  appointed  upon  applications  not  made  ac- 
cording to  the  course  and  practice  of  chancery,  but  under  common-law  or 
statutory  forms ;  and  relief  which  falls  under  the  quia  timet  jurisdiction  of 
equity  is  afforded  through  the  medium  of  a  petition  or  complaint. 

''Classification  of  States 

"In  considering  this  subject,  therefore,  the  states  of  the  Union  may  be  con- 
veniently divided  in  three  groups  or  classes. 

"The  first  embraces  those  states  wherein  distinct  courts  of  chancery  exist, 
and  includes  New  Jersey,  Kentucky,  Delaware,  Tennessee,  Mississippi,  and 
Alabama. 

"The  second  class  is  composed  of  those  states  wherein  chancery  powers  are 
exercised  by  judges  of  common-law  courts,  but  according  to  the  course  and 
practice  of  chancery.  These  states  are  Maine,  New  Hampshire,  Vermont, 
Massachusetts,  Rhode  Island,  Connecticut,  Pennsylvania,  Maryland,  Virginia, 
West  Virginia,  North  Carolina,  Illinois,  Texas,  Florida,  Michigan,  Iowa, 
Arkansas,  Oregon,  North  Dakota,  South  Dakota,  Washington,  and  Colorado. 

"The  third  class  of  states  includes,  it  is  believed,  all  those  which  have  not 
been  mentioned  as  falling  within  the  other  two  classes.  In  these  states  the 
distinction  between  actions  at  law  and  suits  in  equity  has  been  abolished  ; 
but,  as  has  been  already  stated,  certain  equitable  remedies  are  still  adminis- 
tered under  the  statutory  form  of  the  civil  action. 

"Whatever  modifications  have  been  introduced  by  statute  into  the  forms  of 
relief,  the  system  of  justice  which  is  administered  in  courts  of  equity  must,  of 
necessity,  enter  into  the  laws  of  every  civilized  state  whose  Lnstiti  tions  are 
derived,  directly  or  indirectly,  from  England;  and  no  state  in  the  Union, 
however  widely  it  may  depart  from  the  practice  of  the  English  High  Court  of 
Chancery,  can  discard  the  principles  upon  which  its  extraordinary  jurisdic- 
tion is  founded." 

Bispham,  Principles  of  Equity  (7th  Ed.  1906)  pp.  21  to  25. 


24  BASIS  OF  EQUITY  JURISDICTION  (Cll.  1 


CHANCELLOR'S  EXTRAORDINARY  JURISDICTION. 

Of  course,  if  the  Courts  of  the  King's  Bench,  Common  Pleas,  and  Ex- 
chequer had  been  able  and  willing  to  redress  every  imaginable  wrong, 
the  reserve  jurisdiction  of  the  Council  never  would  have  been  called 
into  play,  and  the  Court  of  Chancery  never  would  have  grown  into  be- 
ing. But  the  jurisdiction  of  each  of  the  common-law  courts  was  circum- 
scribed. Certain  precise  and  rigid  forms  of  action  existed,  which  were 
supposed  to  carry  the  great  maxim  of  justice,  "ubi  jus  ibi  remedium," 
but  which  in  point  of  fact  were  not  sufficiently  comprehensive  to  do  so. 
Xo  common-law  writ,  for  example,  existed  by  which  a  defective  instru- 
ment could  be  reformed ;  a  fraudulent  conveyance  set  aside,  a  mistake 
or  accident  effectually  relieved  against,  or  a  beneficial  interest  in  prop- 
erty be  enforced  as  against  the  holder  of  a  legal  title.  Hence  many  in- 
juries must  necessarily  and  actually  did  exist,  for  which  the  common- 
law  courts  furnished  no  appropriate  redress ;  and  therefore  it  was  that, 
finding  no  relief  in  the  King's  Bench  or  Common  Pleas,  the  suitor  was 
compelled  to  throw  himself  upon  the  grace  and  compassion  of  the  King 
and  Council. 

Two  or  three  circumstances,  moreover,  concurred  to  render  this  ex- 
traordinary jurisdiction  liable  to  increase:  First,  the  tendency  of  the 
common-law  rules  to  hardness  and  rigidity  by  reason  of  the  deference 
paid  to  precedents ;  secondly,  the  refusal  of  the  common  law  to  adopt 
that  part  of  the  Roman  law  which  may  be  called  equitable,  as  distin- 
guished from  that  which  is  merely  stricti  juris;  and,  finally,  the  desire 
to  increase  the  dignity  and  importance  of  the  office  of  Chancellor,  which 
grew  to  great  proportions  after  the  abolition  of  the  office  of  Chief 
Justiciary,  whereby  an  ambitious  holder  of  the  great  seal  would  natural- 
ly be  led  to  give  redress  by  virtue  of  his  extraordinary  jurisdiction, 
rather  than  by  directing  a  writ  to  be  issued  to  bring  the  cause  before  the 
ordinary  tribunals. 

The  jurisdiction  above  described  was  not  exercised  without  opposition. 
In  the  successive  reigns  of  Richard  II,  Henry  IV,  Henry  V,  and  Henry 
VI,  petitions  were,  from  time  to  time,  presented  by  the  Commons  set- 
ting forth  encroachments  upon  the  common  law,  complaining  that  men 
were  brought  before  the  Council  on  matters  which  were  remedial  at 
law,  and  (in  two  instances)  inveighing  against  the  use  of  subpoena.  The 
jurisdiction  of  the  Chancellor  and  the  Council  was,  however,  upheld  by 
the  sovereign  ;  and  the  obnoxious  writ  was  not  abolished. 

In  the  reign  of  Henry  VIII  a  statute  was  passed  which  threatened 
at  first  to  remove  a  large  portion  of  the  jurisdiction  of  the  Chancellor 
by  destroying  a  species  of  property  which  had  hitherto  been  solely 
cognizable  in  his  court,  namely  the  use. 

By  the  celebrated  Statute  of  Uses  (27  Henry  VIII,  c.  10)  this  estate 
in  the  land  (the  use),  which  had  hitherto  been  recognized  solely  in  a 
court  of  equity,  was  clothed  with  the  legal  title,  and  thereby  rendered  a 


Sec.  2)  DEVELOPMENT  OP   EQUITY  JURISDICTION  25 

proper  subject  for  the  recognition  of  a  common-law  court.  The  nature 
of  the  use  and  the  effect  of  the  statute  will  be  explained  hereafter.  It 
will  be  sufficient  to  say,  at  present,  that  the  threatened  blow  at  the  juris- 
diction of  the  Chancery  was  averted  by  an  ingenious  construction  of  the 
statute,  whereby  these  equitable  estates  were  rescued  from  destruc- 
tion, and  their  control  still  retained  in  the  court  where  they  had  orig- 
inated. 

In  the  reign  of  James  I,  another  attempt  was  made  to  interfere  with 
the  jurisdiction  of  the  Chancellor.  An  action  was  tried  before  Coke  in 
which  the  plaintiff  lost  the  verdict  in  consequence  of  one  of  his  witness- 
es being  artfully  kept  away.  He  then  had  recourse  to  Chancery  to  com- 
pel the  defendant  to  answer  on  his  oath,  which  the  latter  refused  to 
do,  and  was  committed  for  contempt.  Coke  then  had  indictments  pre- 
ferred against  the  parties  to  the  bill,  their  counsels  and  solicitors  for 
suing  in  another  court  after  judgment  obtained  at  law,  which  was  al- 
leged to  be  contrary  to  the  statute  of  praemunire. 

The  matter  was  referred  to  the  King,  whose  decision  was  in  favor  of 
the  Lord  Chancellor. 

From  that  time  to  the  present  the  jurisdiction  of  the  Court  of  Chan- 
cery has  been  free  from  interference,  and  has  expanded  into  a  wise  and 
comprehensive  system  of  justice.  This  system  has  been  perfected  by 
the  hands  of  many  illustrious  men  who  have  sat  upon  the  woolsack  or 
at  the  Rolls — among  whom  are 'to  be  mentioned  Nottingham,  Hard- 
wicke,  Eldon  and  Grant,  St.  Leonards,  Westbury,  Selborne,  and  Jessel. 

Courts  of  common  law,  in  modern  times,  have  afforded  relief  in 
many  cases  which  formerly  fell  under  the  cognizance  of  Chancery 
alone ;  but  the  latter  tribunal  has  not,  on  that  account,  abandoned  the 
jurisdiction  which  it  had  acquired,  and  the  suitor  has  now,  not  unfre- 
quently,  two  tribunals  from  which  he  may  obtain  redress. 

The  choice  between  the  two  tribunals  in  England  has  been  in  late 
years  greatly  affected  in  favor  of  the  Court  of  Chancery,  by  reason  of 
the  vast  improvements  which  have  been  introduced  in  the  constitutions 
of  the  equity  courts  and  the  practice  therein.  The  jurisdiction  former- 
ly administered  by  the  Chancellor  alone  came,  by  various  statutes,  to 
be  vested  in  eight  judges,  viz.,  the  Lord  High  Chancellor,  two  Lord 
Justices  of  Appeal,  the  Master  of  the  Rolls,  three  Vice  Chancellors, 
and  the  Chief  Judge  in  Bankruptcy;  and  many  improvements  were 
introduced  tending  to  the  prompt  and  economical  administration  of  jus- 
tice. 

Supreme  Court  of  Judicature  Act 

The  system,  however,  of  two  distinct  sets  of  courts  administering 
different  and  sometimes  conflicting  rules  at  last  ceased  to  find  favor  in 
England.  On  the  fifth  of  August,  1873,  an  Act  of  Parliament  was 
passed  under  the  title  of  "Supreme  Court  of  Judicature  Act,"  whereby 
the  constitution  of  the  English  courts  was  radically  changed.  By  this 
Act  (which  it  was  declared  should  come  into  operation  on  the  second 


26  BASIS   OF   EQUITY  JURISDICTION  (Cll.  1 

day  of  November,  1874)  it  was  provided  that  the  Court  of  Chancery, 
the  Court  of  Queen's  Bench,  the  Court  of  Common  Pleas,  the  Court  of 
Exchequer,  the  High  Court  of  Admiralty,  the  Court  of  Prohate,  the 
Court  for  Divorce  and  Matrimonial  Causes,  and  the  London  Court  of 
Bankruptcy  should  be  united  and  consolidated,  and  should  constitute 
one  Supreme  Court  of  Judicature,  to  consist  of  two  divisions,  under 
the  names  of  "Her  Majesty's  High  Court  of  Justice"  and  "Her  Majes- 
ty's Court  of  Appeal."  It  was  further  provided  that  the  judges  of  the 
High  Court  of  Justice  should  not  exceed  twenty-one  in  number,  and 
that  the  Court  of  Appeal  was  to  consist  of  five  ex  officio  judges,  and  so 
many  ordinary  judges  (not  to  be  exceeding  nine  at  any  time)  as  might 
from  time  to  time  be  appointed.  The  ex  officio  were  declared  to  be 
the  Lord  Chancellor,  the  Lord  Chief  Justice  of  England,  the  Master 
of  the  Rolls,  the  Lord  Chief  Justice  of  the  Common  Pleas,  and  the 
Lord  Chief  Baron  of  the  Exchequer.  The  act  further  provided  that,  if 
the  plaintiff  claims  any  equitable  estate,  or  right,  or  relief  upon  any 
equitable  ground,  or  equitable  relief  upon  a  legal  right,  the  said  courts 
and  every  judge  thereof  should  give  the  same  relief  as  ought  to  have 
been  given  by  the  Court  of  Chancery  before  the  passing  of  the  Act,  and 
that,  if  a  defendant  claims  any  equitable  estate  or  right,  or  relief  upon 
any  equitable  ground,  or  alleges  any  ground  of  equitable  defence,  the 
said  courts  and  every  judge  thereof  should  give  the  same  effect  to  every 
estate,  right,  or  ground  of  relief  so  claimed,  and  to  every  equitable  de- 
fence so  alleged,  as  the  Court  of  Chancery  ought  to  have  given  in  pro- 
ceedings in  that  court  before  the  passing  of  the  Act.  Other  provisions 
also  exist,  whereby  equitable  titles  and  rights  are  directed  to  be  recog- 
nized, and  equitable  remedies  substantially  applied. 

By  Statute  of  38  &  39  Vict.  c.  77  (1875).  the  constitution  of  the  Court 
of  Appeal  was  changed,  and  that  tribunal  was  made  to  consist  of  the 
five  ex  officio  judges  already  named,  and  as  many  ordinary  judges,  not 
exceeding  three,  as  should  be  from  time  to  time  appointed.  By  the  Act 
of  1876,  c.  77  (39  &  40  Vict.  c.  59),  three  additional  judges  of  appeal 
may  be  appointed,  and  an  appeal  lies  from  the  Court  of  Appeal  to  the 
House  of  Lords.  The  positions  of  Lord  Chief  Justice  of  the  Common 
Pleas  and  Lord  Chief  Baron  of  the  Exchequer  are  now  abolished. 

It  will  be  observed  that,  by  the  provisions  of  these  acts,  the  princi- 
ples of  justice,  as  administered  in  the  Court  of  Chancery,  were  made  to 
pervade  the  whole  mass  of  English  jurisprudence,  and  that,  in  fact,  by 
the  rules  growing  out  of  those  principles,  all  questions  of  justice  in 
England  are  hereafter  to  be  determined. 

Bispham,  Principles  of  Equity  (7th  Ed.)  pp.  8,  9,  17,  18,  19,  20. 


Sec.  3)  GROUNDS   OF   EQUITABLE    RELIEF 


PROCESS  IN  EQUITY. 

The  process  in  equity  was  a  subpoena,  issued  by  the  Chancellor,  in 
the  name  of  the  King,  whereby  the  party  was  summoned  to  appear  and 
answer  the  complaint  of  the  plaintiff,  and  abide  by  the  order  of  the 
court.  It  is  commonly  supposed  to  have  been  invented  by  John  de 
Waltham,  Keeper  of  the  Seal  under  Richard  II,  and  it  is  so  stated  in 
the  complaint  made  by  the  Commons  to  Henry  V  ;  but  this  is  doubtless 
an  error,  as  an  instance  of  the  writ  is  found  in  37  Edward  III ;  and  de 
Waltham  was  not  Master  of  the  Rolls  until  the  fifth  year  of  Richard  II. 

Bispham,  Principles  of  Equity  (7th  Ed.)  pp.  14,  15. 


SECTION  3.— GROUNDS  OF  EQUITABLE  RELIEF 


PUSEY  v.  PUSEY. 

(In  Cliancerv  before  Sir  Francis  North,  Lord  Keeper,  1684.     1  Vera.  273, 

23  E.  It.  465.) 

Bill  was,  that  a  horn  which  time  out  of  mind  had  gone  along  with 
the  plaintiff's  estate,  and  was  delivered  to  his  ancestors  in  ancient  time 
to  hold  their  land  by,  might  be  delivered  to  him  ;  upon  which  horn  was 
this  inscription,  viz.  pecote  this  horn  to  hold  huy  thy  land. 

The  defendant  answered  as  to  part,  and  demurred  as  to  other  part ; 
and  the. demurrer  was,  that  the  plaintiff  did  not  by  his  bill  pretend  to  be 
intitled  to  this  horn,  either  as  executor  or  devisee;  nor  had  he  in  his 
bill  charged  it  to  be  an  heir  loome. 

The  demurrer  was  over-ruled,  because  the  defendant  had  not  fully 
answered  all  the  particular  charges  in  the  bill,  and  was  ordered  to  pay 
costs.  And  the  Lord  Keeper  was  of  opinion,  that  if  the  land  was 
held  by  the  tenure  of  a  horn,  or  cornage,  the  heir  would  be  well  intitled 
to  the  horn  at  law. 


FELLS  v.  READ. 

(In  Chancery  before  Lord  Loughborough,  1796.     3  Yes.  70.  30  E.  R.  S99.) 

The  plaintiffs  were  members  of  a  club,  called  "The  Past  Overseers 
of  St.  Margaret's  Parish,  Westminster,"  which  consisted  of  persons 
who  had  served  the  office  of  Overseer  of  the  Poor  of  that  parish.  This 
society  had  been  for  a  long  period  in  possession  of  a  silver  tobacco-box, 
enclosed  in  two  large  silver  cases,  all  which  were  adorned  with  several 
engravings  of  public  transactions,  and  heads  of  distinguished  persons. 


28  BASIS   OF  EQUITY  JURISDICTION  (Ch.  1 

The  date  of  the  box  did  not  appear  in  the  cause :  but  the  ornaments, 
which  had  been  added  by  different  overseers  during  the  time  the  box 
and  cases  remained  in  their  custody,  began  in  the  year  1713.  This  box 
and  the  cases  were  always  kept  by  the  overseer  for  the  time  being ;  who 
upon  coming  into  office,  received  them  from  the  churchwarden,  with  a 
particular  charge,  in  which  he  was  enjoined,  under  a  penalty,  to  produce 
them  at  all  meetings  of  the  society,  and  to  deliver  them  up  at  going  out 
of  office  to  the  senior  churchwarden,  to  be  by  him  delivered  to  the  suc- 
ceeding overseer.  They  were  delivered  in  the  usual  form  to  the  defend- 
ant Read,  on  his  coming  into  office  as  overseer.  On  going  out  of  office, 
he  refused  to  deliver  them  up,  unless  the  vestry  would  pass  his  ac- 
counts ;  in  which  they  had  refused  to  allow  him  certain  payments.  Upon 
this  a  meeting  was  called ;  and  it  was  resolved,  by  those  members  who 
attended,  that  legal  steps  should  be  taken;  and,  after  some  negotiation, 
an  action  was  brought ;  and  Read  was  arrested.  Hartley  and  By  field, 
two  of  the  members,  in  whose  name  the  action  was  brought,  executed 
a  release  to  Read;  who  delivered  the  box  and  cases  to  Hanley.  An 
application  was  made  to  Mr.  Justice  Buller  at  Chambers  to  set  aside  the 
release ;  but  that  application  failed.  The  bill  was  then  filed  against 
Read,  Hanley,  and  Byfield,  to  have  the  box  and  cases  delivered  up. 
They  were  ordered  to  be  placed  in  the  custody  of  Master  Leeds. 

It  was  proved  by  Cartaret,  that  the  box  and  cases  were  delivered  to 
Read,  under  the  usual  injunctions  and  conditions ;  to  which  he  express- 
ly consented.  The  defendants  Hanley  and  Byfield  insisted,  that  the  ac- 
tion was  commenced  without  their  authority.  They  did  not  attend  the 
meeting :   but  it  was  regularly  called. 

Mr.  Mansfield,  and  Mr.  Cox,  for  the  Plaintiffs, 

Cited  The  Duke  of  Somerset  v.  Cookson,  3  P.  Wins.  389,  as  haying 
established  the  jurisdiction,  where  the  thing,  of  which  the  delivery  is 
sought,  is  of  such  a  sort  that  damages  can  be  no  compensation. 

Attorney-General  [Scott],  for  the  Defendants. 

Except  that  case,  and  Pusey  v.  Pusey,  1  Vera.  273,  in  which  the 
chattel  had  a  connexion  with  the  tenure  of  the  land,  there  is  no  case 
like  this.  The  Court  will  order  title  deeds  and  heirlooms  to  be  deliver- 
ed up,  and  will  not  permit  valuable  things  to  be  defaced :  but  except 
in  those  cases  there  is  no  instance  of  a  decree  specifically  to  deliver  up 
a  specific  chattel.  If  from  a  complication  of  circumstances  they  cannot 
succeed  at  law  by  stress  of  damages  to  compel  delivery,  I  do  not  say  this 
Court  will  not  interfere.  There  was  a  special  property  in  the  person 
to  whom  this  box  was  to  be  delivered,  that  would  have  supported  an 
action ;  or  they  might  have  expelled  Hanley  and  Byfield,  and  have  gone 
on  at  law.     *     *     * 

Lord  Chancellor  [Loughborough] .  I  am  sorry  this  cause  has  come 
into  this  Court :  but  the  regret  I  feel  is  no  other  than  that  one  always 
feels,  that  litigation  and  expense  should  have  been  occasioned  by  the 
peevishness  and  obstinacy  of  the  parties.    The  value  I  cannot  measure. 


Sec.  3)  GROUNDS   OF   EQUITABLE   RELIEF  29 

The  Pusey  horn,  the  Patera  of  the  Duke  of  Somerset,  were  things  of 
that  sort  of  value,  that  a  jury  might  not  give  two-pence  beyond  the 
weight.  It  was  not  to  be  cast  to  the  estimation  of  people  who  have  not 
those  feelings.  In  all  cases  where  the  object  of  the  suit  is  not  liable  to  a 
compensation  by  damages,  it  would  be  strange,  if  the  law  of  this  country 
did  not  afford  any  remedy.  It  would  be  great  injustice,  if  an  individual 
cannot  have  his  property  without  being  liable  to  the  estimate  of  people 
who  have  not  his  feelings  upon  it.  But  this  has  very  particular  circum- 
stances ;  for  if  no  such  cases  as  those  cited  had  occurred,  if  this  had 
come  here  originally,  it  is  impossible  that  I  should  not  have  permitted 
the  suit  to  stand.  In  the  case  of  the  Pusey  horn  in  Vernon,  it  does  not 
appear  how  the  defendant  got  it.  In  the  case  of  the  Duke  of  Somerset, 
the  Patera  was  in  the  possession  of  a  goldsmith,  who  bought  it  in  the 
way  of  trade,  with  notice  of  the  claim  of  the  Duke  of  Somerset.  But 
in  this  case  the  possession  is  by  a  qualified  title.  It  was  delivered  upon 
an  express  trust  to  keep  it  and  produce  it  at  the  meetings  of  the  club. 
and  at  the  expiration  of  his  office  to  deliver  it  over  to  the  senior  church- 
warden, in  order  that  he  might  give  it  to  the  next  overseer.  He  accepts 
it  upon  that  condition.  The  witness  Cartaret  states  his  express  assent 
to  the  conditions.  Had  he  then  any  right  to  retain  this  possession, 
against  the  terms  upon  which  it  was  delivered  to  him?  He  was  a  de- 
positary upon  an  express  trust ;  and  he  does  not  perform  the  trust. 
Upon  the  common  ground  of  equity  there  was  a  right  in  the  plaintiffs 
to  have  called  upon  him  in  the  first  place,  during  the  term,  to  have 
used  it  according  to  the  trust.  That  would  be  a  small  subject  of  a  suit 
in  equity ;  but  if  he  had  not  produced  it  at  the  meeting,  I  must  have 
compelled  it;  so,  if  he  retains  it  after  the  expiration  of  the  term.  I 
must  compel  him  to  use  it  according  to  the  trust.  There  was  a  legal 
remedy ;  and  I  think  it  was  done  very  wisely  not  to  begin  in  equity. 
There  was  another  remedy  which  did  not  occur  to  them.  Upon  the 
terms  of  Cartaret's  evidence,  the  person,  to  whom  Read  was  bound  at 
the  time  to  deliver  it,  might  have  been  plaintiff  in  assumpsit.  The  con- 
duct of  these  defendants  is  perfectly  groundless :  the  idea,  that  by 
keeping  possession  of  this  ornament,  he  would  compel  the  Vestry  to 
allow  his  accounts.  As  to  Hanley  and  Byfield,  it  is  not  necessary  for 
me  to  determine  it,  but  I  incline  to  think  they  would  be  bound  to  let  the 
others  make  use  of  their  names :  but  an  indemnity  as  to  the  costs  was 
the  utmost  they  could  have  been  entitled  to.  It  is  unfortunate,  that  the 
application  made  to  the  Court  of  law  did  not  succeed  to  set  aside  the 
release.  I  am  then  to  judge  of  the  conduct  of  the  parties,  not  with  re- 
gard to  the  ground  of  the  decree,  but  upon  the  nature  of  the  possession 
coupled  with  a  trust.  There  was  a  proper  ground  as  much  as  in  any 
case.  Where  the  right  is  not  to  use  the  thing  as  his  own,  but  coupled 
with  a  trust  to  deliver  it  at  a  certain  time,  there  is  a  clear  jurisdiction 
upon  the  ordinary  equity  to  compel  the  execution  of  the  trust,  by  the 
delivery  of  the  thing  at  the  time.     But  the  conduct  was  extremely  bad 


30  BASIS   OF  EQUITY  JURISDICTION  (Ch.  1 

in  Read ;   and  not  better  in  those  who  conspired  with  him  to  frustrate 
the  purpose  of  the  trust,  and  act  contrary  to  it. 

Declare  the  plaintiffs  entitled  to  the  possession  of  this  box.  Let  them 
receive  it  from  the  Master's  office.  Let  all  the  defendants  pay  the 
costs;   and  let  the  defendant  Read  pay  the  costs  at  law. 


DUKE  OF  SOMERSET  v.  COOKSON. 

(In  Chancery  before  Lord  Talbot,  Chancellor,  1735.     3  P.  Wms.  300.) 

The  Duke  of  Somerset,  as  Lord  of  the  Manor  of  Corbridge,  in 
Northumberland,  (part  of  the  estate  of  the  Piercy's  late  Earls  of  Nor- 
thumberland) was  entitled  to  an  old  altar-piece  made  of  silver,  re- 
markable for  a  Greek  inscription  and  dedication  to  Hercules.  His 
Grace  became  entitled  to  it  as  treasure  trove  within  his  said  Manor. 
This  altar-piece  had  been  sold  by  one  who  had  got  the  possession  of  it, 
to  the  defendant,  a  goldsmith  at  Newcastle,  but  who  had  notice  of  the 
Duke's  claim  thereto.  The  Duke  brought  a  bill  in  Equity  to  compel  the 
delivery  of  this  altar-piece  in  specie,  undefaced. 

The  defendant  demurred  as  to  part  of  the  bill,  for  that  the  plaintiff 
had  his  remedy  at  Law,  by  an  action  of  trover  or  detinue,  and  ought 
not  to  bring  his  bill  in  Equity ;  that  it  was  true,  for  writings  savouring 
of  the  realty  a  bill  would  lie,  but  not  for  any  thing  merely  personal ; 
any  more  than  it  would  for  an  horse  or  a  cow.  So,  a  bill  might  lie  for 
an  heir-loom  ;  as  in  the  case  of  Pusey  versus  Pusey,  1  Yern.  273.  And 
though  in  trover  the  plaintiff  could  have  only  damages,  yet  in  detinue 
the  thing  itself,  if  it  can  be  found,  is  to  be  recovered ;  and  if  such  bills 
as  the  present  were  to  be  allowed,  half  the  actions  of  trover  would  be 
turned  into  bills  in  Chancery. 

On  the  other  side  it  was  urged,  that  the  thing  here  sued  for,  was 
matter  of  curiosity  and  antiquity;  and  though  at  Law  only  the  intrin- 
sic value  is  to  be  recovered,  yet  it  would  be  very  hard  that  one  who 
comes  by  such  a  piece  of  antiquity  by  wrong,  or  it  may  be  as  a  trespass- 
er, should  have  it  in  his  power  to  keep  the  thing,  paying  only  the  in- 
trinsic value  of  it :  which  is  like  a  trespasser's  forcing  the  right  owner 
to  part  with  a  curiosity,  or  matter  of  antiquity,  or  ornament,  nolens 
volens.  Besides,  the  bill  is  to  prevent  the  defendant  from  defacing  the 
altar  piece,  which  is  one  way  of  depreciating  it ;  and  the  defacing  may 
be  with  an  intention  that  it  may  not  be  known,  by  taking  out,  or  erasing 
some  of  the  marks  and  figures  of  it ;  and  though  the  answer  had  denied 
the  defacing  of  the  altar  piece,  yet  such  answer  could  not  help  the  de- 
murrer; that  in  itself  nothing  can  be  more  reasonable  than  that  the 
man  who  by  wrong  detains  my  property,  should  be  compelled  to  restore 
it  to  me  again  in  specie ;  and  the  Law  being  defective  in  this  particular, 
such  defect  is  properly  supplied  in  Equity. 

Wherefore  it  was  prayed  that  the  demurrer  might  be  over-ruled,  and 
it  was  over-ruled  accordingly. 


Sec.  3)  GROUNDS   OF   EQUITABLE    RELIEF  31 

BUXTON  v.  LISTER  and  Cooper. 

(In  Chancery  lief  ore  Lord  Hardwicke,  1746.    3  Atk.  383,  26  E.  R.  1020.) 

The  defendants  entered  into  an  agreement  for  the  purchase  of  sever- 
al timber  trees,  marked  and  growing  at  the  time  it  was  reduced  into 
writing:  and  on  the  first  of  November,  1744,  the  following  memoran- 
dum was  signed  by  the  parties : 

"Matthew  Lister  and  John  Cooper  have  agreed  with  Joseph  Buxton  for  the 
purchase  of  all  those  several  large  parcels  of  wood,  consisting  of  oaks,  ashes, 
elms,  and  asps,  which  are  numbered,  figured,  and  cyphered,  standing  and  be- 
ing within  the  township  of  Kirkby,  for  the  sum  of  3050£  to  be  paid  at  six 
several  payments,  every  Lady-day  for  the  six  following  years;  and  Lister 
and  Cooper  to  have  eight  years  for  disposing  of  the  same ;  and  that  articles 
of  agreement  shall  be  drawn  and  perfected  as  soon  as  conveniently  can  be, 
with  all  the  usual  covenants  therein  to  be  inserted  concerning  the  same." 

There  were  two  parts  of  the  agreement. 

The  plaintiff  signed  one,  and  the  defendants  the  other ;  one  was  left 
in  the  custody  of  the  plaintiff,  and  the  other  in  the  custody  of  the  de- 
fendants. 

The  bill  was  brought  by  the  vendor  for  the  specific  performance  of 
the  agreement. 

Lord  Chancellor,  upon  the  opening,  said,  he  did  not  know  any 
instance  of  a  bill  of  this  nature,  where  it  is  a  mere  chattel  only,  and 
nothing  that' affects  the  realty. 

That  a  bill  might  as  well  be  brought  for  compelling  the  performance 
of  an  agreement  for  the  sale  of  a  horse,  or  for  the  sale  of  stock,  or  any 
goods  or  merchandise. 

Sir  Joseph  Jekyll  did,  in  Cud  versus  Rutter,  1  P.  Wms.  570,  decree 
a  specific  performance  in  the  case  of  a  chattel,  but  Lord  Macclesfield 
reversed  it,  and  it  has  been  the  rule  of  the  court  ever  since,  not  to 
retain  such  a  bill. 

The  proper  remedy  is  an  action  at  law,  where  you  may  recover 
damages  for  the  non-performance  of  the  agreement. 

The  defendants'  counsel,  to  shew  the  impropriety  of  such  a  bill,  and 
that  the  parties  ought  to  be  left  to  law,  cited  Roll's  Reports  493.  and 
Latch's  172. 

Upon  hearing  what  the  plaintiff's  counsel  could  alledge,  in  order 
to  take  this  case  out  of  the  general  rule  of  the  court,  Lord  Chancellor 
delivered  his  opinion  as  follows:-3 

The  general  question  is,  as  to  the  decree  for  specific  performance, 
and  this  divides  itself  into  two  subordinate  ones. 

First,  Whether  the  plaintiff  is  intitled  to  seek  his  remedy  in  a  court 
of  equity  for  a  specific  performance. 

Secondly,  whether,  as  to  the  merits  of  his  case,  he  is  intitled  to 
such  a  decree. 

23  Part  of  the  opinion  is  omitted. 


32  BASIS   OF   EQUITY  JURISDICTION  (Ch.  1 

As  to  the  first,  I  am  of  opinion,  that  this  is  such  an  agreement,  though 
for  a  personal  chattel,  that  the  plaintiff  may  come  here  to  have  a  spe- 
cific performance. 

To  be  sure,  in  general  this  court  will  not  entertain  a  bill  for  a  specific 
performance  of  contracts  of  stock,  corn,  hops,  &c.  for  as  those  are  con- 
tracts which  relate  to  merchandise,  that  vary  according  to  different 
times  and  circumstances,  if  a  court  of  equity  should  admit  such  bills, 
it  might  drive  on  parties  to  the  execution  of  a  contract,  to  the  ruin  of 
one  side,  when  upon  an  action,  that  party  might  not  have  paid,  perhaps, 
above  a  shilling  damage. 

Therefore  the  court  have  always  governed  themselves  in  this  man- 
ner, and  leave  it  to  law,  where  the  remedy  is  so  much  more  expeditious. 

As  to  the  cases  of  contracts  for  purchase  of  lands,  or  things  that 
relate  to  realties,  those  are  of  a  permanent  nature,  and  if  a  person 
agrees  to  purchase  them,  it  is  on  a  particular  liking  to  the  land,  and 
is  quite  a  different  thing  from  matters  in  the  way  of  trade. 

But,  however,  notwithstanding  this  general  distinction  between  per- 
sonal contracts,  and  for  goods,  and  contracts  for  lands,  yet  there  are 
indeed  some  cases  where  persons  may  come  into  this  court  though 
merely  personal,  and  the  plaintiff's  counsel  have  cited  a  case  in  point, 
Taylor  versus  Neville.  (Vide  Colt  v.  Netterville,  2  P.  W.  504.  Thomp- 
son v.  Harcourt,  2  Bro.  Par.  Ca.  415.) 

That  was  for  a  performance  of  articles  for  sale  of  eight  hundred 
ton  of  iron,  to  be  paid  for  in  a  certain  number  of  years,  and  by  install- 
ments, and  a  specific  performance  was  decreed. 

Such  sort  of  contracts  as  these,  differ  from  those  that  are  immedi- 
ately to  be  executed. 

There  are  several  circumstances  which  may  concur. 

A  man  may  contract  for  the  purchase  of  a  great  quantity  of  timber, 
as  a  ship  carpenter,  by  reason  of  the  vicinity  of  the  timber,  and  this 
on  the  part  of  the  buyer. 

On  the  part  of  the  seller,  suppose  a  man  wants  to  clear  his  land, 
in  order  to  turn  it  to  a  particular  sort  of  husbandry,  there  nothing  can 
answer  the  justice  of  the  case,  but  the  performance  of  the  contract 
in  specie. 

In  the  case  of  John  Duke  of  Buckinghamshire  v.  Ward,  a  bill  was 
brought  for  a  specific  performance  of  a  lease  relating  to  Alum  Works, 
and  the  trade  thereof,  which  would  be  greatly  damaged,  if  the  cove- 
nant was  not  performed  on  the  part  of  Ward. 

The  covenants  lay  there  in  damages,  and  yet  the  court  considered 
if  they  did  not  make  such  a  decree,  an  action  afterwards  would  not 
answer  the  justice  of  the  case,  and  therefore-  decreed  a  specific  per- 
formance. 

This  is  something  of  the  like  kind ;  the  memorandum  appears  not 
to  be  the  final  contract,  but  is  to  be  made  complete  by  subsequent 
articles. 


Sec.  3)  GROUNDS  OP  EQUITABLE   RELIEF  33 

I  am  doubtful,  whether  at  law  the  plaintiff  would  not  have  been 
told  this  was  an  incomplete  agreement. 

Suppose  two  partners  should  enter  into  an  agreement  by  such  a  mem- 
orandum as  is  in  the  present  case,  to  carry  on  a  trade  together,  and 
that  it  should  be  specified  in  the  memorandum,  that  articles  should  be 
drawn  pursuant  to  it,  and  before  they  are  drawn,  one  of  the  parties 
flies  off,  I  should  be  of  opinion,  upon  a  bill  brought  by  the  other  in 
this  court,  for  a  specific  performance,  that  notwithstanding  it  is  in  re- 
lation to  a  chattel  interest,  yet  a  specific  performance  ought  to  be  de- 
creed. 

On  the  circumstances  of  the  present  case,  such  a  bill  ought  to  be 
entertained,  but  at  the  same  time  I  will  add  that  courts  ought  to  weigh 
with  great  nicety  cases  of  this  kind,  before  they  determine  the  bill 
proper,  where  it  is  a  mere  personal  chattel.     *     *     *  2i 

Upon  the  whole,  I  am  of  opinion  the  bill  must  be  dismissed. 


EARL  OF  MACCLESFIELD  v.  DAVIS. 

(In  Chancery,  1S14.     3  Yes.  &  B.  16,  35  E.  R.  385.) 

Thomas  Blackall  by  his  Will  devised  to  the  Earl  of  Macclesfield  and 
James  Musgrave  all  his  Freehold  Estates,  to  hold  to  the  Use  of  John 
Blackall  for  Life,  without  Impeachment  of  Waste ;  with  Remainder 
to  the  Trustees  to  preserve  contingent  Remainders ;  with  Remainder 
to  the  first  and  other  Sons  of  John  Blackall  in  Tail-male;  and  gave 
his  Leasehold  Estate  for  such  Persons,  &c,  as  nearly  as  its  Nature 
admitted  to  be  enjoyed  as  his  Freehold  Estates.  He  bequeathed  to  the 
Earl  of  Macclesfield  and  Musgrave,  their  Executors,  &c,  all  his  Plate, 
Jewels,  Paintings,  and  Household  Furniture  (except  Beds  and  Linen), 
then  in  his  Mansion-house  at  Great  Hagely,  as  Heir-looms,  as  long 
as  the  Law  would  permit,  for  the  Use  of  the  Persons  entitled  by  virtue 
of  the  Limitations  to  his  Freehold  and  Leasehold  Estates ;  and  ap- 
pointed the  Earl  of  Macclesfield,  Musgrave,  and  John  Blackall,  his 
Executors. 

After  the  Death  of  the  Testator,  in  1786,  John  Blackall,  entered 
on  the  Estates ;  and  took  Possession  of  the  Heir-looms ;  which  were 
then  and  since  usually  kept  and  locked  up  in  an  Iron  Chest.  After  the 
Death  of  John  Blackall  the  Bill  was  filed  by  the  Surviving  Executors, 
and  the  Tenant  in  Tail,  alledging,  that  the  Defendant  Davis,  the  Execu- 
tor of  Blackall,  in  November  1802  took  Possession  of  the  Iron  Chest 
and  all  the  Contents,  comprising  the  Heir-looms ;  and  afterwards  de- 
posited them  with  the  Defendant  Waters;  from  whom  they  came  to 
the  Defendants  Vere  and  Co. ;   and  charging  that  the  Key  was  in  Da- 

24  The  case  finally  wont  off  on  another  point,  and  specific  performance  was 
refused. 

BokeEq--3 


34  BASIS  OP  EQUITY  JURISDICTION  (Ch.  1 

vis's  Possession,  prayed,  that  Waters,  or  Vere  and  Co.,  as  his  Bankers, 
may  be  decreed  to  deliver  to  the  Plaintiffs  the  Iron  Chest;  and  in  the 
meantime  may 'be  restrained  by  Injunction  from  selling  the  Plate,  &c. ; 
and  Vere  and  Co.  from  parting  with  the  Chest. 

The  Defendants  insisted  on  a  Lien ;  Davis  alledging,  that  Blackall, 
the  Tenant  for  Life,  had  deposited  the  Chest  with  him  as  a  Security ; 
and  Waters  had  received  it  upon  a  Loan  to  Davis. 

A  Motion  was  made  by  the  Plaintiffs,  that  the  Defendant  Davis  may 
be  ordered  to  deliver  to  the  Plaintiffs  the  Key  of  the  Iron  Chest,  ad- 
mitted bythe  Answer  of  Vere  and  Co.  to  have  been  deposited  with 
them  by  Waters,  and  to  be  in  their  Custody,  and  that  they  may  be 
ordered  to  permit  the  said  Box  with  its  Contents  to  be  inspected  by  the 
Plaintiffs,  or  any  Person  they  may  appoint,  at  all  seasonable  Times, 
upon  Request;  and  for  an  Injunction  according  to  the  Prayer  of  the 
Bill. 

Mr.  Hart,  and  Mr.  Phillimore,  in  support  of  the  Motion,  observed, 
that  no  Action  of  Trover  could  be  maintained  by  the  Plaintiffs  from 
their  Inability  to  identify  the  Property;  and  Blackall  had  been  one  of 
the  Executors. 

Mr.  Barber,  for  the  Defendants. 

The  Lord  Chancellor  [Eldon].  This  Bill  aims  only  at  another 
Mode  of  Discovery,  in  a  Way  less  expensive  than  by  Answer:  and  if 
the  Plaintiffs  had  filed  a  Bill  of  Discovery,  in  aid  of  an  Action  of 
Trover,  they  must  have  had  it.  It  is  now  too  late,  since  the  Case  of 
Fells  v.  Read  (3  Ves.  70),  following  Pusey  v.  Pusey  (1  Vern.  273)  to 
discuss,  whether  this  Court  will  interfere  for  the  specific  Delivery  of 
a  Chattel ;  and,  if  it  will  in  such  a  Case,  a  fortiori  the  Restitution  of 
Heir-looms  must  be  decreed ;  upon  which  there  never  was  any  Doubt. 
By  granting  this  Motion  the  Interest  of  the  Defendant  Waters  is  not 
affected ;  the  Plaintiffs,  only  desiring  to  know  what  is  in  this  Box, 
have  a  Right  to  have  from  him  the  Information,  what  those  Articles 
are,  the  specific  Delivery  of  which  they  seek  by  their  Bill.  With  re- 
spect to  the  Bankers,  holding  merely  as  Agent  of  Waters,  the  Court 
would,  if  necessary,  order  him  to  take  the  Box  from  them,  and  allow 
the  Inspection.  Not  having  put  upon  the  Record  a  Plea  of  Purchase 
without  Notice  he  could  not  refuse  to  discover,  what  is  the  Property 
claimed. 

In  directing  this  Inspection  the  Convenience  of  the  Bankers  must 
be  consulted ;   and  with  that  Observation  I  shall  make  the  Order. 


Sec.  3)  GROUNDS   OF   EQUITABLE   RELIEF  35 

DUMONT  v.  FRY  et  al. 
(Circuit  Court  of  the  United  States,  S.  D.  New  York,  1SS2.     12  Fed.  21.) 

Wallace,  Circuit  Judge.25  *  *  *  In  the  present  case  it  is  ap- 
parent on  the  face  of  the  bill  that  the  remedy  is  at  law. 

The  bill  alleges  that  the  complainants  are  the  owners  of  232  bonds, 
of  $1,000  each,  issued  by  the  city  of  New  Orleans;  that  these  bonds 
are  in  the  possession  of  Fry,  the  trustee  in  bankruptcy  of  Schuchardt 
&  Sons ;  that,  although  thereunto  requested,  Fry  refuses  to  deliver  the 
bonds  to  complainants ;  that  Fry  claims  to  hold  the  bonds  as  security 
for  a  pretended  indebtedness  owing  from  the  assignees  in  bankruptcy 
of  Caverre  &  Sons  and  from  the  receiver  of  the  New  Orleans  Bank- 
ing Association ;  that  in  fact  the  bonds  were  never  hypothecated  for 
any  such  indebtedness ;  that  a  sum  of  money  is  now  on  deposit  in 
the  Union  Bank  of  London  which  belongs  either  to  Fry  or  to  the  re- 
ceiver of  the  New  Orleans  National  Banking  Association,  and  should 
be  applied  to  the  reduction  of  the  alleged  indebtedness  for  which  Fry 
claims  to  hold  the  bonds  as  security;  that  several  other  persons  who 
are  made  defendants  "claim  to  have  liens  upon  the  said  bonds  or  some 
portion  thereof,  or  claims  affecting  the  said  bonds,  the  exact  amount 
whereof  your  orators  are  ignorant,  and  the  validity  of  which  your 
orators  dispute."  The  prayer  of  the  bill  is  that  Fry  shall  be  adjudged 
to  deliver  the  bonds  to  the  complainants,  and  that  the  rights  of  Fry 
and  the  receiver  of  the  New  Orleans  Banking  Company  to  the  money 
in  bank  in  London  may  be  settled,  and  the  deposit  applied  where  it 
may  belong. 

Inasmuch  as  the  complainants  do  not  allege  that  they  have  any  in- 
terest in  the  controversy  between  Fry  and  the  receiver  of  the  New 
Orleans  Banking  Association  as  to  the  deposit  in  the  London  bank, 
or  that  their  rights  are  in  any  manner  involved  in  that  controversy,  and 
nothing  appears  by  which  such  a  conclusion  is  suggested  or  can  be 
inferred,  all  the  allegations  in  regard  to  that  controversy,  for  present 
purposes,  may  be  deemed  eliminated  from  the  bill.  The  same  may  be 
said  of  the  allegations  in  regard  to  the  claims  of  the  other  defendants. 
It  is  not  alleged,  and  nothing  in  the  bill  authorizes  the  inference,  that 
such  defendants  have  any  control  over  the  bonds,  or  any  apparent  or 
colorable  title  thereto,  or  interest  therein.  No  relief  is  prayed  for  as 
to  such  defendants.  If  it  had  been,  it  can  hardly  be  supposed  the  court 
would  undertake  to  adjudicate  upon  the  merits  of  the  naked  assertion 
of  these  defendants. 

The  case  made  by  the  bill,  when  analyzed,  resolves  itself  into  a  con- 
troversy between  the  complainants  and  the  defendant  Fry  as  to  Fry's 
right  to  withhold  from  the  complainants  the  bonds  to  which  complain- 
ants have  the  legal  title,  and  Fry  no  title  whatever.     This  controversy 

25  Parts  of  the  opinion  are  omitted. 


3G  BASIS  OF  EQUITY  JURISDICTION  (Ch.  I 

is  not  of  equitable  cognizance.    An  action  at  law  for  conversion,  or  in 
replevin,  is  the  plain  and  appropriate  remedy.     *     *     * 

The  bill  is  dismissed  for  want  of  jurisdiction,  without  costs. 


PORTER  v.  FRENCHMAN'S  BAY  &  MT.  DESERT  LAND  & 

WATER  CO. 
(Supreme  Judicial  Court  of  Maine,  1892.    84  Me.  195,  24  Atl.  814.) 

Report  from  supreme  judicial  court,  Hancock  county. 

Bill  in  equity  by  Margaretta  B.  Porter  against  Frenchman's  Bay  & 
Mt.  Desert  Land  &  Water  Company,  to  which  respondent  demurred. 

Libbey,  J.  Bill  in  equity,  praying  for  decree  for  a  specific  per- 
formance of  a  contract  in  writing,  made  by  the  defendant  with  the 
plaintiff,  for  the  purchase  of  a  lot  of  land  in  the  village  of  Sorrento. 

It  comes  before  this  court  on  a  demurrer  to  the  bill  by  the  defend- 
ant, and  the  question  to  be  determined  is  whether,  upon  the  allegations 
in  the  bill,  this  court  has  jurisdiction  in  equity  to  decree  a  specific  per- 
formance. We  think  it  clear  that  in  a  proper  case  the  court  has  juris- 
diction to  decree  specific  performance  of  a  contract  in  writing  for  the 
conveyance  of  land,  in  a  bill  brought  by  the  vendor  or  by  the  vendee. 
Rev.  St.  §  6,  c.  77 ,  cl.  3.  But  the  court  in  this  state  does  not  take  juris- 
diction in  equity  when  the  plaintiff  has  a  plain,  adequate,  and  complete 
remedy  in  an  action  at  law.  Milliken  v.  Dockrav,  80  Me.  82,  13  Atl. 
127 ;  Bachelder  v.  Bean,  76  Me.  370 ;  Alley  v.  Chase,  83  Me.  537,  22 
Atl.  393. 

And  we  think  it  must  appear  by  the  allegations  in  the  bill,  where  an 
action  at  law  may  be  maintained,  that  the  remedy  by  it  is  not  plain, 
adequate,  and  complete ;  for  it  is  a  well-established  rule  of  equity 
pleading  that  the  bill  must  contain  allegations  showing  that  the  court 
has  equity  jurisdiction.  Story,  Eq.  PI.  §§  10,  34;  Jones  v.  Newhall, 
115  Mass.  244,  pp.  252,  253,  15  Am.  Rep.  97. 

In  this  case,  we  think  it  perfectly  clear  that  the  plaintiff  has  a  right 
to  maintain  an  action  at  law  for  a  breach  of  the  contract.  That  being 
so,  to  show  jurisdiction  in  equity,  there  should  be  some  allegations  in 
the  bill  showing  that  the  remedy  at  law  would  not  be  adequate  and 
complete.  There  is  nothing  of  the  kind  in  this  bill.  After  setting  out 
the  contract,  it  alleges  that  the  plaintiff  was  in  possession  of  the  land, 
and  has  continued  to  be  in  possession  of  the  land,  to  the  time  of  the 
filing  of  the  bill ;  no  allegation  that  her  action  in  regard  to  the  land 
was  in  any  way  changed  by  the  making  of  the  contract ;  no  allegation 
that  anything  had  been  done  by  either  party,  in  consequence  of  the 
making  of  the  contract,  which  could  not  be  taken  into  consideration  in 
the  assessment  of  the  plaintiff's  damages. 

Demurrer  sustained.     Bill  dismissed,  with  costs. 

Peters,  C.  J.,  and  Walton,  Virgin,  Emery,  and  WhiteiiousE, 
JJ.,  concurred. 


Sec.  3)  GROUNDS  OF   EQUITABLE   RELIEF  37 

SCARBOROUGH  v.  SCOTTEN  et  al. 

(Court  of  Appeals  of  Maryland,  1S8S.    69  Md.  137,  14  Atl.  704, 
9  Am.  St.  Rep.  409.) 

Appeal  from  circuit  court,  Cecil  county. 

Bill  by  Hugh  F.  Scarborough  against  Samuel  Scotten  and  others, 
executors  of  William  Scotten,  to  compel  a  surrender  of  certain  notes 
and  bills  placed  in  the  hands  of  the  deceased  in  his  life-time.  The  bill 
was  dismissed  on  demurrer,  and  plaintiff  appeals. 

Argued  before  AlvEy,  C.  J.,  and  Miller,  Bryan,  Stone,  Mc- 
Sherry,  and  Irving,  JJ. 

Irving,  J.  This  appeal  is  from  a  decree  of  the  circuit  court  of  Cecil 
county,  sustaining  a  demurrer  to  the  appellant's  bill  in  equity,  and  dis- 
missing the  same.  The  appellant's  bill  charges  that  in  the  year  1880, 
being  the  owner  of  certain  promissory  notes  and  single  bills,  and  desir- 
ing to  have  the  same  collected,  he  indorsed  and  delivered  the  same  to 
William  Scotten,  the  defendants'  testator,  with  the  understanding  and 
agreement  that  he  (William  Scotten)  would  collect  the  same,  from  the 
persons  owing  the  promissory  notes  and  single  bills,  and  would  pay 
over  the  amount  so  collected  to  Francina  Scarborough,  the  wife  of  the 
appellant ;  that  this  agreement  was  made  with  the  defendants'  testa- 
tor verbally  at  the  time  the  promissory  notes  and  bills  were  indorsed 
to  him.  The  bill  then  avers  that,  after  such  indorsement  and  delivery, 
William  Scotten  died  without  having  collected  any  of  the  notes  and 
bills  so  indorsed  to  him,  leaving  a  will  by  which  the  defendants  were 
appointed  executors,  and  who  have  duly  qualified  as  such ;  that  they 
have,  as  executors,  those  promissory  notes  and  single  bills  now  in  their 
possession ;  that  Francina  Scarborough,  appellant's  wife,  to  whom  the 
proceeds  were  to  be  paid  when  collected,  has  assigned  to  the  complain- 
ant all  her  interest  in  the  same  and  their  proceeds ;  that  the  defendants 
have  not  collected  the  same,  nor  made  any  effort  to  collect  the  same, 
and  that  their  inaction  is  for  the  purpose  of  delaying  and  hindering 
the  complainant  in  the  collection  of  and  receipt  of  the  money  due  him 
thereon ;  that  the  complainant  has  demanded  of  the  executors  the  de- 
livery of  the  notes  and  single  bills  to  him,  but  the  defendants  have  re- 
fused, and  still  refuse,  to  surrender  the  same.  The  bill  then  charges 
that  the  complainant  is  without  adequate  remedy  at  law,  and  prays  for 
a  decree  requiring  the  surrender  of  the  promissory  notes  and  single 
bills,  copies  of  which  are  filed  with  the  bill,  and  for  such  other  relief 
as  his  case  may  require.  By  the  demurrer,  of  course,  all  the  facts 
alleged  are  admitted,  and  the  only  question  for  us  to  decide  is  whether 
the  bill  makes  a  case  for  equitable  interference. 

In  sustaining  the  demurrer  and  dismissing  the  bill  the  learned  judge 
of  the  circuit  court  simply  says : 

"I  am  of  opinion  that  the  bill  presents  a  case  where  the  plaintiff  has  a  cer- 
tain, adequate,  and  complete  remedy  at  law.  Buzard  v.  Houston,  119  U.  S. 
:;IT,  7  Sup.  Ct.  249  [30  L.  Ed.  451];  Winner  v.  Peuniman,  35  Md.  163  [6  Am. 
Rep.  385]." 


38  BASIS  OF   EQUITY  JURISDICTION  (Ch.  1 

In  this  view  we  do  not  concur.  Judge  Story,  in  his  Equity  Juris- 
prudence, (volume  2,  13th  Ed.  §  703,)  says  that  a  court  of  equity  will 
render  remedial  justice  by  decreeing  the  delivery  up  of  deeds  and  oth- 
er instruments  of  writing  to  those  who  are  entitled  to  them.  That 
learned  author  says  it  is  a  very  ancient  "head  of  equity  jurisdiction." 
In  the  same  section  last  cited  he  says : 

"The  same  doctrine  applies  to  other  instruments  and  securities,  such  as 
bonds,  negotiable  instruments,  and  other  evidences  of  property,  which  are  im- 
properly withheld  from  persons  who  have  an  equitable  or  legal  interest  in 
them,  or  who  have  a  right  to  have  them  preserved.  *  *  *  It  is  true  that 
an  action  of  detinue,  or  even  of  replevin,  might  in  some  few  cases  lie,  and 
give  the  proper  remedy  if  the  thing  could  be  found.  But  generally,  in  actions 
at  law,  damages  only  are  recoverable;  and  such  a  remedy,  in  most  cases, 
would  be  wholly  inadequate." 

Lord  Hardwicke,  in  Jackson  v.  Butler,  2  Atk.  306,  decreed  the  sur- 
render of  a  mortgage  by  a  pawnee  of  it,  who  had  received  it  from  a 
person  who  had  received  it  from  the  owner  for  the  purpose  of  collect- 
ing the  interest  due  on  it,  and  has  violated  his  duty  and  pawned  it.  In 
many  other  cases  the  principle  had  been  applied.  Duke  of  Somerset 
v.  Cookson,  1  Lead.  Cas.  Eq.  (Hare  &  W.) ~7>7 1-775 ;  Fells  v.  Read,  3 
Ves.  70;    Nutbrown  v.  Thornton,  10  Ves.  163. 

There  can  be  no  doubt  that  the  true  ground  of  interference  by  a 
court  of  equity  is  the  inadequacy  of  any  legal  remedy  to  give  full  re- 
lief. That  is  the  test.  In  this  case  the  court  below  thought  the  rem- 
edy at  law  was  full  and  adequate ;  and  the  court  relies  on  Penniman's 
Case,  35  Aid.  163,  6  Am.  Rep.  385,  and  Buzard  v.  Houston,  119  U.  S. 
347,  7  Sup.  Ct.  249.  30  L.  Ed.  451.  In  the  first-mentioned  case  this 
court  decided  that  trover  would  lie  Jn  favor  of  one  joint  owner  of  a 
note  against  another  joint  owner  who  surrendered  it  to  maker  for  can- 
cellation. The  plaintiff  saw  fit  to  rely  on  the  action  of  trover  against 
his  co-owner,  and  was  awarded  damages,  which  were  easily  and  fully 
measurable.  In  Houston's  Case  the  supreme  court  merely  decided 
that,  if  the  paper  sought  to  be  restored  were  restored,  the  damages  re- 
coverable for  its  breach  would  be  the  same  as  in  an  action  for  deceit 
because  of  the  fraudulent  procurement  of  its  surrender.  Full  relief  in 
those  cases  could  be  secured  at  law.  In  this  case,  however,  it  would 
not  seem  that  trover  or  replevin  will  secure  full  and  adequate  relief. 
Replevin  would  secure  the  surrender  of  the  notes  if  the  defendant  saw 
fit  to  exhibit  them  to  the  officer,  and  allowed  him  to  take  them;  but 
the  officer  could  not  search  his  person  or  the  places  where  the  defend- 
ant kept  his  money  and  securities.  From  the  very  nature  of  the  things 
sought  to  be  recovered  they  could  not  be  obtained  by  the  officer  against 
the  will  of  the  defendant;  and  having  refused  to  deliver  them  upon 
demand,  as  the  demurrer  admits  the  defendants  have  done,  and  for  the 
reason  assigned,  it  is  plain  the  action  of  replevin  would  be  nugatory 
for  the  recovery  of  the  specific  things  sought,  and  if,  after  return  of 
eloigned,  the  writ  should  proceed  as  an  action  for  damages,  the  meas- 
ure of  damages  would  be  the  same  as  in  trover, — the  value  of  the  prop- 


Sec.  3)  GROUNDS  OF   EQUITABLE   RELIEF  39 

erty  taken  and  detained.  In  trover  the  measure  of  damages  is  the  ac- 
tual value  of  the  property  taken  at  the  time  of  conversion.  Hepburn 
v.  Sewell,  5  Har.  &  J.  212,  9  Am.  Dec.  512;  Herzberg  v.  Adams,  39 
Md.  309. 

In  the  present  case  the  ascertainment  of  the  value  of  the  notes  would 
involve  inquiry  into  the  solvency  of  15  persons;  for  if  the  parties 
were  insolvent  the"  notes  could  not  be  worth  what  they  promised  to  pay. 
The  action  of  trover  could,  it  may  be  conceded,  be  brought,  but  such 
action  could  not  certainly  give  him  adequate  relief.  In  that  action  the 
measure  of  damages  would  be  the  actual  value  of  the  notes  at  the  time 
of  the  taking  of  them  by  the  defendants.  Hepburn  v.  Sewell,  5  Har. 
&  J.  212,  9  Am.  Dec.  512;  Herzberg  v.  Adams,  39  Md.  309.  As  we 
have  said,  the  solvency  of  15  persons  would  be  the  subject  of  inquiry; 
for  the  defendants  in  that  action  could  not  be  bound  to  pay  for  those 
notes  more  than  they  were  worth,  and  where  the  judgment  was  ob- 
tained and  paid,  by  the  decision  of  this  court  in  Hepburn  v.  Sewell, 
the  defendants  would  become  the  purchasers  of  the  notes,  and  the 
plaintiff's  right  to  them  would  cease.  It  might  very  well  be  that  some, 
or  even  all,  of  the  makers  of  the  notes  were  insolvent  when  the  conver- 
sion of  the  notes  by  the  defendants  took  place;  but  it  is  not  a  fair  or 
reasonable  presumption  that  they  would  always  remain  so,  and  the 
plaintiff  in  this  case  ought  not  to  be  forced  to  part  with  the  notes  for 
what  they  were  actually  worth  when  taken  from  him,  when  the  possi- 
bility of  large  recovery  in  future  existed.  He  ought  to  have  his  notes, 
and  be  allowed  to  bide  his  time  for  the  collection  thereof,  as  he  might 
find  practicable,  if  the  makers  should  eventually  become  more  prosper- 
ous and  pecuniarily  more  responsible.  It,  at  least,  is  but  equitable  to 
allow  him  his  own  judgment  and  discretion  whether  to  have  them  now, 
and  hold  his  judgment  until  there  be  opportunity  to  make  it,  or  defer, 
as  he  pleases ;  and  it  is  inequitable  to  force  him,  in  effect,  to  sell  them 
for  what  an  action  of  trover  would  give  him  for  them.  Besides,  in 
an  action  at  law  against  the  defendants,  the  questions  arising  upon  the 
solvency  of  so  many  persons  would  involve  tedious  and  protracted  liti- 
gation, and  questions  of  evidence  to  which  he  ought  not  to  be  sub- 
jected. Such  questions  could  not  arise  between  this  appellant  and  his 
debtors  in  a  suit  between  them.  A  suit  at  law  to  give  full  measure  of 
relief  should  not  involve  such  delay  and  expense,  nor  the  uncertainty 
of  a  jury's  decision  on  the  proof.  A  legal  remedy  imposing  such  a 
hardship  cannot  be  full,  complete,  and  ample.  We  think  the  bill,  if  its 
allegations  be  true,  does  disclose  a  case  for  equitable  interference. 
There  was  error,  therefore,  in  sustaining  the  demurrer  and  dismissing 
appellant's  bill.  The  defendants  ought  to  have  been  required  to  an- 
swer, and,  if  the  allegations  of  the  bill  are  sustained  by  proof,  the  ap- 
pellant should  be  accorded  the  relief  he  asks  for. 

The  decree  must  therefore  be  reversed,  and  the  cause  remanded,  to 
the  end  that  the  demurrer  may  be  overruled,  and  the  case  proceed  reg- 
ularly to  decree,  as  the  proof  may  justify. 


40  BASIS  OP  EQUITY  JURISDICTION  (Ch.  1 


WATSON  v.  SUTHERLAND. 

(Supreme  Court  of  the  United  States,  1S66.    72  U.  S.  [5  Wall.]  74,  18 

L.  Ed.  580.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  District 
of  Maryland ;   the  case  being  this  : 

Watson  &  Co.,  appellants  in  the  suit,  having  issued  writs  of  fieri 
facias  on  certain  judgments  which  they  had  recovered  in  the  Circuit 
Court  for  the  District  of  Maryland  against  Wroth  &  Fullerton,  caused 
them  to  be  levied  on  the- entire  stock  in  trade  of  a  retail  dry  goods  store 
in  Baltimore,  in  the  possession  of  one  Sutherland,  the  appellee.  Suth- 
erland, claiming  the  exclusive  ownership  of  the  property,  and  insisting 
that  Wroth  &  Fullerton  had  no  interest  whatever  in  it,  filed  a  bill  in 
equity,  to  enjoin  the  further  prosecution  of  these  writs  of  fieri  facias, 
and  so  to  prevent,  as  he  alleged,  irreparable  injury  to  himself.  The 
grounds  on  which  the  bill  of  Sutherland  charged  that  the  injury  would 
be  irreparable,  and  could  not  be  compensated  in  damages,  were  these : 
that  he  was  the  bona  fide  owner  of  the  stock  of  goods,  which  were  valu- 
able and  purchased  for  the  business  of  the  current  season,  and  not  all 
paid  for ;  that  his  only  means  of  payment  were  through  his  sales ;  that 
he  was  a  young  man,  recently  engaged  on  his  own  account  in  merchan- 
dising, and  had  succeeded  in  establishing  a  profitable  trade,  and  if  his 
store  was  closed,  or  goods  taken  from  him,  or  their  sale  even  long  de- 
layed, he  would  not  only  be  rendered  insolvent,  but  his  credit  destroyed, 
his  business  wholly  broken  up,  and  his  prospects  in  life  blasted. 

The  answer  set  forth  that  the  goods  levied  on  were  really  the  proper- 
ty of  Wroth  &  Fullerton,  who  had  been  partners  in  business  in  Balti- 
more, and  who,  suspending  payment  in  March,  1861,  greatly  in  debt  to 
the  appellants  and  others,  had,  on  the  27th  October,.  1862,  and  under 
the  form  of  a  sale,  conveyed  the  goods  to  Sutherland,  the  appellee ; 
that  Sutherland  was  a  young  man  who  came  to  this  country  from  Ire- 
land a  few  years  ago ;  that  when  he  came  he  was  wholly  without  prop- 
erty ;  that  since  he  came  he  had  been  salesman  in  a  retail  dry  goods 
store,  at  a  small  salary,  so  low  as  to  have  rendered  it  impossible  for 
him  to  have  saved  from  his  earnings  any  sum  of  money  sufficient  to 
have  made  any  real  purchase  of  this  stock  of  goods  from  Wroth  & 
Fullerton,  which  the  answer  set  up  was  accordingly  a  fraudulent  trans- 
fer made  to  hinder  and  defeat  creditors. 

It  further  stated  that  the  legislature  of  Maryland  had  passed  acts 
staying  executions  from  the  10th  of  May,  1861,  until  the  1st  of  Novem- 
ber, 1862;  that  previous  to  the  1st  November,  1862,  Wroth  &  Fuller- 
ton  had  determined  to  pay  no  part  of  the  judgments  rendered  against 
them;  and  that  from  the  10th  May,  1861,  until  the  1st  November, 
1862,  judgments  amounting  to  between  $30,000  and  $40,000  had  been 
rendered  against  them ;  that  between  the  date  of  the  suspension,  March 
1861,  and  the  27th  October,  1862,  they  had  sold  the  greater  portion  of 


Sec.  3)  GROUNDS  OF  EQUITABLE   RELIEF  41 

their  goods,  and  collected  a  great  many  of  the  debts  due  them,  but  had 
paid  only  a  small  portion  of  those  which  they  owed ;  secreting  for  their 
own  use  the  greater  portion  of  the  money  collected,  and  with  the  resi- 
due obtaining  the  goods  levied  upon. 

It  added  that  there  was  no  reason  to  suppose  that  the  levy  aforesaid, 
as  made  by  said  marshal,  would  work  irreparable  injury  to  the  appellee, 
even  if  the  goods  so  levied  on  were  the  property  of  the  complainant,  as 
property  of  the  same  description,  quantity,  and  quality,  could  be  easily 
obtained  in  market,  which  would  suit  the  appellee's  purpose  as  well 
as  those  levied  upon,  and  that  a  jury  would  have  ample  power,  on  a 
trial  at  common  law,  in  an  action  against  the  respondents,  now  appel- 
lants, or  against  the  marshal  on  his  official  bond,  to  give  a  verdict  com- 
mensurate with  any  damages  the  said  appellee  could  sustain  by  the  levy 
and  sale  of  the  goods  aforesaid. 

On  the  filing  of  the  bill  a  temporary  injunction  was  granted,  and 
when  the  cause  was  finally  heard,  after  a  general  replication  filed  and 
proof  taken,  it  was  made  perpetual. 

These  proofs,  as  both  this  court  and  the  one  below  considered,  hard- 
ly established,  as  respected  Sutherland,  the  alleged  fraud  on  creditors. 

The  appeal  was  from  the  decree  of  perpetual  injunction. 

Mr.  Justice  Davis  26  delivered  the  opinion  of  the  court'. 

There  are,  in  this  record,  two  questions  for  consideration.  Was 
Sutherland  entitled  to  invoke  the  interposition  of  a  court  of  equity ; 
and,  if  so,  did  the  evidence  warrant  the  court  below  in  perpetuating 
the  injunction? 

It  is  contended  that  the  injunction  should  have  been  refused,  because 
there  was  a  complete  remedy  at  law.  If  the  remedy  at  law  is  sufficient, 
equity  cannot  give  relief,  "but  it  is  not  enough  that  there  is  a  remedy 
at  law ;  it  must  be  plain  and  adequate,  or  in  other  words,  as  practical 
and  efficient  to  the  ends  of  justice,  and  its  prompt  administration,  as  the 
remedy  in  equity."  How  could  Sutherland  be  compensated  at  law,  for 
the  injuries  he  would  suffer,  should  the  grievances  of  which  he  com- 
plains be  consummated? 

If  the  appellants  made  the  levy,  and  prosecuted  it  in  good  faith,  with- 
out circumstances  of  aggravation,  in  the  honest  belief  that  Wroth  & 
Fullerton  owned  the  stock  of  goods  (which  they  swear  to  in  their  an- 
swer), and  it  should  turn  out,  in  an  action  at  law  instituted  by  Suther- 
land for  the  trespass,  that  the  merchandise  belonged  exclusively  to  him, 
it  is  well  settled  that  the  measure  of  damages,  if  the  property  were  not 
sold,  could  not  extend  beyond  the  injury  done  to  it,  or,  if  sold,  to  the 
value  of  it,  when  taken,  with  interest  from  the  time  of  the  taking  down 
to  the  trial. 

And  this  is  an  equal  rule,  whether  the  suit  is  against  the  marshal  or 
the  attaching  creditors,  if  the  proceedings  are  fairly  conducted,  and 
there  has  been  no  abuse  of  authority.    Any  harsher  rule  would  inter- 

2  6  pmt  of  tbe  opinion  is  omitted. 


42  BASIS  OF  EQUITY  JURISDICTION  (Cll.  1 

fere  to  prevent  the  assertion  of  rights  honestly  entertained,  and  which 
should  be  judicially  investigated  and  settled.  "Legal  compensation 
refers  solely  to  the  injury  done  to  the  property  taken,  and  not  to  any 
collateral  or  consequential  damages,  resit! ting  to  the  oivncr,  by  the  tres- 
pass." Loss  of  trade,  destruction  of  credit,  and  failure  of  business 
prospects,  are  collateral  or  consequential  damages,  which  it  is  claimed 
would  result  from  the  trespass,  but  for  which  compensation  cannot  be 
awarc!>ed  in  a  trial  at  law. 

Commercial  ruin  to  Sutherland  might,  therefore,  be  the  effect  of 
closing  his  store  and  selling  his  goods,  and  yet  the  common  law  fail  to 
reach  the  mischief.  To  prevent  a  consequence  like  this,"  a  court  of 
equity  steps  in,  arrests  the  proceedings  in  limine ;  brings  the  parties 
before  it ;  hears  their  allegations  and  proofs,  and  decrees  either  that 
the  proceedings  shall  be  unrestrained,  or  else  perpetually  enjoined.  The 
absence  of  a  plain  and  adequate  remedy  at  law  affords  the  only  test  of 
equity  jurisdiction  and  the  application  of  this  principle  to  a  particular 
case,  must  depend  altogether  upon  the  character  of  the  case,  as  dis- 
closed in  the  pleadings.  In  the  case  we  are  considering,  it  is  very  clear 
that  the  remedy  in  equity  could  alone  furnish  relief,  and  that  the  ends 
of  justice  required  the  injunction  to  be  issued.     *     *     * 

The  decree  of  the  Circuit  Court  is,  therefore,  affirmed. 


FRUE  et  al.  v.  HOUGHTON  et  al. 
(Supreme  Court  of  Colorado,  1SS2.    6  Colo.  318.) 

Beck,  C.  J.27  This  was  a  proceeding  to  enforce  an  agreement  to 
transfer  and  deliver  a  number  of  shares  of  stock  in  the  Sacramento 
Mining  Company.  The  plaintiffs  below,  Houghton  and  Curley,  obtain- 
ed a  decree  for  the  delivery  of  the  shares  of  stock  sued  for,  and  to  re- 
verse this  decree  the  defendants  have  sued  out  this  writ  of  error. 

The  first  proposition  laid  down  by  counsel  for  plaintiffs  in  error  is, 
that  a  court  of  equity  will  not  specifically  enforce  a  contract  relating  to 
personal  property. 

That  courts  of  equity  have  jurisdiction  to  decree  the  specific  perform- 
ance of  agreements,  whether  relating  to  real  or  personal  property,  is 
well  settled.  It  is  true  that  special  circumstances  must  exist,  entitling 
a  party  to  an  equitable  remedy,  in  order  to  authorize  the  exercise  of 
the  jurisdiction,  but  the  authorities  agree  that  its  exercise  does  not  de- 
pend upon  any  distinction  between  real  and  personal  estate.  The 
ground  of  the  jurisdiction  when  assumed  is,  that  the  party  seeking  equi- 
table relief  cannot  be  fully  compensated  by  an  award  of  damages  at 
law.  When,  therefore,  an  award  of  damages  would  not  put  the  plain- 
tiff in  a  situation  as  beneficial  as  if  the  agreement  were  specifically  per- 
formed, or  where  compensation  in  damages  would  fall  short  of  the 

-"  Part  of  the  opinion  is  omitted. 


Sec.  3)  GROUNDS   OF  EQUITABLE   RELIEF  43 

redress  to  which  he  is  entitled,  a  specific  performance  may  be  decreed. 
The  exercise  of  the  jurisdiction  depends  upon  the  fundamental  rule  of 
equity  jurisprudence,  that  there  is  not  a  plain,  adequate  and  complete 
remedy  at  law.  1  Story's  Eq.  Jur.  §§  716,  717,  724,  note  2 ;  Fry  on 
Spec.  Perf.  p.  47,  §  10,  note  7;   Pomeroy  on  Spec.  Perf.  §§  7,  8,  ch.  1. 

One  of  the  principal  objections  urged  against  the  decree  is,  that  the 
subject  matter  of  the  action  being  stock  in  a  corporation,  there  was  an 
adequate  remedy  at  law. 

In  the  discussion  of  this  objection,  counsel  for  plaintiffs  in  error 
insist  that  equity  will  not  enforce  a  contract  for  the  transfer  of  ordinary 
mining  stocks. 

We  find  the  authorities  somewhat  conflicting  upon  questions  of  this 
character.  They  are  uniform  on  the  proposition  that  a  covenant  for 
the  delivery  of  government  stocks  and  other  public  securities  will  not 
be  enforced  in  equity.  Ross  v.  Union  Pacific  Railway  Co.,  1  Wool- 
worth,  26,  Fed.  Cas.  No.  12,080;   Pomeroy  on  Spec.  Perf.  §  17. 

The  reasons  assigned  for  the  rule  respecting  public  stocks  are  that 
these  stocks  are  always  for  sale,  their  prices  are  known,  and  the  dam- 
ages awarded  at  law  will  enable  the  injured  party  to  make  himself 
whole  by  purchasing  in  the  market. 

The  English  authorities  decline  to  extend  the  rule  to  contracts  for 
the  delivery  of  the  stocks  of  railways  and  other  companies,  and  the 
English  courts  decree  specific  performance  of  such  contracts,  upon  the 
ground  that  such  shares  or  stocks  are  of  uncertain  value,  and  not  al- 
ways readily  obtainable  in  the  market.     1  Story's  Eq.  Jur.  §  724a. 

The  rulings  of  the  courts  of  this  country  have  not  been  uniform  upon 
these  questions,  some  of  them  following  the  English  rule ;  others, 
recognizing  the  fact  that  the  reasons  for  that  rule  do  not  apply  with 
equal  force  in  this  country,  have  adhered  to  the  rules  applicable  to  equi- 
table remedies  in  other  cases. 

In  Ross  v.  Union  Pacific  Railway  Company,  supra,  Air.  Justice  Mil- 
ler assigns  strong  reasons  why  a  contract  to  transfer  certain  shares  of 
that  railway  company  should  not  be  specifically  enforced.     He  says : 

"I  see  no  sound  reason  for  any  distinction  between  them  and  government 
stocks.  They  belong  to  a  class  of  securities  which  are  generally  called  stocks ; 
they  are  the  subject  of  every  day  sale  in  the  market,  and  the  rates  at  which 
they  are  selling  are  quoted  in  the  public  commercial  reports,  so  that  their 
value  is  as  readily  and  certainly  ascertained  as  that  of  government  stocks. 
No  especial  value  attaches  to  one  share  over  another,  and  the  money  which 
will  pay  for  one  will  as  readily  purchase  another.  The  damages,  then,  for 
failure  to  deliver  such  shares  may  be  awarded  at  law  and  be  an  adequate 
compensation  for  the  injury  sustained." 

These  views  appear  to  be  sustained  by  the  weight  of  authority,  and 
upon  principle  seem  equally  applicable  to  the  shares  or  stocks  of  all 
corporations  concerning  which  the  same  facts  therein  recited  exist. 
See  Pomeroy  on  Spec.  Perf.  §  19,  and  cases  cited. 

Does  the  case  at  bar  come  within  this  rule?  Do  these  same  facts 
exist  in  respect  to  the  shares  of  stock  of  this  mining  company? 


44  BASIS   OF  EQUITY  JURISDICTION  (Ch.  1 

We  learn  from  the  record  that  the  entire  stock  consists  of  ten  thou- 
sand shares  of  $10  per  share,  and  that  up  to  the  time  of  the  purchase 
by  plaintiffs  in  error  of  the  seven  thousand  three  hundred  and  thirty- 
three  shares,  no  sales  had  been  made.  The  live  original  trustees  held 
and  owned  up  to  that  date  two  thousand  shares  each,  which  comprised 
the  entire  stock. 

What  were  the  values  of  these  shares  ?  Plaintiffs  allege  in  their  bill 
that  the  shares  bought  were  reasonably  worth  $20  per  share.  The  price 
paid  was  $7.50  per  share,  and  a  portion  of  the  defendants  say  that  was 
an  adequate  and  fair  price,  while  the  defendant  who  negotiated  the 
purchase  avers  in  his  .separate  answer  that  whether  the  shares  are 
worth  $20  per  share  is  unknown  to  both  parties. 

It  is  fair  to  assume,  then,  that  up  to  the  time  that  these  proceedings 
were  instituted,  the  number  of  shares  was  limited ;  that  these  shares 
had  no  fixed  or  marketable  value ;  that  they  were  not  selling  upon  the 
stock  boards,  and  they  were  not  quoted  in  the  commercial  reports.  Cer- 
tainly, then,  their  value  could  not  have  been  "as  readily  and  certainly 
ascertained  as  that  of  government  stocks." 

It  is  very  apparent  that  there  is  a  wide  distinction  between  the  shares 
of  stock  of  such  a  mining  company  and  public  stocks,  government  se- 
curities, or  the  stock  of  corporations  which  have  been  placed  for  sale 
upon  stock  boards,  and  are  the  subject  of  every  day  sale  in  the  financial 
markets  of  the  country. 

This  case  comes  within  the  principle  decided  in  Treasurer  v.  Com- 
mercial Mining  Co.,  23  Cal.  391.  Here,  as  in  California,  we  have 
numerous  mining  corporations.  It  may  likewise  be  said  as  to  many  of 
them,  that  their  business  and  mining  operations  are  in  a  peculiar  con- 
dition; their  stock  is  of  uncertain  value,  and  difficult  to  substantiate 
by  competent  testimony ;  yet  it  may  have  a  peculiar  value  to  those  ac- 
quainted with  their  affairs.  The  risk  also  of  the  personal  responsibility 
of  individuals  and  corporations  is  equally  great.     *     *     * 

We  do  not  think  the  remedy  at  law  under  such  circumstances  would 
be  either  certain,  adequate  or  complete. 

The  decree  must  be  affirmed. 

Affirmed. 


GOTTSCHALK  v.  STEIN. 

(Court  of  Appeals  of  Maryland,  1SSS.     60  Md.  51,  13  Atl.  625.) 

Robinson,  J.  The  complainants,  we  all  agree,  are  entitled  to  a  spe- 
cific performance  of  this  contract,  and  this  being  so,  they  are  entitled 
also  to  an  injunction  to  restrain  the  defendant  from  collecting  the 
promissory  notes  which  he  agreed  to  sell  and  transfer  to  them.  Now, 
what  are  the  facts?  The  firm  of  Weiller  &  Son,  composed  of  Hannah 
Weiller  and  her  two  sons,  being  in  failing  circumstances,  made  an  as- 
signment of  all  their  property  to  Joseph  Leopold,  in  trust  for  the  bene- 


Sec.  3)  GROUNDS  OP   EQUITABLE   RELIEF  45 

fit  of  their  creditors.  Afterwards,  at  a  meeting  of  the  creditors,  held 
for  the  purpose  of  considering  a  compromise  offered  by  the  firm, 
Gottschalk,  the  appellant,  who  is  the  father-in-law  of  one  of  the  mem- 
bers of  the  firm,  with  a  view  of  inducing  the  creditors  to  accept  the 
compromise,  agreed  that  he  and  Stein,  one  of  the  appellees,  who  is  the 
father-in-law  of  the  other  member  of  the  firm,  would  indorse  the  set- 
tlement notes  to  be  given  to  the  creditors,  in  consideration  of  which 
Leopold  was  to  surrender  his  trust,  and  the  property  of  the  firm  was 
to  be  transferred  to  them  as  security  on  account  of  their  indorsement. 
On  these  terms  the  creditors  agreed  to  accept  the  compromise,  and 
when  it  was  about  to  be  consummated,  Gottschalk,  without  assigning 
any  reason,  refused  to  indorse  the  settlement  notes,  but  proposed  that 
they  should  be  indorsed  by  Stein,  and  that  the  property  of  the  firm 
should  be  transferred  to  him  by  way  of  indemnity.  To  this  Stein,  be- 
ing anxious  to  effect  the  compromise,  consented,  and  he  accordingly 
assumed  the  liabilities  of  the  firm,  amounting  to  $18,000,  a  sum  ex- 
ceeding the  value  of  the  entire  property  of  the  firm.  This  being  done, 
Leopold  surrendered  his  trust,  and  the  property  was  transferred  to 
Stein.  The  firm,  it  seems,  was  also  indebted  to  Gottschalk  on  three 
promissory  notes,  amounting  to  $7,500;  but,  not  supposing  there 
would  be  any  difficulty  in  effecting  a  satisfactory  settlement  with  him, 
this  indebtedness  was  not  included  in  the  compromise.  Be  this  as  it 
may,  after  sundry  negotiations  between  the  parties,  Gottschalk,  by  a 
contract  in  writing,  and  under  seal,  agreed  to  sell  and  transfer  these 
notes  to  Leopold  and  Stein,  upon  the  payment  by  them  of  $3,000.  The 
appellees  were  induced,  the  bill  alleges,  to  buy  these  notes  solely  for 
the  benefit  of  Mrs.  Weiller,  a  member  of  the  firm,  and  who  was  nearly 
allied  to  the  appellees  by  marriage,  all  of  which  was  known  to  Gotts- 
chalk at  the  time  the  contract  was  made.  This  bill  is  filed  by  Leopold 
and  Stein  to  restrain  Gottschalk  from  collecting  these  notes,  and  also 
for  the  specific  performance  of  the  contract. 

As  a  general  rule  courts  of  equity  will  not,  it  is  true,  decree  the  spe- 
cific performance  of  a  contract  for  the  sale  of  goods  and  chattels,  for 
the  reason  that  an  action  at  law  for  a  breach  of  the  contract  affords 
as  complete  a  remedy  for  purchaser  as  the  delivery  of  the  goods,  inas- 
much as  with  the  damages  thus  recovered  at  law  he  can  purchase  the 
same  quantity  of  like  goods.  Having  thus  an  adequate  remedy  at  law, 
there  is  no  ground  for  the  interference  of  a  court  of  equity.  But  we 
take  it  to  be  well  settled  that  where  there  is  an  agreement  to  buy  a  spe- 
cific chattel  for  a  specific  purpose,  and  this  purpose  can  only  be  an- 
swered by  the  delivery  of  the  chattel  itself,  or  where,  from  the  nature 
of  the  subject-matter  of  the  agreement,  the  measure  of  damages  must 
necessarily  be  uncertain ;  or  where  damages  will  not  be  as  beneficial 
to  the  purchaser  as  the  performance  of  the  contract,  equity  will  inter- 
fere and  decree  the  specific  performance  of  the  contract,  because,  in 
such  cases,  an  action  at  law  for  a  breach  of  the  contract  will  not  afford 
the  purchaser  a  complete  and  adequate  remedy.     In  the  language  of 


4G  BASIS   OF   EQUITY  JURISDICTION  (Ch.  1 

Lord  Selborne,  "the  principle  which  is  material  to  be  considered  is  that 
the  court  gives  specific  performance  instead  of  damages  only  when  it 
can  by  that  means  do  more  perfect  and  complete  justice,"  (Wilson  v. 
Railway  Co.,  9  Ch.  App.  279,)  or,  in  other  words,  where  damages  at 
law  fall  short  of  that  redress  to  which  one  is  fairly  and  justly  entitled. 
Doloret  v.  Rothschild,  1  Sim.  &  S.  590;  Buxton  v.  Lister,  3  Atk.  385; 
White  v.  Schuyler,  1  Abb.  Pr.  (N.  S.)  300 ;  Ashton  v.  Corrigan,  L.  R. 
13  Eq.  76;  Robinson  v.  Cathcart,  2  Cranch,  C.  C.  590,  Fed.  Cas.  No. 
11,  946;  Cutting  v.  Dana,  25  N.  J.  Eq.  265. 

Now,  in  this  case,  the  appellant  agreed  to  sell  to  the  appellees  the 
three  promissory  notes  of  Weiller  &  Son,  and  the  appellees  agreed  to 
buy  these  notes  for  a  specific  purpose,  which  was  known  to  the  appel- 
lant. An  action  at  law  for  a  breach  of  the  contract  would  not,  it  is 
clear,  give  to  the  appellees  the  subject-matter  of  the  contract.  And 
besides,  the  damages  to  be  recovered  must  necessarily  be  uncertain. 
The  face  value  of  the  notes  is  $7,500,  and  the  appellant  agreed  to  sell 
and  transfer  them  to  the  appellees  upon  the  payment  of  $3,000.  If  the 
firm  of  Weiller  &  Son  was  perfectly  solvent,  there  would  be  no  diffi- 
culty in  determining  the  measure  of  damages.  But  the  firm,  the  rec- 
ord shows,  was  insolvent,  the  assets  being  insufficient  to  pay  their 
debts.  And  in  an  action  at  law  the  measure  of  damages  would  depend 
upon  the  personal  ability  of  the  members  of  the  firm  to  pay  the  amount 
due  on  the  notes ;  and,  this  being  uncertain,  the  damages  to  be  recov- 
ered must  also  be  uncertain.  The  legal  remedy  under  such  circum- 
stances would  fall  short  of  that  redress  to  which  the  appellees  are 
justly  entitled,  and  is  not,  therefore,  as  beneficial  to  them  as  the  specific 
performance  of  the  contract.'  There  is  no  distinction,  it  seems  to  us, 
between  this  case  and  Wright  v.  Bell,  5  Price,  325.  There  the  assignee 
in  bankruptcy  agreed  to  sell  a  debt  of  £550  due  the  bankrupt  for  £500. 
The  defendant  having  refused  to  pay  the  £500,  a  bill  was  filed  for  the 
specific  performance  of  the  contract,  and  it  was  argued  that  the  rem- 
edy of  the  plaintiff  was  by  an  action  at  law  for  a  breach  of  the  con- 
tract. But  the  lord  chief  baron  held  that,  although  equity  would  not, 
as  a  general  rule,  enforce  the  performance  of  contracts  for  the  sale  of 
chattels,  yet  a  contract  to  sell  a  specific  debt  was  an  exception  to  the 
rule.  And  then  again,  in  Adderley  v.  Dixon,  1  Sim.  &  S.  607,  where 
the  plaintiff,  being  entitled  to  a  dividend  in  two  bankrupt  estates, 
agreed  to  sell  the  claim  for  2s.  and  6d.  in  the  pound,  Sir  John  Leach, 
vice-chancellor,  said : 

"Courts  of  equity  decree  the  specific  performance  of  contracts,  not  upon  any 
distinction  between  realty  and  personalty,  but  because  damages  at  law  may 
not  in  the  particular  case  afford  a  complete  remedy.  The  present  case  being 
for  the  sale  of  uncertain  dividends  which  may  become  payable  from  the  es- 
tate of  the  two  bankrupts,  it  appears  to  me  that  upon  the  principle  established 
by  the  cases  of  Ball  v.  Coggs,  [1  Brown,  Pari.  Cas.  140,]  and  Taylor  v.  Neville, 
[cited  in  3  Atk.  384,]  a  court  of  equity  will  decree  specific  performance,  be- 
cause damages  at  law  cannot  accurately  represent  the  value  of  the  future  divi- 
dends; and  to  compel  the  purchaser  to  take  such  damages  would  be  to  com- 
pel him  to  sell  the  dividends  at  a  conjectural  price." 


Sec.  4)         EXTENT   AND  LIMITATION   OF  EQUITY  JURISDICTION  47 

So  in  this  case,  the  damages  at  law  being  uncertain  on  account  of 
the  failure  of  Weiller  &  Son,  the  appellees  are  entitled  to  the  specific 
performance  of  the  contract.  And  then,  as  to  the  suggestion  that  eq- 
uity will  not  lend  its  aid  to  a  trustee  in  the  purchase  by  him  of  claims 
against  the  trust-estate,  it  is  sufficient  to  say  that  Leopold  had  surren- 
dered his  trust,  and  had  in  fact  no  connection  with  the  trust-estate  at 
the  time  the  contract  was  made.  In  regard  to  the  third  and  last  objec- 
tion, namely,  that  the  necessary  exhibits  are  not  filed  in  support  of  the 
bill,  we  have  but  a  word  to  say.  Courts  of  equity  never  interfere  by 
way  of  injunction,  unless  the  complainant  has  made  out  a  clear  case, 
and  if  he  has  in  his  possession  papers  or  instruments  of  writing  on 
which  his  equity  rests,  such  papers  or  instruments  must  be  filed  in  sup- 
port of  his  bill.  This  is  necessary  in  order  that  the  court  may  see  that 
he  is  entitled  to  the  relief  prayed.  Hankey  v.  Abrahams,  28  Md.  588 ; 
Shoemaker  v.  Bank,  31  Md.  396,  100  Am.  Dec.  73.  In  this  case  the 
contract  for  the  sale  of  the  notes  is  the  ground  on  which  the  equity 
of  the  appellees  rests,  and  this  contract  is  filed  in  support  of  the  aver- 
ments of  the  bill.  Besides  this,  they  also  file  a  copy  of  the  proceedings 
in  the  suit  brought  by  Gottschalk  on  the  promissory  notes,  attested  by 
the  clerk,  but  not  authenticated  by  the  seal  of  the  court.  Whether  this 
exhibit  ought  to  have  been  authenticated  by  the  seal  of  the  court,  is  a 
question  not  necessary  to  be  decided  in  this  cause,  because  it  is  not  an 
exhibit  on  which  the  equity  of  the  bill  is  based.  Speaking  for  myself, 
I  have  no  hesitation  in  saying  that  the  Code  only  requires  the  proceed- 
ings of  a  court  to  be  authenticated  by  the  seal  of  the  court  when  such 
proceedings  are  offered  as  evidence  in  a  case.     Code.  art.  37,  §  58. 

For  these  reasons  the  order  of  the  court  below  will  be  affirmed.  Or- 
der affirmed,  and   cause  remanded. 


SECTION  4— EXTENT  AND  LIMITATION  OF  EQUITY  JU- 
RISDICTION THROUGH  ITS  MODE  OF  OPERATION 


MODE  OF  OPERATION  IN  EQUITY. 

A  court  of  common  law  never  lays  a  command  upon  a  litigant,  nor 
seeks  to  secure  obedience  from  him.  It  issues  its  commands  to  the 
sheriff  (its  executive  officer),  and  it  is  through  the  physical  power  of 
the  latter,  coupled  with  the  legal  protection  of  his  acts  and  the  acts 
of  the  court,  that  rights  are  protected  by  the  common  law.  Thus,  when 
a  common-law  court  renders  a  judgment  in  an  action  that  the  plain- 
tiff recover  of  the  defendant  a  certain  sum  of  money  as  a  compensation 
for  a  tort  or  for  a  breach  of  obligation,  it  follows  up  the  judgment  by 


48  BASIS   OF   EQUITY  JURISDICTION  (Cll.  1 

issuing  a  writ  to  the  sheriff,  under  which  the  latter  seizes  the  defend- 
ant's property,  and  either  delivers  it  to  the  plaintiff  at  an  appraised 
value  in  satisfaction  of  the  judgment,  or  sells  it,  and  pays  the  judgment 
out  of  the  proceeds  of  the  sale. 

Equity,  however,  has  always  employed,  almost  exclusively,  the  very 
method  of  compulsion  and  coercion  which  the  common  law,  like  most 
other  legal  systems,  has  wholly  rejected;  for  when  a  person  is  com- 
plained of  to  a  court  of  equity,  the  court  first  ascertains  and  decides 
what,  if  anything,  the  person  complained  of  ought  to  do  or  refrain 
from  doing;  then,  by  its  order  or  decree,  it  commands  him  to  do  or 
refrain  from  doing  what  it  has  decided  he  ought  to  do  or  refrain 
from  doing;  and  finally,  if  he  refuses  or  neglects  to  obey  the  order  or 
decree,  it  punishes  him  by  imprisonment  for  his  disobedience.  Even 
when  common  law  and  equity  give  the  same  relief,  each  adopts  its  own 
method  of  giving  it.  Thus,  if  a  court  of  equity  decides  that  the  de- 
fendant in  a  suit  ought  to  pay  money  or  deliver  property  to  the  plain- 
tiff, it  does  not  render  a  judgment  that  the  plaintiff  recover  the  money 
or  the  property,  and  then  issue  a  writ  to  its  executive  officer  command- 
ing him  to  enforce  the  judgment;  but  it  commands  the  defendant  per- 
sonally to  pay  the  money  or  to  deliver  possession  of  the  property,  and 
punishes  him  by  imprisonment  if  he  refuse  or  neglect  to  do  it. 

This  method  was  borrowed  by  the  early  English  chancellors  from 
the  canon  law,  and  their  reasons  for  borrowing  it  were  much  the  same 
as  those  which  caused  its  original  adoption  by  the  canonists.  The 
canon-law  courts  had  power  only  over  the  souls  of  litigants ;  they  can- 
not touch  their  bodies  or  their  property.  In  short,  their  power  was 
spiritual,  not  physical,  and  hence  the  only  way  in  which  they  could 
enforce  their  sentences  was  by  putting  them  in  the  shape  of  commands 
to  the  persons  against  whom  they  were  pronounced,  and  inflicting  upon 
the  latter  the  punishments  of  the  church  (ending  with  excommunica- 
tion) in  case  of  disobedience.  If  these  punishments  proved  insufficient 
to  secure  obedience  the  civil  power  (in  England)  came  to  the  aid  of  the 
spiritual  power,  a  writ  issued  out  of  chancery  (de  excommunicato  cap- 
iendo) and  the  defendant  was  arrested  and  imprisoned. 

When  the  English  chancellor  began  to  assume  jurisdiction  in  equity 
he  found  himself  in  a  position  similar  to  that  of  the  spiritual  courts. 
As  their  power  was  entirely  spiritual,  so  his  was  entirely  physical. 
Through  his  physical  power  he  could  imprison  men's  bodies  and  con- 
trol the  possession  of  their  property ;  but  neither  his  orders  and  de- 
crees, nor  any  such  acts  as  such  done  in  pursuance  of  them,  had  any 
legal  effect  or  operation,  and  hence  he  could  not  effect  the  title  to  prop- 
erty except  through  the  acts  of  its  owners.  Moreover,  his  physical 
power  over  property  had  no  perceptible  influence  upon  his  method  of 
giving  relief.  Even  when  he  made  a  decree  for  changing  the  possession 
of  property,  it  took  the  shape,  as  we  have  seen,  of  a  command  to  the 
defendant  in  possession  to  deliver  possession  to  the  plaintiff;  and  it 
was  only  as  a  last  resort  that  the  chancellor  issued  a  writ  to  his  execu- 


Sec.  4)         EXTENT  AND  LIMITATION  OF   EQUITY  JURISDICTION  49 

tive  officer,  commanding  him  to  dispossess  the  defendant  and  put  the 
plaintiff  in  possession. 

Such,  then,  being  the  two  methods  of  giving  relief,  it  is  easy  to  un- 
derstand why  that  of  equity  has  supplemented  that  of  common  law ; 
for  the  former  is  strong  at  the  very  points  where  the  latter  is  weak. 

From  "A  Brief  Survev  of  Equity  Jurisdiction,"  C.  C.  Langdell,  Edi- 
tion of  1905,  pp.  24,  25,  26. 


FEDERAL  EQUITY  RULES. 

(33  Supreme  Court  Reporter,  xix.     1913.) 

As  illustrative  of  the  mode  of  operation  of  courts  of  equity,  note 
the  following  appended  rules  from  the  recently  adopted  eighty-one 
rules  of  equity  practice  in  the  federal  courts : 

Rule  7.    Process,  Mesne  and  Final 

The  process  of  subpoena  shall  constitute  the  proper  mesne  process 
in  all  suits  in  equity,  in  the  first  instance,  to  require  the  defendant  to 
appear  and  answer  the  bill ;  and,  unless  otherwise  provided  in  these 
rules  or  specially  ordered  by  the  court,  a  writ  of  attachment  and,  if 
the  defendant  cannot  be  found,  a  writ  of  sequestration,  or  a  writ  of 
assistance  to  enforce  a  delivery  of  possession,  as  the  case  may  require, 
shall  be  the  proper  process  to  issue  for  the  purpose  of  compelling 
obedience  to  any  interlocutory  or  final  order  or  decree  of  the  court. 

Rule  8.    Enforcement  of  Final  Decrees 

Final  process  to  execute  any  decree  may,  if  the  decree  be  solely  for 
the  payment  of  money,  be  by  a  writ  of  execution,  in  the  form  used 
in  the  District  Court  in  suits  at  common  law  in  actions  of  assumpsit. 
If  the  decree  be  for  the  performance  of  any  specific  act,  as,  for  ex- 
ample, for  the  execution  of  a  conveyance  of  land  or  the  delivering  up 
of  deeds  or  other  documents,  the  decree  shall,  in  all  cases,  prescribe 
the  time  within  which  the  act  shall  be  done,  of  which  the  defendant 
shall  be  bound,  without  further  service,  to  take  notice;  and  upon  affi- 
davit of  the  plaintiff,  filed  in  the  clerk's  office,  that  the  same  has  not 
been  complied  with  within  the  prescribed  time,  the  clerk  shall  issue 
a  writ  of  attachment  against  the  delinquent  party,  from  which,  if  at- 
tached thereon,  he  shall  not  be  discharged,  unless  upon  a  full  compli- 
ance with  the  decree  and  the  payment  of  all  costs,  or  upon  a  special 
order  of  the  court,  or  a  judge  thereof,  upon  motion  and  affidavit,  en- 
larging the  time  for  the  performance  thereof.  If  the  delinquent  party 
cannot  be  found  a  writ  of  sequestration  shall  issue  against  his  estate, 
upon  the  return  of  non  est  inventus,  to  compel  obedience  to  the  decree. 
If  a  mandatory  order,  injunction  or  decree  for  the  specific  performance 
of  any  act  or  contract  be  not  complied  with,  the  court  or  a  judje,  be- 
Boke  Eq. — 4 


50  BASIS  OF  EQUITY  JURISDICTION  (Ch.  1 

sides,  or  instead  of,  proceedings  against  the  disobedient  party  for  a 
contempt  or  by  sequestration,  may  by  order  direct  that  the  act  required 
to  be  done  be  done,  so  far  as  practicable,  by  some  other  person  appoint- 
ed by  the  court  or  judge,  at  the  cost  of  the  disobedient  party,  and  the 
act,  when  so  done,  shall  have  like  effect  as  if  done  by  him. 

Rule  12.  Issue  of  Subpoena — Time  for  Answer 
"Whenever  a  bill  is  filed,  and  not  before,  the  clerk  shall  issue  the  pro- 
cess of  subpoena  thereon,  as  of  course,  upon  the  application  of  the 
plaintiff,  which  shall  contain  the  names  of  the  parties  and  be  return- 
able into  the  clerk's  office  twenty  days  from  the  issuing  thereof.  At 
the  bottom  of  the  subpoena  shall  be  placed  a  memorandum,  that  the 
defendant  is  required  to  file  his  answer  or  other  defense  in  the  clerk's 
office  on  or  before  the  twentieth  day  after  service,  excluding  the  day 
thereof;  otherwise  the  bill  may  be  taken  pro  confesso.  Where  there 
are  more  than  one  defendant,  a  writ  of  subpoena  may,  at  the  election 
of  the  plaintiff,  be  sued  out  separately  for  each  defendant,  or  a  joint 
subpoena  against  all  the  defendants. 

Rule  13.    Manner  of  Serving  Subpoena 

The  service  of  all  subpoenas  shall  be  by  delivering  a  copy  thereof 
to  the  defendant  personally,  or  by  leaving  a  copy  thereof  at  the  dwell- 
ing-house or  usual  place  of  abode  of  each  defendant,  with  some  adult 
person  who  is  a  member  of  or  resident  in  the  family. 

Rule  14-    Alias  Subpoena 
Whenever  any  subpoena  shall  be  returned  not  executed  as  to  any 
defendant,  the  plaintiff  shall  be  entitled  to   other  subpoenas  against 
such  defendant,  until  due  service  is  made. 

Rule  SI.     These  Rules  Effective  February  1,  1913 — Old  Rules 

Abrogated 

These  rules  shall  be  in  force  on  and  after  February  1,  1913,  and 
shall  govern  all  proceedings  in  cases  then  pending  or  thereafter 
brought,  save  that  where  in  any  then  pending  cause  an  order  has  been 
made  or  act  done  which  cannot  be  changed  without  doing  substantial 
injustice,  the  court  may  give  effect  to  such  order  or  act  to  the  extent 
necessary  to  avoid  any  such  injustice. 

All  rules  theretofore  prescribed  by  the  Supreme  Court,  regulating 
the  practice  in  suits  in  equity,  shall  be  abrogated  when  these  rules 
take  effect. 


SeC.  4)  EXTENT   AND   LIMITATION   OF   EQUITY  JURISDICTION  51 

CLOSE  et  al.  v.  WHEATON  et  al. 
(Supreme  Court  of  Kansas,  1902.    65  Kan.  830,  70  Pac.  891.) 

In  banc.  Error  from  district  court,  Trego  county;  Lee  Monroe, 
Judge. 

Action  by  George  E.  Wheaton  and  others  against  William  B.  Close 
and  others.    Judgment  for  plaintiffs,  and  defendants  bring  error. 

DosTER,  C.  J.  This  was  an  action  of  specific  performance  to  com- 
pel the  execution  of  a  deed  to  land  situated  in  Trego  county.  The 
action  was  brought  in  that  county,  but  the  defendants  of  whom  per- 
formance was  asked  were  nonresidents  of  the  state,  and  other  defend- 
ants, of  whom  relief  of  an  incidental  character  was  asked,  though  resi- 
dents of  the  state,  were  nonresidents  of  the  county.  Seasonable  objec- 
tions to  the  jurisdiction  of  the  court  over  the  persons  of  the  defend- 
ants were  made  and  overruled.  A  trial  was  had,  and  judgment  ren- 
dered for  plaintiffs,  to  reverse  which  error  has  been  prosecuted  to  this 
court.    The  jurisdictional  subject  only  need  be  considered. 

There  is  no  doubt  that  specific  performance,  looking  alone  to  its  na- 
ture, operates  in  personam  entirely,  and  that  as  a  consequence,  inde- 
pendently of  statute,  a  suit  to  compel  the  execution  of  title  papers  can 
be  brought  only  in  the  county  of  the  defendant's  residence.  The  case 
of  Spurr  v.  Scoville,  3  Cush.  (Mass.)  578,  is  a  pointed  authority  on  the 
subject.  The  endeavor  there  was  to  compel  a  resident  of  Connecticut, 
on  whom  personal  service  had  not  been  obtained,  to  execute  a  contract 
for  the  conveyance  of  lands  in  Massachusetts.  Among  other  things, 
including  a  review  of  many  of  the  authorities,  the  court  said : 

"But  this  suit  is  a  proceeding  in  personam  merely,  in  which  a  decree  is 
sought  against  the  person,  and  not  against  the  property,  and  it  is  wholly  im- 
material whether  the  land  which  was  the  subject  of  the  complaint  be  or  be 
not  within  the  jurisdiction  of  the  court.  It  is  sufficient  if  the  parties  to  be 
affected  and  bound  by  the  decree  are  within  the  jurisdiction.  An  inability  to 
enforce  the  decree  in  rem  would  constitute  no  objection  to  the  right  to  enter- 
tain the  suit.  If,  however,  the  defendant  were  within  the  jurisdiction,  and 
should  refuse  to  perform  a  decree  against  him,  if  the  lands  also  were  within 
the  jurisdiction,  in  addition  to  the  proceedings  in  personam  the  court  might, 
perhaps,  put  the  plaintiff  in  possession  of  the  land.  2  Story,  Eq.  Jur.  §  744. 
*  *  *  This  is  a  proceeding  strictly  in  personam,  and  the  party  must  be, 
not  technically  or  constructively,  but  actually  and  really,  before  the  court, 
and  within  its  jurisdiction.  An  appearance  by  attorney  to  object  to  the  juris- 
diction cannot  give  jurisdiction  in  a  case  like  this." 

The  character  of  an  action  for  specific  performance  as  in  personam 
entirely  is  so  well  established  that  courts  having  jurisdiction  of  the 
parties  frequently  entertain  suits  to  compel  the  execution  of  contracts 
for  the  conveyance  of  lands  in  other  states,  in  which,  of  course,  their 
decrees  as  to  the  res  cannot  operate.  Lindley  v.  O'Reilly,  50  N.  J. 
Law,  636,  15  Atl.  379,  1  L.  R.  A.  79,  7  Am.  St.  Rep.  802.  Sometimes 
a  question  may  exist  as  to  whether  the  complaining  party  may  not  have 
such  peculiar  interest  in  the  property  as  to  entitle  him  to  the  enforce- 
ment of  a  trust,  and  not  of  contract  merely  (Merrill  v.  Beckwith,  163 


52  BASIS  OF  EQUITY  JURISDICTION  (Ch.  1 

Mass.  503,  40  N.  E.  855),  in  which  event  the  action  might  be  local  and 
not  transitory ;  but  the  plaintiffs  in  this  case  have  neither  stated  in 
their  pleadings,  nor  claimed  before  us,  such  character  of  right.  We 
are  therefore  well  convinced  that  the  inherent  nature  of  the  ordinary 
proceeding  to  compel  a  vendor  to  comply  with  his  contract,  as  contract, 
by  the  execution  of  a  deed,  makes  the  action  one  in  personam,  which 
can  be  brought  only  where  the  defendant  resides  or  may  be  legally 
served  with  personal  process.  Does  our  statute  authorize  it  to  be  else- 
where brought?  The  provisions  having  relation  thereto  are  sections 
46  and  47  of  the  Civil  Code  (Gen.  St.  1901,  §.§  4476,  4477),  as  follows: 

"Sec.  46.  Actions  for  the  following  causes  must  be  brought  in  the  county  in 
which  the  subject  of  the  action  is  situated,  except  as  provided  in  section  47: 
First,  for  the  recovery  of  real  property,  or  of  any  estate  or  interest  therein, 
or  for  the  determination  in  any  form  of  any  such  right  or  interest.  Second, 
for  the  partition  of  real  property.  Third,  for  the  sale  of  real  property  under 
a  mortgage,  lien,  or  other  incumbrance,  or  charge. 

"Sec.  47.  If  the  real  property,  the  subject  of  the  action,  be  an  entire  tract 
and  situated  in  two  or  more  counties,  or  if  it  consists  of  separate  tracts  sit- 
uated in  two  or  more  counties,  the  action  may  be  brought  in  any  county  in 
which  any  tract  or  part  thereof  is  situated,  unless  it  he  an  action  to  recover 
possession  thereof;  and  if  the  property  be  an  entire  tract  situated  in  two  or 
more  counties,  an  action  to  recover  the  possession  thereof  may  be  brought 
in  either  of  such  counties ;  but  if  it  consists  of  separate  tracts  in  different 
counties,  the  possession  of  such  tracts  must  be  recovered  by  separate  actions, 
brought  in  tbe  counties  where  they  are  situated.  An  action  to  compel  the 
specific  performance  of  a  contract  of  sale  of  real  estate  may  be  brought  in  the 
county  where  the  defendants,  or  any  of  them,  reside." 

It  is  manifest  that  none  of  the  provisions  of  section  46  apply.  The 
only  possibly  applicable  words  in  that  section  are  those  in  clause  1 ; 
but  an  action  for  specific  performance  is  not,  of  course,  one  for  the  re- 
covery of  real  property,  or  an  estate  or  interest  therein.  Nor  is  it  "for 
the  determination  in  any  form  of  any  such  right  or  interest."  That 
language  would  seem  at  first  reading  to  be  quite  sweeping  and  inclu- 
sive, but  it  will  be  perceived  that  it  is  not  comprehensive  of  suits  to 
compel  the  performance  of  mere  contracts  to  convey,  if  it  be  admitted, 
as  just  stated,  that  such  suits  operate  only  in  personam.  Suits  for  the 
performance  of  agreements  are  not  brought  to  determine  titles,  be- 
cause, if  so,  they  would  operate  on  the  res,  but  they  are  brought  to  en- 
force purely  personal  contracts.  Of  course,  if  the  defendant  obeys 
the  decree,  the  title  will  pass,  and  the  court  may,  in  proper  cases,  order 
the  decree  to  stand  as  a  conveyance,  in  which  instance,  also,  the  title 
will  pass;  but  nevertheless  the  object  of  the  suit  is  not  to  determine 
the  title,  but  to  compel  the  defaulting  party  to  abide  his  agreement. 
However,  it  is  contended  that  the  concluding  provision  of  section  47, 
above  quoted,  relating  in  terms  to  actions  for  specific  performance, 
gives  to  the  plaintiff  the  right  to  sue  either  in  the  county  where  the 
land  is  situated,  or  in  the  one  where  the  defendants,  or  some  one  of 
them,  reside.  Emphasis  is  placed  on  the  permissive  word.  The  plain- 
tiff "may"  sue  where  the  defendants  or  some  one  or  more  of  them  re- 
side, from  which  it  is  implied  that  he  need  not  sue  there,  but  may  sue 
where  the  land  lies.     This  is  an  erroneous  view.     The  option  given  is 


Sec.  4)  EXTENT   AND   LIMITATION   OF   EQUITY  JURISDICTION  53 

not  to  be  exercised  between  the  venue  of  the  land  and  the  venue  of  the 
defendants,  but  between  the  respective  venues  of  the  different  defend- 
ants. The  provision  contemplates  the  case  of  several  defendants,  and 
authorizes  the  institution  of  a  suit  where  any  one  of  them  resides. 
That  is  all  it  does. 

The  judgment  of  the  court  below  is  reversed,  with  directions  for 
proceedings  in  accordance  herewith.     All  the  justices  concurring. 


PENN  v.  LORD  BALTIMORE. 

(In  Chancery  before  Lord  Hardwicke,  1750.    1  Yes.  Sr.  444,  27  E.  R.  1132.) 

The  bill  was  founded  on  articles,  entered  into  between  the  plaintiffs 
and  defendant  10  May.  1732,  which  articles  recited  several  matters  as 
introductory  to  the  stipulation  between  the  parties,  and  particularly 
letters  patent  granted  20  June,  2  C.  1,  by  which  the  district,  property, 
and  government,  of  .Maryland  under  certain  restrictions  is  granted  to 
defendant's  ancestor  his  heirs  and  assigns :  farther  reciting  charters 
or  letters  patent  in  1681,  by  which  the  province  of  Pennsylvania  is 
granted  to  Mr.  William  Penn  and  his  heirs ;  and  stating  a  title  to  the 
plaintiffs  derived  from  James  Duke  of  York,  to  the  three  lower  coun- 
ties by  two  feoffments,  both  bearing  date  24  August,  1682.  The  ar- 
ticles recite,  that  several  controversies  had  been  between  the  parties 
concerning  the  boundaries  and  limits  of  these  two  provinces  and  three 
lower  counties,  and  make  a  particular  provision  for  settling  them  by 
drawing  part  of  a  circle  about  the  town  of  Newcastle,  and  a  line  to  as- 
certain the  boundaries  between  Maryland  and  the  three  lower  coun- 
ties, and  a  provision  in  whatever  manner  that  circle  and  line  should 
run  and  be  drawn ;  and  that  commissioners  should  do  it  in  a  certain 
limited  time,  the  final  time  for  which  was  on  or  before  25  December, 
1733.  There  was  beside  a  provision  in  the  articles,  that  if  there  should 
be  a  want  of  a  quorum  of  commissioners  meeting  at  any  time,  the 
party  by  default  of  whose  commissioners  the  articles  could  not  be  car- 
ried into  execution,  should  forfeit  the  penalty  of  £5000  to  the  other 
party :  and  a  provision  for  making  conveyances  of  the  several  parts 
from  one  to  the  other  in  these  boundaries,  and  for  enjoyment  of  the 
tenants  and  landholders. 

The  bill  was  for  a  specific  performance  and  execution  of  the  arti- 
cles :  what  else  was  in  the  cause  came  by  way  of  argument  to  support, 
or  objection  to  impeach,  this  relief  prayed. 

When  the  cause  came  on  before,  it  was  ordered  to  stand  over,  that 
the  Attorney-General  should  be  made  a  party ;  who  now  left  it  to  the 
court  to  make  a  decree,  so  as  not  to  prejudice  the  right  of  the  crown. 

The  first  objection  for  defendant  was,  that  this  court  has  not  juris- 
diction nor  ought  to  take  recognizance  of  it;  for  that  the  jurisdiction 
is  in  the  King  and  council.     *     *     * 


54  BASIS  OP  EQUITY  JURISDICTION  (Ch.  1 

Lord  Chancellor.28  I  directed  this  cause  to  stand  over  for  judg- 
ment, not  so  much  from  any  doubt  of  what  was  the  justice  of  the  case, 
as  by  reason  of  the  nature  of  it,  the  great  consequence  and  importance, 
and  the  great  labour  and  ability  of  the  argument  on  both  sides ;  it  be- 
ing for  the  determination  of  the  right  and  boundaries  of  two  great  pro- 
vincial governments  and  three  counties;  of  a  nature  worthy  the  judi- 
cature of  a  Roman  senate  rather  than  of  a  single  judge:  and  my  con- 
solation is,  that  if  I  should  err  in  my  judgment,  there  is  a  judicature 
equal  in  dignity  to  a  Roman  senate  that  will  correct  it. 

It  is  unnecessary  to  state  the  case  on  all  the  particular  circumstances 
of  evidence ;  which  will  fall  in  more  naturally,  and  very  intelligibly, 
under  the  particular  points  arising  in  the  cause. 

The  relief  prayed  must  be  admitted  to  be  the  common  and  ordinary 
equity  dispensed  by  this  court;  the  specific  performance  of  agree- 
ments being  one  of  the  great  heads  of  this  court,  and  the  most  useful 
one,  and  better  than  damages  at  law,  so  far  as  relates  to  the  thing  in 
specie ;  and  more  useful  in  a  case  of  this  nature  than  in  most  others ; 
because  no  damages  in  an  action  of  covenant  could  be  at  all  adequate 
to  what  is  intended  by  the  parties,  and  to  the  utility  to  arise  from  this 
agreement,  viz.  the  settling  and  fixing  these  boundaries  in  peace,  to 
prevent  the  disorder  and  mischief,  which  in  remote  countries  distant 
from  the  seat  of  government,  are  most  likely  to  happen,  and  most  mis- 
chievous. Therefore  the  remedy  prayed  by  a  specific  performance  is 
more  necessary  here  than  in  other  cases :  provided  it  is  proper  in  other 
respects:  and  the  relief  sought  must  prevail,  unless  sufficient  objec- 
tions are  shewn  by  defendant ;  who  has  made  many  and  various  for 
that  purpose. 

First,  the  point  of  jurisdiction  ought  in  order  to  be  considered: 
and  though  it  comes  late,  I  am  not  unwilling  to  consider  it.  To  be 
sure  a  plea  to  the  jurisdiction  must  be  offered  in  the  first  instance,  and 
put  in  primo  die;  and  answering  submits  to  the  jurisdiction:  much 
more  when  there  is  a  proceeding  to  hearing  on  the  merits,  which  would 
be  conclusive  at  common  law :  yet  a  court  of  equity,  which  can  exer- 
cise a  more  liberal  discretion  than  common  law  courts,  if  a  plain  defect 
of  jurisdiction  appears  at  the  hearing,  will  no  more  make  a  decree  than 
where  a  plain  want  of  equity  appears.     *     *     * 

Suppose  an  order  by  the  King  and  council  in  a  cause,  wherein  the 
King  and  council  had  original  jurisdiction;  and  the  parties  enter  into 
an  agreement  under  hand  and  seal  for  performance  thereof :  A  bill 
must  be  in  this  court  for  a  specific  performance ;  and  perhaps  it  will 
appear,  this  is  almost  literally  that  case.  The  reason  is,  because  none 
but  a  court  of  equity  can  decree  that.  The  King  in  council  is  the  prop- 
er judge  of  the  original  right;  and  if  the  agreement  was  fairly  entered 
into  and  signed,  the  King  in  council  might  look  on  that,  and  allow  it 
as  evidence  of  the  original  right :    but  if  that  agreement  is  disputed,  it  is 

2  8  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  4)  EXTENT   AND   LIMITATION   OF   EQUITY  JURISDICTION  55 

impossible  for  the  King  in  council  to  decree  it  as  an  agreement.  That 
court  cannot  decree  in  personam  in  England  unless  in  certain  criminal 
matters ;  being  restrained  therefrom  by  stat.  16  Car.  and  therefore  the 
Lords  of  the  council  have  remitted  this  matter  very  properly  to  be  de- 
termined in  another  place  on  the  foot  of  the  contract.  The  conscience 
of  the  party  was  bound  by  this  agreement;  and  being  within  the  juris- 
diction of  this  court  (4  Inst.  213  ;  1  Ves.  sen.  204,  255),  which  acts 
in  personam,  the  court  may  properly  decree  it  as  an  agreement,  if  a 
foundation  for  it. 

To  go  a  step  farther :  as  this  court  collaterally  and  in  consequence 
of  the  agreement  judges  concerning  matters  not  originally  in  its  juris- 
diction, it  would  decree  a  performance  of  articles  of  agreement  to  per- 
form a  sentence  in  the  Ecclesiastical  court,  just  as  a  court  of  law  would 
maintain  an  action  for  damages  in  breach  of  covenant.     *     *     * 

As  to  the  court's  not  inforcing  the  execution  of  their  judgment;  if 
they  could  not  at  all,  I  agree,  it  would  be  in  vain  to  make  a  decree ; 
and  that  the  court  cannot  inforce  their  own  decree  in  rem,  in  the  pres- 
ent case:  but  that  is  not  an  objection  against  making  a  decree  in  the 
cause ;  for  the  strict  primary  decree  in  this  court  as  a  court  of  equity 
is  in  personam  (4th  Inst.  213;  1  Ves.  sen.  204,  447),  long  before  it 
was  settled,  whether  this  court  could  issue  to  put  into  possession  in  a 
suit  of  lands  in  England ;  which  was  first  begun  and  settled  in  the  time 
of  James  I,  but  ever  since  done  by  injunction  or  writ  of  assistant  to 
the  sheriff  (Note :  After  service  of  a  writ  of  execution  of  a  decree  for 
delivery  of  possession  of  lands,  the  court  will  grant  an  injunction  on  a 
motion  of  course ;  and  the  writ  of  assistance  to  the  sheriff  is  founded 
on  it.  See  in  Huguenin  v.  Bazely,  15  Ves.  180):  but  the  court  cannot 
to  this  day  as  to  lands  in  Ireland  or  the  plantations.  In  Lord  King's 
time  in  the  case  of  Richardson  v.  Hamilton,  Attorney-General  of  Penn- 
sylvania, which  was  a  suit  of  land  and  a  house  in  the  town  of  Phila- 
delphia, the  court  made  a  decree,  though  it  could  not  be  inforced  in 
rem.  In  the  case  of  Lord  Anglesey  of  land  lying  in  Ireland,  I  decreed 
for  distinguishing  and  settling  the  parts  of  the  estate,  though  impossi- 
ble to  inforce  that  decree  in  rem,  but  the  party  being  in  England,  I 
could  inforce  it  by  process  of  contempt  in  personam  and  sequestration 
which  is  the  proper  jurisdiction  of  this  court.  And  indeed  in  the  pres- 
ent case,  if  the  parties  want  more  to  be  done,  they  must  resort  to  an- 
other jurisdiction;  and  it  looks  by  the  order  in  1735,  as  if  that  was  in 
view ;   liberty  being  thereby  given  to  resort  to  that  board.     *     *     * 

I  am  of  opinion  therefore  to  decree  a  specific  performance  of  this 
agreement  without  prejudice  to  any  right,  etc.,  of  the  crown.     *     *     * 


56  BASIS  OF  EQUITY  JURISDICTION  (Ch.  1 


CARTERET  v.  PETTY. 

(In  Chancery  before  Lord  Nottingham.  Chancellor,  1675.     2  Swanst.  323, 
note  [a],  3(5  E.  R.  639.) 

*  *  *29  The  bill  set  forth,  that  the  Defendant  had  bargained  and 
sold  to  the  Plaintiff,  a  moiety  of  certain  lands  in  Ireland,  and  that  he 
did  there  cut  down  the  woods,  and  commit  other  waste,  and  so  prayed 
an  account,  and  a  partition :  the  Defendant  demurred,  because  the  free- 
hold and  inheritance  of  lands  in  Ireland  ought  not  to  be  settled  here. 
I  ordered  him  to  answer  as  to  the  account,  but  allowed  the  demurrer 
as  to  the  partition;  for  wheresoever  the  Defendant  may,  by  personal 
coercion,  be  compelled  to  perform  the  act  decreed,  there  after  answer 
put  in,  the  Court  shall  proceed  to  a  decree  though  the  Defendant  be  in 
Ireland,  and  rely  upon  the  justice  of  the  King  to  compel  him  to  be  sent 
for  over,  to  yield  obedience,  as  was  done  in  Alderman  Preston's  case  of 
Dublin,  and  advised  to  be  done  by  the  council  table,  in  the  Earl  of 
Thomond's  case;  for,  otherwise  there  must  be  a  failure  of  justice;  be- 
cause, in  Ireland  they  are  not  bound  to  execute  the  decrees  of  England, 
upon  a  bill  there  preferred  to  have  such  execution,  as  was  lately  re- 
solved in  Ireland,  and  very  justly,  in  the  case  of  one  Savage,  and  since 
in  the  case  of  the  Earl  of  Thomond.  And  so  it  was  resolved  long  since 
at  the  common  law,  that  if  a  man  be  outlawed  in  England,  and  flee  into 
Ireland,  no  capias  utlagatum  can  follow  him  thither ;  of  which  see  some 
ancient  records  in  my  manuscripts  of  Mr.  Noy's  Collection,  fol.  — . 
And  if  it  be  said  the  Plaintiff  may  go  over  into  Ireland  and  exhibit  a 
new  original  bill  against  the  man  there,  it  is  equal  to  a  failure  of  jus- 
tice ;  for  by  that  time  the  case  is  well  advanced  there,  the  man  may  flee 
again  out  of  Ireland  into  England  or  Scotland,  so  that  there  can  never 
be  any  certain  justice,  but  in  the  absolute  power  of  the  King  which  can 
bring  all  his  subjects  into  the  proper  place  where  they  ought  to  render 
reason.  But  all  this  is  to  be  understood  of  such  cases  where  the  impris- 
onment of  the  person  is  the  most  proper  means  to  effect  that  which  is 
decreed  to  be  done,  viz.  the  payment  of  money,  making  a  conveyance,  or 
the  like.  But  where  no  obedience  of  the  person  imprisoned,  or  any  act 
of  his,  can  sufficiently  execute  such  a  decree,  there  it  is  in  vain  to  hold 
such  a  plea ;  and  that  is  this  case :  For,  to  a  partition  in  Chancery  it  is 
necessary  to  award  a  commission  to  some  neighbouring  justices  to 
divide  the  lands;  if  they  refuse,  there  lies  an  attachment  against  them 
for  such  refusal ;  if  they  execute  the  commission  and  return  it,  then 
there  ought  to  be  a  decree,  that  the  lands  be  accordingly  conveyed,  and 
that,  till  a  conveyance,  they  may  be  so  enjoyed  ;  the  consequence  there- 
of is  a  sequestration,  and  an  injunction  for  the  possession,  and  a  writ 
of  assistance  to  the  sheriff :  none  of  all  which  can  be  awarded  into  Ire- 
land, nor  supplied  by  the  obedience  of  the  person  imprisoned  here.  So 
far  the  demurrer  is  good.     *     *     * 

29  Part  of  the  opinion  is  omitted. 


SeC.  4)  EXTENT   AND   LIMITATION   OF   EQUITY  JURISDICTION  57 

INNES  v.  MITCHELL. 

(Iu  Chancery,  1857.    4  Drew.  141,  62  E.  R.  55.) 

The  nature  of  the  case  made  by  the  bill  in  this  case  appears  in  the 
report  of  it  on  demurrer,  62  E.  R.  57. 

This  was  a  motion  by  certain  of  the  Defendants  to  discharge  an  or- 
der obtained  by  the  Plaintiffs  for  service  on  three  Defendants  resi- 
dent in  Scotland  of  the  amended  bill  and  interrogatories,  and  affidavits 
were  filed  to  shew  that  those  Defendants  were  domiciled  in  Scotland ; 
and  that  proceedings  were  actually  going  on  in  Scotland  in  which  the 
questions  before  the  Court  in  this  suit  would  be  determined. 

Mr.  Baily  and  Mr.  Cotton,  for  the  motion.  The  question  is  whether 
a  party  in  England  can  be  allowed  to  bring  a  suit  here  which  ought 
properly  to  be  carried  on  in  a  foreign  Court.  The  Scotch  Courts  are, 
by  the  Act  of  Parliament,  foreign  Courts.  The  Defendants,  against 
whom  the  order  is  made,  are  all  domiciled  in  Scotland;  the  subject- 
matter  is  the  construction  of  a  Scotch  will.  All  the  questions  in  the 
suit  are  really  upon  Scotch  law ;  and  there  is  a  suit  in  Scotland  upon 
those  very  questions.  We  are  concerned  only  in  the  personal  estate ; 
and,  with  a  trifling  exception,  all  the  personal  estate  is  actually  in  Scot- 
land. Why,  then,  should  this  Court  be  asked  to  exercise  its  extraordi- 
nary jurisdiction  to  draw  to  itself  a  purely  Scotch  litigation?  The 
serving  of  the  bill  on  the  Defendants  out  of  the  jurisdiction  is  not  a 
matter  of  right  in  the  Plaintiff ;  the  order  is  not  an  order  of  course,  but 
an  order  obtained  on  merits,  from  the  discretion  of  the  Court.  The 
Acts,  2  &  3  Will.  4,  c.  33 ;  4  &  5  Will.  4,  c.  82,  and  the  Orders  of  1845, 
gave  the  Court  a  discretion.  And  an  order  obtained  under  them  in 
Court  ex  parte,  on  insufficient  merits,  may  properly  be  discharged  on 
merits  more  fully  shewn. 

[They  cited  Elliott  v.  Minto,  6  Mad.  16;  Whitmore  v.  Ryan,  4  Hare, 
612.] 

Mr.  Anderson  and  Mr.  Miller,  for  the  Defendants.  This  motion  is, 
at  least  premature ;  it  is,  in  effect,  a  motion  to  stay  the  suit  upon 
merits,  shewing  that  this  Court  cannot  deal  with  it  so  well  as  the  Scotch 
Court.  How  can  this  Court  determine  that,  at  least  till  the  merits  are 
confessed  by  the  answer  ?  The  Court  cannot  here,  on  a  few  affidavits, 
know  the  whole  merits  of  the  case,  and  must  assume  that  all  the  allega- 
tions of  the  bill  may  be  maintained  by  evidence.  If  so,  then  on  the 
merits  the  cause  ought  to  be  tried  here.  There  is  property  in  England 
now.  There  was  a  large  sum  in  England  in  the  names  of  two  of  these 
very  Defendants,  which  they  have  sold  out.  WTe  have  a  right  to  know 
what  has  become  of  them.  The  Scotch  Courts  have  not  the  same  ma- 
chinery as  this  Court  for  extracting  admissions  from  a  Defendant. 
But  besides  the  merits,  this  motion  is  irregular.  The  order  is  not,  it  is 
true,  strictly  an  order  of  course ;  but  it  is  an  order  which  it  is  compnl- 


58  BASIS  OP   EQUITY  JURISDICTION  (Ch.  1 

sory  on  the  Court  to  make.  The  order  is  obtained  under  the  Acts  of 
Parliament  which  are  compulsory ;  the  Orders  of  1845  do  not  affect 
the  right  of  the  Plaintiff  in  that  respect. 

[They  cited  Preston  v.  Melville,  15  Sim.  35,  8  CI.  &  Fin.  1 ;  Jones  v. 
Geddes,  1  Phil.  724;  Kennedy  v.  Cassillis,  2  Swans.  313;  Bushby  v. 
Munday,  5  Mad.  297.] 

The;  VicE-ChancElxor  [Sir  R.  T.  KindsrslEy].  The  first  ques- 
tion is  whether  this  application  is  proper.  It  is  said  that  it  ought  not 
to  be  made  at  this  time.  The  solution  of  that  question  depends  on  this : 
whether  it  is  discretionary  in  the  Court  to  make  the  order  for  service 
out  of  the  jurisdiction ;  and  that  it  is,  I  have  no  doubt  whatever. 
There  are  two  Acts  which,  under  certain  circumstances,  authorize 
service  of  subpoena  on  Defendants  out  of  the  jurisdiction.  The  first 
is  the  2  Will.  4,  c.  33.  [His  Honor  referred  to  the  1st  section,  and  said 
that,  as  to  its  discretionary  character,  there  could  be  no  doubt.]  Then 
there  is  the  4  &  5  Will.  4,  c.  82.  [Referring  to  the  other  Act,  His 
Honor  read  the  sections  of  the  Act,  and  proceeded:] 

It  is  clear  that  the  discretionary  power  given  by  the  former  Act  is 
imported  into  this  Act. 

So  with  regard  to  the  Orders  of  1845,  it  is  clear  that  under  them  the 
authority  of  the  Court  is  discretionary. 

If  that  is  so,  then  what  ought  the  Court  to  do  when  an  application  is 
made  to  it  to  authorize  service  out  of  the  jurisdiction?  The  Court 
clearly  must  judge  when  it  is  fit  and  proper  upon  the  circumstances  to 
direct  service.  But  when  the  application  is  made,  as  it  is  ex  parte, 
there  may  be  occasions  when  the  Court  cannot  have  for  its  information 
all  those  arguments  upon  the  circumstances  which  it  ought  to  hear  to 
determine  whether  it  is  fit  to  direct  service  or  not ;  and  in  a  case  like 
this,  when  it  has  occupied  a  whole  day  to  argue  whether  the  circum- 
stances render  the  service  fit  and  proper  it  is  impossible  to  suppose  that 
where  on  a  mere  ex  parte  application  the  order  was  granted,  the  Court 
could  have  had  the  opportunity  of  sufficiently  considering  the  grounds 
of  its  discretionary  exercise  of  authority;  and,  therefore,  where  the 
order  has  been  so  granted,  it  is  quite  competent  to  the  Court  to  dis- 
charge it.  I  am  of  opinion  that  it  is  quite  competent  to  the  parties  to 
make  this  motion  now ;  and  then  the  question  becomes  this :  if  all  the 
materials  now  before  me  had  been  so  when  I  made  the  order,  ought  I 
to  have  made  it  ? 

The  case  presented  by  the  Defendants  is  very  strong ;  they  say,  here 
is  a  lady  domiciled  in  Scotland,  who  never  even  resided  in  England ; 
she  makes  a  testamentary  disposition  of  her  property  in  the  Scotch 
form,  passing  her  real  estate  and  her  personal  estate,  and  using  in  it 
terms  purely  of  Scotch  law. 

She  appoints  trustees  and  executors  in  Scotland,  and  having  large 
real  estates  in  Scotland  and  also  personal  estate,  she  devises  all  her 
real  estate  to  her  heir.    It  does  certainly  seem  strange  that  in  that  state 


Sec.  4)  EXTENT   AND   LIMITATION   OP   EQUITY  JURISDICTION  59 

of  things  the  suit  should  not  be  in  Scotland ;  and  if  it  were  merely  a 
question  of  withholding  the  matter  from  the  Scotch  Courts,  I  should 
agree  with  the  Defendants  and  refuse  this  application. 

But  the  case  made  by  the  Plaintiffs  varies  it  considerably.  They  say 
they  are  two  English  persons  resident  in  England,  who  had  a  Scotch 
relative ;  that  she  had  personal  property  in  England  invested  in  the 
English  funds ;  that  the  persons  whom  she  appointed  executors  came 
to  England ;  proved  her  will  here ;  by  virtue  thereof  possessed  them- 
selves of  her  English  property ;  and  having  so  possessed  themselves  of 
it,  by  fraud  handed  it  over  to  persons  who  had  no  right  to  it.  Those 
are  the  allegations  of  the  bill,  and  for  this  purpose  I  must  assume  that 
they  may  be  true ;  that  they  may  be  made  out  by  evidence.  Then  they 
say  there  are  two  parties  who  took  possession  of  the  English  property ; 
and  that,  although  they  handed  it  over  to  Mitchell  Innes,  it  is  now 
actually  standing  in  the  bank  books  in  the  names  of  Mitchell  Innes  and 
A.  Mitchell  or  one  of  them.  So  that  if  that  allegation  is  true,  the  very 
property  is  now  in  this  country ;  that  presents  a  very  different  case 
from  the  case  made  by  the  Defendants.  It  is  founded  on  the  English 
probate ;  on  the  allegation  that  under  that  probate  the  original  funded 
property  is  now  in  specie  in  this  country.  If  that  is  established,  and  I 
repeat  I  must  assume  that  it  may  be  established,  it  is  impossible  to  say 
that  this  Court  is  not,  so  far  at  least  as  regards  the  English  property, 
the  proper  tribunal. 

Then  are  there  not  some  circumstances  strong  to  shew  that  I  ought 
to  give  the  Plaintiff  the  advantage  of  suing  in  this  country  ? 

First,  as  to  the  discovery,  I  cannot  ignore  the  fact  that  the  Scotch 
Courts  do  not  give  discovery  as  these  Courts  do.  They  have  not  their 
process  of  what  is  understood  by  discovery,  in  the  way  we  have  it  in 
the  Court  of  Chancery. 

Then,  where  there  are  allegations  as  to  the  conduct  of  Defendants, 
conduct  which  they,  and  probably  they,  only  know,  the  mode  of  getting 
discovery  is  an  important  ingredient,  which  renders,  I  think,  this  ju- 
risdiction more  fitting  than  that  of  the  Courts  of  Scotland.  Further, 
this  Court  has  a  facility  of  jurisdiction  over  or  with  reference  to  the 
Bank  of  England,  I  mean  for  obtaining  information  from  the  bank, 
which  in  this  case,  on  the  allegations,  is  peculiarly  important,  and  which 
the  Courts  of  Scotland  do  not  possess. 

Then,  of  the  Defendants,  one  is  actually  within  the  jurisdiction ;  and 
though  he  does  not  claim  in  respect  of  the  personal  estate,  he  is  stated 
to  be  a  party  to  the  fraud  against  those  who  do  claim  it,  and  to  be  in 
fact  one  of  the  two  in  whose  names  the  fund  stands. 

But  then  it  is  said  there  is  a  proceeding  going  on  in  Scotland  which 
will  determine  the  questions  in  this  suit.  The  answer  to  that  is  that  it 
may  be  convenient  that  that  proceeding  should  go  on  ;  but  that  is  no 
bar  to  proceedings  taking  place  here  also ;  nor  does  it  appear  clearly 
that  the  proceedings  in  Scotland  necessarily  involve  all  the  questions  in 


60  BASIS  OF   EQUITY  JURISDICTION  (Ch.  1 

this  suit :  they  may  do  so,  but  it  does  not  appear  that  they  necessarily 
must  do  so.  On  the  whole,  I  think  the  motion  must  be  refused,  but, 
under  the  circumstances,  without  costs.30 


PORT  ROYAL  R.  CO.  v.  HAMMOND. 
(Supreme  Court  of  Georgia,  1877.    5S  Ga.  523.) 

Warner,  C.  J.  It  appears  from  the  abstract  of  the  record  in  this 
case,  that  the  Port  Royal  Railroad  Company  was  incorporated  by  the 
state  of  South  Carolina,  December  21,  1857,  and  its  charter  points  out 
the  method  of  assessing  damages  for  the  right  of  way. 

This  South  Carolina  corporation  was  incorporated  by  act  of  the  leg- 
islature of  Georgia,  December  19,  1859. 

By  act  of  September  22,  1868,  the  legislature  of  South  Carolina  pass- 
ed a  general  law  granting  rights  of  way  to  railroads,  section  7  of  which 
act  provides  that  whenever  the  same  are  abandoned,  the  soil  reverts  to 
the  original  owners. 

On  the  22d  of  May,  1872,  Paul  F.  Hammond,  for  three  thousand 
dollars,  conveyed  to  the  Port  Royal  Railroad  Company,  a  strip  of  land 
two  hundred  feet  wide,  running  the  course  as  then  surveyed,  through 
the  Cathwood  plantation,  a  distance  of  one  mile  and  a  half.  The  deed 
was  attested  by  H.  R.  Cook  and  T.  T.  Hammond,  and  recites  as  fol- 
lows: 

"Provided,  always,  and  this  deed  is  upon  the  express  condition — 
"1st.  That  the  right,  of  way  is  granted  under  the  restrictions  of  the  act  of 
the  General  Assembly  of  South  Carolina  of  September  22,  186S,  and  if  aban- 
doned reverts  back  to  the  party  of  the  first  part.     (The  land  conveyed  being 
in  the  state  of  South  Carolina.) 

"2d.  That  the  system  of  drainage  shall  remain  the  same  as  now,  except  that 
such  ditches  as  have  been  filled  up  by  the  party  of  the  second  part,  are  to  be 

so  iu  a  note  to  Innes  v.  Mitchell  (1857)  4  Drewry,  99,  62  E.  R.  3S,  analyzing 
several  cases  on  the  extra-territorial  jurisdiction  of  a  court  of  equity,  the  fol- 
lowing statement  of  Mostyn  v.  Fabrigas  is  given:  '"In  Mostyn  v.  Fabrigas 
[1774]  1  Cowp.  C.  B.  161,  the  question  tried  was,  whether  a  native  of  Minorca 
could  bring  an  action  against  a  governor  of  Minorca  for  an  injury  committed 
at  Minorca;  and  it  was  objected  (among  other  objections)  that  the  injury  be- 
ing done  out  of  the  realm  was  not  cognizable  in  the  King's  Courts ;  aud  the 
whole  Court  of  Queen's  Bench  overruled  the  objection.  In  the  judgment,  how- 
ever, occurs  this  argument:  'There  is  a  formal  and  a  substantial  distinction 
as  to  the  locality  of  trials;  I  state  them  as  dillerent  things;  the  substantial 
distinction  is  when  the  proceeding  is  in  rem,  and  where  the  effect  of  the  judg- 
ment cannot  be  had  if  it  is  laid  in  the  wrong  place.  That  is  the  case  of  all 
ejectments,  where  possession  is  to  be  delivered  by  the  sheriff  of  the  county  ; 
and  as  trials  in  England  are  in  particular  counties,  the  officers  are  county  of- 
ficers;  therefore  the  judgment  could  not  have  effect  if  the  action  was  not 
laid  in  the  proper  county.'  It  seems  plain,  from  this  case,  that  if  a  court 
has  only  power  to  act  in  rem,  an  action  or  proceeding  cannot  be  taken  in  that 
Court  in  respect  of  a  subject-matter  out  of  its  local  jurisdiction ;  but  it  does  not 
follow  that  a  court  that  asserts  jurisdiction  to  act  in  personam  may  not  ex- 
ercise that  power  in  respect  of  a  matter,  whether  laud  or  otherwise,  situated 
out  of  the  jurisdiction." 


Sec.  4)         EXTENT  AND  LIMITATION   OF  EQUITY  JURISDICTION  61 

re-opened  by  it,  and  the  ditches  to  remain  of  such  depth  as  to  allow,  as  here- 
tofore, the  drainage  of  the  land  the  depth  of  five  feet. 

"3d.  That  whenever  the  road  crosses  the  line  of  any  fence  or  other  enclosure 
of  the  party  of  the  first  part,  the  party  of  the  second  part  shall  construct  and 
keep  in  repair  proper  and  sufficient  cattle-guards  or  stock-gaps. 

"And  provided  further,  that  whenever  it  may  become  necessary  for  the  said 
railroad  to  occupy  a  space  wider  than  the  width  of  said  strip  of  land,  by  rea- 
son of  cuttings  and  fillings,  it  shall  and  may  be  lawful  for  them  to  occupy  as 
much  land  outside  the  limits  of  the  said  strip  as  may  be  necessary  to  deposit 
waste  earth  and  to  construct  embankments,  and  that  the  said  company  shall, 
at  all  times,  have  the  right  to  cut  down  and  remove  any  tree  or  trees  which 
from  the  position  or  condition  of  it  or  them,  may  in  any  way  endanger  the 
track  or  property  of  the  said  company,  notwithstanding  the  said  tree  or  trees 
may  be  without  the  limits  of  the  said  strip  of  land." 

To  April  term,  1874,  Paul  F.  Hammond  filed  his  bill  in  Richmond 
superior  court,  in  this  state,  against  the  Port  Royal  Railroad  Company, 
to  enforce  specific  performance  of  the  provisions  of  the  said  deed  to 
the  right  of  way,  and  to  recover  damages  for  not  performing  them. 

On  April  20th,  1874,  the  defendant  filed  its  demurrer  on  the  follow- 
ing grounds : 

"1.  There  is  no  equity  in  the  bill. 
"2.  Complainant  has  an  adequate  remedy  at  law. 

"3.  There  is  no  allegation  in  the  bill  that  such  an  action  would  lie  under 
the  laws  of  South  Carolina." 

At  the  hearing  at  April  term,   1875,  this  demurrer  was  overruled. 

On  the  trial  of  the  case,  the  jury  found  a  verdict  in  favor  of  the 
complainant  for  the  sum  of  $3,000  damages  up  to  the  time  of  the  filing 
of  the  complainant's  bill,  and  that  the  defendant,  the  Port  Royal  Rail- 
road Company,  be  required  to  comply  with  its  agreement,  as  set  forth 
in  the  deed  made  by  the  complainant,  within  ninety  days,  under  a  pen- 
alty of  five  thousand  dollars.  The  defendant  made  a  motion  for  a  new 
trial,  on  the  ground  that  the  court  erred  in  overruling  the  demurrer, 
and  on  various  other  grounds  therein  set  forth,  which  was  overruled 
by  the  court — on  condition  that  the  complainant  would  write  off  from 
the  verdict  the  penalty  of  five  thousand  dollars,  the  defendant  paying 
the  $3,000.00  damages  assessed  within  thirty  days.  Whereupon  the 
defendant  excepted! 

1.  The  defendant  is  a  Georgia  corporation,  created  by  an  act  of  the 
general  assembly  of  this  state,  and  its  powers  and  duties  are  to  be 
exercised  and  performed  within  the  territorial  limits  of  the  state.  As 
an  artificial  person,  it  has  no  extra-territorial  existence.  Union  Branch 
R.  Co.  v.  East  Tennessee  &  G.  R.  Co.,  14  Ga.  328.  The  object  and 
prayer  of  the  complainant's  bill  is,  that  the  defendant  may  be  decreed 
to  specifically  execute  the  contract,  alleged  to  have  been  made  with  the 
defendant,  for  the  right  of  way  for  its  railroad  through  the  lands  of 
the  complainant,  situated  and  being  in  the  state  of  South  Carolina,  and 
to  recover  damages  for  the  injury  already  sustained  from  the  non-per- 
formance of  that  contract.  The  complainant's  equity  is  based  upon  his 
alleged  right  to  have  the  defendant  compelled,  by  a  decree  of  the  court 
of  this  state,  to  specifically  perform  the  alleged  contract  in  the  state 
of  South  Carolina,  by  keeping  the  ditches  open  upon  the  complainant's 


62  BASIS  OF   EQUITY  JURISDICTION  (Ch.  1 

land,  situated  in  that  state,  to  the  depth  of  five  feet,  and  to  construct, 
and  keep  in  proper  repair,  sufficient  cattle-guards  or  stock-gaps,  upon 
the  complainant's  land,  in  the  state  of  South  Carolina.  There  is  no 
doubt  that  when  a  court  of  equity  has  jurisdiction  of  the  person  of  a 
defendant,  it  may  decree  the  specific  performance  of  a  contract  for 
the  conveyance  of  land  situated  in  a  foreign  state  or  country,  and  also 
restrain  a  defendant  by  injunction  in  certain  specified  cases,  by  acting 
upon  the  person  of  the  defendant  within  its  jurisdiction  ;  and  that  is  the 
principle  which  the  complainant  insists  should  be  applied  to  the  defend- 
ant in  this  case.  Although  a  court  of  equity  will  act  upon  the  person 
of  a  defendant  within  its  jurisdiction,  and  compel  the  specific  execu- 
tion of  a  contract  in  relation  to  lands  in  a  foreign  state,  on  a  proper 
case  being  made,  still,  we  are  not  aware  that  the  court  has  ever  gone  to 
the  extent  of  compelling  a  defendant,  by  its  decree,  to  go  into  a  foreign 
state  and  specifically  execute  a  contract  there,  even  in  the  case  of  a 
natural  person ;  and,  more  especially,  when  the  defendant  is  an  artifi- 
cial person,  having  no  legal  existence  beyond  the  territorial  limits  of 
the  state  which  created  it. 

The  court  of  equity  of  Richmond  county,  in  this  state,  had  no  juris- 
diction to  compel  the  defendant,  by  its  decree,  to  go  into  the  state  of 
South  Carolina  and  specifically  execute  the  alleged  contract,  as  set  forth 
in  complainant's  bill,  by  opening  the  ditches  on  complainant's  land 
there,  and  keeping  the  same  open  to  the  depth  of  five  feet,  and  by  con- 
structing and  keeping  in  repair  proper  and  sufficient  cattle-guards,  or 
stock-gaps  thereon,  and,  upon  its  failure  to  do  so,  to  enforce  that  de- 
cree by  an  attachment  and  sequestration  of  its  property  in  this  state. 

If  the  acts  required  to  be  done  on  the  part  of  the  defendant,  by  the 
decree  of  the  court,  in  the  specific  execution  of  the  contract  in  ques- 
tion, were  required  to  be  performed  in  this  state,  there  would  not  seem 
to  be  any  well-founded  objection  to  the  jurisdiction  of  the  court,  not- 
withstanding the  land,  the  subject  matter  of  the  contract,  is  situated 
in  the  state  of  South  Carolina.  This,  however,  is  as  far  as  the  prin- 
ciple contended  for  has  been  recognized.  See  Wharton  on  Conflict  of 
Laws,  §§  288,  289,  290.  But  the  specific  execution  of  the  contract,  as 
prayed  for  in  complainant's  bill,  can  only  be  performed  by  going  on  the 
land  in  South  Carolina  and  cutting  ditches  upon  it  there  to  the  depth 
of  five  feet,  and  keeping  them  open  so  as  to  effect  the  stipulated  drain- 
age of  the  land,  and  by  constructing  and  keeping  in  repair  proper  and 
sufficient  stock-gaps  thereon.  To  hold  that  the  court  has  jurisdiction 
to  grant  the  specific  relief  prayed  for  against  the  defendant,  would  be 
to  decide  that  a  corporation,  an  artificial  person,  having  no  legal  exist- 
ence beyond  the  territorial  limits  of  the  state  which  created  it,  can  be 
compelled  to  go  into  another  state  in  which  it  has  no  legal  existence, 
and  there  to  cut  and  keep  open  ditches,  construct  and  keep  in  repair 
stock-gaps  on  the  complainant's  land  in  that  state,  and,  upon  its  failure 
to  do  so,  that  its  property,  in  this  state,  may  be  attached  and  seques- 
trated to  compel  the  performance  of  such  specific  acts  by  the  defendant 


Sec.  4)  EXTENT   AND   LIMITATION   OF   EQUITY  JURISDICTION  G3 

in  a  state  and  country  where  it  has  no  legal  existence  to  perform  the 
same. 

2.  If  it  should  be  said  that  the  incapacity  of  the  courts  of  this  state 
to  enforce  the  decree  prayed  for  in  rem,  by  the  defendant,  in  the  state 
of  South  Carolina,  where  the  land  is  situated,  would  constitute  no  ob- 
jection to  the  right  of  the  complainant  to  maintain  his  suit  against  the 
defendant  in  this  state,  and  obtain  a  decree  here  for  the  specific  per- 
formance of  the  alleged  contract,  the  reply  is,  that  by  a  fair  interpre- 
tation of  the  act  of  1859,  incorporating  the  defendant  in  this  state,  no 
contract  for  the  right  of  way  for  its  road  could  have  been  made  with 
it,  except  for  its  right  of  way  over  lands  in  this  state,  from  the  bound- 
ary line  between  the  two  states  to  the  city  of  Augusta,  and  that  being 
so,  the  contract  for  the  right  of  way  over  the  complainant's  land  in 
South  Carolina,  as  alleged  in  his  bill,  must  necessarily  have  been  made 
with  the  South  Carolina  corporation,  in  which  state  the  land  is  situated, 
and  not  with  the  Georgia  corporation,  in  which  latter  state  the  land  in 
question  is  not  situated.  Whilst  it  may  be  true  that,  for  some  purposes, 
the  corporation  may  be  treated  as  an  entire  corporation  in  both  states, 
but  not  for  the  purpose  of  decreeing  the  specific  performance  of  a  con- 
tract made  with  the  corporation  of  one  state,  in  which  the  land  is 
situated,  against  the  corporation  of  the  other  state,  with  which  the  con- 
tract was  not  made — and  in  which  the  land  is  not  situated.  It  would, 
therefore,  seem  to  be  much  more  equitable  and  just  that  the  complain- 
ant should  seek  a  specific  execution  of  the  alleged  contract  against  the 
corporation  with  which  it  was  made,  and  in  the  courts  of  the  state  in 
which  the  land  is  situated,  and  obtain  his  decree  in  accordance  with  the 
laws  of  that  state,  and  where  the  court  will  have  jurisdiction  to  enforce 
it  in  conformity  therewith. 

The  specific  execution  of  contracts  by  a  court  of  equity  must  always 
rest  in  the  sound  discretion  of  the  court.  To  compel  the  Georgia  cor- 
poration, by  a  decree  of  the  court,  to  specifically  perform  the  alleged 
contract,  made  by  the  complainant  with  the  South  Carolina  corporation, 
and  to  enforce  its  performance  in  the  latter  state  by  an  attachment  and 
sequestration  of  its  property  situated  in  Georgia,  would  be  unfair,  un- 
just, and  against  good  conscience,  inasmuch  as  its  property  in  this  state 
may  not  be  more  than  sufficient  to  discharge  its  own  contracts  and  lia- 
bilities to  its  creditors  here. 

In  our  judgment  the  court  erred  in  overruling  the  defendant's  de- 
murrer to  the  complainant's  bill. 

Let  the  judgment  of  the  court  below  be  reversed. 


64  BASIS  OF   EQUITY  JURISDICTION  (Cll.  1 


MASSIE  v.  WATTS. 

(Supreme  Court  of  the  United  States,  1810.    6  Cranch  [10  U.  S.l  14S, 
3  L.  Ed.  181.) 

This  was  an  appeal  from  the  decree  of  the  circuit  court  of  the  Unit- 
ed States,  for  the  district  of  Kentucky,  in  a  suit  in  equity  brought  by 
Watts,  a  citizen  of  Virginia,  against  Massie,  a  citizen  of  Kentucky,  to 
compel  the  latter  to  convey  to  the  former  1,000  acres  of  land  in  the 
state  of  Ohio,  the  defendant  having  obtained  the  legal  title  with  no- 
tice of  the  plaintiff's  equitable  title. 

This  bill  stated  that  the  defendant  Massie  (the  appellant)  had  con- 
tracted with  a  certain  Ferdinand  Oneal,  to  locate  and  survey  for  him 
a  military  warrant  for  4,000  acres  in  his  name,  (which  the  plaintiff 
afterwards  purchased  for  a  valuable  consideration,)  and  to  receive  for 
his  services  in  locating  and  surveying  the  same,  the  sum  of  i50  which 
the  plaintiff  paid  him.  That  the  defendant  located  the  said  warrant 
with  the  proper  surveyor,  and  being  himself  a  surveyor,  he  fraudulent- 
ly made  a  survey  purporting  to  be  a  survey  of  part  of  the  entry,  but 
variant  from  the  same,  and  contrary  to  law,  whereby  the  survey  was 
entirely  removed  from  the  land  entered  with  the  surveyor,  for  the 
fraudulent  purpose  of  giving  way  to  a  claim  of  the  defendant's  which 
he  surveyed  on  the  land  entered  for  the  plaintiff,  whereby  the  plaintiff 
lost  the  land,  and  the  defendant  obtained  the  legal  title.  That  the  land 
adjoins  the  town  of  Chillicothe,  and  is  worth  fifteen  dollars  an  acre. 
The  bill  prays  that  the  defendant  may  be  compelled  to  convey  the  land 
to  the  plaintiff,  or  if  that  is  not  in  his  power,  that  he  make  compensa- 
tion in  damages.     *     *     * 

February  28,  1810. 

Marshall,  C.  J.31  delivered  the  opinion  of  the  court  as  follows: 

This  suit  having  been  originally  instituted,  in  the  court  of  Kentucky, 
for  the  purpose  of  obtaining  a  conveyance  for  lands  lying  in  the  state 
of  Ohio,  an  objection  is  made  by  the  plaintiff  in  error,  who  was  the 
defendant  below,  to  the  jurisdiction  of  the  court  by  which  the  decree 
was  rendered. 

Taking  into  view  the  character  of  the  suit  in  chancery  brought  to 
establish  a  prior  title  originating  under  the  land  law  of  Virginia  against 
a  person  claiming  under  a  senior  patent,  considering  it  as  a  substitute 
for  a  caveat  introduced  by  the  peculiar  circumstances  attending  those 
titles,  this  court  is  of  opinion,  that  there  is  much  reason  for  considering 
it  as  a  local  action,  and  for  confining  it  to  the  court  sitting  within  the 
state  in  which  the  lands  lie.  Was  this  cause,  therefore,  to  be  considered 
as  involving  a  naked  question  of  title,  was  it,  for  example,  a  contest 
between  Watts  and  Powell,  the  jurisdiction  of  the  circuit  court  of  Ken- 
tucky would  not  be  sustained.  But  where  the  question  changes  its  char- 
si  The  statement  of  facts  is  abridged,  and  parts  of  the  opinion  are  omitted. 


Sec.  4)  EXTENT   AND   LIMITATION   OP   EQUITY  JURISDICTION  65 

acter,  where  the  defendant  in  the  original  action  is  liable  to  the  plain- 
tiff, either  in  consequence  of  contract,  or  as  trustee,  or  as  the  holder 
of  a  legal  title  acquired  by  any  species  of  mala  fides  practised  on  the 
plaintiff,  the  principles  of  equity  give  a  court  jurisdiction  wherever  the 
person  may  be  found,  and  the  circumstance,  that  a  question  of  title  may 
be  involved  in  the  inquiry,  and  may  even  constitute  the  essential  point 
on  which  the  case  depends,  does  not  seem  sufficient  to  arrest  that  juris- 
diction. 

,In  the  celebrated  case  of  Penn  v.  Lord  Baltimore,  the  chancellor  of 
England  decreed  a  specific  performance  of  a  contract  respecting  lands 
lying  in  North  America.  The  objection  to  the  jurisdiction  of  the  court, 
in  that  case,  as  reported  by  Vesey,  was  not  that  the  lands  lay  without 
the  jurisdiction  of  the  court,  but  that,  in  cases  relating  to  boundaries 
between  provinces,  the  jurisdiction  was  exclusively  in  the  king  and 
council.  It  is  in  reference  to  this  objection,  not  to  an  objection  that  the 
lands  were  without  his  jurisdiction,  that  the  chancellor  says: 

"This  court,  therefore,  has  no  original  jurisdiction  on  the  direct  question  of 
the  original  right  of  boundaries." 

The  reason  why  it  had  not  original  jurisdiction  on  this  direct  ques- 
tion was,  that  the  decision  on  the  extent  of  those  grants,  including  do- 
minion and  political  power,  as  well  as  property,  was  exclusively,  re- 
served to  the  king  in  council. 

In  a  subsequent  part  of  the  opinion,  where  he  treats  of  the  objection 
to  the  jurisdiction  of  the  court,  arising  from  its  inability  to  enforce  its 
decree  in  rem,  he  allows  no  weight  to  that  argument.  The  strict  pri- 
mary decree  of  a  court  of  equity  is,  he  says,  in  personam,  and  may  be 
enforced  in  all  cases  where  the  person  is  within  its  jurisdiction.  In 
confirmation  of  this  position  he  cites  the  practice  of  the  courts  to  de- 
cree respecting  lands  lying  in  Ireland  and  in  the  colonies,  if  the  person, 
against  whom  the  decree  was  prayed,  be  found  in  England. 

In  the  case  of  Arglasse  v.  Muschamp,  1  Vernon,  75,  the  defendant, 
residing  in  England,  having  fraudulently  obtained  a  rent  charge  on 
lands  lying  in  Ireland,  a  bill  was  brought  in  England  to  set  it  aside.  To 
an  objection  made  to  the  jurisdiction  of  the  court  the  chancellor  re- 
plied : 

"This  is  surely  only  a  jest  put  upon  the  jurisdiction  of  this  court  by  the 
common  lawyers ;  for  when  you  go  about  to  bind  the  lands  and  grant  a  se- 
questration to  execute  a  decree,  then  they  readily  tell  you  that  the  authority 
of  this  court  is  only  to  regulate  a  man's  conscience,  and  ought  not  to  affect 
the  estate,  but  that  this  court  must  agere  in  personam  only ;  and  when  as  in 
this  case,  you  prosecute  the  person  for  a  fraud,  they  tell  you  that  you  must 
not  intermeddle  here,  because,  the  fraud,  though  committed  here,  concerns 
lands  that  lie  in  Ireland,  which  makes  the  jurisdiction  local,  and  so  wholly 
elude  the  jurisdiction  of  this  court." 

The  chancellor,  in  that  case,  sustained  his  jurisdiction  on  principle, 
and  on  the  authority  of  Archer  and  Preston,  in  which  case  a  contract 
made  respecting  lands  in  Ireland,  the  title  to  which  depended  on  the  act 
Boke  Eq. — 5 


66  BASIS   OF  EQUITY  JURISDICTION  (Ch.  1 

of  settlement,  was  enforced  in  England,  although  the  defendant  was  a 
resident  of  Ireland,  and  had  only  made  a  casual  visit  to  England.  On 
a  rehearing  before  Lord  Keeper  North  this  decree  was  affirmed. 

In  the  case  of  The  Earl  of  Kildare  v.  Sir  Morrice  Eustace  and  Fitz- 
gerald, 1  Vern.  419,  it  was  determined  that  if  the  trustee  live  in  Eng- 
land, the  chancellor  may  enforce  the  trust,  although  the  lands  lie  in 
Ireland. 

In  the  case  of  Toller  v.  Carteret,  2  Vern.  494,  a  bill  was  sustained 
for  the  foreclosure  of  a  mortgage  of  lands  lying  out  of  the  jurisdiction 
of  the  court,  the  person  of  the  mortgagor  being  within  it. 

Subsequent  to  these  decisions  was  the  case  of  Penn  against  Lord 
Baltimore,  1  Ves.  444,  in  which  the  specific  performance  of  a  contract 
for  lands  lying  in  North  America  was  decreed  in  England. 

Upon  the  authority  of  these  cases,  and  of  others  which  are  to  be 
found  in  the  books,  as  well  as  upon  general  principles,  this  court  is 
of  opinion  that,  in  a  case  of  fraud,  of  trust,  or  of  contract,  the  juris- 
diction of  a  court  of  chancery  is  sustainable  wherever  the  person  be 
found,  although  lands  not  within  the  jurisdiction  of  that  court  may  be 
affected  by  the  decree. 

The  inquiry,  therefore,  will  be,  whether  this  be  an  unmixed  question 
of  title,  or  a  case  of  fraud,  trust  or  contract.     *     *     * 

If  we  reason  by  analogy  from  the  distinction  between  actions  local 
and  transitory  at  common  law,  this  action  would  follow  the  person,  be- 
cause it  would  be  founded  on  an  implied  contract,  or  on  neglect  of  duty. 

If  we  reason  from  those  principles  which  are  laid  down  in  the  books 
relative  to  the  jurisdiction  of  courts  of  equity,  the  jurisdiction  of  the 
court  of  Kentucky  is  equally  sustainable,  because  the  defendant,  if  lia- 
ble is  either  liable  under  his  contract,  or  as  trustee. 

The  case,  then,  as  presented  to  the  court,  gives  it  jurisdiction,  and 
the  testimony  must  be  examined  to  ascertain  how  far  the  bill  is  sup- 
ported.    *     *     * 

Decree  affirmed. 


BYRNE  v.  JONES. 

(Circuit  Court  of  Appeals  of  the  United  States.  Eighth  Circuit,  190S.    159 
Fed.  321,  90  C.  C.  A.  101.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Western 
District  of  Arkansas. 

For  opinion  below,  see  149  Fed.  457-. 

Sanborn,  Circuit  Judge.32  On  June  2,  1892,  Erastus  Jones  of 
Worcester  county,  Mass.,  made  a  contract  with  L.  A.  Byrne,  of  Tex- 
arkana  in  the  state  of  Arkansas,  concerning  a  tract  of  about  2,600  acres 
of  land  situated  in  the  states  of  Arkansas  and  Texas,  to  the  effect  that 
Byrne,  who  was  an  attorney  at  law,  and  who  held  defective  titles  to  the 

32  Part  of  the  opinion  is  omitted. 


SeC.  4)  EXTENT  AND   LIMITATION   OF   EQUITY  JURISDICTION  67 

land  upon  which  Jones  had  vendors'  liens  for  $6,117.42,  should,  with- 
out charge  for  his  services,  clear  the  titles  to  the  land,  prepare  it  for 
market,  sell  it  as  opportunity  offered,  apply  the  proceeds  first  to  the 
payment  of  the  expenses  of  clearing  the  title  and  preparing  the  prop- 
erty for  market,  second,  to  the  payment  of  the  amount  owing  Jones, 
and  that  the  remainder  of  the  land,  or  of  its  proceeds,  should  be  owned 
by  them  equally.  The  larger  part  of  the  lands  were  in  Arkansas,  the  ti- 
tles of  Bvrne  and  Jones  to  the  Arkansas  land  were  tax  titles,  and  they 
owned  only  an  undivided  interest  in  the  lands  in  Texas.  Under  this 
agreement  Byrne  conducted  about  15  lawsuits,  purchased  some  out- 
standing claims,  placed  some  tenants  on  the  land  to  acquire  title  there- 
to by  possession  under  the  two  years'  statute  of  limitations  of  Arkan- 
sas, erected  some  small  houses,  cleared  and  fenced  some  of  the  land, 
paid  some  taxes,  sold  a  right  of  way  over  some  of  the  land  for  $725, 
and  220  acres  of  the  real  estate  for  $880,  between  June  2,  1892,  and 
March  28,  1905.  On  the  latter  day  he  accepted  an  offer  made  by 
Jones  to  sell  to  him  his  interest  in  the  lands  for  $7,500,  and  on  the 
same  day,  or  within  two  or  three  days  thereafter,  he  made  a  contract 
with  the  defendants  Heilbron,  Wade,  and  Stribling  to  sell  them  about 
1,600  acres  of  the  real  estate  in  consideration  that  they  would  furnish 
the  $7,500  to  purchase  the  interest  of  Jones. 

Within  a  few  days  after  this  contract  was  made  Jones  exhibited  his 
bill  in  the  court  below  to  set  aside  these  contracts  on  the  ground  that 
Byrne  had  induced  him  to  make  his  offer  to  sell  for  $7,500  by  with- 
holding material  information,  which  he  had  acquired  while  he  was  act- 
ing in  a  fiduciary  capacity,  relative  to  the  management,  condition,  and 
value  of  the  land.  The  defendants  Heilbron,  Wade,  and  Stribling  an- 
swered that  they  made  their  alleged  contract  of  purchase  from  Byrne 
in  good  faith,  that  they  agreed  to  pay  the  full  value  of  the  land,  that 
they  had  rescinded  that  agreement  because  they  did  not  care  to  incur 
expense  in  defending  it,  and  they  disclaimed  all  interest  in  the  proper- 
ty. Byrne  denied  that  he  had  withheld  any  information  to  which  Jones 
was  entitled,  and  averred  that  he  had  tendered  the  $7,500,  and  that  his 
contract  of  purchase  was  valid,  and  he  filed  a  cross-bill  to  enforce 
specific  performance  of  it.  After  the  evidence  had  been  taken  and  a 
final  hearing  had  been  had,  the  court  rendered  a  decree  by  which  it  dis- 
missed the  cross-bill,  dismissed  without  prejudice  the  suit  so  far  as  it 
related  to  the  land  in  Texas,  directed  an  immediate  sale  of  the  land  in 
Arkansas  and  the  return  of  the  proceeds  thereof  to  the  court,  and  ap- 
pointed a  master  to  take  and  state  an  account  of  the  expenses  incurred 
and  the  moneys  received  under  the  contract  of  1892,  and  Byrne  ap- 
pealed. 

The  first  question  is,  was  Byrne  entitled  to  a  specific  performance  of 
his  contract  of  purchase  of  March,  1905  ?     *     *     * 

The  court  below  was  of  the  opinion  that  it  had  no  jurisdiction  to 
decree  a  sale  of  the  land  in  Texas,  and  it  dismissed  the  bill  so  far  as  it 
related  to  that  property,  on  the  authority  of   Boyce's   Executors   v. 


68  BASIS   OF  EQUITY  JURISDICTION  (Ch.  1 

Grundy,  9  Pet.  (U.  S.)  275,  288,  9  L.  Ed.  127.  But  this  is  a  suit  against 
a  faithless  trustee  brought  by  a  cestui  que  trust  to  execute  the  trust. 
That  was  a  suit  brought  in  Tennessee  by  a  vendee  against  his  vendor  to 
rescind  a  contract  concerning  lands  in  Mississippi.  The  court  rescind- 
ed the  agreement.  After  this  rescission  it  rendered  a  personal  judg- 
ment for  $2,100  against  Robert  Boyce,  to  whom  the  lands  in  Mississippi 
had  been  devised  by  the  vendor  in  the  rescinded  contract,  adjudged  the 
decree  for  this  $2,100  to  be  a  lien  upon  those  lands,  and  that  they  should 
be  sold  by  its  master  to  discharge  that  lien.  The  Supreme  Court  re- 
versed the  decree  fixing  this  lien  upon  the  Mississippi  lands,  and  direct- 
ing their  sale  upon  the  ground  that  neither  a  court  of  chancery  nor  a 
court  of  law  may  by  its  own  power  fix  liens  for  the  mere  personal  judg- 
ments it  renders  upon  lands  beyond  its  jurisdiction,  or  subject  them  to 
sales  to  satisfy  such  judgments. 

But  a  court  of  chancery  has  plenary  power  to  affect  the  title  to  real 
estate  beyond  its  jurisdiction  by  a  sale  and  conveyance  thereof  by  its 
master  or  otherwise  by  its  decree  in  suits  to  execute  trusts,  to  undo 
frauds,  and  to  enforce  contracts  regarding  such  real  estate,  whenever 
it  has  acquired  jurisdiction  of  the  persons  of  the  parties  interested 
therein,  for  the  reason  that  equity  acts  through  the  person.  In  Boyce 
v.  Grundy  the  Supreme  Court  well  said  that  the  court  below  had  no 
jurisdiction  to  decree  a  sale  to  be  made  of  land  lying  in  another  state 
"by  a  master  acting  under  its  own  authority."  But  a  master  directed  by 
the  court  below  to  sell  the  land  in  Texas  in  the  suit  in  hand  will  act, 
not  by  the  authority  of  that  court  alone,  but  by  the  authority  of  the 
trust  agreement  of  1892.  That  agreement  vested  in  the  trustee,  Byrne, 
the  power  to  sell  and  convey  the  Texas  land,  and  to  apply  the  proceeds 
according  to  its  terms,  and  when  Byrne  became  faithless  the  court  below 
had  plenary  power  to  substitute  its  master  for  him  as  trustee  and  to 
direct  him  to  exercise  all  the  powers  originally  vested  in  Byrne.  Byrne 
is  within  the  jurisdiction  of  that  court,  and  it  may  lawfully  require 
him  to  make  the  sale  and  conveyance  as  trustee,  or  it  may  appoint  its 
master  in  his  place  who  will  be  trustee  pro  hac  vice.  It  may  direct  him 
to  make  the  sale  and  conveyance  requisite  to  completely  execute  the 
trust,  and  may  require  all  the  parties  to  this  suit  to  confirm  the  title  of 
the  purchaser  by  subsequent  deed. 

In  cases  of  this  nature  the  court  is  invested  with  all  the  powers  of  the 
parties  to  the  agreement  of  trust  of  whom  it  has  acquired  jurisdiction, 
and  it  may  by  its  decree  effect  any  sale  or  conveyance  of  lands  beyond 
its  jurisdiction  which  the  parties  to  the  suit  could  make.  In  Earl  of 
Kildare  v.  Sir  Morrice  Eustace  and  Fitzgerald,  1  Vern.  419,  it  was  held 
that  if  a  trustee  live  in  England  the  Chancellor  may  enforce  the  trust 
although  the  lands  lie  in  Ireland.  In  Toller  v.  Carteret,  2  Vern.  495, 
the  defendant  pleaded  to  a  bill  to  foreclose  a  mortgage  that  the  court 
was  without  jurisdiction,  because  the  mortgaged  lands  were  a  part  of 
the  duchy  of  Normandy  and  were  under  the  jurisdiction  of  Guernsey, 
but  the  court  overruled  the  plea,  said  that  the  defendant  was  served 


Sec.  4)  EXTENT  AND   LIMITATION    OF   EQUITY  JURISDICTION  69 

with  process  in  England,  and  that  equity  acts  in  personam.  In  Penn 
v.  Lord  Baltimore,  1  Vesey,  444,  specific  performance  of  a  contract  for 
lands  in  North  America  was  decreed  in  England.  In  Massie  v.  Watts, 
6  Cranch  (U.  S.)  148,  157,  159,  3  L.  Ed.  181,  Watts  brought  a  suit  in 
Kentucky  to  enforce  a  trust  in  lands  in  Ohio,  which  had  been  created 
by  an  agreement  made  by  Massie  to  locate  the  lands  for  the  complain- 
ant's grantor  and  by  his  fraudulent  location  of  them  for  himself.  Chief 
Justice  Marshall  said : 

"Was  this  cause,  therefore,  to  he  considered  as  involving  a  naked  question 
of  title,  was  it,  for  example,  a  contest  between  Watts  and  Powell,  the  juris- 
diction of  the  Circuit  Court  of  Kentucky  would  not  be  sustained.  But  where 
the  question  changes  its  character,  where  the  defendant  in  the  original  action 
is  liable  to  the  plaintiff,  either  in  consequence  of  contract,  or  as  ti'ustee,  or  as 
the  holder  of  a  legal  title  acquired  by  any  species  of  mala  fides  practiced  on 
the  plaintiff,  the  principles  of  equity  give  a  court  jurisdiction,  wherever  the 
person  may  be  found,  and  the  circumstance  that  a  question  of  title  may  be  in- 
volved in  the  inquiry,  and  may  even  constitute  the  essential  point  on  which 
the  case  depends,  does  not  seem  sufficient  to  arrest  that  jurisdiction." 

In  Muller  v.  Dows,  94  U.  S.  444,  450,  24  L.  Ed.  207,  and  McElrath 
v.  Pittsburg  &  Steubenville  R.  R.  Co.,  55  Pa.  189,  a  foreclosure  and 
sale  in  one  district  of  a  railroad  which  extended  into  another  was  sus- 
tained.   In  the  former  case  the  Supreme  Court  said: 

"The  mortgagors  here  were  within  the  jurisdiction  of  the  court.  So  were 
the  trustees  of  the  mortgage.  It  was  at  the  instance  of  the  latter  the  master 
was  ordered  to  make  the  sale.  The  court  might  have  ordered  the  trustees  to 
make  it.  The  mortgagors  who  were  foreclosed  were  enjoined  against  claim- 
ing property  after  the  master's  sale,  and  directed  to  make  a  deed  to  the  pur- 
chaser in  further  assurance.  And  the  court  can  direct  the  trustees  to  make 
a  deed  to  the  purchaser  in  confirmation  of  the  sale.  We  cannot,  therefore, 
declare  void  the  decree  which  was  made." 

In  Riverdale  Mills  v.  Manufacturing  Company,  198  U.  S.  188,  194, 
197,  25  Sup.  Ct.  629,  49  L.  Ed.  1008,  in  a  suit  in  the  Northern  District 
of  Georgia,  a  sale  and  conveyance  of  real  estate,  the  larger  part  of 
which  was  situated  in  Alabama,  was  made  under  a  decree  of  fore- 
closure of  a  trust  deed  thereon.  The  title  under  the  decree  to  the  prop- 
erty in  Alabama  was  subsequently  assailed  by  a  suit  in  chancery  in  a 
state  court  in  which  the  complainant  alleged  that  this  property  was  not 
advertised  in  the  state  of  Alabama,  nor  was  any  sale  or  pretense  of  sale 
thereof  conducted  in  that  state.  The  United  States  Circuit  Court  en- 
joined the  prosecution  of  that  suit  in  the  state  court.  The  United 
States  Circuit  Court  of  Appeals  reversed  the  order  for  the  injunction. 
The  Supreme  Court  said : 

"It  must  also  be  remembered  that  the  trust  deed  described  the  property 
conveyed  as  situated  partly  in  Georgia  and  partly  in  Alabama.  The  federal 
court  sitting  in  Georgia  had  jurisdiction  to  foreclose  the  trust  deed," — cited 
Muller  v.  Dows,  supra,  and  affirmed  the  order  for  the  injunction. 

The  contract  which  created  the  trust  and  specified  its  terms  in  the 
case  in  hand  described  the  trust  property  as  situated  partly  in  Arkansas 
and  partly  in  Texas,  and  the  court  below,  which  had  jurisdiction  of  all 
the  parties  to  that  contract  and  of  the  trust  it  created,  is  endowed  with 
ample  power  to  enforce  the  agreement  and  to  execute  the  trust  by  a  sale 


70  BASIS  OF   EQUITY  JURISDICTION  (Cll.  1 

and  conveyance  of  the  property  in  Texas  by  the  hands  of  its  master 
and  by  requiring  the  parties  to  this  suit  to  confirm  the  title  of  the  pur- 
chaser by  proper  deeds  of  further  assurance. 

The  decree  below  is  accordingly  reversed,  and  the  case  is  remanded 
to  the  Circuit  Court  with  instructions  to  enter  a  decree  avoiding  the 
two  contracts  of  1905,  dismissing  the  cross-bill,,  appointing  a  master 
and  directing  him  to  hear  evidence,  to  state  and  report  speedily  the  ac- 
count regarding  the  receipts  and  expenditures  of  the  parties  on  account 
of  the  trust  property  upon  a  basis  not  inconsistent  with  that  indicated 
in  this  opinion,  and  after  the  exceptions,  if  any,  to  that  report  have, 
been  ruled,  then  to  enter  a  decree  of  sale  of  all  the  lands  described  in 
the  contract  of  1892  which  have  not  been  sold  or  lost  to  the  parties, 
either  in  one  tract,  or  in  such  smaller  tracts  as  to  the  court  shall  seem 
fit,  and  to  require  the  complainants  and  the  defendant  by  that  decree- 
to  make  deeds  to  the  purchaser  or  purchasers  in  confirmation  of  the 
master's  conveyance  or  conveyances. 


MULLER  v.  DOWS. 
(Supreme  Court  of  the  United  States,  1S76.    94  U.  S.  444,  24  L.  Ed.  207.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  District 
of  Iowa. 

The  facts  are  stated  in  the  opinion  of  the  Court. 

Mr.  Justice  Strong.33  *  *  *  The  next  objection  urged  against 
the  decree  of  the  court  below  is,  that  it  is  void  so  far  as  it  directed  the 
usual  foreclosure  and  sale  of  property  not  within  the  territorial  juris- 
diction of  the  court.  A  part  of  the  Chicago  &  Southwestern  Railway 
is  in  the  State  of  Missouri,  and  the  mortgage  which  the  bill  sought  to 
have  foreclosed  covered  that  part,  as  well  as  the  part  in  the  State  of 
Iowa.  The  court  decreed  a  sale  of  the  entire  property  covered  by  the 
mortgage,  and  directed  the  master,  who  was  ordered  to  make  the  sale, 
to  execute  a  good  and  sufficient  deed  or  deeds  to  the  purchaser.  It  also 
declared  that  after  the  sale  both  the  defendant  corporations  and  the 
complainants'  trustees  named  in  the  mortgage,  as  well  as  all  persons 
claiming  under  them  or  either  of  them,  be  barred  and  foreclosed  from 
all  interest,  estate,  right,  claim,  or  equity  of  redemption  of,  in,  and  to 
the  property,  reserving,  however,  the  rights  of  the  holders  of  the  bonds 
and  coupons  secured  by  the  first  mortgage,  then  remaining  outstanding 
and  unpaid.  It  directed  that  the  two  defendant  corporations  should 
surrender  to  the  purchaser  the  property  sold  and  conveyed,  upon  the 
execution,  approval,  and  delivery  of  the  master's  deed ;  and  that,  as 
further  assurance,  the  Chicago'  &  Southwestern  Railway  Company 
should,  on  the  approval  and  delivery  of  the  master's  deed,  convey  all 

33  Parts  of  the  opinion  are  omitted. 


Sec.  4)  EXTENT  AND   LIMITATION   OP   EQUITY  JURISDICTION  71 

the  property  therein  described  to  the  purchaser,  by  their  good  and  suf- 
ficient deed. 

If  such  a  foreclosure  and  sale  cannot  be  made  of  a  railroad  which 
crosses  a  State  line  and  is  within  two  States,  when  the  entire  line  is 
subject  to  one  mortgage,  it  is  certainly  to  be  regretted,  and  to  hold  that 
it  cannot  be  would  be  disastrous,  not  only  to  the  companies  that  own 
the  road,  but  to  the  holders  of  bonds  secured  by  the  mortgage.  Multi- 
tudes of  bridges  span  navigable  streams  in  the  United  States,  streams 
that  are  boundaries  of  two  States.  These  bridges  are  often  mortgaged. 
Can  it  be  that  they  cannot  be  sold  as  entireties  by  the  decree  of  a  court 
which  has  jurisdiction  of  the  mortgagors?  A  vast  number  of  rail- 
roads, partly  in  one  State  and  partly  in  an  adjoining  State,  forming 
continuous  lines,  have  been  constructed  by  consolidated  companies, 
and  mortgaged  as  entireties.  It  would  be  safe  to  say  that  more  than 
one  hundred  millions  of  dollars  have  been  invested  on  the  faith  of  such 
mortgages.  In  many  cases  these  investments  are  sufficiently  insecure 
at  the  best.  But  if  the  railroad,  under  legal  process,  can  be  sold  only 
in  fragments;  if,  as  in  this  case,  where  the  mortgage  is  upon  the  whole 
line,  and  includes  the  franchises  of  the  corporation  which  made  the 
mortgage,  the  decree  of  foreclosure  and  sale  can  reach  only  the  part 
of  the  road  which  is  within  the  State, — it  is  plain  that  the  property 
must  be  comparatively  worthless  at  the  sale.  A  part  of  a  railroad  may 
be  of  little  value  when  its  ownership  is  severed  from  the  ownership  of 
another  part.  And  the  franchise  of  the  company  is  not  capable  of  divi- 
sion. In  view  of  this,  before  we  can  set  aside  the  decree  which  was 
made,  it  ought  to  be  made  clearly  to  appear  beyond  the  power  of  the 
court.  Without  reference  to  the  English  chancery  decisions,  where 
this  objection  to  the  decree  would  be  quite  untenable,  we  think  the 
power  of  courts  of  chancery  in  this  country  is  sufficient  to  authorize 
such  a  decree  as  was  here  made.  It  is  here  undoubtedly  a  recognized 
doctrine  that  a  court  of  equity,  sitting  in  a  State  and  having  jurisdic- 
tion of  the  person,  may  decree  a  conveyance  by  him  of  land  in  another 
State,  and  may  enforce  the  decree  by  process  against  the  defendant. 
True,  it  cannot  send  its  process  into  that  other  State,  nor  can  it  deliver 
possession  of  land  in  another  jurisdiction,  but  it  can  command  and  en- 
force a  transfer  of  the  title.  And  there  seems  to  be  no  reason  why  it 
cannot,  in  a  proper  case,  effect  the  transfer  by  the  agency  of  the  trus- 
tees when  they  are  complainants.  In  McElrath  v.  The  Pittsburg  & 
Steubenville  Railroad  Co.,  55  Pa.  189, — a  bill  for  foreclosure  of  a 
mortgage,— in  which  it  appeared  that  a  railroad  company,  whose  road 
was  partly  in  Pennsylvania  and  partly  in  West  Virginia,  had  mort- 
gaged all  their  rights  in  the  whole  road,  the  court  decreed  that  the 
trustee  who  had  brought  the  suit,  being  within  its  jurisdiction,  should 
sell  and  convey  all  the  mortgaged  property,  as  well  that  in  the  State 
of  West  Virginia  as  that  in  Pennsylvania.  This  case  is  directly  in 
point,  and  tends  to  justify  the  decree  made  in  the  present  case.  The 
mortgagors  here  were  within  the  jurisdiction  of  the  court.     So  were 


72  BASIS   OF  EQUITY  JURISDICTION  (Ch.  1 

the  trustees  of  the  mortgage.  It  was  at  the  instance  of  the  latter  the 
master  was  ordered  to  make  the  sale.  The  court  might  have  ordered 
the  trustees  to  make  it.  The  mortgagors  who  were  foreclosed  were 
enjoined  against  claiming  property  after  the  master's  sale,  and  directed 
to  make  a  deed  to  the  purchaser  in  further  assurance.  And  the  court 
can  direct  the  trustees  to  make  a  deed  to  the  purchaser  in  confirmation 
of  the  sale.  We  cannot,  therefore,  declare  void  the  decree  which  was 
made.  *  *  * 
Decree  affirmed. 


SNOOK  et  al.  v.  SNETZER. 
(Supreme  Court  of  Ohio,  1874.    25  Ohio  St.  516.) 

Motion  for  leave  to  file  a  petition  in  error  to  the  District  Court  of 
Licking  county. 

On  the  27th  day  of  December,  1873,  the  defendant  in  error  com- 
menced an  action  in  the  Court  of  Common  Pleas,  of  Licking  county, 
against  the  plaintiffs  in  error,  to  enjoin  them  from  proceeding  in  an 
action  then  pending  in  Ohio  county,  in  the  State  of  West  Virginia, 
wherein  the  plaintiffs  in  error  were  plaintiffs,  and  the  defendant  in  er- 
ror was  defendant,  to  subject  the  earnings  then  due  to  him  from  the 
Baltimore  and  Ohio  Railroad  Company  for  services  rendered  as  the 
conductor  of  a  freight  train  of  the  company,  to  the  payment  of  the 
amount  due  on  a  judgment  recovered  by  the  plaintiffs  in  error  against 
the  defendant  in  error,  before  a  justice  of  the  peace  of  Newark  town- 
ship, in  the  said  county  of  Licking,  for  the  amount  due  on  a  promis- 
sory note,  given  by  him  to  the  plaintiffs  in  error,  for  the  sum  of  eight- 
een dollars,  dated  June  2,  1866,  and  payable  one  day  after  date.  A 
temporary  injunction  was  allowed,  and  the  allowance  thereof  duly  in- 
dorsed on  the  summons  issued  in  the  action. 

It  is  averred  in  the  petition  that  the  parties  to  these  actions  all  reside 
in  the  city  of  Newark,  in  the  county  of  Licking ;  that  the  defendant  in 
error  is  the  head  of  a  family ;  that  the  action  pending  against  him  in 
Ohio  county,  West  Virginia,  was  commenced  by  the  plaintiffs  in  error 
on  the  28th  day  of  November,  1873 ;  that  the  process  served  upon  the 
railroad  company  requires  it  to  answer  as  garnishee,  on  the  30th  day 
of  December,  1873  ;  that  the  earnings  sought  to  be  subjected  in  the  ac- 
tion to  the  payment  of  the  judgment,  are  the  earnings  due  to  him  for 
services  rendered  the  railroad  company,  as  the  conductor  of  a  freight 
train  on  its  road,  during  the  months  of  October  and  November,  1873 ; 
that  such  earnings  are  necessary  for  the  support  of  his  family,  and 
that  the  action  is  prosecuted  against  him  by  the  plaintiffs  in  error  in 
the  State  of  West  Virginia,  for  the  purpose  of  evading  the  exemption 
laws  of  this  state  and  preventing  him  and  his  family  from  having  the 
benefit  thereof. 


Sec.  4)         EXTENT  AND   LIMITATION   OF  EQUITY  JURISDICTION  73 

On  the  21st  of  August,  1874,  a  supplemental  petition  was  filed  in 
the  action,  of  the  filing  of  which  the  plaintiffs  in  error  were  duly  noti- 
fied, in  which  it  is  averred,  that  after  the  plaintiffs  in  error  had  been 
duly  notified  of  the  allowance  of  the  temporary  injunction,  they,  in 
disregard  of  the  order  of  the  court,  prosecuted  their  action  then  pend- 
ing in  Ohio  county,  West  Virginia,  against  the  defendant  in  error,  to 
final  judgment,  and  received  of  the  garnishee,  the  Baltimore  and  Ohio 
Railroad  Company,  $40.25,  the  full  amount  of  the  judgment.  The  an- 
swer of  the  plaintiffs  in  error  denies  the  averments  of  the  original  and 
supplemental  petitions. 

The  issues  arising  upon  the  pleadings  were  found  by  the  court  for 
the  defendant  in  error,  and  a  judgment  was  rendered  in  his  favor, 
against  the  plaintiffs  in  error,  for  the  amount  received  by  them  of  the 
railroad  company,  with  interest  and  costs. 

A  motion  for  a  new  trial  was  filed  and  overruled,  to  which  ruling 
the  plaintiffs  in  error  excepted,  and  presented  their  bill  of  exceptions, 
which  was  allowed,  signed,  and  sealed  by  the  court. 

The  judgment  of  the  Court  of  Common  Pleas  was  afterward  af- 
firmed by  the  District  Court,  on  a  petition  in  error  filed  therein  by  the 
plaintiffs. 

Rex,  J.34  *  *  *  The  remaining  question  to  be  determined  is: 
Have  the  courts  of  this  state  authority,  upon  the  petition  of  a  resident 
who  is  the  head  of  a  family,  by  injunction,  to  restrain  a  citizen  of  the 
county  in  which  the  action  is  commenced  from  proceeding  in  another 
state  to  attach  the  earnings  of  such  head  of  a  family,  with  a  view  to 
evade  the  exemption  laws  of  this  state,  and  to  prevent  such  head  of  a 
family  from  availing  himself  of  the  benefit  of  such  laws? 

The  authority  of  the  courts  in  such  a  case  to  restrain  a  citizen  from 
thus  proceeding  for  the  purpose  named,  is,  in  our  opinion,  clear  and 
indisputable. 

In  exercising  this  authority,  courts  proceed,  not  upon  any  claim  of 
right  to  control  or  stay  proceedings  in  the  courts  of  another  state  or 
country,  but  upon  the  ground  that  the  person  on  whom  the  restrain- 
ing order  is  made  resides  within  the  jurisdiction  and  is  in  the  power 
of  the  court  issuing  it.  The  order  operates  upon  the  person  of  the 
party,  and  directs  him  to  proceed  no  further  in  the  action,  and  not 
upon  the  court  of  the  foreign  state  or  country  in  which  the  action  is 
pending.  On  this  subject,  Mr.  Justice  Story,  in  his  Commentaries  on 
Equity  Jurisprudence,  section  899,  says : 

"Although  the  courts  of  oue  country  have  no  authority  to  stay  proceedings 
in  the  courts  of  another,  they  have  an  undoubted  authority  to  control  all  per- 
sons and  things  within  their  territorial  limits.  When,  therefore,  both  parties 
to  a  suit  in  a  foreign  country  are  resident  within  the  territorial  limits  of  an- 
other country,  the  courts  of  equity  in  the  latter  may  act  in  personam  upon 
those  parties,  and  direct  them,  by  injunction,  to  proceed  no  further  in  such 
suit."   . 

3*  Part  of  the  opinion  is  omitted. 


74  BASIS  OF  EQUITY  JURISDICTION  (Ch.  1 

In  such  a  case,  these  courts  act  upon  acknowledged  principles  of 
public  law  in  regard  to  jurisdiction.  They  do  not  pretend  to  direct  or 
control  the  foreign  court,  but,  without  regard  to  the  situation  of  the 
subject-matter  of  dispute,  they  consider  the  equities  between  the  par- 
ties and  decree  in  personam  according  to  those  equities,  and  enforce 
obedience  to  their  decrees  in  personam.  Engel  v.  Scheuerman,  40  Ga. 
206,  2  Am.  Rep.  573 ;  Dehon  v.  Foster,  4  Allen,  545 ;  Vail  v.  Knapp, 
49  Barb.  (N.  Y.)  299 ;  Baltimore  &  Ohio  R.  R.  Co.  v.  May,  25  Ohio 
St.  347.  Regarding  these  principles  as  decisive  of  the  questions  pre- 
sented for  determination  in  this  case,  the  motion  must  be  overruled. 

Leave  refused. 

McIlvaine,  C.  J.,  Welch,  White,  and  GilmorE,  JJ.,  concurred. 


rourke  v.  Mclaughlin. 

(Supreme  Court  of  California,  1SG9.     3S  Cal.  193.) 

Sanderson,  J.,35  delivered  the  opinion  of  the  Court : 

This  is  an  action  upon  a  contract  to  sell  and  convey  real  estate.  The 
contract  is  set  out  in  full  in  the  complaint.  It  appears  that  the  estate 
in  question  was  sold  by  the  defendant  and  his  wife,  and  conveyed  by 
them  to  the  plaintiff  upon  the  15th  of  September,  1866,  and  that  upon 
the  same  day  the  contract  in  suit  was  executed.  That  the  consideration 
for  both  sales  was  the  same,  to  wit:  $1,000.  That  by  the  contract  in 
suit,  the  defendant  agreed  to  pay  the  sum  of  $1,000,  in  coin,  with  in- 
terest at  the  rate  of  one  and  one  half  per  cent,  per  month,  to  be  paid 
by  instalments,  as  follows:  $400,  with  interest,  on  the  15th  of  Octo- 
ber, 1867;  $400,  with  interest,  on  the  15th  of  October,  1868,  and  the 
remainder  on  the  15th  of  October,  1869.  That,  upon  the  payment  of  the 
price,  the  plaintiff  was  to  make  "a  good  and  lawful  deed."  That  if  the 
defendant  at  any  time,  should  fail  to  make  his  payments,  he  was  to 
surrender  possession.  That  the  defendant  was  to  have  immediate  pos- 
session under  the  contract.  That  this  action  was  brought  for  the  first 
instalment. 

In  his  answer,  the  defendant  admits  the  making  of  the  contract,  and 
his  failure  to  pay  the  first  instalment ;    but  alleges  :     *     *     * 

Third — That,  at  the  time  said  contract  was  made,  the  plaintiff  resided 
in  this  State,  but  since  then  he  has  removed  to  Ireland,  and  is  no  lon- 
ger a  resident  or  citizen  of  the  United  States,  but  has  become  a  subject 
of  the  Queen  of  Great  Britain ;  and  hence,  if  this  defendant  is  made 
to  pay  the  purchase  money,  he  will,  for  the  reasons  stated,  be  unable 
to  enforce  the  contract  as  against  the  plaintiff,  or  compel  him  to  con- 

Nor  does  the  fact  that  since  the  transaction  in  question  the  plain- 
tiff has  removed  from  the  State  to  a  foreign  country,  constitute  a  de- 

35  Parts  of  the  opinion  are  omitted. 


Sec.  4)  EXTENT  AND   LIMITATION   OF   EQUITY  JURISDICTION  75 

fense.  The  claim  that  it  does,  seems  to  be  founded  upon  the  idea  that, 
in  view  of  the  facts  stated,  the  defendant  will  be  unable,  when  the  time 
comes,  to  compel  the  plaintiff  to  perform,  on  his  part,  by  making  a 
deed.  So  far  as  the  first  and  second  instalments  are  concerned,  the 
promises  of  the  defendant  are  independent,  and  performance  by  the 
plaintiff  is  not  a  condition  precedent,  and  therefore,  a  willingness  on 
his  part  to  perform  need  not  to  have  been  averred.  Bean  v.  Atwater, 
4  Conn.  3,  10  Am.  Dec.  91 ;  Osborne  v.  Elliott,  1  Cal.  337 ;  Folsom 
v.  Bartlett,  2  Cal.  163;  Barron  v.  Frink,  30  Cal.  486;  2  Smith's  Lead- 
ing Cases,  note  to  Cutter  v.  Powell,  p.  22 ;  Hill  v.  Grigsby,  35  Cal.  656. 

But,  independent  of  this  consideration,  the  fact  that  the  plaintiff  may 
be  beyond  the  jurisdiction  of  the  Courts  of  this  State  when  the  defend- 
ant may  become  entitled  to  a  deed  is  wholly  immaterial.  His  absence 
will  neither  prevent  his  making  a  deed  voluntarily,  nor  prevent  the 
Courts  of  this  State  from  compelling  a  deed  to  be  given  by  the  plain- 
tiff himself,  or  by  a  commissioner  appointed  to  act  in  his  place.  The 
rule  seems  to  be  that  specific  performance  will  be  decreed  whenever 
the  parties,  or  the  subject-matter,  or  so  much  thereof  as  is  sufficient  to 
enable  the  Court  to  enforce  its  decree,  is  within  the  jurisdiction  of 
the  Court.  Thus,  in  the  case  of  Penn  v.  Lord  Baltimore,  specific  per- 
formance of  a  contract  for  lands  lying  in  America  was  decreed  in  Eng- 
land. 1  Yes.  444.  So  in  the  case  of  the  Earl  of  Kildare  v.  Sir  Morrice 
Eustace  and  Fitzgerald,  it  was  held  that  a  trust  in  relation  to  lands  ly- 
ing in  Ireland  may  be  enforced  in  England  if  the  trustee  live  in  Eng- 
land. 1  Vern.  419.  So  if  the  subject  of  the  contract  or  the  trust  be 
within  the  jurisdiction,  but  the  parties  are  not.  In  an  anonymous  case 
in  1  Atkyns,  19,  which  was  a  bill  for  an  allowance  for  the  support  of 
children  out  of  stocks  in  England,  and  the  parties  were  out  of  the  king- 
dom, the  Lord  Chancellor  said  that  he  had  no  power  over  the  par- 
ties, because  they  were  in  foreign  countries;  but,  though  he  could 
not  come  at  their  persons,  he  could  lay  his  hand  upon  any  stocks  they 
had  in  England.  So  in  the  case  of  Ward  v.  Arredondo,  a  contract  for 
the  sale  of  lands  lying  in  Alabama,  made  by  a  citizen  of  New  York  at 
Havana,  with  the  defendant,  a  Spanish  subject,  was  enforced  in  New 
York,  although  the  defendant  was  not  in  New  York,  and  there  was 
nothing  connected  with  the  parties  or  the  subject-matter  within  the 
jurisdiction  of  the  Court,  except  the  deed  for  the  land,  which  was  in 
the  custody  of  defendant's  agent,  who  was  made  a  party  to  the  suit. 
Hopk.  Ch.  213,  14  Am.  Dec.  543.  In  the  present  case,  though  the 
plaintiff  be  in  Ireland  when  the  time  comes  for  performance  on  his 
part,  the  defendant  may  compel  a  specific  performance  for  the  land — 
the  whole  subject-matter  of  the  contract,  is  within  the  jurisdiction 
of  the  Courts  of  this  State.     *     *     * 

Judgment  affirmed.36 

3«  Quaere — Would  the  conclusion  be  different  if  no  statute  gave  a  commis- 
sion to  transfer  title? 


76  BASIS  OF  EQUITY  JURISDICTION  (Ch.  1 

ROYAL  LEAGUE  v.  KAVANAGH. 

(Supreme  Court  of  Illinois,  1908.     233  111.  175,  84  N.  E.  178.) 

Appeal  from  Appellate  Court,  First  District,  on  Appeal  from  Cir- 
cuit Court,  Cook  County;   J.  W.  Mack,  Judge. 

Suit  for  injunction  by  the  Royal  League  against  Anna  Sexton  Kav- 
anagh.  From  a  decree  dismissing  the  bill  for  want  of  equity,  plaintiff 
appeals. 

Dunn,  J.37  The  appellant  filed  its  bill  in  the  circuit  court  of  Cook 
county  for  an  injunction  to  restrain  the  appellee  from  bringing  an  ac- 
tion in  the  state  of  Missouri  against  the  appellant  upon  a  benefit  cer- 
tificate issued  by  it  to  Thomas  W.  Kavanagh,  in  which  the  appellee  was 
named  as  beneficiary.  The  circuit  court  sustained  a  demurrer  to  the 
bill,  which  was  thereupon  dismissed  for  want  of  equity,  and,  that  de- 
cree having  been  affirmed  by  the  Appellate  Court,  this  further  appeal 
is  prosecuted  by  the  appellant.     *     *     * 

The  bill  further  alleged  that  by  the  opinion  and  decision  of  the  Court 
of  Appeals  of  the  state  of  Missouri  in  the  case  of  Morton  v.  Supreme 
Council  of  the  Royal  League,  100  Mo.  App.  76,  73  S.  W.  259,  it  has 
been  settled  as  the  rule  of  law  in  that  state  that  suicide  by-laws  adopt- 
ed subsequent  to  the  date  when  the  member  joins  the  order  are  not 
binding  upon  him  or  his  beneficiaries,  although, by  the  terms  of  the 
contract  of  membership  there  is  an  agreement  contained  therein  that 
such  member  and  his  beneficiary  shall  be  bound  thereby,  so  that  the 
rule  of  law  which  obtains  in  the  state  of  Missouri  is  directly  contrary 
to  the  rule  of  law  of  the  state  of  Illinois ;  that  appellant  is  licensed 
to  do  business  in  the  state  of  Missouri,  and  has  there  subordinate  coun- 
cils and  agents  upon  whom  service  may  be  had,  so  that  the  appellee 
would  be  able  to  procure  service  upon  appellant  if  she  went  into  that 
jurisdiction  and  began  a  suit  upon  the  benefit  certificate;  that  the  con- 
tract entered  into  was  made  between  two  citizens  of  Illinois ;  that  the 
certificate  was  delivered  in  Illinois ;  that  the  assessments  were  paid 
in  Illinois ;  that  under  the  law  the  place  of  performance  was  and  is 
Illinois,  and  therefore  said  contract  is  an  Illinois  contract,  into  which 
the  laws  of  Illinois  entered  and  formed  a  part,  and  the  appellant  is 
therefore  entitled  to  have  its  rights  and  liabilities  under  said  contract 
adjudicated  and  determined  under  and  in  accordance  with  the  laws  of 
Illinois;  that  if  the  appellee  begins  proceedings  in  the  state  of  Missouri 
the  appellant  cannot  obtain  the  benefit  of  the  laws  of  Illinois,  where 
said  contract  was  made,  by  pleading  such  laws  in  any  suit  begun  in  Mis- 
souri, for  the  reason  that  the  rule  of  law  in  that  regard  in  Illinois  does 
not  rest  upon  a  statute  of  the  state  of  Illinois,  but  is  a  rule  of  the  com- 
mon law,  which  obtains  in  Illinois,  and  it  has  been  determined  and  set- 
tled to  be  the  rule  of  law  in  the  state  of  Missouri  by  the  Court  of  Ap- 
peals that  where  the  courts  of  said  state  are  called  upon  to  consider 

s?  Part  of  the  opinion  is  omitted. 


Sec.  4)  EXTENT  AND   LIMITATION   OF   EQUITY  JURISDICTION  77 

and  construe  a  contract  entered  into  in  a  sister  state,  and  the  rule  of 
law  which  obtains  in  the  state  where  the  contract  was  made  or  was  to 
be  performed  is  different  from  the  rule  of  law  which  obtains  in  the 
state  of  Missouri,  and  the  rule  which  obtains  in  the  state  where  the 
contract  was  made  or  was  to  be  performed  is  a  rule  of  the  common 
law  of  that  state  and  not  based  upon  the  statutes  thereof,  the  courts 
of  Missouri  will  not  follow  the  rule  which  obtains  in  the  state  where 
the  contract  was  made  or  was  to  be  performed,  but  will  construe  said 
contract  according  to  the  rule  which  obtains  in  the  state  of  Missouri, 
as  will  appear  from  the  decision  of  the  Court  of  Appeals  of  Missouri 
in  the  case  of  Campbell  v.  American  Benefit  Club,  100  Mo.  App.  249, 
73  S.  W.  342. 

The  bill  further  alleged  that  the  appellee,  in  order  to  evade  the  law 
of  Illinois,  by  which  her  rights  should  be  determined,  and  in  order  to 
avail  herself  of  the  law  of  Missouri,  now  threatens  to  bring  legal  pro- 
ceedings in  Missouri  on  the  benefit  certificate  to  compel  the  appellant 
to  pay  the  sum  of  $4,000,  whereas  in  truth  and  in  fact  it  is  liable  for 
no  more  than  $322.84,  which  action  and  conduct  on  the  part  of  the  ap- 
pellee, unless  restrained  will  be  a  fraud  upon  the  appellant  and  will  re- 
sult in  depriving  it  of  its  rights  under  the  laws  of  this  state ;  that  it 
has  a  membership  of  a  little  more  than  27,500,  of  which  about  20,000 
are  in  Illinois,  holding  contracts  of  membership  made  and  entered  into 
in  this  state,  to  be  performed  in  this  state,  where  the  certificates  were 
delivered  and  the  dues  and  assessments  paid,  so  that  the  contracts  are 
Illinois  contracts  and  governed  and  controlled  by  the  laws  of  Illinois, 
and  to  permit  the  appellee  to  begin  a  suit  in  the  courts  of  Missouri,  or 
of  any  other  state  where  the  laws  governing  and  controlling  such  con- 
tracts as  the  one  here  involved  in  regard  to  the  questions  here  involved 
are  different  from  the  laws  of  Illinois,  and  where  the  courts  of  such 
state  or  states  refuse  to  be  governed  and  controlled  by  the  laws  of  Il- 
linois, will  be  to  permit  the  appellee  not  only  to  work  a  fraud  upon  ap- 
pellant, but  likewise  upon  those  members  of  the  order  residing  in  the 
state  of  Illinois  and  holding  Illinois  contracts ;  that  appellant  is  able, 
ready,  and  willing  to  pay  to  the  defendant  whatever  sum  may  be  de- 
termined to  be  due  under  its  contract,  and  tenders  into  court,  to  be  held 
subject  to  the  order  of  the  court,  $322.84,  and  avows  its  readiness  to 
pay  any  sum  in  addition  thereto  for  which  it  may  be  determined  to 
be  liable,  if  it  should  be  held  to  be  liable  for  any  additional  sum. 

There  is  no  question  as  to  the  right  to  restrain  a  person  over  whom 
the  court  has  jurisdiction  from  bringing  a  suit  in  a  foreign  state.  Har- 
ris v.  Pullman,  84  111.  20,  25  Am.  Rep.  416.  The  courts  do  not  in 
such  cases  pretend  to  direct  or  control  the  foreign  court,  but  the  decree 
acts  solely  upon  the  party.  The  jurisdiction  rests  on  the  authority 
vested  in  courts  of  equity  over  persons  within  the  limits  of  their  juris- 
diction and  amenable  to  process  to  stay  acts  contrary  to  equity  and  good 
conscience.    The  state  has  power  to  compel  its  own  citizens  to  respect 


78  BASIS   OF   EQUITY   JURISDICTION  (Cll.  1 

its  laws  even  beyond  its  own  territorial  limits,  and  the  power  of  the 
courts  is  undoubted  to  restrain  one  citizen  from  prosecuting  in  the 
courts  of  a  foreign  state  an  action  against  another  which  will  result 
in  a  fraud  or  gross  wrong  or  oppression.  Snook  v.  Snetzer,  25  Ohio 
St.  516;  Keyser  v.  Rice,  47  Md.  203,  28  Am.  Rep.  448;  Teager  v. 
Landsley,  69  Iowa,  725,  27  N.  W.  739 ;  Wilson  v.  Joseph,  107  Ind.  490, 
8  N.  E.  616;  Dehon  v.  Foster,  4  Allen  (Mass.)  545.  But  the  court 
will  not  restrain  the  prosecution  of  a  suit  in  a  foreign  jurisdiction  un- 
less a  clear  equity  is  presented  requiring  the  interposition  of  the  court 
to  prevent  a  manifest  wrong  and  injustice.  It  is  not  enough  that  there 
may  be  reason  to  anticipate  a  difference  of  opinion  between  the  two 
courts,  and  that  the  courts  of  the  foreign  state  would  arrive  at  a  judg- 
ment different  from  the  decisions  of  the  courts  in  the  state  of  the  resi- 
dence of  the  parties.  Carson  v.  Dunham,  149  Mass.  52,  20  N.  E.  312, 
3  L.  R.  A.  202,  14  Am.  St.  Rep.  397.  It  is  not  inequitable  for  a  party 
to  prosecute  a  legal  demand  against  another  in  any  forum  that  will  take 
legal  jurisdiction  of  the  case,  merely  because  that  forum  will  afford 
him  a  better  remedy  than  that  of  his  domicile.  To  justify  equitable 
interposition  it  must  be  made  to  appear  that  an  equitable  right  will  oth- 
erwise be  denied  the  party  seeking  relief.  Thorndike  v.  Thorndike,  142 
111.  450,  32  N.  E.  510,  21  L.  R.  A.  71,  34  Am.  St.  Rep.  90. 

A  person  has  the  right  to  select  such  tribunal  having  jurisdiction  as 
he  chooses  for  the  prosecution  of  his  rights,  and  the  court  which  first 
obtains  jurisdiction  will  retain  it.  Such  jurisdiction  cannot  be  defeated 
because  the  defendant  may  prefer  another  tribunal  in  which  he  sup- 
poses the  decision  will  be  more  favorable  to  him.  In  this  case  it  is  not 
averred  that  the  Supreme  Court  of  Missouri  has  laid  down  any  rule 
of  law  different  from  that  of  this  court.  The  averment  is  that  in  two 
cases  mentioned  the  Court  of  Appeals  of  Missouri  has  settled  the  rule 
of  law  in  that  state  in  accordance  with  the  statement  thereof  in  the 
bill.  It  is  not  averred  that  the  Court  of  Appeals  of  Missouri  is  the 
court  of  final  appellate  jurisdiction  in  the  state,  or  that  the  court  of 
final  appellate  jurisdiction  has  made  any  decision  of  any  question  in- 
volved in  this  case.  While  the  law  of  another  state  is  matter  of  fact 
of  which  we  cannot  take  judicial  notice,  yet  the  allegations  of  the  bill 
in  that  regard  are  entirely  consistent  with  the  hypothesis  that  the  Court 
of  Appeals,  whose  decisions  are  alleged  to  have  established  the  law  of 
Missouri,  may  be  an  inferior  court  of  that  state  of  limited  territorial 
jurisdiction,  whose  decisions  are  subject  to  review  by  the  Supreme 
Court.  This  court  cannot,  in  advance  of  its  announcement  by  the  Su- 
preme Court  of  Missouri,  assume  that  the  common  law  in  that  state 
will  be  declared  to  be  different  from  the  common  law  as  construed  in 
this  state.  Allegation  and  proof  that  a  court  of  a  state  not  having 
final  appellate  jurisdiction  has  settled  a  particular  rule  of  law  does  not 
constitute  allegation  or  proof  that  such  rule  is  the  law  of  the  state.  So 
far  as  appears,  if  the  appellee  should  bring  an  action  in  the  state  of 


SeC.  4)  EXTENT   AND   LIMITATION   OF   EQUITY  JURISDICTION  79 

Missouri  against  appellant  on  this  benefit  certificate,  and  if  the  nisi 
prius  and  Appellate  Courts  should  decide  against  appellant,  it  would  be 
entitled  to  have  such  decision  reviewed  by  the  Supreme  Court  of  the 
state  of  Missouri,  and  we  have  no  reason  to  suppose  that  that  court 
will  not  do  justice  between  the  parties  and  give  effect  to  the  rules  of 
law  applicable  to  the  case.  The  judgment  of  the  Appellate  Court  will 
be  affirmed. 

Judgment  affirmed. 


SUTPHEN  v.  FOWLER. 

(Court  of  Chancery  of  New  York,  1841.     9  Paige,  2S0.) 

The  bill  in  this  cause  was  filed  against  the  infant  child  and  heir  of 
Coenrad  Fowler,  deceased,  for  the  specific  performance  of  a  contract 
for  the  sale  and  conveyance  of  lands  in  the  state  of  Michigan.  In  May, 
1836,  the  decedent  entered  into  a  written  agreement  to  sell  and  convey 
to  the  complainant,  the  eighth  of  a  section  of  land  in  the  state  of  Michi- 
gan, for  the  consideration  or  price  of  $250;  of  which  sum  $200  was 
paid  down.  The  residue  of  the  consideration  was  to  be  paid  on  the 
first  of  January  thereafter;  upon  payment  of  which  the  decedent  was 
to  convey  the  premises  to  the  complainant,  with  warranty.  The  dece- 
dent, at  the  same  time,  received  from  the  complainant  the  further  sum 
of  fifty  dollars  for  the  purpose  of  buying  or  locating  forty  acres  of  land 
adjoining  the  other  eighty  acres,  in  the  name  and  for  the  benefit  of  the 
complainant.  But  a  few  months  after  the  receipt  of  this  money,  and 
the  making  of  the  contract  of  sale  C.  Fowler  died,  without  having  con- 
veyed the  premises  to  the  complainant,  and  without  applying  the  fifty 
dollars  to  the  object  for  which  it  was  received.  He  left  the  defendant, 
then  an  infant  about  three  years  of  age,  his  only  heir  at  law ;  which  in- 
fant, then  and  at  the  time  of  filing  the  bill  in  this  cause,  was  a  resident 
of  this  state.  And  the  decedent  being  entitled  to  a  conveyance  of  the 
legal  title  to  the  premises,  at  the  time  of  his  death,  such  title  was  sub- 
sequently conveyed  to  the  defendant  in  fee,  as  such  heir  at  law,  by  the 
person  who  then  held  the  same.  The  complainant  thereupon  filed  his 
bill  for  a  specific  performance ;  and  to  have  the  $50,  which  was  in  the 
hands  of  the  decedent  at  the  time  of  his  death,  offset  or  applied  to  the 
extinguishment  of  the  residue  of  the  purchase  money  due  on  the  con- 
tract. The  infant  put  in  a  general  answer  by  her  general  guardian ; 
and  upon  a  reference  to  ascertain  the  truth  of  the  allegations  set  forth 
in  the  complainant's  bill,  the  master  reported  them  as  above  stated. 
The  cause  was  submitted  upon  the  pleadings  and  master's  report. 

The  Chancellor  [Walworth].  The  complainant  is  clearly  enti- 
tled to  a  decree  for  a  specific  performance.  And  as  the  personal  estate 
of  the  decedent  is  not  sufficient  to  pay  the  debts,  it  is  proper  that  the  $50 
received  by  him  for  another  purpose,  and  not  applied  as  intended, 
should  be  set  off  or  applied  in  satisfaction  of  the  same  amount  which 


80  BASIS  OF  EQUITY  JURISDICTION  (Ch.  1 

remained  due  on  this  contract.  The  only  difficulty,  therefore,  in  making 
a  perfect  title  to  the  premises,  to  the  complainant,  immediately,  arises 
from  the  fact  that  the  heir  at  law  is  an  infant,  and  that  the  lands  to  be 
affected  by  the  decree  are  not  within  the  jurisdiction  of  the  court.  But 
it  is  perfectly  well  settled  that  this  court  has. jurisdiction  to  decree  the 
specific  performance  of  a  contract  for  the  sale  of  lands  in  another  state, 
where  the  person  of  the  defendant  is  within  the  reach  of  its  process. 
The  Earl  of  Arglassee  v.  Muschamp,  1  Vern.  Rep.  77,  135 ;  Farley  v. 
Shippen,  Wythe  (Va.)  254 ;  Massie  v.  Watts,  6  Cranch,  148,  3  L,  Ed. 
181 ;  Penn  v.  Lord  Baltimore,  1  Ves.  Sen.  444. 

In  this  case  the  heir  at  law  is  not  only  within  the  jurisdiction  of  the 
court  but  she  appears  to  be  domiciled  here.  If  she  was  of  age,  there- 
fore, there  would  be  no  difficulty  in  compelling  a  specific  performance 
of  the  contract ;  by  a  decree  directing  her  to  give  such  a  conveyance  of 
the  premises  as  would  be  effectual  to  transfer  the  legal  title  to  the  com- 
plainant according  to  the  lex  loci  rei  sitae.  Considering  the  age  of  the 
defendant,  a  decree  by  the  court  of  chancery  of  the  state  of  Michigan, 
where  the  land  is  situated,  would  perhaps  have  been  more  beneficial  to 
the  complainant ;  as  this  court  cannot  sequester  the  property,  or  put 
him  in  possession  thereof  by  its  process.  But  the  court  may  decree  a 
specific  performance  of  the  contract,  and  direct  a  conveyance  by  the  in- 
fant when  she  arrives  at  the  proper  age  to  enable  her  to  transfer  the 
legal  title  according  to  the  laws  of  Michigan ;  and  may  authorize  him 
to  take  and  to  retain  the  possession  of  the  premises  until  that  time,  if 
he  can  obtain  possession  thereof  without  suit.  In  the  meantime  the 
court  may  grant  a  perpetual  injunction,  restraining  the  defendant  from 
disturbing  the  complainant  in  such  possession ;  or  from  doing  any  act 
whereby  the  title  shall  be  transferred  to  any  other  person,  or  in  any 
way  impaired  or  incumbered. 

The  complainant  is  entitled  to  a  decree  accordingly.  But  the  bill 
shows  there  is  no  property  which  has  come  to  the  infant,  whereby  she 
ought  to  be  charged  personally  upon  the  contract  of  her  father  or  sub- 
jected to  costs,  and  as  she  holds  the  premises  in  question  as  a  mere 
trustee  for  the  complainant,  the  costs  of  the  guardian  ad  litem  of  the 
defendant  must,  of  necessity,  be  borne  by  the  complainant.  In  this  re- 
spect it  is  like  the  case  of  an  infant  trustee,  who  is  called  upon  to  con- 
vey, under  the  statute ;  in  which  case  the  cestui  que  trust  must  pay  the 
necessary  expenses  of  the  proceedings.38 

38  The  well-settled  rule  as  to  specific  performance  against  infants  is  stated 
in  Tillery  et  al.  v.  Land  et  al.  (1904)  136  N.  C.  537,  48  S.  E.  824,  826:  "If  the 
infant  defendant  and  Mrs.  Perry  had  authorized  the  defendant  Land  to  con- 
vey their  interests  in  the  property,  specific  performance  could  not  be  enforced 
as  to  them.  The  contracts  of  infants  to  sell  their  real  estate  may  be  ratified 
after  they  become  of  full  age,  and  the  courts  might,  and  would  in  proper 
cases,  compel  them  to  specifically  perform  their  contracts.  But  as  long  as 
they  remain  infants,  they  could  not  be  made  to  execute  such  contracts." 


SeC.  4)  EXTENT   AND   LIMITATION   OF   EQUITY  JURISDICTION  81 

PEGGE  v.  SKYNNER  and  Richardson. 
(In  Chancery,  17S4.     1  Cox,  23,  29  E.  R.  1045.) 

Bill  for  specific  performance  of  an  agreement  for  a  lease  from  plain- 
tiff to  defendants.  It  was  objected  that  the  defendant  Richardson  had 
since  become  incapable  of  doing  any  act  in  consequence  of  a  paralytic 
stroke.  It  was  ordered  that  the  defendant  Skynner  should  execute  a 
counterpart  of  a  lease,  and  also  the  defendant  Richardson,  when  he 
should  be  capable  of  so  doing. 

Lord  Thurlow  refused  to  give  plaintiff  costs. 


OWEN  v.  DAVIES. 
(In  Chancery  before  Lord  Hardwieke,  1747-48.     1  Ves.  Sr.  82,  27  E.  R.  905.) 

The  bill  for  a  specific  performance  of  an  agreement  with  one,  since 
become  a  lunatic,  for  the  sale  of  a  reversion  upon  an  estate  for  life. 

Lord  Chancellor.30  From  the  opening  the  cause  I  doubted, 
whether  under  the  circumstances  attending  the  defendant  I  should  de- 
cree a  performance ;  but  upon  the  equitable  circumstances  of  the  case  I 
must.  It  is  certain,  that  the  change  of  the  condition  of  a  person  enter- 
ing into  an  agreement,  by  becoming  lunatic,  will  not  alter  the  right  of 
the  parties ;  which  will  be  the  same  as  before,  provided  they  can  come 
at  the  remedy.  As  if  the  legal  state  is  vested  in  trustees  a  court  of 
equity  ought  to  decree  a  performance ;  and  the  act  of  God  should  not 
change  the  right  of  the  parties :  but  if  the  legal  estate  be  vested  in 
the  lunatic  himself,  that  may  prevent  the  remedy  in  equity,  and  leave  it 
at  law.     *     *     * 

If  therefore,  the  plaintiff  will  have  a  specific  performance,  it  must 
be  on  such  a  proper  application  of  the  money,  and  payment  of  interest 
from  the  time  of  that  instrument.    No  costs  on  either  side.40 

39  Part  of  the  opinion  is  omitted. 

40  In  Hall  v.  Warren  (1804)  9  Ves.  608,  612,  Sir  William  Grant,  M.  R.,  said: 
"So,  as  to  the  objection  from  the  difficulty  of  making  the  conveyance,  the  dif- 
ficulty that  struck  Lord  Hardwicke,  in  Owen  v.  Davies,  was  avoided  there ; 
as  there  were  trustees.  But  it  does  not  appear  to  me,  that,  if  the  plaintiff  is 
satisfied  with  that  which  is  in  truth  no  title,  but  only  an  enjoyment  under 
this  court,  he  ought  not  to  have  all  the  court  can  give  him.  It  is  a  disad- 
vantage to  him,  of  which  the  other  cannot  complain,  that  he  cannot  get  a  good 
title;  but  must  rest  an  indefinite  period,  without  a  title,  having  only  the  en- 
joyment. These  difficulties  are  not  so  strong  as  to  preclude  the  previous  in- 
quiry, before  we  can  ascertain  the  precise  mode,  in  which  the  subsequent  parts 
are  to  be  carried  into  execution.    Therefore  take  an  issue. ' 

Boke  Eq.— 6 


82  BASIS  OF  EQUITY  JURISDICTION  (Ch.  1 

MATTESON  v.  SCOFIELD. 

(Supreme  Court  of  "Wisconsin,  1871.    27  Wis.  671.) 

Appeal  from  the  Circuit  Court  for  St.  Croix  County. 

Action  to  compel  a  specific  performance  of  a  contract  to  sell  and 
convey  land. 

On  the  1st  of  December,  1867,  defendant  was  the  owner  in  fee  of 
the  northeast  quarter  of  S.  5,  T.  28  N.,  R.  19  W.,  in  said  county.  He 
was  then,  and  continued  to  the  trial  of  this  action  to  be,  an  unmarried 
man,  and  residing  in  the  State  of  Connecticut.  On  the  29th  of  Janu- 
ary, 1868,  at  Darien,  in  said  State  of  Connecticut,  he  mailed  the  fol- 
lowing letter,  directed  to  the  plaintiff  at  Hudson,  Wisconsin : 

"Sir:  I  received  your  letter  stating  that  you  did  not  feel  disposed  to  pay 
$3,500  for  my  land.  *  *  *  The  lowest  I  will  take  for  it  is  $3,200.  That 
is  what  you  offered  last  year.  If  I  can  get  one  thousand  dollars  down  and 
five  hundred  per  year  until  the  balance  is  paid,  with  interest  and  security  on 
the  money  by  mortgage,  I  have  made  up  my  mind  to  sell  it.  If  this  meets 
your  favor  you  can  write  and  let  me  know.     [Signed  by  the  defendant.]" 

This  letter  was  received  by  the  plaintiff  about  the  5th  of  February, 
1868,  and  on  the  8th  of  the  same  month  he  mailed  an  answer  at  Hud- 
son, Wisconsin,  addressed  to  the  defendant  at  Darien,  Connecticut,  as 
follows : 

"Dear  Sir:  I  received  your  letter  of  the  29th  of  January  last,  stating  that 
you  would  take  $3,200  for  your  land  here,  with  one  thousand  down,  and  the 
balance  in  yearly  payments  of  five  hundred  dollars  a  year  until  the  balance 
is  paid,  with  interest,  and  secured  by  mortgage.  I  will  take  the  land  at  the 
price  and  terms  above  stated.  I  have  six  hundred  dollars  in  the  First  Na- 
tional Bank  of  Hudson,  and  will  deposit  the  other  four  hundred  to-morrow. 
You  can  make  out  a  deed  and  send  it  to  the  bank  with  instructions  and  draw 
your  money,  and  I  will  execute  the  mortgage  and  hand  to  them.  I  suggest 
this  method  of  making  the  transfer  as  it  saves  time  and  expense.     *     *     * 

"P.  S.  I  have  already  deposited  the  one  thousand  dollars.  [Signed  by  the 
plaintiff.]" 

The  $1,000  was  deposited  in  the  bank  as  stated  in  said  letter,  and 
placed  to  the  plaintiff's  credit  on  the  books  of  the  bank ;  and  the  cash- 
ier of  the  bank  notified  defendant  that  said  sum  was  deposited  to  be 
paid  to  him  (defendant)  by  the  bank  on  receipt  of  the  title  papers  to 
said  land.  On  the  20th  of  February,  1868,  the  defendant,  by  letter, 
informed  the  plaintiff  that  he  had  received  his  letter  stating  he  would 
give  the  defendant  what  he  asked  for  the  land  in  question,  and  that 
plaintiff  had  deposited  the  sum  of  $1,000  for  the  first  payment,  in  the 
bank,  subject  to  his  (defendant's)  order;  that  he  (defendant)  had  made 
up  his  mind  to  come  to  Hudson  and  do  the  business  himself,  and 
thought  he  should  be  there  in  about  two  weeks  from  that  time.  The 
defendant  came  to  Hudson  in  about  five  weeks  from  the  date  of  this 
letter;  thereupon  plaintiff  (by  his  agent)  tendered  to  defendant  $1,000 
as  the  first  payment  for  the  land,  and  also  notes  for  the  balance  in  ac- 
cordance with  the  terms  of  the  letters  above  recited,  and  a  mortgage 
of  the  land  securing  said  notes ;    and  at  the  same  time  plaintiff  de- 


Sec.  4)  EXTENT   AND   LIMITATION   OF   EQUITY  JURISDICTION  83 

manded  a  deed  of  the  land,  "which  the  defendant  refused  to  deliver  at 
that  time;"  and  immediately  thereupon  the  summons  in  this  action 
was  served. 

The  answer  of  the  defendant  does  not  allege  any  willingness  to  per- 
form on  his  part,  but  avers  that  he  had  been  misled  as  to  the  value 
of  the  land  by  false  and  fraudulent  representations  of  the  plaintiff, 
made  while  the  latter  was  employed  by  him  as  an  agent  to  make  sale 
of  the  land.  The  printed  case  does  not  show  that  any  evidence  was 
offered  to  sustain  these  allegations  of  the  answer,  or  that  there  was  any 
finding  in  regard  to  them. 

The  court  held :  1.  That  plaintiff  was  entitled  to  the  usual  judgment 
that  defendant  perform  specifically  the  agreement  on  his  part.  2.  That 
as  defendant  was  a  non-resident  of  this  state,  and  out  of  the  jurisdic- 
tion of  the  court,  plaintiff  was  entitled  to  a  judgment  vesting  in  him  all 
the  right,  title  and  interest  Which  the  defendant  had  in  the  land  at  the 
commencement  of  the  action  and  filing  of  notice  of  lis  pendens  therein  ; 
plaintiff  being  required,  before  or  at  the  time  of  the  entry  of  said  judg- 
ment, to  deposit  with  the  clerk  of  the  court  $1,000,  and  all  other  sums 
with  interest  from  February  8,  1868,  which  might  be  due  defendant  by 
the  terms  of  said  agreement,  with  his  note  and  mortgage  for  any  sum 
of  money  not  so  due  with  interest  from  the  same  date.  3.  That  after 
obtaining  the  receipt  of  the  clerk  showing  compliance  with  these  con- 
ditions, plaintiff  should  have  a  judgment  vesting  in  him  the  title  of  the 
defendant  as  aforesaid. 

Judgment  was  afterwards  entered,  which  recited,  inter  alia,  that 
plaintiff  had  "obtained  the  receipt  of  said  clerk  required  by  said  deci- 
sion," and  had  "complied  with  the  conditions  of  said  decision,"  and 
that  "said  receipt  had  been  read  and  filed ;"  and  thereupon  declared 
that  all  the  defendant's  right,  title  and  interest  in  the  premises  in  con- 
troversy, at  the  time  of  the  filing  of  the  lis  pendens,  was  thereby  passed 
to  and  vested  in  the  plaintiff.  From  this  judgment  the  defendant  ap- 
pealed. 

Cole,  J.41  *  *  *  It  is  said  there  was  nothing  to  warrant  the 
court  in  passing  title  to  the  property  to  the  plaintiff.  The  court  found 
that  the  defendant  was  a  non-resident,  and  out  of  the  jurisdiction  of 
the  court.  It  is  true,  he  had  been  served  with  process  while  tempora- 
rily within  the  jurisdiction  of  the  court,  had  put  in  an  answer  and  con- 
tested the  suit  upon  its  merits.  But  he  was  not  a  resident  within  the 
territorial  jurisdiction  of  the  court,  so  that  it  could  compel  him  to  per- 
form his  agreement  and  execute  a  deed.  Even  if  the  court  had  not 
the  right  to  pass  the  title  to  the  land  within  its  jurisdiction  by  virtue  of 
the  inherent  powers  vested  in  it  as  a  court  of  equity,  still  the  last  clause 
of  section  15,  chap.  129,  R.  S.,  would  seem  to  give  it  ample  authority 
to  "pass  title  to  real  estate  by  its  judgment  without  conveyance."  This 
clause  of  the  section  is  certainly  a  clear  recognition  of  the  power  of  a 

*i  Part  of  the  opinion  is  omitted. 


84  BASIS  OF  EQUITY  JURISDICTION  (Ch.  1 

court  of  equity  to  pass  title  to  real  estate  when  essential  to  the  com- 
plete exercise  of  its  jurisdiction. 

A  still  further  objection  is  taken,  that  the  entry  of  judgment  was 
made  dependent  upon  the  plaintiff  depositing  with  the  clerk  $1,000, 
and  such  other  sums  as  might  then  be  due  to  the  defendant  by  the 
terms  of  the  agreement,  and  his  notes  and  mortgage  for  such  sums  as 
were  not  due.  This,  it  is  said,  was  requiring  the  clerk  to  judicially 
determine  matters  which  should  be  settled  by  the  court.  But  there  is 
no  pretense  that  the  clerk  has  made  any  mistake  in  executing  the  direc- 
tions of  the  court,  or  that  the  defendant  has  been  in  any  way  preju- 
diced by  anything  the  clerk  has  done. 

Upon  the  whole  record  we  think  the  judgment  of  the  circuit  court 
is  right,  and  must  be  affirmed. 

By  the;  Court. — Judgment  affirmed. 


LANGDON  v.  SHERWOOD. 

(Supreme  Court  of  the  United  States,  1888.    124  U.  S.  74,  8  Sup.  Ct.  429, 

31  L.  Ed.  344.) 

At  law,  in  the  nature  of  ejectment.  The  land  was  in  Nebraska.  As 
to  one  part  of  the  tract  the  plaintiff  relied  upon  the  decree  of  a  court 
of  competent  jurisdiction  for  the  conveyance  of  the  land  to  his  privy 
in  estate,  claiming  that  under  the  operation  of  section  429  of  the  Code 
of  Nebraska,  set  forth  in  the  opinion  of  the  court,  infra,  the  decree 
operated  as  a  conveyance.  As  to  the  remainder,  he  relied  upon  a  cer- 
tificate of  the  register  of  the  land-office  at  Omaha,  claiming  that  under 
the  provision  of  section  411  of  the  Civil  Code  of  Nebraska,  also  set 
forth  infra,  that  was  evidence  of  a  legal  title.  Judgment  for  the  plain- 
tiff.   Defendants  sued  out  this  writ  of  error. 

Mii.ivER,  J.42  This  is  a  writ  of  error  to  the  circuit  court  of  the 
United  States  for  the  district  of  Nebraska.  The  defendant  in  error 
brought  in  that  court  a  suit  in  the  nature  of  an  action  of  ejectment  to 
recover  several  tracts  or  parcels  of  land  then  in  the  possession  of  the 
plaintiffs  in  error.  •  The  case  was  first  tried  before  a  jury,  and  the  ver- 
dict afterwards  set  aside.  By  a  written  agreement  of  the  parties,  it 
was  then  submitted  to  the  court  without  a  jury.  That  court  made  a 
general  finding  in  favor  of  the  plaintiff,  Sherwood,  and  certain  special 
findings,  and  upon  both  of  these  rendered  a  judgment  for  him,  for  all 
the  land  claimed  in  his  petition.  A  bill  of  exceptions  was  taken,  which 
related  to  the  introduction  of  evidence  and  the  findings  of  the  court. 
On  this  bill  of  exceptions  and  the  special  findings  of  fact,  the  plaintiffs 
here  assign  two  principal  errors. 

The  first  one  of  these,  which  affects  all  the  land  embraced  in  the  suit, 
has  reference  to  the  introduction  and  effect  of  a  decree  in  chancery, 

42  Parts  of  the  opinion  are  omitted. 


SeC.  4)  EXTENT   AND   LIMITATION   OF   EQUITY  JURISDICTION  85 

rendered  in  the  circuit  court  of  the  United  States  for  the  district  of 
Nebraska,  April  9,  1883,  in  which  Sherwood  was  complainant,  and  the 
Sauntee  Land  &  Ferry  Company  was  defendant.  The  plaintiff  in  the 
action  of  ejectment,  having  given  evidence  which  he  asserted  showed 
title  to  all  the  land  in  controversy  in  the  Sauntee  Land  &  Ferry  Com- 
pany, introduced  the  record  of  this  suit  in  chancery  to  establish  a  trans- 
fer of  the  title  by  means  of  the  proceedings  in  that  suit  from  that  com- 
pany to  himself.  The  bill  of  complaint  set  out  that  this  company,  while 
owner  of  the  land,  had  made  a  verbal  agreement  with  William  A. 
Gwyer  that  the  latter  should  take,  have,  and  hold  the  real  estate  men- 
tioned, as  his  own  property,  and,  as  consideration  for  the  same,  should 
pay  off,  settle,  and  discharge  the  indebtedness  of  the  company.  The 
decree  of  the  court  established  the  fact  that  Sherwood  had  acquired 
the  interest  of  Gwyer  in  the  property,  whereby  he  became  the  equitable 
owner  of  it  all,  and  that  he  was  entitled  to  have  a  conveyance  of  the 
legal  title  from  the  Sauntee  Land  &  Ferry  Company.  The  decree  then 
proceeded  in  the  following  language : 

"It  is  further  ordered  and  decreed  that  the  respondent,  the  Sauntee  Land  & 
Ferry  Company,  shall,  within  twenty  days  after  the  entry  of  this  decree,  ex- 
ecute, acknowledge,  prove,  and  record,  in  the  manner  provided  by  law,  a  good 
and  sufficient  deed  of  conveyance  to  the  complainant  of  all  said  real  estate, 
to  vest  the  entire  legal  title  thereof  in  the  respondent,  and  to  deliver  said  deed 
of  conveyance,  so  executed,  acknowledged,  proved,  and  recorded,  to  the  com- 
plainant. It  is  further  ordered  and  decreed  that,  in  case  said  respondent 
shall  fail,  neglect,  or  refuse  to  make,  execute,  acknowledge,  prove,  record,  and 
deliver  to  the  complainant  such  deed  of  conveyance  within  the  time  herein- 
before fixed,  then  and  in  that  case,  this  decree  shall  stand  and  be  a  good, 
sufficient,  and  complete  conveyance  from  the  respondent,  the  Sauntee  Land 
&  Ferry  Company,  to  the  complainant,  Willis  M.  Sherwood,  of  all  the  right, 
title,  and  estate  of  said  respondent  in  and  to  said  real  estate,  and  shall  be 
taken  and  held  as  good,  complete,  and  perfect  a  deed  of  conveyance  as  would 
be  the  deed  of  conveyance  hereinbefore  specified.  And  that  the  respondent, 
and  all  persons  claiming  through,  from,  or  under  it,  be,  and  they  are  hereby, 
perpetually  barred,  restrained,  and  enjoined  from  asserting  any  right,  title, 
ownership,  or  interest  in  or  to  said  real  estate  adversely  to  the  complainant, 
and  from  in  any  manner  interfering  with  the  peaceable  and  quiet  possession 
of  complainant  in  and  of  the  same." 

No  conveyance  was  ever  made  under  this  decree  by  that  company, 
and  it  is  objected  that  for  this  reason  Sherwood  did  not  acquire  by  that 
proceeding  the  strict  legal  title,  but  only  obtained  an  equitable  one,  and 
the  quieting  of  that  title  as  against  the  Sauntee  Land  &  Ferry  Company. 
Section  429,  Code  Neb.,  is,  however,  relied  upon  by  Sherwood's  coun- 
sel as  giving  to  the  decree  in  his  favor  in  the  chancery  suit  the  effect  of 
an  actual  conveyance  of  the  title.    That  section  is  as  follows : 

"When  any  judgment  or  decree  shall  be  rendered  for  a  conveyance,  release, 
or  acquittance  in  any  court  of  this  state,  and  the  party  or  parties  against 
whom  the  judgment  or  decree  shall  be  rendered  do  not  comply  therewith 
within  the  time  mentioned  in  said  judgment  or  decree,  such  judgment  or  de- 
cree shall  have  the  same  operation  and  effect,  and  be  as  available,  as  if  the 
conveyance,  release,  or  acquittance  had  been  executed  conformable  to  such 
judgment  or  decree." 

We  are  of  opinion  that,  if  this  section  of  the  Code  be  valid,  it  was 
the  intention  of  the  makers  of  it  that  a  judgment  and  decree  such  as 


S6  BASIS   OF   EQUITY   JURISDICTION  (Ch.  1 

the  one  before  us  should  have  the  same  effect,  where  the  parties  di- 
rected to  make  the  conveyance  fail  to  comply  with  the  order,  as  it 
would  have  had  if  they  had  complied,  in  regard  to  the  transfer  of  title 
from  them  to  the  party  to  whom  they  were  bound  to  convey  by  the 
decree.  The  language  of  this  section  of  the  Code  hardly  admits  of  any 
other  construction.  When  the  party  decreed  to  make  the  conveyance 
does  not  comply  therewith  within  the  time  mentioned  in  the  judgment 
or  decree,  such  judgment  or  decree  shall  have  the  same  effect  and  op- 
eration, and  be  as  available,  as  if  the  conveyance  had  been  executed. 
The  operation  or  effect  here  meant  was  the  transfer  of  title,  and  it 
could  not  have  been  made  any  clearer  if  it  had  said  that  it  should  have 
the  effect  of  transferring  the  title  from  the  party  who  fails  to  convey  to 
the  one  to  whom  it  ought  to  be  conveyed.  This  must  have  been  the 
meaning  of  the  minds  of  the  legislators.  It  was  undoubtedly  the  an- 
cient and  usual  course,  in  such  a  proceeding,  to  compel  the  party  who 
should  convey  to  perform  the  decree  of  the  court,  by  fine  and  im- 
prisonment for  refusing  to  do  so.  But  inasmuch  as  this  was  a  trouble- 
some and  expensive  mode  of  compelling  the  transfer,  and  the  party 
might  not  be  within  reach  of  the  process  of  the  court  so  that  he  could 
be  attached,  it  has  long  been  the  practice  of  many  of  the  states,  under 
statutes  enacted  for  that  purpose,  to  attain  this  object,  either  by  the 
appointment  of  a  special  commissioner  who  should  convey  in  the  name 
of  the  party  ordered  to  convey,  or  by  statutes  similar  to  the  one  under 
consideration,  by  which  the  judgment  or  decree  of  the  court  was  made 
to  stand  as  such  conveyance  on  the  failure  of  the  party  ordered  to  con- 
vey. The  validity  of  these  statutes  has  never  been  questioned,  so  far 
as  we  know,  though  long  in  existence  in  nearly  all  the  states  of  the 
Union.  There  can  be  no  doubt  of  their  efficacy  in  transferring  the  title, 
in  the  courts  of  the  states  which  have  enacted  them ;  nor  do  we  see  any 
reason  why  the  courts  of  the  United  States  may  not  use  this  mode  of 
effecting  that  which  is  clearly  within  their  power. 

The  question  of  the  mode  of  transferring  real  estate  is  one  peculiarly 
within  the  jurisdiction  of  the  legislative  power  of  the  state  in  which  the 
land  lies.  As  this  court  has  repeatedly  said,  the  mode  of  conveyance 
is  subject  to  the  control  of  the  legislature  of  the  state ;  and  as  the 
case  in  hand  goes  upon  the  proposition  that  the  title  had  passed  from 
the  government  of  the  United  States,  and  was  in  controversy  between 
private  citizens,  there  can  be  no  valid  objection  to  this  mode  of  enforc- 
ing the  contract  for  conveyance  between  them  according  to  the  law  of 
Nebraska.  U.  S.  v.  Crosby,  7  Cranch,  115,  3  L.  Ed.  287;  Clark  v. 
Graham,  6  Wheat.  577,  5  L.  Ed.  334;  McCormick  v.  Sullivant,  10 
Wheat.  192,  6  L.  Ed.  300;  U.  S.  v.  Fox,  94  U.  S.  315,  24  L.  Ed.  192; 
Brine  v.  Insurance  Co.,  96  U.  S.  627,  24  L.  Ed.  858;  Insurance  Co.  v. 
Cushman,  108  U.  S.  51,  2  Sup.  Ct.  236,  27  L.  Ed.  648.  We  cannot 
see,  therefore,  any  error  in  the  circuit  court  in  permitting  the  proceed- 
ings in  the  chancery  suit  to  be  given  in  evidence,  nor  in  giving  to  them 


Sec.  4)  EXTENT   AND   LIMITATION   OF   EQUITY  JURISDICTION  87 

the  effect  of  transferring  from  the  Sauntee  Land  &  Ferry  Company 
such  legal  title  as  it  had  to  any  of  the  property  in  controversy. 

The  plaintiff,  in  order  to  sustain  his  right  of  action  in  this  suit, 
offered  in  evidence,  first,  a  certificate  of  the  register  of  the  land-office 
at  Omaha,  Nebraska,  of  the  date  of  August  14,  1857,  of  the  location  by 
John  Joseph  Wright  of  a  military  land-warrant.     *     *     * 

It  has  been  repeatedly  decided  by  this  court  that  such  certificates  of 
the  officers  of  the  land  department  do  not  convey  the  legal  title  of  the 
land  to  the  holder  of  the  certificate,  but  that  they  only  evidence  an  equi- 
table title,  which  may  afterwards  be  perfected  by  the  issue  of  a  patent, 
and  that  in  the  courts  of  the  United  States  such  certificates  are  not  suffi- 
cient to  authorize  a  recovery  in  an  action  of  ejectment.     *     *     * 

There  was  error,  therefore,  in  the  decision  of  the  court  admitting 
these  certificates  from  the  land-office  as  evidence  of  title,  and  in  the 
finding  that  there  was  such  evidence  of  title  in  the  plaintiff  as  justified 
the  recovery.  The  judgment  of  the  court  on  the  facts  found  in  regard 
to  the  remainder  of  the  land  is  correct.  It  must,  however,  be  reversed 
for  the  error  in  regard  to  the  156  acres  and  40-100  included  in  the  two 
certificates  of  the  land-office.  It  is  therefore  remanded,  with  instruc- 
tions to  render  judgment  against  the  plaintiff  for  the  156  acres  and 
40-100,  and  in  his  favor  for  the  remainder  of  the  land.43 


WAIT  v.  KERN  RIVER  MINING,  MILLING  &  DEVELOPING 
CO.  et  al.    (L.  A.  2,435.) 

(Supreme  Court  of  California,  1009.     157  Cal.  16,  108  Pac.  03.) 

Department  1.  Appeal  from  Superior  Court,  Los  Angeles  County; 
N.  P.  Conrey,  Judge. 

Action  by  L.  E.  Wait  against  the  Kern  River  Mining,  Milling  & 
Developing  Company  and  another.  From  a  judgment  for  defendants, 
and  from  an  order  denying  a  new  trial,  plaintiff  appeals. 

AngEllotti,  J.44  This  action  was  brought  to  obtain  a  decree  that 
plaintiff  is  the  owner  of  245,000  shares  of  stock  of  the  defendant  cor- 
poration, and  that  the  defendants' have  and  hold  the  same  in  trust  for 
the  use  and  benefit  of  plaintiff,  and  requiring  said  corporation  to  issue 
to  plaintiff  said  245,0000  shares.  Defendant  Latham  having,  prior  to 
the  institution  of  the  action,  absconded  and  left  the  state  of  California 
and  his  whereabouts  being  absolutely  unknown,  the  only  service  of 
summons  had  upon  him  was  by  publication.  Pie  did  not  appear  in  the 
action.     Defendant  corporation  answered,  and  the  trial  of  the  action 

43  As  an  illustration  of  the  operation  in  rem  of  equity  decrees  under  the 
modern  practice,  see  rule  8  of  the  recent  Rules  of  Practice  for  Equity  Courts 
of  the  United  States.     See  page  49,  supra. 

44  Parts  of  the  opinion  are  omitted. 


88  BASIS   OF  EQUITY  JURISDICTION  (Ch.  1 

was  had  as  between  it  and  plaintiff.  The  findings  were  substantially  in 
favor  of  plaintiff  upon  all  material  issues  except  that  of  ownership  of 
the  stock,  the  court  finding  that  it  is  not  true  that  plaintiff  is  now,  or 
ever  was,  the  owner  of  said  245,000  shares  of  stock.  The  court  con- 
cluding, as  matter  of  law,  that  plaintiff  was  not  such  owner,  and, 
further,  that  the  court  had  never  acquired  jurisdiction  of  the  person 
of  defendant  Latham,  adjudged  that  plaintiff  take  nothing  by  his  action, 
and  that  defendant  corporation  recover  its  costs  of  action.  A  motion 
for  a  new  trial  on  the  part  of  the  plaintiff  was  denied.  Plaintiff  ap- 
peals from  the  judgment  and  from  an  order  denying  his  motion  for  a 
new  trial.  The  motion  to  dismiss  the  appeals  was  denied  by  the  court 
when  the  case  was  called  for  oral  argument. 

Defendant  corporation  is  a  corporation  organized  and  existing  under 
the  laws  of  the  territory  of  Arizona,  but  all  of  its  property  is  situate 
and  all  of  its  business  carried  on  in  this  state,  and  it  has  its  office  in  the 
city  of  Los  Angeles.  It  was  organized  by  Latham,  the  purpose  thereof 
being  the  development  and  handling  of  certain  mining  claims  in  Kern 
county  owned  by  him,  and  upon  the  facts  set  forth  we  are  warranted  in 
assuming  that  the  sole  purpose  of  its  formation  as  stated  in  its  articles 
of  incorporation  was  the  carrying  on  of  business  in  the  state  of  Cal- 
ifornia. These  mining  claims  were  transferred  by  him  to  the  corpora- 
tion upon  the  understanding  that  1,000,000  of  the  2,000,000  of  the 
shares  of  stock  thereof  should  be  owned  and  held  by  him  and  his  as- 
sociates, while  the  other  1,000,000  should  be  set  aside  as  treasury  stock, 
to  be  sold  for  the  purpose  of  raising  a  fund  with  which  to  develop  the 
property.  Of  his  1,000,000  shares  500,000  were  to  be  issued  as  demand- 
ed by  him  to  himself  or  any  other  person,  and  the  other  500,000  were 
issued  to  certain  persons  at  his  request.  In  May  or  June,  1903,  Latham 
employed  plaintiff  to  go  to  Chicago  and  endeavor  to  sell  50,000  shares 
of  the  treasury  stock  at  ten  cents  per  share,  and  promised  that  if  he 
sold  the  same  or  any  considerable  portion  thereof  at  that  price  "he 
would  pay  to  plaintiff  for  his  services"  in  making  said  sales  250,000 
shares  of  his  own  stock,  and  also  would  see  that  the  corporation  paid 
him  a  certain  commission  on  all  stock  sold.  Latham  thereupon  caused 
5,000  shares  of  his  250,000  to  be  issued  to  plaintiff,  and  the  corporation 
agreed  to  pay  him  certain  commissions  and  his  expenses,  a  portion  of 
which  he  had  received.  Plaintiff  thereupon  went  to  Chicago,  and  re- 
mained there  until  February,  1904,  when  he  was  recalled  to  California, 
and  thereafter  remained  in  California  in  the  performance  of  service 
for  the  corporation.  He  had  then  obtained  purchasers  for  about  17,000 
shares  at  the  designated  price,  and  the  sales  thereof  had  been  made  and 
the  proceeds  sent  to  Latham,  who  was  the  president  of  the  corporation. 
What  plaintiff  had  done  in  Chicago  was  entirely  satisfactory  to  Latham, 
and  was  "accepted  by  him  as  full  performance  of  said  agreement." 
Latham  subsequently  absconded  and  left  the  state,  without  having 
caused  any  of  the  245,000  shares  due  plaintiff  to  be  issued  to  him,  and 
without  having  delivered  to  him  any  of  the  stock  agreed  to  be  deliv- 


Sec.  4)  EXTENT  AND   LIMITATION   OF   EQUITY  JURISDICTION  89 

ered  except  5,000  shares.  Of  Latham's  original  500,000  unissued 
shares,  more  than  245,000  shares  have  never  been  issued  by  the  corpo- 
ration to  Latham  or  anyone  else.  These  facts  were  found  by  the  trial 
court,  and  there  is  no  sufficient  specification  of  insufficiency  of  evi- 
dence as  to  any  of  them.     *     *     * 

While  Latham  was  undoubtedly  a  necessary  party  to  this  action,  we 
are  of  the  opinion  that  the  constructive  service  of  summons  upon  him 
was  effectual  to  give  the  lower  court  jurisdiction  to  determine  the 
rights  of  plaintiff  against  him  so  far  as  the  disposition  of  any  of  the 
shares  of  the  stock  in  question  is  concerned. 

It  does  not  appear  to  be  questioned  that  the  legal  situs  of  the  shares 
of  stock  constituting  the  subject-matter  of  this  action  is,  for  all  pur- 
poses material  here,  in  this  state.  It  is  well  settled  that,  for  purposes  of 
execution  or  attachment,  the  situs  of  shares  of  stock  is  within  the  state 
where  the  corporation  resides,  and  that  they  may  lawfully  be  levied 
on  in  such  state  though  owned  by  a  nonresident.  We  can  perceive  no 
reason  why  the  rule  as  to  situs  should  not  be  the  same  as  to  any  author- 
ized proceeding  to  subject  the  stock  to  the  lawful  claim  of  another, 
whether  that  claim  be  one  of  ownership  of  the  property  or  of  a  right 
to  specific  enforcement  of  a  contract  relative  to  it.  In  other  words, 
wherever  such  stock  constitutes  the  subject-matter  of  an  action,  we  see 
no  reason  why  it  should  not  be  held  to  be  within  the  state  where  the 
corporation  resides.     *     *     * 

The  relief  sought  by  plaintiff  against  Latham  is  in  the  nature  of  spe- 
cific performance  of  a  contract  for  the  delivery  of  certain  mining  stock, 
in  a  case  where  all  the  conditions  to  be  performed  by  him  have  been 
performed,  and  nothing  remains  to  be  done  other  than  the  mere  de- 
livery by  Latham  of  the  stock.  If  we  are  correct  in  what  we  have 
said  as  to  the  situs  of  this  stock,  we  have  an  action  for  specific  per- 
formance as  against  a  party  who  is  a  nonresident  and  cannot  be  per- 
sonally served  with  summons,  in  a  case  where  the  whole  subject-matter 
of  the  contract  is  within  this  state,  and  nothing  remains  to  be  done  but 
to  compel  a  transfer  thereof.  While  it  is  well  settled  that  a  decree 
for  specific  performance  of  a  contract  operates  primarily  in  personam, 
yet  in  a  limited  and  qualified  sense  it  may  also  be  said  to  operate  in  rem 
when  property  to  be  transferred  under  the  contract  is  within  the  ju- 
risdiction of  the  court,  but  the  defendant  is  absent  therefrom.  See  26 
Am.  and  Eng.  Ency.  of  Law,  p.  132.  Where  the  whole  relief  sought 
consists  in  the  mere  delivery  of  property  within  the  jurisdiction  of  the 
courts  of  a  state  to  the  party  entitled  thereto  under  a  contract,  the  pro- 
ceeding is  in  a  sense  one  in  rem,  sufficiently  so,  in  our  judgment,  to 
give  such  courts  jurisdiction  to  effectuate  a  delivery  as  against  a  non- 
resident defendant.  In  the  leading  case  of  Pennoyer  v.  Neff,  95  U.  S. 
727,  24  L.  Ed.  565,  speaking  of  substituted  service  by  publication,  the 
United  States  Supreme  Court,  after  saying  that  such  service  may  be 
sufficient  where  property  is  once  brought  under  the  control  of  the  court 
by  seizure  or  some  equivalent  act,  said : 


90  BASIS   OF   EQUITY   JURISDICTION  (Ch.  1 

"Such  service  may  also  be  sufficient  in  cases  where  the  object  of  the  ac- 
tion is  to  reach  and  dispose  of  property  in  the  state,  or  of  some  interest 
therein,  by  enforcing  a  contract  or  a  lien  respecting  the  same." 

See,  also,  Boswell's  Lessee  v.  Otis,  9  How.  348,  13  L.  Ed.  164. 
s  In  the  case  of  Rourke  v.  McLaughlin,  38  Cal.  196,  it  was  held,  as 
one  of  the  grounds  of  the  decision,  that  specific  performance  would  be 
decreed  "whenever  the  parties,  or  the  subject-matter,  or  so  much  there- 
of as  is  sufficient  to  enable  the  court  to  enforce  its  decree,  is  within 
the  jurisdiction  of  the  court."  The  contract  there  involved  was  one 
for  the  sale  of  land  situate  in  this  state,  and  the  claim  was  that  as 
the  vendor  was  a  resident  of  Ireland  and  beyond  the  jurisdiction  of 
the  court  he  could  not  be  compelled  to  execute  a  conveyance.  The 
court  said  that  his  absence  will  neither  prevent  his  making  a  deed  vol- 
untarily, "nor  prevent  the  courts  of  this  state  from  compelling  the  deed 
to'  be  given  by  the  plaintiff  himself,  or  by  a  commissioner  appointed  to 
act  in  his  place,"  and  that  "specific  performance"  could  be  compelled, 
the  whole  subject-matter  of  the  contract  being  within  the  jurisdiction 
of  the  courts  of  this  state.  Where  nothing  remains  to  be  done  under 
the  contract  but  the  transfer  of  property  within  this  state  by  the  non- 
resident, there  is  no  difference  in  substance  between  the  position  of  the 
plaintiff  and  the  position  of  a  creditor  seeking  to  subject  property  of  a 
nonresident  by  attachment  proceedings  to  the  payment  of  his  asserted 
claim  against  such  nonresident.  In  each,  the  plaintiff  asserts  his  claim 
against  the  nonresident,  the  validity  of  which  must  be  established  in 
the  proceeding.  It  is  elementary  that  the  claim  may  be  so  established 
in  the  latter  case  against  a  nonresident  only  constructively  served  with 
summons  to  an  extent  sufficient  to  enable  plaintiff  to  devote  the  prop- 
erty of  the  defendant  that  is  in  this  state  and  has  been  seized  on  at- 
tachment, to  the  payment  of  his  claim.  As  to  that  property,  his  pro- 
ceeding is  one  in  rem.  In  the  former  case,  the  claimant  is  doing  sub- 
stantially the  same  thing.  Specific  property  in  this  state  is  sought  by 
the  complaint,  property  in  which  by  his  full  performance  of  his  con- 
tract plaintiff  has  acquired  an  equitable  interest,  and  the  mere  bringing 
of  his  action  is  equivalent  to  a  seizure  of  the  property  for  the  purposes 
of  the  suit.  See  Heidritter  v.  Elizabeth  Oil  Cloth  Co.,  112  U.  S.  301, 
5  Sup.  Ct.  135,  28  L.  Ed.  729.  No  claim  has  been  made  in  this  case 
that  the  court  was  without  jurisdiction  as  to  Latham  if  a  proper  case 
for  specific  performance  has  been  made  to  appear.     *     *     * 

We  are  of  the  opinion  that  the  complaint  and  the  findings  showed 
a  sufficient  case  for  specific  performance  as  against  Latham.  If  this 
be  so,  in  view  of  what  we  have  said,  the  judgment  in  favor  of  defend- 
ant corporation  cannot  be  sustained. 

The  judgment  and  order  denying  a  new  trial  are  reversed. 

We  concur:    Sloss,  J. ;   Shaw,  J. 


Ch.  2)  SPECIFIC  PERFORMANCE   OF   CONTRACTS  91 

CHAPTER  II 
SPECIFIC  PERFORMANCE  OF  CONTRACTS 


SECTION  1.— CONTRACTS  SUBJECT  TO  SPECIFIC  PER- 
FORMANCE 

I.  Positive  Contracts 


ENFORCEMENT  OF  CONTRACTS  IN  EQUITY. 

A  court  of  equity  is  asked  to  enforce  a  covenant  by  decreeing  specific 
performance  or  granting  an  injunction,  in  other  words  when  equita- 
ble, as  distinguished  from  legal  relief,  is  sought,  etc. 

Lindley,  L.  J.,  in  Knight  v.  Simmonds,  [1896]  2  Ch.  Div.  294,  at  297. 


(A)   Grounds  of  Equity  Jurisdiction 
FALCKE  v.  GRAY. 

(In  Chancery,  1859.     29  Law  J.  Ch.  28.) 

This  was  a  suit  for  the  specific  performance  of  a  contract,  giving  the 
plaintiff  the  option  of  purchasing  two  valuable  china  jars. 

The  circumstances  were  as  follows  : 

The  defendant,  Mrs.  Gray,  the  occupier  of  a  house  in  Gloucester 
Terrace,  Hyde  Park,  was  desirous,  in  January  last,  of  letting  the  house 
furnished,  and  she  employed  Messrs.  Boyde  &  Bryden,  house-agents, 
to  procure  her  a  tenant. 

The  plaintiff,  Mr.  Falcke,  being  in  want  of  a  house,  went  to  look  at 
it,  and  an  appointment  being  subsequently  made,  Mrs.  Gray,  Mr.  Falcke 
and  Mr.  Brend,  the  managing  clerk  of  Messrs.  Boyde  &  Bryden,  met 
upon  the  premises,  when  Mr.  Falcke  agreed  to  rent  the  house  for  six 
months,  at  the  price  of  seven  guineas  per  week. 

It  was  also  agreed  between  the  parties  that  the  plaintiff  should  have 
the  option  of  purchasing  at  the  end  of  the  term  certain  articles  of  fur- 
niture, at  a  valuation,  comprising,  among  other  things,  two  china  jars. 
Some  of  the  articles  being  ordinary  furniture  a  valuation  was  put  upon 
them  at  once  by  J.  Brend,  but  with  regard  to  the  jars  he  admitted  that 
lie  was  ignorant  of  their  value,  and  at  the  request  of  Mrs.  Gray  he 


92  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

named  to  her  Messrs.  Watson,  dealers  in  articles  of  this  nature,  as  per- 
sons competent  to  place  a  value  upon  them.  Some  further  discussion 
took  place,  when  the  jars  were  valued  by  Brend,  by  assent  of  all  par- 
ties, at  £25,  which  sum  he  afterwards  raised  to  £40.  The  plaintiff  then 
went  away  with  Brend,  and  an  agreement  was  drawn  up  and  brought 
back  to  Mrs.  Gray  for  signature.  The  document  concluded  in  these 
terms : 

"And  it  is  also  agreed  that  the  said  David  Faleke  shall  have  the  option  of 
purchasing  the  whole  or  any  of  the  under-mentioned  articles  at  the  sums 
thereunto  affixed  to  each,  viz.,  one  sideboard,  £18.  18s. ;  dinner  wagon,  £5 ; 
twelve  chairs,  £15 ;  dining  table,  £20,  and  two  large  Oriental  china  jars  in 
drawing  room,  £40." 

This  agreement  was  then  signed  by  Mrs.  Gray,  who  shortly  after- 
wards applied  to  Messrs.  Watson  to  inspect  the  jars,  and  having  done 
so,  they  offered  her  £200  for  the  articles,  which  sum  she  agreed  to  take, 
and  the  money  was  immediately  paid  to  her  by  cheque,  and  the  jars 
were  removed  at  once  by  Messrs.  Watson. 

The  evidence  as  to  whether  Messrs.  Watson  knew  of  the  previous 
contract  for  the  sale  of  the  jars  before  they  bought  them  was  rather 
contradictory. 

Mr.  Watson  deposed  that  Mrs.  Gray  at  first  stated  that  a  gentleman 
was  in  treaty  to  rent  her  house,  and  wished  to  purchase  the  jars.  That 
she  did  not  object  to  sell  them,  but  was  dissatisfied  with  the  value  put 
upon  them  by  her  agent.  That  he,  deponent,  then  told  her  she  had 
fallen  into  bad  hands,  and  that  they  were  worth  much  more.  He  asked 
the  name  of  the  purchaser,  and  when  informed  of  it  he  told  her  he 
knew  the  plaintiff  as  a  dealer  in  the  same  line  as  themselves,  and  he 
must  be  a  person  who  was  well  acquainted  with  the  value  of  such  arti- 
cles. This  deponent,  however,  denied  that  he  had  any  knowledge  at 
the  time  he  paid  for  the  jars  that  there  had  been  actually  a  contract  sign- 
ed by  Mrs.  Gray,  giving  the  plaintiff  the  option  of  purchasing  the  arti- 
cles. And  Mrs.  Gray  also  made  an  affidavit  to  the  same  effect,  and  she 
further  stated  that  the  jars  were  originally  left  to  her  by  a  lady  who, 
she  understood,  had  been  offered  £100  for  them  by  King  George  the 
Fourth. 

The  plaintiff,  in  his  affidavit,  admitted  that  the  jars  were  worth  £100 
to  the  trade,  and  probably  £25  more  as  between  persons  who  were  not 
dealers. 

An  ex  parte  injunction  was  obtained  against  Mrs.  Gray  and  against 
Messrs.  Watson,  who  were  also  defendants  to  the  suit,  to  restrain  the 
sale  of  the  jars. 

The  bill  was  afterwards  amended,  and  the  case  now  came  on  upon 
motion  for  a  decree  seeking  a  specific  performance  of  the  contract  by 
Mrs.  Gray  for  the  sale  of  the  jars  to  the  plaintiff. 

Mr.  Baily  and  Mr.  Waller,  for  the  plaintiff,  contended  that  there  was 
nothing  unfair  in  the  circumstances  attending  this  contract,  and  that 
inadequacy  of  price  was  not  a  ground  for  refusing  specific  performance 


Sec.  1)  CONTRACTS   SUBJECT  TO   SPECIFIC  PERFORMANCE  93 

of  a  contract.  It  was  well  known  to  Mrs.  Gray  that  the  person  who 
valued  the  jars  was  ignorant  of  their  worth.  She  herself  knew  that  a 
sum  of  £100  had  been  offered  for  them,  but  as  the  offer  came  from  so 
high  a  source,  it  was  reasonable  to  suppose  that  this  was  an  outside 
value,  although  the  owner  might  not  have  been  disposed  to  part  with 
them.  It  was  true  that  Messrs.  Watson  had  given  £200  for  the  jars, 
but  such  articles  could  not  be  said  to  have  any  marketable  value,  and 
another  person  might  not  have  been  inclined  to  give  200  pence  for  them. 
Besides  this,  it  was  not  every  day  that  a  purchaser  could  be  found  for  a 
couple  of  large  Oriental  jars,  with  great  ugly  Chinese  pictures  upon 
them,  and  it  was  evident  that  at  the  time  of  the  contract  being  executed 
Mrs.  Gray  was  very  well  contented  with  her  bargain. 

KinderslEy,  V.  C.,1  after  stating  the  facts  of  the  case,  said :  The 
defendants  insist,  in  the  first  place,  that  this  bill  can  not  be  maintained, 
on  the  ground  that  the  plaintiff  can  have  no  right  to  the  specific  per- 
formance of  a  contract  relating  solely  to  chattels.  On  this  question,  my 
opinion  is  entirely  in  favour  of  the  plaintiff,  that  the  court  will  not  re- 
fuse such  relief.  In  the  eye  of  this  court,  there  is  no  difference  be- 
tween real  and  personal  estate  in  the  performance  of  a  contract ; 
and  a  contract  for  one  stands  in  no  position  different  from  a  con- 
tract for  the  other.  The  principle  upon  which  this  court  decrees 
specific  performance,  as  enunciated  by  Lord  Redesdale,  in  Harnett  v. 
Yielding,  is,  that  a  court  of  law  deals  with  the  contract,  and  gives  such 
a  decree  as  it  is  competent  to  give  in  consequence  of  nonperformance — 
that  is,  by  giving  compensation  in  the  shape  of  damages  for  the  non- 
performance. But  a  court  of  equity  says,  that  is  not  enough ;  and  in 
many  cases  the  mere  remuneration  and  compensation  in  damages  is  not 
sufficient  satisfaction.  Apply  that  principle  to  chattels — and  why  is  it 
less  applicable  to  them  than  to  real  estate?  In  ordinary  contracts,  as 
for  the  purchase  of  ordinary  articles  of  use  and  consumption,  such  as 
coals,  corn  or  consols,  this  court  will  not  decree  specific  performance. 
And  why?  Because  you  have  only  to  go  into  the  market  and  buy  an- 
other equally  good  article,  and  so  can  get  your  compensation.  It  is  not 
because  it  is  a  chattel,  but  because  you  can  get  adequate  compensation 
for  it.  Now,  here  these  articles  are  of  unusual  distinction  and  curiosi- 
ty, if  not  unique ;  and  it  is  altogether  doubtful  what  price  they  will 
fetch.  I  am  of  opinion,  therefore,  that  this  is  a  contract  which  this 
court  can  enforce;  and  if  the  case  stood  alone  upon  that  ground  I 
would  decree  specific  performance.     *     *     * 

The  bill  was  dismissed  on  another  ground. 

1  The  omitted  parts  of  the  opinion  appear  on  page  579,  infra. 


(J'l  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Cll.   2 


GARTRELL  v.  STAFFORD. 

(Supreme  Court  of  Nebraska,  1SS2.     12  Neb.  545,  11  N.  W.  732, 
41  Am.  Rep.  767.) 

Maxwell,  J.2  This  is  an  action  to  enforce  the  specific  performance 
of  an  alleged  contract  for  the  conveyance  of  real  estate.  The  land  in 
controversy  is  situated  in  Gage  county,  and  the  plaintiff  is  a  resident 
of  that  county,  while  the  defendant  is  a  resident  of  California.  The 
contract  was  made  by  certain  real  estate  agents  on  behalf  of  the  de- 
fendant, upon  the  authority  of  certain  letters  signed  "Mrs.  Julia  A. 
Stafford."  A  decree  was  rendered  in  the  court  below  in  favor  of  the 
plaintiff.  The  defendant  appeals  to  this  court.  It  appears  from  the 
evidence  that  during  the  summer  of  1870  a  letter,  of  which  the  fol- 
lowing is  a  copy,  was  delivered  to  Messrs.  Somers  &  Schell,  real  estate 
agents,  Beatrice : 

"Montieello,  Napa  Co.,  Cal.,  June  11,  1S79. 
"Real  Estate  Agent,  Beatrice,  Nebraska — Dear  Sir:  Not  being  acquainted 
with  the  name  of  a  real  estate  agent  in  your  place,  you  will  excuse  the  omis- 
sion. I  have  a  farm  in  Gage  county,  Nebraska,  which  I  am  very  desirous  to 
sell,  and  want  to  put  it  into  the  hands  of  some  agent  who  will  attend  to  it 
promptly.  I  will  sell  it  very  cheap,  as  I  am  in  California  sick  and  need  the 
money.  It  is  known  as  the  "Stafford  farm,"  and  has  belonged  to  me  and  my 
husband,  now  deceased,  over  20  years.  You  can  see  the  deed  recorded  in  the 
Beatrice  clerk's  office.  It  is  situated  on  the  Little  Nemaha  river.  It  is  a  fine 
farm,  well  watered  and  well  timbered,  with  plenty  of  rich  bottom  land.  Sev- 
eral years  ago  C.  E.  Moore,  residing  in  the  same  neighborhood,  offered  me 
$2,000  for  it.  but  I  did  not  then  wish  to  sell.  I  have  lately  offered  it  for 
$1,800,  but  if  you  take  it  in  hand  I  would  like  for  you  to  do  the  best  that 
you  can.  G.  Hillman,  of  Hooker,  eight  miles  distant  from  my  place,  has 
charge  of  it,  and  has  rented  it  to  Peter  Stockhouse.  I  would  like  to  hear 
from  you  immediately,  and  if  you  will  attend  to  this  promptly  it  is  all  that 
I  can  desire. 

"Yours,  very  respectfully,  Address,  Mrs.  Julia  A.  Stafford, 

"•Montieello,  Napa  Co.,  California." 
********** 

In  reply,  Somers  &  Schell  sent  the  following: 

"September  6,  9. 

"Mrs.  Julia  Stafford,  Montieello,  California — Dear  Madame:  We  have  an 
offer  from  M.  H.  Gartrell  of  §2,500  for  your  N.  W.  one-fourth  1-6-S,  in  this 
county.  Will  pay  $1,500  cash ;  balance  in  five  annual  payments  of  $200  each, 
with  8  per  cent.,  interest.  We  tried  to  get  better  offer  out  of  him,  and  told 
him  what  your  price  was.  We,  however,  write  to  you  in  regard  to  the  mat- 
ter.    Write  us  by  return  mail. 

"Yours,  truly,  Somers  &  Schell." 

The  letter  received  in  answer  to  the  above  is  as  follows : 

"Montieello,  Napa  Co.,  Cal.,  September  12,  1S79. 
"Messrs.  Somers  &  Schell,  Beatrice,  Nebraska — Sirs:  Yours  of  September 
Gth  is  just  received.  I  think  the  price  too  low,  but  as  I  am  in  very  needy 
circumstances,  and  must  have  money,  I  have,  after  much  deliberation,  con- 
cluded to  take  it.  I  am  anxious  for  you  to  sell  it  and  close  the  affair  as  soon 
as  possible,  because  I  need  the  money  at  present  very  much. 

"Yours,  truly,  Mrs.  Julia  Stafford, 

"Montieello,  Napa  Co.,  California." 

********** 

-  Parts  of  the  opinion  are  omitted. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE  95 

No  deed  for  the  land  in  controversy  has  been  received  and  this  ac- 
tion was  brought  by  the  purchaser  to  enforce  the  contract.     *     *     * 

The  second  objection  of  the  appellant  is  that  the  plaintiff  has  an 
adequate  remedy  at  law  in  an  action  for  damages.  The  rule  con- 
tended for  by  the  appellant  undoubtedly  applies  to  contracts  for  the 
sale  of  personal  property,  the  reason  being  that  damages  in  such 
case  are  readily  calculated  on  the  market  price  of  property  such  as 
wheat,  corn,  wool,  etc.,  like  quantities  of  the  same  grade  being  of  equal 
value,  and  thus  afford  as  complete  a  remedy  to  the  purchaser  as  the 
delivery  of  the  property.  Adderly  v.  Dixon,  1  Sim.  &  S.  607.  But  the 
rule  is  a  qualified  one,  and  is  limited  to  cases  where  compensation  in 
damages  furnishes  a  complete  and  satisfactory  remedy.  Story,  Eq. 
§  718,  and  cases  cited  in  note  3.  The  jurisdiction  of  courts  of  equity 
to  decree  specific  performance  of  contracts  for  the  sale  of  real  estate 
is  not  limited  as  in  cases  respecting  chattels  to  special  circumstances, 
but  is  universally  maintained ;  the  reason  being  that  a  purchaser  of  a 
particular  piece  of  land  may  reasonably  be  supposed  to  have  considered 
the  locality,  soil,  easements,  or  accommodations  of  the  land  generally, 
which  may  give  a  peculiar  or  special  value  to  the  land  to  him,  that  could 
not  be  replaced  by  other  land  of  the  same  value,  but  not  having  the 
same  local  conveniences  or  accommodations.  Adderly  v.  Dixon,  1  Sim. 
&  S.  607;  Story,  Eq.  ,§  746;  Willard,  Eq.  279.  An  action  for  dam- 
ages would  not,  therefore,  afford  adequate  relief.3     *     *     * 


PADDOCK  v.  DAVENPORT. 
(Supreme  Court  of  North  Carolina,  1S90.    107  X.  C.  710,  12  S.  E.  464.) 

Appeal  from  superior  court,  Clay  county. 

Action  for  specific  performance  and  damages  based  on  a  contract 
by  which  defendant,  Davenport,  gave  plaintiff  the  exclusive  privilege 
for  60  days  of  buying  at  a  certain  price  all  the  trees  on  said  defend- 
ant's land  which  plaintiff  might  select  and  mark.  From  a  judgment 
sustaining  a  demurrer  to  the  complaint,  plaintiff  appeals. 

Shepherd,  J.4  Two  causes  of  action  are  set  out  in  the  complaint, — 
one  for  damages  for  breach  of  the  contract,  and  the  other  for  its  spe- 
cific performance.  The  court  held,  upon  demurrer,  that  neither  of  the 
said  causes  of  action  could  be  maintained.     *     *     * 

The  second  cause  of  action  is  for  specific  performance,  both  against 
Davenport,  who  executed  the  contract,  and  Thrash,  who  purchased 
of  him  with  notice  of  the  claim  of  the  plaintiff.  The  true  principle 
upon  which  specific  performance  is  decreed  does  not  rest  simply  upon 
a  mere  arbitrary  distinction  as  to  different  species   of  property,  but 

3  The  case  was  reversed  and  remanded  on  another  point. 

4  Part  of  the  opinion  is  omitted. 


96  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

it  is  founded  upon  the  inadequacy  of  the  legal  remedy  by  way  of  pecu- 
niary damages.  This  principle  is  acted  upon  (1)  where  there  is  a  pe- 
culiar value  attached  to  the  subject  of  the  contract  which  is  not  com- 
pensable in  damages.  The  law  assumes  land  to  be  of  this  character 
"simply  because,"  says  Pearson,  J.,  in  Kitchen  v.  Herring,  42  N.  C. 
191,  "it  is  land, — a  favorite  and  favored  subject  in  England,  and  ev- 
ery country  of  Anglo-Saxon  origin."  The  law  also  attaches  a  pecul- 
iar value  to  ancient  family  pictures,  title-deeds,  valuable  paintings,  ar- 
ticles of  unusual  beauty,  rarity,  and  distinction,  such  as  objects  of 
vertu.  A  horn  which,  time  out  of  mind,  had  gone  along  with  an  es- 
tate, and  an  old  silver  patera,  bearing  a  Greek  inscription  and  dedica- 
tion to  Hercules,  were  held  to  be  proper  subjects  of  specific  perform- 
ance. These,  said  Lord  Eldon,  turned  upon  the  pretium  affectionis, 
which  could  not  be  estimated  in  damages.  (Not  reported.)  So,  for  a 
faithful  family  slave,  endeared  by  a  long  course  of  service  or  early 
association,  Chief  Justice  Taylor  remarked  that  "no  damages  can 
compensate,  for  there  is  no  standard  by  which  the  price  of  affection 
can  be  adjusted,  and  no  scale  to  graduate  the  feelings  of  the  heart." 
Williams  v.  Howard,  7  N.  C.  80. 

The  principle  is  also  applied  (2)  where  the  damages  at  law  are  so 
uncertain  and  unascertainable,  owing  to  the  nature  of  the  property 
or  the  circumstances  of  the  case,  that  a  specific  performance  is  indis- 
pensable to  justice.  Such  was  formerly  held  as  to  the  shares  in  a 
railway  company,  which  differ,  says  the  court  in  Ashe  v.  Johnson,  55 
N.  C.  149,  from  the  funded  debt  of  the  government,  in  not  always 
being  in  the  market  and  having  a  specific  value ;  also  a  patent,  (Corbin 
v.  Tracy,  34  Conn.  325 ;)  a  contract  to  insure,  (Carpenter  v.  Insur- 
ance Co.,  4  Sandf.  Ch.  (N.  Y.)  408;)  and  like  cases.  The  general 
principle  everywhere  recognized,  however,  is  that,  except  in  cases 
falling  within  the  foregoing  principles,  a  court  of  equity  will  not  de- 
cree the  specific  performance  of  contracts  for  personal  property ; 
"for,"  remarks  Pearson,  J.,  in  Kitchen  v.  Herring,  supra,  "if,  with 
money,  an  article  of  the  same  description  can  be  bought,  *  *  * 
the  remedy  at  law  is  adequate."     See,  also,  Pom.  Spec.  Perf.  14. 

Applying  these  principles  to  the  facts  alleged  in  the  complaint,  it 
must  follow,  we  think,  that  this  is  not  a  case  which  calls  for  the  exer- 
cise of  the  equitable  power  of  the  court.  '  The  trees  were  purchased 
with  a  view  to  their  severance  from  the  soil,  and  thus  being  converted 
into  personal  property.  It  is  not  shown  that  they  have  any  peculiar 
value  to  the  plaintiff,  nor  does  there  appear  any  circumstances  from 
which  it  may  be  inferred  that  the  breach  of  the  contract  may  not  be 
readily  compensated  for  in  damages.  Neither  is  it  shown  that  other 
trees  may  not  be  purchased,  but  it  is  simply  alleged  that  they  are 
scarce  at  the  contract  price.  The  simple  fact  that  they  are  near  a 
water-course  does  not  alter  the  case,  for  the  convenience  of  transpor- 
tation are  elements  which  may  be  considered  in  the  estimation  of  the 
damages.     Neither  is  the  circumstance  that  the  plaintiff  purchased  "a 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE  97 

few  trees  of  like  kind,"  in  the  vicinity,  sufficient  to  warrant  the  equi- 
table intervention  of  the  court.  We  can  very  easily  conceive  of  cases 
in  which  contracts  of  this  nature  may  be  specifically  enforced,  but  we 
can  see  nothing  in  this  complaint  which  calls  for  such  extraordinary 
relief.  The  ruling  of  the  court  as  to  this  branch  of  the  case  is  sus- 
tained.    As  to  the  other  cause  of  action,  it  is  reversed. 


(B)  Equity  Jurisdiction  from  Nature  of  the  Contract: 
Subject-Matter 

EMERZIAN  v.  ASATO. 

(District  Court  of  Appeal  of  California,  Third  District,  1913.    23  Cal.  App.  251, 

137  Pac.  1072.) 

Appeal  from  Superior  Court.  Fresno  County;  Geo.  E.  Church, 
Judge. 

Suit  for  specific  performance  by  Karl  Emerzian  against  Sosei  Asato. 
Judgment  for  plaintiff,  and  defendant  appeals. 

Chipman,  P.  J.s  This  is  an  action  to  enforce  the  specific  perform- 
ance of  a  written  contract  to  deliver  certain  (nursery)  orange  trees ;  to 
enjoin  defendant,  during  the  pendency  of  the  action,  from  disposing 
of  said  trees  otherwise  than  as  provided  in  said  contract ;  for  damages 
resulting  from  defendant's  failure  to  properly  care  for  said  trees ;  and 
for  such  further  relief  as  may  be  proper  in  the  premises. 

A  jury,  called  to  try  the  issues  of  fact,  returned  a  general  verdict  for 
the  defendant.  On  motion  of  plaintiff  the  court  set  aside  the  verdict 
and  gave  its  decision  in  favor  of  plaintiff. 

The  contract  of  which  specific  performance  was  sought  was  entered 
into  June  8,  1909,  by  which  first  party  (plaintiff)  agreed  to  buy  and  sec- 
ond party  (defendant)  agreed  to  sell — 

"4,000  Washington  orange  trees  more,  or  less,  for  the  sum  of  twenty-five  cents 
per  tree  as  follows,  to  wit:  Party  of  the  second  part  will  immediately  at  his 
place  of  business  in  the  town  of  Centerville,  Fresno  county,  California,  pro- 
ceed to  put,  cultivate  and  care  for  said  orange  trees  for  a  period  of  one  year 
from  date,  whereon,  and  of  which  time,  party  of  the  first  part  will  select 
from  the  body  of  the  orange  trees,  so  grown  by  the  party  of  the  second  part 
4,000  orange  trees,  all  of  which  must  be  good  strong  healthy  trees  and  over 
two  feet  high,  after  which  time  party  of  the  first  part  shall  pay  tbe  party  of 
the  second  part  reasonable  value  for  any  services  necessary  to  care  for  said 
trees  for  one  year  more,  whereby  on  and  in  the  month  of  June,  1911,  said 
party  of  the  second  part  agrees  carefully  and  in  a  workmanlike  manner  to 
ball  the  said  trees  and  place  the  same  in  proper  condition  to  be  delivered  to 
party  of  the  first  part.  Party  of  the  first  part  to  arrange  the  sacks  sufficient 
for  said  balling  and  party  of  the  first  part  agrees  to  pay  party  of  second  part 
sum  of  twenty-five  dollars  cash  on  execution  and  delivery  of  this  agreement, 
the  sum  of  one  hundred  dollars,  on  or  before  ninety  days  from  date,  the  re- 

5  Parts  of  the  opinion  are  omitted. 
Roke  Eq. — 7 


98  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

mainder  of  the  purchase  price  to  be  paid  when  the  said  trees  are  accepted 
and  delivered  to  the  party  of  the  first  part." 

*********  * 

In  its  decree  the  court  adjudged  as  follows  : 

"First.  That  plaintiff  is  entitled  to  have  and  receive  from  defendant  the 
2,600  orange  trees  selected  by  plaintiff  in  June,  1911,  from  the  body  of  the 
orange  trees  being  grown  by  defendant  in  or  near  the  town  of  Centerville, 
comity  of  Fresno,  state  of  California,  as  specified  in  the  written  contract  set 
forth  in  the  complaint.  Second.  That  plaintiff  furnish  sacks  sufficient  to  ball 
said  trees.  Third.  That  defendant  thereupon  ball  the  same  in  careful  and 
workmanlike  manner,  and  place  the  same  in  proper  condition  to  be  delivered 
to  plaintiff  and  deliver  the  same  to  him.  Fourth.  That  thereupon  plaintiff 
pay  to  defendant  the  sum  of  25  cents  for  each  tree  delivered,  and  the  fur- 
ther sum  of  $10  for  expenses  incurred  in  the  care  of  said  trees  from  June, 
1911,  and  the  sum  of  $10  being  the  rental  value  of  the  land  upon  which  the 
same  were  being  grown,  from  June,  1911.  Fifth.  In  the  event  that  the  de- 
fendant shall  be  unable  to  deliver  2,600  trees  by  reason  of  any  injury  which 
has  been  suffered  since  June,  1911,  the  defendant  shall  deliver  other  trees  of 
a  quality  and  size  equal  to  those  selected  by  plaintiff  in  June,  1911,  instead 
thereof,  or  shall  pay  to  plaintiff  for  such  shortage  at  the  rate  for  which  simi- 
lar trees  can  be  bought  at  or  near  the  same  place.  Sixth.  In  the  event  that 
the  parties  hereto  cannot  agree  as  to  the  number  of  trees  injured,  or  the 
amount  of  injury  done,  if  any,  or  the  size  or  quality  of  trees  offered  in  lieu 
of  injured  trees,  or  the  price  of  such  trees  as  defendant  shall  fail  to  deliver, 
an  application  may  be  made  to  this  court  for  the  appointment  of  a  referee  to 
hear  and  determine  such  matters,  and  this  case  is  left  open  for  such  purpose. 
Seventh.  The  defendant  is  enjoined  from  disposing  of,  or  dealing  with  said 
trees  in  any  manner  other  than  herein  provided." 

********** 

It  seems  to  us  that,  in  view  of  the  undisputed  facts  and  on  the  face  of 
the  pleadings,  findings,  and  decree,  it  is  apparent  that  plaintiff  may  be 
fully  compensated  in  damages,  and  that  his  remedy  is  at  law  only. 
There  is  a  presumption  that  the  breach  of  an  agreement  to  transfer 
personal  property  can  be  relieved  by  pecuniary  compensation.  Civ. 
Code,  §  3387.  And  where  the  breach  of  a  contract  to  transfer  personal 
property  can  be  thus  compensated,  an  injunction  cannot  be  granted  to 
prevent  the  breach.  Code  Civ.  Proc.  §  526,  subd.  4.  Performance  of 
an  obligation  to  render  personal  service  cannot  be  specifically  enforced. 
Civ.  Code,  §  3390.  Commenting  upon  sections  3387  and  3389  of  the 
Civil  Code,  Mr.  Justice  Henshaw  said,  in  Clock  v.  Howard  &  Wilcox 
Colony  Co.,  123  Cal.  1,  6,  55  Pac.  713,  714  (43  L.  R.  A.  199,  69  Am.  St. 
Rep.  17): 

"It  is  to  be  remembered  that  equity,  designed  but  to  supplement  the  de- 
ficiencies of  the  law,  will  withhold  its  aid  where  the  law  affords  full  redress. 
For  both  these  classes  of  cases,  then — that  is  to  say,  for  those  where  the  law 
is  sufficient,  and  for  those  where  equity  is  powerless  to  aid — the  injured  party 
must  seek  legal  redress." 

"In  general  a  court  of  equitable  jurisdiction  will  not  decree  the  specific  per- 
formance of  contracts  relating  to  chattels  because  there  is  not  any  specific 
quality  in  the  individual  articles  which  gives  them  special  value  to  the  con- 
tracting party,  and  their  money  value  recovered  as  damages  will  enable  him 
to  purchase  others  in  the  market  of  the  like  kind  and  quality."  Pomeroy  on 
Contracts,  Specific  Performance,  §  11. 

If  the  personal  property  has  a  market  value,  is  bought  and  sold  in 
the  open  market,  and  has  no  special  or  unique  value,  the  remedy  at  law 
is  sufficient,  since  with  the  unpaid  purchase  money  and  the  moneys  re- 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE  99 

covered  by  action  the  vendee  can  buy  in  the  open  market  property  of 
the  same  character  as  that  contracted  for,  if  the  vendor  is  in  fault ; 
likewise,  where  the  vendee  is  in  fault,  the  vendor  may  sell  in  the  open 
market  and  the  purchase  price  obtained,  together  with  his  damages,  will 
furnish  full  compensation.     *     *     * 

Plaintiff's  right  was  simply  to  go  into  the  open  market  and  buy  the 
trees  required  by  him  and  bring  his  action  against  defendant  for  dam- 
ages. If  there  had  been  no  Washington  (navel)  orange  trees  available, 
and  plaintiff  could  not  therefore  supply  his  needs  of  this  particular 
kind  of  tree,  and  it  had  appeared  that  defendant  could  supply  them, 
there  might  have  been  some  ground  for  holding  defendant  to  the  spe- 
cific performance  of  his  agreement.  But  no  such  state  of  facts  was 
alleged  nor  proven.  We  cannot  see  that  this  case  is  any  different  from 
that  where  a  farmer  agrees  to  sell,  but  afterwards  refuses  to  deliver,  a 
certain  number  of  tons  of  alfalfa  hay  or  other  product  of  his  farm  of 
which  there  is  an  abundance  to  be  purchased  in  the  open  market.  In 
such  a  case  we  do  not  think  it  would  for  a  moment  be  contended  that 
the  vendee  could  go  into  an  equity  court  and  restrain  this  farmer  from 
selling  his  hay  to  some  other  person,  compel  him  to  irrigate  or  other- 
wise care  for  it,  and  bale  and  deliver  it  to  the  vendee  at  some  future 
time.     *     *     * 

Attention  has  been  called  to  the  failure  to  find  upon  the  issue  of  in- 
solvency. In  the  cases  cited  by  respondent  insolvency  was  a  material 
factor.  Insolvency  of  itself  is  not  a  ground  of  equitable  interference, 
but,  as  said  by  Mr.  Justice  Thompson,  in  Heilman  v.  Union  Canal  Co., 
37  Pa.  100,  referred  to  in  Livesly  v.  Johnston,  45  Or.  30,  76  Pac.  13, 
946,  65  L.  R.  A.  783,  106  Am.  St.  Rep.  647,  cited  by  respondent : 

"In  balancing  cases,  it  is  a  consideration  that  gives  preponderance  to  the 
remedy." 

In  the  present  case  it  was  alleged,  and,  we  think,  was  a  controlling 
factor  and  should  have  been  proven  and  found  by  the  court.     ;;:     *     * 
The  judgment  is  reversed. 
We  concur:    Hart,  J.;    Burnett,  J. 


TEXAS  CO.  v.  CENTRAL  FUEL  OIL  CO.  et  al. 

(Circuit  Court  of  Appeals  of  the  United  States,  Eighth  Circuit,  1012. 
194  Fed.  1,  114  C.  C.  A.  21.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Eastern 
District  of  Oklahoma. 

Suit  in  equity  by  the  Texas  Company  against  the  Central  Fuel  Oil 
Company  and  others.  From  a  decree  dismissing  the  bill  on  demurrer, 
complainant  appeals. 

The  appellant,  a  corporation  created  by  and  having  its  domicile  in  the 
state  of  Texas,  filed  its  bill  in  the  court  below  against  the  defendants, 


100  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Ch.  2 

seeking  specific  performance  of  a  contract  made  by  it  with  the  defend- 
ant Central  Fuel  Oil  Company.  A  temporary  restraining  order  was 
granted  on  an  ex  parte  hearing  on  the  bill  and  affidavits  filed  with 

|4-  *  *  * 

The  defendant  the  Central  Fuel  Oil  Company,  hereafter  called  the 
"Central  Company,"  was  a  holding  company.-  It  held  a  majority  of  the 
stock  of  numerous  corporations  which  had  subleases  of  lands,  some  of 
which  originally  belonged  to  the  Osage  Indians,  the  Creek  Indians,  and 
the  Cherokees,  under  which  those  companies  were  entitled  to  drill  for 
and  take  oil  from  the  land.  Some  of  these  leases  were  subject  to  re- 
strictions, and  others  were  free  from  such  restrictions.  The  Central 
Company  by  virtue  of  its  ownership  and  control  of  these  subsidiary 
companies  and  the  leases  was  enabled  to  produce  large  quantities  of  oil 
in  the  Bartlesville  field,  but  there  was  only  one  method  by  which  it 
could  get  this  oil  to  the  market,  and  that  was  by  sale  to  the  Prairie  Oil 
&  Gas  Company,  a  subsidiary  company  of  the  Standard  Oil  Company, 
that  being  the  only  company  which  had  a  pipe  line  in  that  territory.  It 
was  desirous  of  getting  a  pipe  line  into  the  Bartlesville  field,  so  that  it 
might  transport  its  oil  out  without  paying  tribute  to  the  Prairie  Oil  & 
Gas  Company.  The  complainant,  the  Texas  Company,  was  a  refining 
company  and  the  owner  of  pipe  lines  piping  oil  from  Tulsa,  Okl.,  and 
other  regions  to  the  Gulf  of  Mexico  in  the  state  of  Texas,  and  the  Cen- 
tral Company  entered  into  negotiations  with  the  Texas  Company  to 
procure  an  outlet  for  its  oil. 

The  result  of  these  negotiations  was  a  contract  between  the  two  com- 
panies, the  Texas  Company  and  the  Central  Fuel  Oil  Company,  made 
on  June  13,  1910,  by  the  terms  of  which  it  was  agreed: 

(1)  The  Central  Company  was  to  deliver  to  the  Texas  Company,  and 
the  latter  agreed  to  receive,  all  crude  petroleum  which  might  be  tender- 
ed by  the  Central  Company  from  the  property  it  owned  or  controlled 
by  corporations,  which  were  fully  described,  and  also  from  other  prop- 
erties which  the  Central  Company  might  then  own,  or  thereafter  ac- 
quire during  the  term  of  the  contract  in  the  Bartlesville  or  northern 
Oklahoma  field,  either  directly  or  through  ownership  of  a  majority  of 
the  outstanding  stock. 

(2)  The  crude  petroleum  was  to  be  of  merchantable  quality,  and  be 
delivered  from  the  tanks  owned  or  designated  by  the  Central  Company 
in  the  north  Oklahoma  field  and  subject  to  the  customary  and  usual 
deduction  in  determining  the  quantity,  and  be  of  gravity  not  less  than 
30  degrees  Beaume,  but  the  Texas  Company  was  not  to  be  required  to 
receive  more  than  20,000  barrels  in  any  one  day  nor  more  than  540,000 
barrels  in  any  one  month  of  30  days.  The  Central  Company  also 
agreed  that  it  would  operate  or  cause  to  be  operated  all  of  the  proper- 
ties covered  by  the  contract,  and  would  tender  all  of  the  products  real- 
ized from  these  properties  up  to  the  maximum  stated.     *     *     * 

Before  Sanborn  and  Hook,  Circuit  Judges,  and  Trieber,  District 
Judge. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        101 

TriEbSR,  District  Judge  6  (after  stating  the  facts  as  above).  If  the 
sole  object  of  the  bill  of  complaint  is  to  obtain  a  decree  for  specific  per- 
formance of  the  contract  for  the  delivery  of  the  oil,  the  proceeding 
would  be  one  in  personam,  and  such  an  action,  in  the  absence  of  a 
statute  conferring  jurisdiction  in  rem,  would  not  be  local,  but  transi- 
tory, and  could  be  maintained  in  any  court  having  jurisdiction  of  the 
person  of  the  defendant.     *     *     * 

An  action  at  law  for  damages  would  not  enable  complainant  to  re- 
cover all  damages  it  may  suffer  by  reason  of  the  breach  of  contract. 
The  damages  in  this  case  are  impossible  of  proof.  Xo  one  can  say 
what  amount  of  oil  the  Central  Company  will  or  can  produce  during  the 
life  of  the  contract  by  a  conscientious  attempt  to  comply  with  it.  It  is 
a  well-known  fact,  of  which  courts  are  bound  to  take  judicial  notice, 
that  oil  is  fugacious,  and  may  be  drawn  away  by  strangers  through  oth- 
er wells.  The  flow  of  the  wells  decreases  in  the  course  of  years,  and 
long  before  the  expiration  of  this  contract  these  wells  may  become  en- 
tirely dry.  Any  damages  awarded  would  be  wholly  speculative  and  un- 
certain, and  without  any  possibility  of  sufficient  legal  proof  to  sustain 
the  judgment.  Wilkinson  v.  Colley,  164  Pa.  43,  30  Atl.  286,  26  L.  R.  A. 
114;  McCornick  v.  United  States  Mining  Co.,  185  Fed.  748,  108  C.  C. 
A.  86,  and  authorities  there  cited ;  Peale  v.  Marian  Coal  Co.  (C.  C.) 
190  Fed.  376,  388. 

If,  as  suggested,  successive  actions  for  the  damages  suffered  may  be 
instituted  upon  the  expiration  of  certain  fixed  periods,  when  the  amount 
of  oil  taken  from  the  wells  during  the  preceding  period  has  been  ascer- 
tained, there  would  necessarily  have  to  be  a  multiplicity  of  suits,  to 
avoid  which  the  intervention  of  a  court  of  equity  is  certainly  proper. 
Bank  of  Kentucky  v.  Schuylkill  Bank,  1  Pars.'Eq.  Cas.  (Pa.)  180; 
Peale  v.  Marian  Coal  Co.  (C.  C.)  172  Fed.  639. 

In  addition  to  these  considerations,  it  appears  from  the  bill,  and  the 
contract  between  the  parties  establishes  it,  that  one  of  the  main  induce- 
ments to  this  contract  was  to  enable  the  complainant,  by  obtaining  the 
crude  oil,  to  utilize  the  three  refineries  it  then  owned  and  had  in  opera- 
tion in  the  state  of  Texas  and  one  it  was  then  constructing  in  the  state 
of  Oklahoma ;  and  to  enable  the  Central  Company,  which  at  that  time 
could  only  dispose  of  the  oil  produced  from  its  wells  through  a  sale  to 
the  Prairie  Oil  &  Gas  Company,  to  make  sales  of  its  products  to  other 
companies  and  obtain  the  benefit  of  competitive  prices.  For  this  pur- 
pose, it  was  necessary  for  the  Central  Company  to  haye  pipe  lines  ex- 
tended to  its  oil  fields  and  to  be  connected  with  lines  extending  to  places 
where  there  was  a  market  for  its  crude  oils.  One  of  the  provisions  of 
the  contract  was : 

'The  Texas  Company  agrees  that  it  will  promptly  and  with  all  reasonable 
speed  extend  its  pipe  line  system  to  Bartlesville  or  the  north  Oklahoma  field, 
as  above  described,  and  will  establish  an  adequate  gathering  system  and  re- 

a  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 
Much  of  the  opinion  that  is  here  omitted  is  printed  at  page  166,  infra. 


102  SPECIFIC   PERFORMANCE    OF   CONTRACTS  (Ch.  2 

lated  facilities  as  will  enable  it  to  perform  the  duties  of  this  contract,  such  to 
be  completed  not  later  than  January  22,  1911." 

The  bill  charges  that  complainant  built  this  pipe  line  and  erected 
tanks  and  installed  pumping  stations  necessary  to  carry  out  the  provi- 
sions of  the  contract  at  an  expense  of  $700,000,  that  these  improve- 
ments are  of  a  permanent  nature,  and,  unless  the  oil  thus  contracted  for 
is  delivered  to  it,  this  pipe  line  and  pumping  stations  are  of  but  little 
value,  if  any,  and  the  cost  thereof  practically  lost.  These  facts  clearly 
exclude  a  conception  that  an  action  at  law  will  afford  a  complete  and 
adequate  remedy.     *     *     * 

It  is  also  contended  that  specific  performance  is  not  the  proper 
remedy  to  enforce  a  contract  affecting  personal  property.  When  an 
action  for  damages  is  adequate,  a  court  of  equity  is  without  jurisdic- 
tion. As  hereinbefore  shown,  however,  such  an  action  would  not 
afford  complainant  in  this  case  adequate  relief.  It  is  now  well  settled 
that,  when  the  chattels  are  such  that  the}-  are  not  obtainable  in  the 
market,  or  can  only  be  obtained  at  great  expense  and  inconvenience, 
and  the  failure  to  obtain  them  causes  a  loss  which  could  not  be  ade- 
quately compensated  in  an  action  at  law,  a  court  of  equity  will  decree 
specific  performance.  Equitable  Gaslight  Co.  v.  Baltimore  Coal  Tar 
&  Mfg.  Co.,  63  Aid.  285;  Gloucester  Isinglass  &  Glue  Co.  v.  Rus- 
sia Cement  Co.,  154  Mass.  92,  27  N.  E.  1005,  12  L.  R.  A.  563,  26 
Am.  St.  Rep.  214;  Offutt  v.  Offutt,  106  Md.  236,  67  Atl.  138.  12  L. 
R.  A.  (N.  S.)  232,  124  Am.  St.  Rep.  491;  Harris  v.  Parry,  215  Pa. 
174,  64  Atl.  334;  Richmond  v.  Dubuque,  etc.,  R.  R.  Co.,'  33  Iowa, 
480;  Chehak  v.  Battles,  133  Iowa,  107,  110  X.  W.  330.  8  L.  R.  A. 
(N.  S.)  1130,  12  Ann.  Cas.  140:  Law  v.  Smith,  68  X.  J.  Eq.  81.  5') 
Atl.  327;   Newton  v.  Wooley  (C.  C.)  105  Fed.  541. 

From  the  allegations  in  the  bill  it  appears  that  crude  oil  cannot  as 
a  rule  be  purchased  in  the  open  market,  but,  to  obtain  it,  the  refining 
and  pipe  line  companies  must  extend  their  pipes  at  enormous  expense 
to  the  oil  fields,  assuming  that  the  oil  fields  can  be  found.  It  is 
charged  that  in  1910  the  oil  production  in  the  localities  reached  by 
complainant's  pipe  line  system  had  greatly  declined,  and  is  still  de- 
clining; that  this  was  one  of  the  vital  considerations  leading  to  the 
execution  of  the  contract  by  the  complainant;  that  other  pipe  line 
companies  have  acquired  and  obtained  control  of  large  acreages,  if  not 
practically  of  all  producing  and  prospective  oil  lands  and  leases  in 
those  localities ;  and,  if  said  contract  is  not  specifically  performed, 
complainant  charges  its  pipe  lines  and  refineries  will  remain  idle  to 
that  extent. 

In  Equitable  Gaslight  Co.  v.  Baltimore  Coal  Tar  &  Mfg.  Co.,  spe- 
cific performance  was  decreed  on  a  contract  to  sell  coal  tar  which 
plaintiff  needed  in  order  to  fulfill  existing  contracts  and  which  it  was 
impossible  to  obtain  otherwise  than  by  purchasing  in  distant  cities 
and  transporting  the  same  at  great  expense.  In  Gloucester  Isinglass 
&  Glue  Co.  v.  Russia  Cement  Co.  specific  performance  was  decreed  of 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         103 

a  contract  to  furnish  fish  skins  to  be  used  in  the  manufacture  of  glue. 
It  appeared  that  fish  skins  were  of  very  limited  production ;  that  most 
of  the  producers  were  under  contract ;  and  that,  unless  relief  were 
given  by  specific  performance,  it  would  be  very  difficult,  if  not  impos- 
sible, for  the  complainant  to  carry  on  its  business.  The  equities  in 
those  cases  were  no  stronger  than  those  in  this  case.     *     *     * 

The  decree  of  the  court  below  is  reversed,  with  directions  to  grant 
a  temporary  injunction,  and  proceed  in  conformity  with  this  opinion. 


BLAKE  et  al.  v.  FLAHARTY. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1888.     44  N.  J.  Eq.  228,  10  Atl. 
158,  14  Atl.  128,  6  Am.  St.  Rep.  886.) 

Scudder,  J.  A  bill  was  filed  for  the  specific  performance  of  a  con- 
tract in  writing,  signed  by  the  defendant  John  Blake,  to  convey  a  lot 
of  land  for  the  sum  of  $55,  to  be  paid  in  cash  when  the  purchaser  re- 
ceived his  deed.  Five  dollars  was  paid  on  signing  the  contract.  The 
land  is  described  in  the  receipt  given,  and  memorandum  of  sale,  as  a 
lot  of  land  near  lands  of  Michael  Hagerty.  It  appears  in  the  evidence 
that  before  the  writing  was  signed  by  Blake  the  lot  wras  examined  and 
designated  by  the  parties,  and  there  is  no  dispute  or  difficulty  as  to  the 
exact  location  of  the  land  intended  to  be  conveyed,  for  a  more  par- 
ticular description  is  given  in  the  bill  of  complaint,  and  admitted  in 
the  answer  to  be  correct.  The  defendant  Blake  further  offers  in  his 
answer  to  make  the  conveyance  required,  as  he  has  always  been  will- 
ing to  do ;  but  his  wife  refuses  to  execute  the  deed.  Both  say  that 
she  had  no  knowledge  of,  and  never  gave  her  consent  to,  the  contract 
for  a  conveyance.  The  decree  directs  a  deed  to  be  made  by  Blake  to 
the  complainant,  not  by  his  wife,  and  does  not  require  any  indemnity 
against  her  subsequent  acts,  as  no  sufficient  evidence  of  fraud  or  col- 
lusion was  shown.  It  gives  the  costs  of  suit  to  the  complainant 
against  Blake,  and  dismisses  the  bill  as  to  the  wife,  but  without  costs 
to  her  or  the  complainant. 

It  appears  from  this  statement  of  the  case  that  the  real  grievance  of 
which  defendants,  who  have  taken  this  appeal,  may  justly  complain, 
is  the  imposition  of  a  large  bill  of  costs  upon  each  of  them.  It  might 
be  said  that  the  court  can  properly  relieve  the  defendants  by  revers- 
ing the  decree  for  costs,  and  putting  them  upon  the  complainant,  who 
gets  by  the  decree  only  what  he  might  have  had  without  controversy, 
— the  title  of  the  husband  to  the  lot  of  land.  This,  however,  would 
not  reach  the  question  which  has  been  mainly  considered  by  us  in  this 
case,  and  which  was  overlooked  in  the  court  below,  though  pleaded  in 
the  separate  answers,  and  the  same  benefit  claimed  as  if  each  had 
demurred  to  the  complainant's  bill.  This  question  is  whether  it  is  cor- 
rect practice  for  a  court  of  equity  to  compel  a  specific  performance 


104  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

of  a  contract  for  the  conveyance  of  land,  where  the  purchase  price  is 
so  small  as  to  be  but  little  more  than  the  usual  costs  of  an  undefended 
suit  in  the  court  of  chancery,  less  than  the  complainant's  taxed  costs 
in  this  case,  and  no  special  equity  is  shown  in  the  bill.  The  lot  de- 
scribed is  a  small,  unimproved  piece  of  land,  without  any  peculiar 
value  to  the  complainant  for  business  purposes,  or  by  any  connection 
with  his  other  property,  or  for  any  use  to  which  he  may  wish  to  ap- 
ply it. 

A  case  may  be  conceived  where  a  small  lot  of  land,  of  little  value 
to  others,  might  be  so  located  as  to  be  an  important  possession  to  a 
purchaser.  In  such  case  his  claim  for  a  conveyance  would  be  based 
on  his  equity  to  have  it  because  no  other  adequate  relief  could  be  giv- 
en to  him.  This  is  the  original  foundation  of  the  jurisdiction  of 
courts  of  equity  to  compel  a  specific  performance  of  contracts  for  the 
conveyance  of  land.  A  wider  rule  has  been  adopted  in  many  cases, 
and  it  is  said  that,  where  a  contract  respecting  real  estate  is  in  its  na- 
ture and  circumstances  unobjectionable,  it  is  as  much  a  matter  of 
course  for  courts  of  equity  to  decree  a  specific  performance  of  it  as 
it  is  for  a  court  of  law  to  give  damages  for  the  breach  of  it.  Hall  v. 
Warren,  9  Yes.  605 ;  Greenaway  v.  Adams,  12  Yes.  395 ;  King  v. 
Hamilton,  4  Pet.  311,  7  L.  Ed.  869;  1  Story,  Eq.  Jur.  §§  750,  751. 
But  it  is  also  held  that  courts  of  equity  will  not  interfere  to  decree  a 
specific  performance,  except  in  cases  where  it  would  be  strictly  equi- 
table to  make  such  a  decree.  Whether,  therefore,  the  contract  shall 
be  enforced  specifically  must  rest  in  the  sound  and  reasonable  discre- 
tion of  the  court,  depending  on  the  equity  of  the  particular  case,  and 
the  nature  of  the  objections  to  it.  It  must  determine  what  are  the 
objectionable  circumstances  which  will  control  its  jurisdiction  in  such 
cases,  within  the  established  rules  of  equity,  though  none  of  these 
rules  are  of  absolute  obligation  and  authority  in  all  cases.  Gariss  v. 
Gariss,  16  N.  J.  Eq.  79;  Pinner  v.  Sharp,  23  N.  J.  Eq.  274;  Locan- 
der  v.  Lounsbery,  24  N.  J.  Eq.  417;  Plummer  v.  Keppler,  26  N.  J. 
Eq.  481 ;   Brown  v.  Brown,  33  N.  J.  Eq.  650;    1  Story,  Eq.  Jur.  §  742. 

It  is  a  serious  objection  to  the  exercise  of  the  extraordinary  juris- 
diction of  the  court  in  this  case  that  there  is  not  an  allegation  in  the 
bill  of  complaint,  nor  a  single  fact  in  the  evidence,  to  show  that  the 
complainant  would  be  in  a  worse  position  if  he  should  bring  his  action 
at  law  to  recover  damages  for  a  breach  of  this  agreement,  nor  a  rea- 
son given  for  burdening  the  defendants  with  large  bills  of  costs  in 
such  a  small  matter.  An  action  for  damages,  where  the  amount  that 
can  be  reasonably  claimed  is  so  little,  must,  by  statute,  be  brought  in 
an  inferior  court  of  law,  where  the  costs  are  much  less  than  in  the 
higher  courts  of  law  or  equity.  To  permit  the  complainant  to  evade 
this  statutory  limitation  of  costs  by  bringing  his  action  in  a  higher 
court,  and  claiming  a  remedy  which  does  not  appear  to  be  in  any  way 
more  beneficial  to  him,  would  be  contrary  to  the  policy  of  the  law,  and 
unjust  in  its  results.    If  this  decree  is  affirmed,  the  defendant  will  lose 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         105 

the  whole  purchase  price  of  his  land  in  costs,  and  the  complainant  be 
in  no  better  position  than  if  he  had  pursued  his  less  expensive  remedy 
at  law.  The  case  is  without  precedent  in  the  small  value  of  the  land 
in  controversy,  and  the  absence  of  any  special  cause  for  its  prosecu- 
tion in  a  court  of  equity.  These  objections  conjoined  are  sufficient  to 
influence  this  court  to  deny  the  relief  which  the  complainant  has 
sought  in  his  bill  for  specific  performance.  The  decree  will  be  revers- 
ed, the  bill  dismissed,  and  costs  allowed  to  the  defendants.  Unani- 
mously reversed. 


BROWN  v.  SMITH. 
(Circuit  Court  of  the  United  States,  D.  South  Carolina,  1901.     109  Fed.  26.) 

In  Equity.    Suit  for  specific  performance  of  contract. 

Simonton,  Circuit  Judge.  This  is  an  action  for  specific  perform- 
ance of  a  contract  for  the  sale  of  land.  The  action  was  originally 
brought  in  the  court  of  common  pleas  of  South  Carolina,  sitting  in 
the  county  of  Aiken,  and  it  has  been  regularly  removed  into  this  court. 
The  plaintiff,  Pinckney  Brown,  was  in  possession  of  a  plantation 
known  as  "Belfast,"  situate  in  the  county  of  Barnwell,  S.  C,  claiming 
to  own  the  fee  therein.  The  defendant,  Edward  L.  Smith,  is  a  citizen 
of  the  state  of  New  York,  temporarily  residing  in  Aiken,  S.  C.  Mr. 
Smith  is  known  to  be  a  man  fond  of  field  sports,  hunting  and  bird 
shooting,  and  is  supposed  to  be  a  man  of  fortune.  Mr.  Brown  became 
desirous  of  selling  his  plantation,  and  of  removing  to  Aiken,  for  the 
purpose  of  completing  the  education  of  his  children,  and  of  giving  them 
more  enlarged  social  advantages.  To  this  end  approaches  were  made 
by  him  and  at  his  instance  to  Mr.  Smith  to  visit  the  plantation,  and  to 
observe  its  advantages  for  hunting  and  fishing,  which  finally  resulted 
in  a  visit  by  Mr.  Smith.  He  spent  a  day  or  two  on  the  plantation,  shot 
over  it  for  birds,  and  went  upon  the  pond  and  creeks  connected  with 
it  seeking  for  ducks.  Apparently  he  was  pleased  with  what  he  saw, 
and  a  few  days  afterwards,  at  an  interview  with  each  other,  they  dis- 
cussed the  sale  of  the  plantation  and  its  price.  Brown  proposed  to  sell 
the  place  as  a  whole, — the  land,  agricultural  implements,  stock,  cotton 
seed,  and  provisions  on  the  place,  in  fact,  the  entire  plantation  as  a 
whole  and  a  going  concern,— for  the  price  of  $24,000.  After  some 
trading,  he  reduced  his  price  to  $19,000.  They  then  went  to  the  office 
of  the  Messrs.  Henderson,  who  were  the  attorneys  of  Mr.  Smith, 
and  there  a  written  contract  was  prepared  by  Mr.  Henderson,  and 
executed  by  both  parties.  As  this  agreement  is  the  foundation  of  this 
case,  it  is  set  out  in  full : 

"That,  in  consideration  of  the  sum  of  nineteen  thousand  dollars  ($19,000.00), 
paid  and  to  be  paid  as  hereinafter  set  forth,  said  Brown  agrees  to  convey 
by  proper  deed  to  said  Smith  the  certain  plantation  or  tract  of  land  known 
as  the  'Belfast  Plantation'  of  said  Brown,  situate  in  Barnwell  county.  South 
Carolina,  containing  thirty-nine  hundred  and  ninety-seven  (3,997)  acres,  as 
shown    by   blue-print   plat   hereto   attached ;    also   eight  head   of   mules,  one 


10G  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

horse,  and  all  live  stock  on  place;  all  farm  implements  on  place;  four  (1) 
double-team  wagons;  one  new  single  wagon;  all  harness  of  every  kind  on 
place;  about  1,500  bushels  of  corn,  being  all  on  the  place;  all  fodder,  hay, 
pea  and  pea  vines,  and  cotton  seed  on  place;  all  personal  property  on  place, 
excepting  the  baled  cotton  and  loose  cotton  in  gin  on  the  place :  also  the  ferry 
boat.  The  said  Edward  Livingston  Smith  has  paid  twenty  dollars  this  day 
upon  the  price  agreed  on  for  above  property  (the  receipt  of  which  is  hereby 
acknowledged),  and  agrees  to  pay  the  balance  of  said  price,  to  wit,  $18,980.00, 
as  soon  as  possession  of  said  property,  real  and  personal,  is  delivered  to  him, 
and  proper  deed  executed  and  delivered  as  hereinbefore  agreed,  and  title  ap- 
proved of." 

The  next  day  after  the  agreement  was  executed,  Mr.  Smith  visited 
the  plantation,  and  as  soon  as  he  met  one  Bush,  who  resided  upon 
it  as  manager  for  Mr.  Brown,  he  told  him  that  he  had  purchased  the 
plantation,  and  thought  that  he  had  made  a  bargain.  During  that  day 
he  had  frequent  conversations  with  Bush,  and  found  that  he  had  ob- 
tained an  erroneous  impression  on  several  points  relating  to  the  size, 
the  resources,  and  the  profits  of  the  plantation.  He  took  a  memoran- 
dum in  writing  of  these  points,  and  when  Mr.  Brown  came  to  the 
plantation  the  next  day  he  produced  his  memoranda,  and  asked  an 
explanation.  They  then  and  there  discussed  these,  and  finally  Mr. 
Smith  said  that  he  thought  Brown  should  reduce  his  price  by  $1,000. 
This  Brown  refused  to  do.  After  some  further  discussion,  it  was  mu- 
tually agreed  that  the  price  should  be  $18,500,  instead  of  $19,000,  and, 
when  this  was  finally  settled,  Mr.  Smith  jumped  up,  and,  taking 
Brown's  hand,  expressed  himself  fully  satisfied.  The  plantation  had 
been  planted  in  cotton  and  watermelons  as  the  market  crops,  and  had 
upon  it  a  number  of  tenants,  living  in  houses  on  the  place,  and  paying 
rent  in  kind.  Some  of  the  plantation  was  planted  by  Mr.  Brown  him- 
self. There  was  a  supply  store  on  the  place,  called  a  "commissary," 
at  which  the  tenants  got  their  supplies.  Mr.  Smith,  on  his  visit  to  the 
plantation  after  the  execution  of  the  agreement,  had  seen  the  tenants, 
and  had  told  them  that  he  had  bought  the  place,  and  expected  them  to 
continue.  He  also  entered  into  negotiations  with  Mr.  Bush,  the  man- 
ager, looking  to  his  retention.  After  the  discussion  with  Mr.  Brown 
last  above  spoken  of,  Mr.  Smith  gave  formal  notice  to  Brown  that 
he  would  not  hold  himself  bound  by  the  agreement,  and  would  treat 
it  as  a  nullity,  at  the  same  time  demanding  the  return  of  the  $20  paid 
in  advance.    Thereupon  these  proceedings  were  instituted. 

The  bill  sets  out  the  contract,  the  circumstances  preceding  and  suc- 
ceeding it  as  above  stated,  the  delivery  of  the  control  of  the  plantation 
to  the  defendant,  and  prays  specific  performance.  The  answer  admits 
the  execution  of  the  contract,  and  seeks  to  avoid  the  same  because  it 
was  entered  into  under  facts  and  circumstances,  and  upon  false  rep- 
resentations, which  induced  the  defendant  to  purchase,  and  which 
operated  as  a  fraud  upon  him.  The  answer  sets  these  out  in  detail : 
(1)  That  said  place  and  the  lands  connected  therewith  was  a  magnifi- 
cent place  for  a  hunting  preserve,  specially  adapted  to  the  sport  of  duck 
shooting,  and  a  great  resort  for  ducks  in  the  season ;    that,  after  the 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         107 

contract  was  signed,  defendant  learned  that  this  was  untrue.  (2)  That, 
in  addition  to  its  excellence  as  a  hunting  preserve,  the  plaintiff  had 
represented  that  in  any  good  year  an  income  could  be  realized  from  the 
crops  on  the  place  of  25  or  30  per  cent,  on  the  price  asked, — in  no 
year  less  than  15  per  cent ;  that  in  the  year  1900  plaintiff  had  made  $3,- 
500  from  his  melon  crop,  and  that  he  had  60  bales  of  cotton  from  his 
rent,  and  that  he  ran  8  plows  with  his  wage  hands, — all  of  which,  after 
the  contract  was  signed,  he  found  untrue.  (3)  That  plaintiff  had  rep- 
resented that  the  profit  from  the  commissary  on  the  place  was  from 
$1,500  to  $2,000  per  year,  and  that,  after  signing  the  contract,  he  found 
that  this  was  untrue.  (4)  That,  before  signing  the  contract,  plaintiff 
had  stated  that  a  ferry  on  the  Savannah  river,  connected  with  the  place, 
earned  him  $300  per  year,  and  that  he  afterwards  found  this  to  be  un- 
true. (5)  That  representations  were  made  as  to  the  forest  trees  upon 
the  place  as  in  their  original  condition,  never  having  been  cut  for  tim- 
ber or  timber  purposes.  After  the  contract  was  signed,  he  discovered 
this  to  be  untrue,  and  he  also  found  that  the  plaintiff  had  made  con- 
tracts with  third  persons,  under  which  they  were  then  actually  en- 
gaged in  cutting  timber  on  the  place.  (6)  That,  before  signing  the  con- 
tract, defendant  had  been  told  by  plaintiff  that  he  had  refused  $16,000 
for  the  place,  which  statement  he  found  afterwards  was  false.  (7) 
That,  before  he  had  executed  the  contract,  defendant  had  been  inform- 
ed that  there  was  an  excellent  set  of  hands  on  the  place,  who  worked 
well,  and  paid  their  debts  in  the  way  of  supplies  and  advances  promptly, 
and  afterwards  that  he  found  this  representation  untrue.  (8)  That, 
before  he  signed  the  contract,  defendant  had  been  informed  that  Mr. 
Bush,  the  manager  for  Brown,  was  under  contract  with  him  to  work 
for  the  year  1901  at  $600  per  annum,  and  that  afterwards  he  found 
that  this  was  not  true.  (9)  That,  before  signing  the  contract,  defend- 
ant had  been  informed  by  the  plaintiff  that  a  large  parcel  of  land  ad- 
joining the  mill  on  the  land  lying  near  the  railroad,  and  which  had  on 
it  a  pen  or  barn  in  which  mules  were  lodged  during  the  melon  season, 
belonged  to  the  place,  and  that  afterwards  he  found  that  this  was  not 
true.  The  answer  also  insisted  that  the  plaintiff  had  a  plain,  adequate, 
and  complete  remedy  at  law. 

As  to  the  jurisdiction :  The  contract  in  this  case  is  for  the  sale  of 
a  plantation,  stocked  and  supplied,  a  going  concern.  True,  a  large 
part  of  the  contract  was  for  personalty.  But  this  personalty  was  part 
and  parcel — an  essential  part — of  the  plantation.  With  the  land  the 
personalty  made  the  subject-matter  of  the  contract  a  unit,  gave  en- 
hanced value  to  the  land ;  indeed,  was  inseparable  from  it  as  a  going 
concern.  When  personal  property  is  mingled  with  an  agreement  for 
sale  of  realty,  the  court  will  decree  specific  performance  of  the  entire 
contract.  Leach  v.  Fobes,  11  Gray,  506,  71  Am.  Dec.  732.  The  rem- 
edy at  law  will  hereafter  be  considered.7     *     *     * 

•  In  Duff  v.  Fisher  (1SG0)  15  Cal.  375,  the  suit  was  for  the  specific  per- 
formance of  a  contract  for  the  sale  of  real  and  personal  property,  to  wit:    a 


108  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

The  evidence  in  this  case  discloses  the  facts :  That  the  defendant, 
having  been  informed  of  the  supposed  advantages  and  merits  of  plain- 
tiff's plantation  as  a  game  reserve,  went  to  it  in  person,  shot  over  it, 
and  had  a  full  opportunity  of  seeing  what  kind  of  a  place  it  was  for 
ducks.  After  this  personal  inspection,  he  signed  the  contract.  So  much 
for  his  first  objection.  That  he  accepted  all  the  statements  of  the 
plaintiff  as  to  the  percentage  made  on  the  plantation,  the  amount  made 
from  rents,  the  number  of  plows  with  the  wage  hands,  the  profits  of 
the  commissary,  and  the  value  of  the  ferry,  although  he  was  on  the 
plantation  itself,  in  the  room  where  the  books  of  the  plantation  were 
kept,  and  in  full  communication  with  the  manager,  who  showed  every 
disposition  to  give  him  all  the  information  he  required.  There  is  con- 
flict of  testimony  on  much  of  this ;  but,  assuming  that  the  defendant's 
memory  is  correct,  his  purpose  to  tell  all  the  truth  cannot  be  doubted. 
He  gave  his  confidence  to  the  plaintiff,  with  the  means  in  his  power  to 
test  the  truth  of  his  statements,  when  it  is  remembered,  also,  that  he  had 
his  suspicions  excited  the  day  after  he  had  signed  the  contract,  and  put 
questions  to  the  plaintiff  from  memoranda  of  points  of  misunderstand- 
ing, and  after  all  this  reaffirmed  his  contract,  and  expressed  full  sat- 
isfaction. It  has  been  shown  also  in  the  testimony  that  the  plantation 
did  earn  in  1900  some  six  thousand  and  odd  dollars.  The  account 
sales  of  the  melons  were  produced,  and  also  those  of  the  cotton.  Air. 
Frost,  the  factor  of  plaintiff,  testified  to  the  amount  of  cotton  sold  by 
his  firm  on  account  of  this  plantation, — from  100  to  125  bales  each 
year  for  several  years  last  past.  The  plaintiff,  in  his  statements,  before 
the  contract  was  signed,  represented  the  profits  on  his  commissary  as 
from  $1,500  to  $2,000  per  year,  and  he  also  stated  the  net  income  from 
the  ferry  to  be  $300  per  year.  Both  of  these  were  overestimates.  But 
on  his  last  visit  to  the  plantation  the  defendant  has  received  intimation 
of  these,  and  they  were  discussed  by  him  with  the  plaintiff,  and  it  was 
after  this  discussion  that  he  reaffirmed  the  contract  because  of  the 
reduction  of  $500  on  the  price.  The  plaintiff  represented  that 
the  hands  on  the  place  were  excellent.  This  seems  to  be  borne 
out  in  the  testimony  of  his  neighbors  and  of  the  hands  themselves. 
One  of  the  misrepresentations  charged  is  that  Mr.  Bush,  the  overseer, 
had  contracted  to  manage  for  Brown  for  the  year  1901  for  $600.  It 
is  true  that  he  did  so  contract  with  Brown.  But  he  insisted  that  Smith 
should  pay  him  more  than  this.  Although  Bush  was  willing  to  con- 
tract with  Brown  at  the  rate,  he  was  not  bound  to  carry  out  this  con- 
tract with  Smith,  nor  could  Brown  bind  him  to  do  so.  It  is  charged 
that  plaintiff  represented  to  defendant  that  a  large  parcel  of  land  near 
the  mill  belonged  to  this  place,  and  that  this  proved  to  be  false.     Yet 

mill  and  millsite.  and  a  steamtug.  Field,  C.  J.,  said:  "The  contract  related 
to  realty  as  well  as  personalty,  and  were  it  otherwise,  the  fact  would  not  oust 
Hie  jurisdiction.  The  equity  upon  which  the  court  enforces  a  specific  perform- 
ance of  a  contract,  does  not  arise  from  the  character  of  the  property  involved, 
but  from  the  inadequate  remedy  afforded  by  a  recovery  of  damages  in  au  ac- 
tion at  law." 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         109 

when  he  signed  the  contract  of  sale  he  saw  a  blue  print,  in  which  the 
boundaries  of  the  plantation  were  distinctly  defined,  and  that  blue 
print  is  mentioned  in  the  contract,  and  made  a  part  of  it.  The  most 
important  statement  made  by  the  plaintiff  was  as  to  the  timber  on  the 
place,  and  his  omission  to  state  that  there  was  a  contract  under  which 
certain  parties  had  the  right  for  10  years  to  cut  timber  on  a  part  of  the 
swamp  lands.  The  valuation  he  put  on  the  timber  was  an  exaggeration, 
although  one  witness  gives  the  same  estimate.  It  is  charged  that  a 
statement  made  by  plaintiff  to  defendant  that  he  had  received  an  offer 
of  $16,000  for  the  land  itself  from  a  responsible  person  is  not  true. 
But  the  explanation  of  plaintiff  is  reasonable.  He  says  that  a  person 
in  Atlanta,  wanting  a  place  in  the  country,  had  offered  to  exchange 
with  him  lands  in  that  city  estimated  to  be  worth  at  least  $16,000  for 
his  land,  and  that  he  did  not  consider  the  proposal. 

Reviewing  and  considering  the  testimony,  it  is  manifest  that  the  de- 
fendant entered  into  this  contract  assuming  many,  things  to  be  true 
without  proper  examination,  and  without  using  the  means  of  verifica- 
tion at  hand.  There  was  no  sort  of  fiduciary  relation  between  him  and 
the  plaintiff.  They  were  mere  acquaintances,  and  in  their  dealings 
were  both  on  guard,  or  should  have  been.  He  is  evidently  a  gentleman 
of  culture,  of  intelligence,  and  experienced  in  affairs.  He  is  not  a  ward 
of  the  .court,  and  entitled  to  its  special  protection.  The  case  conies 
directly  within  Slaughter  v.  Gerson,  above  quoted,  and  the  defendant 
must  abide  by  his  contract.  In  Farrar  v.  Churchill,  135  U.  S.  609,  10 
Sup.  Ct.  771,  34  L.  Ed.  246,  the  court  held  that,  if  a  purchaser  of  real 
estate,  to  whom  representations  of  the  character  and  value  of  the  prop- 
erty are  made  by  the  vendor,  visits  the  property  itself  prior  to  the  sale, 
and  makes  a  personal  examination  of  it  touching  these  representations, 
he  will  be  presumed  to  rely  on  his  own  examination  in  making  the 
purchase,  and  not  upon  the  representations  of  the  vendor;  and,  in  the 
absence  of  fraud  or  concealment,  cannot  have  the  sale  set  aside.  The 
case  of  Development  Co.  v.  Silva  is  stronger  than  this.  It  is  in  125  U. 
S.  247,  8  Sup.  Ct.  881,  31  L.  Ed.  678 : 

"If  a  purchaser  investigate  for  himself,  and  nothing  is  done  to  prevent  his 
investigation  from  being  as  full  as  he  chooses,  he  cannot  say  that  he  relied 
on  the  vendor's  representations.  So,  also,  in  Claphain  v.  Shillito,  7  Beav.  146. 
If  the  means  of  investigation  and  verification  be  at  hand,  and  the  attention  of 
tbe  party  receiving  the  representations  be  drawn  to  them,  the  circumstances 
of  the  case  may  be  such  as  to  make  it  incumbent  on  a  court  of  justice  to  im- 
pute to  him  knowledge  of  the  result,  which,  upon  due  inquiry,  he  ought  to 
have  obtained,  and  thus  the  notion  of  reliance  on  the  representations  made 
to  him  may  be  excluded." 

The  question  really  is,  shall  this  contract  be  enforced  in  this  court, 
or  must  the  parties  be  left  to  the  action  at  law?  It  is  clear  that  the 
contract  cannot  be  enforced  in  its  entirety.  Much  of  the  personal  prop- 
erty which  was  subject-matter  of  the  contract  has  been  used.  The 
plaintiff,  it  appears,  is  still  carrying  on  the  plantation.  There  is  no 
evidence  at  all  as  to  the  title, — whether  the  plaintiff  can  convey  in  fee 
simple,  or  what  is  the  nature  of  the  trust  under  which  he  holds  title. 


110  SPECIFIC   PERFORMA>s"CE   OF   CONTRACTS  .        (Ch.  2 

There  appears  no  abstract  of  title,  and  no  deed  has  been  proposed  or 
tendered.  Then  no  evidence  exists  as  to  the  incumbrances  upon  the 
land,  or  the  force  and  effect  of  the  contract  for  cutting  timber  thereon, 
— hoAv  far  and  to  what  extent  it  injures  the  value  of  the  plantation. 
All  these  matters  must  be  settled  before  the  mode  of  relief  can  be  deter- 
mined upon.  It  is  ordered  that  the  cause  be  recommitted  to  the  master  ; 
that  he  take  testimony,  and  report  whether  the  plaintiff  is  seised  in  fee 
of  the  tract  of  land  the  subject-matter  of  the  proposed  sale,  and  can 
convey  a  good  title  therefor  in  fee  simple;  that  he  also  report  what 
are  the  incumbrances  upon  the  said  land,  if  any  there  be,  and  how 
and  in  what  manner  they  can  be  removed.  He  shall  also  inquire  and 
report  how  much  of  the  personalty  in  said  plantation  now  remains,  and 
the  value  of  such  as  may  have  been  used,  destroyed,  or  lost,  with  leave 
to  report  any  special  matter. 


LIYESLEY  et  al.  v.  HEISE  et  al. 
(Supreme  Court  of  Oregon,  1004.    45  Or.  14S.  76  Pac.  052.) 

Appeal  from  Circuit  Court,  Polk  County ;    R.  P.  Boise,  Judge. 

Suit  by  T.  A.  Livesley  and  another,  partners  as  T.  A.  Livesley  &  Co., 
against  A.  Heise  and  others.    Decree  for  defendants.    Plaintiffs  appeal. 

This  is  a  suit  to  compel  the  specific  performance  of  a  contract  "for  the 
sale  and  delivery  of  hops,  made  and  entered  into  January  22,  1901,  be- 
tween the  defendant  A.  Heise,  of  the  first  part,  and  the  plaintiffs,  T.  A. 
Livesley  &  Co.,  of  the  second  part.  Its  provisions,  so  far  as  they  are 
material,  are  as  follows  : 

"The  party  of  the  first  part  has  bargained  and  sold,  and  by  these  presents 
does  grant,  sell  and  convey  unto  the  said  parties  of  the  second  part,  thirty 
thousand  pounds  (net  weight)  of  his  crop  of  hops,  the  growth  of  the  years 
1001.  1902,  100:5,  1004  and  1905,  grown  on  Emerson  Harris'  and  Mrs.  N.  W. 
Harris'  farm,  situated  on  right  and  left  side  of  main  road  liotween  Bethel  and 
Independence  three  miles  south  of  Bethel  in  Polk  county,  state  of  Oregon,  of 
which  farm  forty  acres  are  set  out  in  hops,  aud  are  now  being  by  him' culti- 
vated, and  which  are  to  be  harvested  during  the  years  1901,  1002,  1003,  1904 
and  1905.  To  have  and  to  held  the  same  unto  said  T.  A.  Livesley  &  Co.,  their 
executors,  administrators  or  assigns  forever.  The  said  party  of  the  first  part 
hereby  agrees  to  complete  the  cultivation  of  the  said  hop  crop  and  to  harvest, 
cure  and  liale  the  same  in  good  first-class  and  workmanlike  manner,  and  im- 
mediately thereafter,  and  not  later  than  Oct.  13th  of  each  year  to  deliver  the 
o0,000  pounds  of  the  same  in  bales  of  about  one  hundred  and  eighty  live 
pounds  each,  in  new  24-oz.  bale  cloth  (seven  pounds  tare  per  bale  to  be  al- 
lowed) at  Crowley,  Or.  *  *  *  And  in  consideration  of  the  foregoing,  said 
parties  of  the  second  part  do  hereby  agree  to  pay  to  said  party  of  the  flrsl 
part  the  sum  of  ten  cents  per  pound  for  each  pound  of  hops  delivered  and  ac- 
cepted on  the  conditions  stipulated  for,  that  is  to  say  $100.00  paid  upon  sign- 
ing of  these  presents,  the  receipt  whereof  by  said  party  of  the  first  part  is 
hereby  acknowledged;  five  cents  per  pound  for  each  pound  of  hops  hereby 
bargained  to  be  paid  at  the  time  of  picking  said  hops,  upon  ten  days'  notice 
from  said  party  of  the  first  part,  if  iu  the  judgment  of  the  parties  of  the 
second  part  the  crop  is  in  fit  condition  to  warrant  the  advances,  and  the  bal- 
ance, if  any  there  may  then  be  due,  after  delivery  of  the  entire  amount  bar- 
gained and  sold  to,  and  acceptance  by  said  parties  of  the  second  part  at  the 
time  and  place  and  in  the  condition  as  hereinbefore  provided.     *     *     *  " 


SeC.l)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  HI 

The  complaint  sets  out  the  contract,  and,  further,  that  at  the  time  of 
the  execution  thereof  the  defendant  A.  Heise  was  a  tenant  and  in  pos- 
session of  the  land  described  therein,  which  he  had  previously  leased 
from  N.  W.  and  E.  L.  Harris,  under  a  lease  to  expire  about  October 
26,  1905  ;  that  plaintiffs  have  performed  all  the  terms  and  conditions  of 
the  contract  on  their  part,  but  that  defendant  A.  Heise  has  refused  to 
perform,  and  has  conspired  with  his  codefendants,  Rachel  E.  Heise,  his 
wife,  and  W.  C.  Heise,  his  son,  to  defraud  plaintiffs — that  is  to  say,  he 
voluntarily  and  unlawfully,  and  with  intent  to  defraud  plaintiffs,  sur- 
rendered up  to  said  X.  W.  Harris  and  E.  L.  Harris  his  said  lease  for 
the  premises,  and  pretended  to  have  the  same  canceled  and  to  surrender 
possession  of  said  premises  to  them,  but  that  in  fact  they  were  not  so 
surrendered;  that  the  defendant  A.  Heise,  notwithstanding,  continued 
in  possession  under  an  agreement  with  the  owners  that  they  would  im- 
mediately lease  the  premises  to  his  wife  and  son ;  that  the  latter  have 
ever  since,  with  full  knowledge  of  the  contract  of  sale,  pretended  to 
conduct  said  hopyards  and  farm  in  their  own  names,  but  that  it  was 
done  with  the  sole  purpose  of  assisting  A.  Heise  in  circumventing  plain- 
tiffs and  defrauding  them  out  of  their  rights  under  their  contract ;  that 
there  were  produced  upon  the  premises  during  the  present  year  (1903) 
175  bales  of  hops,  as  the  net  share  of  the  tenants,  which  in  reality  be- 
long to  the  defendant  A.  Heise;  that  he  has  refused  to  accept  from 
plaintiffs  any  of  the  advances  agreed  to  be  made,  they  having  been  duly 
tendered,  and  has  refused  to  deliver  the  hops  produced,  as  stipulated ; 
that  he  is  insolvent ;  that  plaintiffs  have  no  plain,  speedy,  and  adequate 
remedy  at  law,  and  have  tendered  into  court  for  defendants  S3.000,  the 
full  contract  price  of  the  hops.  A  decree  is  demanded,  declaring  the 
transactions  between  the  defendant  A.  Heise  and  Rachel  E.  and  W.  C. 
Heise  fraudulent  and  void  as  to  plaintiffs,  and  that  they  be  required  to 
deliver  to  plaintiffs  so  much  of  the  crop  produced  as  will  make  30,000 
pounds,  and  for  such  other  relief  as  may  seem  equitable.  A  demurrer 
having  been  sustained  to  the  complaint,  and  a  decree  entered  dismissing- 
the  suit,  plaintiffs  appeal.8 

WolvERTON,  J.  (after  stating  the  facts  as  above).  The  contract  or 
agreement  forming  the  basis  of  this  suit  is  of  similar  character  to  the 
one  sued  on  in  the  case  of  Livesley  v.  Johnston,  45  Or.  30,  76  Pac.  13l 
946,  65  L.  R.  A.  783,  106  Am.  St.  Rep.  647.  There  is  one  important  dif- 
ference, however,  which  relates  to  the  acceptance  of  the  hops.  If  of  les- 
ser quality  than  is  contracted  for,  Livesley  &  Co.  have  not  here  the  op- 
tion to  purchase  any  amount.  Another  particular  may  be  noted.  There 
was  here  no  consideration  paid  for  the  execution  of  the  contract,  as  ap- 
pears from  the  Johnston  contract,  and  as  alleged  in  the  complaint  in 
that  case.  Notwithstanding  these  differences,  however,  the  same  con- 
siderations of  construction  as  to  the  binding  effect  of  the  contract  upon 
the  parties  will  apply  here  as  in  the  Johnston  Case,  and  it  must  be  held 

8  The  statement  of  facts  is  abridged. 


112  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

to  be  valid  and  obligatory.  In  the  present  case,  in  addition  to  the  idea 
of  a  joint  venture,  as  stated  in  the  opinion  in  the  Johnston  Case,  there 
is  clear  ground  for  equitable  intervention  to  require  specific  perform- 
ance to  deliver  the  hops,  which  consists  in  the  alleged  fraudulent  collu- 
sion of  the  parties  defendant,  entered  into  with  a  view  on  the  part  of  A. 
Heise  to  avoid  his  obligations  to  plaintiffs  under  the  contract. 

The  complaint  being  otherwise  sufficient,  the  decree  of  the  trial  court 
will  be  reversed,  the  demurrer  overruled,  and  the  cause  remanded  for 
such  further  proceedings  as  may  seem  proper. 


CUD  v.  RUTTER. 

(In  Chancery  before  Lord  Macclesfield,  Chancellor,  1719.     1  P.  Wms.  570.) 

The  defendant  in  consideration  of  two  guineas  paid  down,  did  by 
note  under  hand  agree  to  transfer  1000/.  South-Sea  stock  at  a  fixt  price 
at  the  end  of  three  weeks  ;  the  plaintiff  on  the  day  demanded  the  stock, 
and  offered  to  pay  the  price ;  but  on  the  defendant's  insisting  that  he 
would  only  pay  the  difference,  and  not  transfer  the  stock,  the  plaintiff 
brings  this  bill  for  a  specific  performance,  and  to  have  the  stock  as- 
signed. 

( )bjected,  That  the  compelling  a  specific  execution  of  contracts  must 
be  allowed  to  be  discretionary  in  this  court,  and  there  was  not  a  single 
instance  or  precedent,  where  it  had  been  done  in  such  a  case  as  this  ; 
that  the  plaintiff  was  put  to  no  inconvenience,  since  the  defendant  had 
offered,  and  by  his  answer  continued  to  offer,  to  pay  the  difference ; 
that  the  plaintiff  might  for  asking  have  the  same  quantity  of  stock  any 
where  upon  the  exchange.  Indeed  had  the  agreement  been  for  a  house 
or  land,  which  might  be  a  matter  of  moment  and  use,  in  that  case  (sup- 
posing all  things  to  have  been  fairly  transacted)  there  might  be  some 
reason  why  equity  should  execute  such  agreement ;  but  in  a  matter  of 
so  little  consequence  as  the  present  case,  there  could  be  no  necessity  for 
this  court  to  interpose. 

Cur':  The  plaintiff  ought  to  have  an  execution  of  the  contract; 
for  the  agreement  is  a  fair  one,  and  in  writing,  and  part  of  the  money 
paid.  Suppose  the  whole  money  had  been  paid,  should  not  equity  have 
executed  it  ?  if  so,  where  is  the  difference  betwixt  a  great  sum  and  a 
small  one?  if  the  agreement  had  been  to  transfer  stock  or  pay  the 
difference  might  have  looked  like  stock-jobbing;  but  the  plaintiff,  as  is 
proved  in  the  cause,  refused  to  let  the  note  be  so  penned,  notwithstand- 
ing that  the  defendant  had  desired  it.  Decreeing  an  execution  of  such 
an  agreement,  its  beating  down  and  preventing  stock-jobbing.  Where- 
fore let  the  defendant  transfer  1000/.  South-Sea  stock  accounting  for  the 
dividends,  and  paying  the  costs ;  and  let  the  plaintiff  pay  the  defend- 
ant interest  for  the  money  from  the  time  that  it  ought  to  have  been 
paid,  according  to  the  contract. 

But  afterwards  on  an  appeal,  the  lord  chancellor  Parker  reversed 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  113 

this  decree,  delivering  his  opinion  with  great  clearness,  that  a  court  of 
equity  ought  not  to  execute  any  of  these  contracts,  but  to  leave  them 
to  law,  where  the  party  is  to  recover  damages,  and  with  the  money 
may  if  he  pleases  buy  the  quantity  of  stock  agreed  to  be  transferred  to 
him ;  for  there  can  be  no  difference  between  one  man's  stock  and  an- 
other's. It  is  true,  one  parcel  of  land  may  vary  from,  and  be  more 
commodious,  pleasant,  or  convenient  than  another  parcel  of  land,  but 
1000/.  South-Sea  stock,  whether  it  be  A.  B.  C.  or  D.'s  is  the  same  thing, 
and  in  no  sort  variant;  and  therefore  let  the  plaintiff,  if  he  has  a 
right,  recover  in  damages,  with  which,  when  received,  he  may  buy  the 
stock  himself. 


CHEALE  v.  KENWARD. 
(In  Chancery  before  Lord  Chelmsford,  1858.    3  De  Gex  &  J.  27,  44  E.  R.  1179.) 

This  was  an  appeal  from  the  decision  of  the  Master  of  the  Rolls 
allowing  a  demurrer.  The  Master *of  the  Rolls  allowed  the  demurrer, 
on  the  ground  that  the  agreement  could  not  be  enforced  for  want  of 
consideration  and  of  mutuality. 

The;  Lord  Chancellor.9  *  *  *  The  bill  is  for  the  specific 
performance  of  an  agreemnt  to  take  a  transfer  of  shares  in  the  Lewes 
and"  Uckfield  Railway  Company.  The  Plaintiff  was  the  registered 
owner  of  the  ten  i50  shares  in  the  company,  numbered  from  12  to  21, 
both  inclusive.  Nothing  had  been  paid  upon  the  shares.  But  under 
the  21st  section  of  the  Companies  Clauses  Consolidation  Act,  1845, 
the  Plaintiff  was  liable  to  pay  the  whole  amount  of  the  £500.  He  was 
desirous  of  getting  rid  of  the  shares  and  of  the  liabilities,  and  the  bill 
states  that  the  Defendant,  who  was  also  a  shareholder  in  the  com- 
pany, entered  into  an  agreement  with  the  Plaintiff  to  accept  and  exe- 
cute a  transfer  of  the  shares,  and  do  all  acts  necessary  to  relieve  the 
Plaintiff  from  all  liability  in  respect  of  the  shares. 

Upon  the  demurrer  two  questions  were  raised.  First,  whether 
there  is  a  sufficient  consideration  money  from  the  Plaintiff  to  support 
the  agreement.  Secondly,  if  so,  whether  there  is  sufficient  mutuality 
in  the  contract  so  as  to  enable  either  party  to  enforce  it  against  the 
other.  Now,  there  is  no  doubt  that  a  bill  will  lie  for  a  specific  per- 
formance of  an  agreement  to  transfer  railway  shares.  This  was  set 
at  rest  by  Duncuft  v.  Albrecht  (12  Sim.  199).  There  the  Vice-Chan- 
cellor of  England  said : 

"There  is  not  any  sort  of  analogy  between  a  quantity  of  £3  per  cents.,  or 
any  other  stock  of  that  description  (which  is  always  to  be  had  by  any  per- 
son who  chooses  to  apply  for  it  in  the  market),  and  a  certain  number  of  rail- 
way shares  of  a  particular  description,  which  railway  shares  are  limited  in 
number,  and  which,  as  has  been  observed,  are  not  always  to  be  had  in  the 
market." 

*  *  *  ±  :];  *  *  *  4  * 

0  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 
Boke  Eq.— 8 


11-4  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

The  Defendant  desired  to  have  the  shares ;  he  was  willing  to  pay 
the  amount  of  the  liabilities,  from  which  he  agreed  to  exonerate  the 
Plaintiff;    and  that  appears  to  me  a  sufficient  consideration.     *     *     * 

I  think  that  the  demurrer  ought  to  have  been  overruled.10 


DUMONT  v.  FRY  et  al. 
(Circuit  Court  of  the  United  Stares,  S.  D.  New  York,  1SS2.    12  Fed.  21.) 
See  supra,  p.  35,  for  a  report  of  the  case. 


Appeal  of  GOODWIN  GAS-STOVE  &  METER  CO.  et  al. 

(Supreme  Court  of  Pennsylvania,  1SSS.     117  Pa.  514,  12  Atl.  730, 
2  Am.  St.  Rep.  690.) 

Appeal  from  court  of  common  pleas,  Philadelphia  county. 

H.  Dumont  Wagner  filed  a  bill  in  equity  against  the  Goodwin  Gas- 
Stove  &  Meter  Company  and  William  W.  Goodwin  to  compel  the 
specific  performance  of  said  Goodwin's  contract  to  transfer  to  com- 
plainant certain  shares  of  stock  in  said  company.     *     *     * 

Clark,  J.11  It  is  a  well-settled  doctrine  that  equity  will  not,  in 
general,  decree  the  specific  performance  of  contracts  concerning  chat- 
tels. The  reason  assigned  for  this  is  that  their  money  value,  recov- 
ered as  damages,  will  enable  the  party  to  purchase  others  in  the  mar- 
ket of  like  kind  and  quality.  In  the  United  States,  as  well  as  in  Eng- 
land, contracts  for  public  securities,  government  stocks,  bonds,  etc., 
will  not  be  specifically  enforced ;  no  especial  value  attached  to  one 
share  of  stock,  or  one  bond,  over  another.  The  money  which  will  pay 
for    one   will   as   readily   purchase   another.     To   this   rule   there   are 

io  "Speaking  further  to  plaintiffs  position  that  this  resolution,  providing 
for  the  surrender  of  the  33  shares  and  the  issue  of  the  11  in  lieu  thereof, 
should  be  treated  as  a  contract  or  agreement:  While  contracts  for  the  sale  or 
transfer  of  government  securities  or  shares  of  stock  on  the  market  and  readily 
obtainable  will  not,  as  a  general  rule,  be  specifically  enforced,  it  is  otherwise 
when  the  agreement,  as  in  this  instance,  concerns  stock  of  a  different  char- 
acter, and  there  are  terms  giving  the  contract  special  significance  and  pre- 
senting a  case  where  the  award  of  ordinary  damages  in  cast'  of  breach  would 
be  inadequate.  The  distinction  adverted  to  is  very  well  stated  in  Cook  on 
Corporations,  §  33S,  as  follows:  "An  entirely  different  rule  prevails  as  re- 
gards contracts  for  the  sale  of  stock  of  private  corporations.  If  the  stock  con- 
tracted to  be  sold  is  easily  obtained  in  the  market,  and  there  are  no  particular 
reasons  why  the  vendee  should  have  the  particular  stock  contracted  for,  he 
is  left  to  his  action  for  damages.  But  where  the  value  of  the  stock  is  not 
easily  ascertainable,  or  the  stock  is  not  to  be  obtained  readily  elsewhere,  or 
there  is  some  particular  and  reasonable  cause  for  the  vendee's  requiring  the 
stock  contracted  to  be  delivered,  a  court  of  equity  will  decree  a  specific  per- 
formance ami  compel  the  vendor  to  deliver  the  stock.'  It  is  not  required,  how- 
ever, in  this  case,  that  defendants  should  have  recourse  directly  to  this  prin- 
ciple in  the  doctrine  of  specific  performance  or  the  remedy  ordinarily  availa- 
ble in  such  cases."     Misenheinier  v.  Alexander,  162  N.  ('.  226,  78  S.  E.  101. 

ii  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SFECIFIC  PERFORMANCE         115 

doubtless  exceptions,  but  the  rule  is  so  general  in  its  application  that 
the  exceptions  are  but  few.  Stayton  v.  Riddle,  114  Pa.  464,  7  Atl.  72. 
Although  a  different  doctrine  may  perhaps  exist  elsewhere  as  to  con- 
tracts concerning  stocks  and  bonds  of  merely  private  or  business  cor- 
porations, in  the  United  States  the  principle  seems  to  be  well  estab- 
lished by  the  weight  of  authority  that  they  will  not  be  carried  into  ef- 
fect in  equity  except  under  very  special  circumstances,  such  as  render 
the  remedy  at  law  wholly  inadequate,  or  damages  impracticable. 
Pom.  Eq.  Jur.  1402.  The  same  general  principles  govern  in  contracts 
for  the  sale  of  stocks  of  this  character  as  in  the  sale  of  other  personal 
property.  If  the  breach  can  be  fully  compensated,  equity  will  not  in- 
terfere; but  when,  notwithstanding  the  payment  of  the  money  value 
of  the  stock,  the  plaintiff  will  still  necessarily  lose  a  substantial  benefit, 
and  thereby  remain  uncompensated,  specific  performance  may  be  de- 
creed. Wat.  Spec.  Perf .  §  19.  In  Dungan  v.  Doheart,  an  unreported 
case,  decided  at  nisi  prius,  and  referred  to  in  a  note  to  Railroad  Co.  v. 
Stichter,  11  Wkly.  Notes  Cas.  325,  Air.  Justice  Agnew,  after  refer- 
ring to  the  cases,  said : 

'•In  an  ordinary  contract  for  the  sale  or  transfer  of  stock,  where  there  is 
no  fiduciary  relation  between  the  parties,  no  peculiar  circumstances  attend- 
ing the  stock,  and  no  trust  declared  or  arising  by  operation  of  law,  or  other 
tact  in  the  contract,  which  would  make  a  verdict  for  damages  inadequate  re- 
lief, there  is  no  reason  for  specific  performance,  other  than  in  every  case  of 
a  sale  of  a  chattel.  The  non-delivery,  or  refusal  to  transfer,  can  be  easily 
compensated  in  damages." 

The  doctrine  has  in  some  cases  been  carried  to  this  extent :  that  if 
a  contract  to  convey  stock  is  clear  and  definite,  and  the  uncertain 
value  of  the  stock  renders  it  difficult  to  do  justice  by  an  award  of 
damages,  specific  performance  will  be  decreed.  White  v.  Schuyler 
(X.  Y.)  1  Abb.  Pr.  X.  S.  300,  31  How.  Pr.  38;  Treasurer  v.  Commer- 
cial Co.,  23  Cal.  390.  This  would  appear  to  have  been  the  view  enter- 
tained by  Mr.  justice  Thompson  in  Sank  v.  Ship  Co.,  a  case  tried  at 
nisi  prius,  and  reported  in  5  Phila.  499.  "I  incline  much,"  says  the 
learned  justice,  "towards  the  distinction  made  by  Yice-Chancellor 
Shadwell  in  Duncroft  v.  Albrecht,  12  Sim.  189,  between  public  stocks 
of  a  known  market  value,  and  stocks  of  a  particular  company,  with 
none  in  market ;  and  recognized  by  the  lord  chancellor  in  Cheale  v. 
Ktnward,  3  De  Gex  &  J.  27.  The  former  resembles  ordinary  prop- 
erty with  known  values,  while  the  latter  resembles  more  the  case  of 
specific  or  peculiar  property,  with  a  value  contingent  or  uncertain,  in 
which,  it  has  been  held,  the  only  adequate  remedy  is  to  give  the  thing 
itself.  1  Lead.  Cas.  Eq.  757,  and  1  Story,  Eq.  Jur.  724."  Whether 
the  distinction  taken  in  the  case  cited  may  ultimately  be  recognized 
to  the  full  extent  stated  we  cannot  say;  but  the  general  underlying 
principle  seems  to  be  established  that  in  a  sale  of  stocks  in  a  merely 
private  or  business  corporation,  where  from  any  proper  cause  it  is 
plain  that  the  remedy  at  law  is  inadequate,  or  damages  impracticable, 
specific  relief  may  be  awarded. 


116  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

As  to  the  case  now  under  consideration,  it  is  fair  to  assume  that  the 
security  for  the  principal  investment  of  $7,000,  and  for  the  dividends 
upon  it  at  the  rate  of  10  per  cent,  per  annum,  was  the  inducement  for 
Wagner  to  enter  into  the  contract  of  July,  1879;  and  when,  on  27th 
January,  1880,  he  agreed  to  waive  his  right  to  that  security,  it  was 
under  the  special  inducement  that  he  was  to  have,  in  addition  to  the 
shares  he  then  had,  70  other  shares  on  the  terms  of  the  latter  con- 
tract,— shares  that  would  ultimately  be  paid  for,  if  paid  for  at  all,  out 
of  their  earnings,  in  installments  equal  to  the  excess  of  the  dividends 
thereon  over  6  per  cent,  in  each  year.  The  contract  of  1880  disclosed 
the  special  terms  upon  which  the  investment  was  actually  made.  Wag- 
ner was  to  receive,  not  only  the  dividends  upon  the  shares  he  pur- 
chased with  his  original  investment,  but  was  entitled,  also,  from  time 
to  time,  to  such  of  the  70  shares  in  dispute  as  would  be  paid  for  by 
the  excess  stated ;  and  the  title  to  the  70  shares  was  actually  transfer- 
red to  him,  in  trust,  under  the  contract.  He  held  the  shares  as  a  trus- 
tee. If  transferred  on  the  books,  the  shares  must  necessarily  have 
been  transferred  to  him  on  the  footing  of  that  trust.  As  they  were 
earned,  however,  they  were  to  become  Wagner's  own  shares,  freed 
from  the  trust,  the  dividends  thereon  payable  to  him,  and  he  was  en- 
titled to  have  such  further  assurance  from  Goodwin  as  would  liberate 
them  from  the  trust,  and  authorize  the  transfer  to  him  absolutely  on 
the  books  of  the  company.  The  case  is  in  some  respects  a  peculiar 
one.  Wagner  already  has  the  title  to  these  70  shares.  He  holds  the 
certificate  transferred  in  writing,  and  delivered  to  him  by  Goodwin ; 
but,  the  transfer  being  subject  to  a  trust  imposed  upon  them  by  the 
parties,  he  cannot  avail  himself  of  them  as  his  own,  until  they  are  re- 
lieved of  that  trust.  The  transaction  is  not,  therefore,  a  simple  sale 
and  purchase  of  stocks.  The  question  presented  is  whether  or  not  the 
terms  of  the  trust  have  been  satisfied  as  to  the  whole  or  any  part  of 
the  70  shares  to  which  Wagner  already  has  title.  If  they  have,  he 
is  entitled  to  a  transfer  to  his  own  use;  if  they  have  not,  he  must  still 
hold  the  title  subject  thereto.  It  cannot  be  doubted,  we  think,  that 
equity  has  jurisdiction,  in  such  a  case,  not  only  against  Goodwin,  but 
against  the  company ;  especially  as  the  shares  have  no  recognized 
market  value,  and  their  value,  even  if  ascertained,  would  not  neces- 
sarily, as  against  either,  be  the  proper  measure  of  damages.  The  70 
shares  having  been  transferred  to  Wagner  in  trust,  under  the  agree- 
ment, he  was  entitled,  as  the  trustee,  to  a  transfer  on  the  books ;  and 
as  dividends  were  declared  from  time  to  time  he  was  entitled,  at  his 
option,  to  an  absolute  transfer,  discharged  of  the  trust,  for  as  many 
shares  as  were  paid  by  the  excess  of  the  dividends  over  6  per  cent, 
annually.     *     *     * 

Upon  an  investigation  of  the  whole  case,  we  are  of  opinion  that  the 
decree  of  the  learned  court  is  right.  The  decree  is  therefore  affirmed, 
and  the  appeal  dismissed,  at  the  cost  of  the  appellant. 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  117 

SMITH  et  ux.  v.  FLATHEAD  RIVER  COAL  CO. 
(Supreme  Court  of  Washington,  1911.    64  Wash.  642,  117  Pae.  475.) 

Department  1.  Appeal  from  Superior  Court,  Spokane  County;  E. 
H.  Sullivan,  Judge. 

Action  by  J.  H.  Smith  and  wife  against  the  Flathead  River  Coal 
Company.    Judgment  for  defendant,  and  plaintiffs  appeal. 

Mount,  J.  This  action  was  brought  to  enforce  specific  performance 
of  a  contract.  When  the  plaintiffs  had  introduced  their  evidence,  the 
court  dismissed  their  action.     Plaintiffs  have  appealed. 

It  appears  that  the  plaintiff  J.  H.  Smith  and  the  defendant  company 

entered  into  the  following  contract : 

"This  agreement  made  this  the  7th  day  of  April,  1908,  by  and  between  J. 
H.  .Smith,  party  of  the  first  part,  and  the  Flathead  River  Coal  Company,  party 
of  the  second  part,  witnesseth:  That  the  party  of  the  first  part  agrees  to  have 
surveyed  and  obtain  a  lease  on  one  certain  coal  and  petroleum  claim  situated 
in  the  southeast  Kootenay,  B.  C,  covered  by  mining  license  No.  229,  and  its 
renewal  in  the  name  of  Hattie  L.  Smith,  and  assign  the  said  lease  unto  the 
Flathead  River  Coal  Company,  and  accept  therefor  such  number  of  shares  of 
the  capital  stock  in  payment  as  shall  have  been  issued  to  the  original  stock- 
holders of  said  company  in  proportion  to  the  number  of  acres  involved.  And 
the  said  party  of  the  second  part  herein  agrees  that  they  will  issue  the  above- 
mentioned  number  of  shares  of  the  capital  stock  of  said  company  in  payment 
of  such  assignment  when  it  shall  have  been  made.'! 

Thereafter  the  plaintiffs  procured  the  lease  mentioned  and  tendered 
the  same  to  defendant,  and  demanded  the  stock — about  44,000  shares — 
which  defendant  refused  to  issue.  It  also  appeared  that  the  plaintiffs 
with  others  had  organized  the  defendant  corporation  some  time  before 
the  date  of  the  contract,  and  were  stockholders  therein,  and  knew  that 
all  the  stock  of  the  corporation  had  been  subscribed  and  issued  by  the 
corporation  to  its  stockholders  except  7  shares  thereof,  and  that  at  the 
time  the  contract  was  entered  into  and  at  all  times  since  the  corpora- 
tion had  no  stock,  and  was  not  authorized  to  issue  any  more.  The  trial 
court  properly  denied  the  relief  sought,  for  the  corporation  could  not  le- 
gally issue  the  stock.  Cook  on  Corporations,  426.  The  court  was  there- 
fore powerless  to  enforce  specific  performance  or  to  award  damages. 
Morgan  v.  Bell,  3  Wash.  554,  28  Pac.  925,  16  L.  R.  A.  614;  Peters  v. 
Van  Horn,  37  Wash.  550,  79  Pac.  1110. 

Judgment  affirmed. 

Dunbar,  C.  J.,  and  FullEr'ion  and  GosE,  JJ.,  concur. 


ADDERLEY  v.  DIXON. 
(In  Chancery  before  Sir  John  Leach,  1824.     1  Sim.  &  S.  607.) 

The  plaintiffs  having  purchased  and  taken  assignments  of  certain 
debts  which  had  been  proved  under  two  commissions  of  bankrupt, 
agreed  to  sell  them  to  the  defendant  for  2s.  6d.  in  the  pound. 

The  defendant's  solicitor,  accordingly,  gave  notice  of  the  sale  to  the 
assignees,  and  prepared  an  assignment  of  the  debts,  and  the  plaintiffs, 


118  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Ch.  2 

notwithstanding  the  purchase  money  had  not  been  paid,  executed  it, 
and  signed  the  receipt  for  the  consideration  money,  and  left  it  in  the 
solicitor's  hands.  The  bill  was  filed  to  compel  the  defendant  specifical- 
ly to  perform  the  agreement,  and  to  pay  the  purchase  money  to  the 
plaintiffs. 

The  defendant,  by  his  answer,  submitted  that  the  matter  of  the 
agreement  was  not  the  proper  subject  of  a  bill  in  equity  for  a  specific 
performance ;  and  claimed  the  same  benefit  as  if  he  had  demurred  to 
the  bill. 

The  VicE-Chancei^or. 12  Courts  of  equity  decree  the  specific 
performance  of  contracts,  not  upon  any  distinction  between  realty  and 
personalty,  but  because  damages  at  law  may  not,  in  the  particular  case, 
afford  a  complete  remedy.  Thus  a  court  of  equity  decrees  performance 
of  a  contract  for  land,  not  because  of  the  real  nature  of  the  land,  but 
because  damages  at  law,  which  must  be  calculated  upon  the  general 
money-value  of  the  land,  may  not  be  a  complete  remedy  to  the  pur- 
chaser, to  whom  the  land  may  have  a  peculiar  and  special  value.  So  a 
court  of  equity  will  not,  generally,  decree  performance  of  a  contract  for 
the  sale  of  stock  or  goods,  not  because  of  their  personal  nature,  but  be- 
cause damages  at  law,  calculated  upon  the  market-price  of  the  stock  or 
goods,  are  as  complete  a  remedy  to  the  purchaser  as  the  delivery  of  the 
stock  or  goods' contracted  for ;  inasmuch  as,  with  the  damages,  he  may 
purchase  the  same  quantity  of  the  like  stock  or  goods.     :;:      ::     * 

In  Ball  v.  Coggs,  1  Bro.  P.  C.  140,  specific  performance  was  decreed 
in  the  house  of  lords  of  a  contract  to  pay  the  plaintiff  a  certain  annual 
sum  for  his  life,  and  also  a  certain  other  sum  for  every  hundred  weight 
of  brass  wire  manufactured  by  the  defendant  during  the  life  of  the 
plaintiff.  The  same  principle  is  to  be  applied  to  this  case.  Damages 
might  be  no  complete  remedy,  being  to  be  calculated  merely  by  conjec- 
ture ;  and  to  compel  the  plaintiff  in  such  a  case  to  take  damages  would 
be  to  compel  him  to  sell  the  annual  provision  during  his  life  for  which 
he  had  contracted,  at  a  conjectural  price.  In  Buxton  v.  Lister  [3  Atk. 
383],  Lord  Hardwicke  puts  the  case  of  a  ship  carpenter  purchasing  tim- 
ber which  was  peculiarly  convenient  to  him  by  reason  of  its  vicinity  ; 
and  also  the  case  of  an  owner  of  land  covered  with  timber  contracting 
to  sell  his  timber  in  order  to  clear  his  land ;  and  assumes  that  as,  in 
both  those  cases,  damages  would  not,  by  reason  of  the  special  circum- 
stances be  a  complete  remedy,  equity  would  decree  a  specific  perform- 
ance.    *     *     * 

The  present  case  being  a  contract  for  the  sale  of  the  uncertain  divi- 
dends which  may  become  payable  from  the  estates  of  the  two  bank- 
rupts, it  appears  to  me  that,  upon  the  principle  established  by  the  cases 
of  Ball  v.  Coggs,  and  Taylor  v.  Neville  [cited  in  Buxton  v.  Lister]  a 
court  of  equity  will  decree  specific  performance,  because  damages  at 
law  cannot  accurately  represent  the  value  of  the  future  dividends  ;   and 

i-  Part  of  tlif  opinion  is  omitted. 


Sec.  1)  CONTRACTS   SUBJECT  TO   SPECIFIC   PERFORMANCE  119 

to  compel  this  purchaser  to  take  such  damages  would  be  to  compel  him 
to  sell  these  dividends  at  a  conjectural  price. 

It  is  true  that  the  present  bill  is  not  filed  by  the  purchaser,  but  by  the 
vendor,  who  seeks,  not  the  uncertain  dividends,  but  the  certain  sum  to 
be  paid  for  them.  It  has,  however,  been  settled,  by  repeated  decisions 
that  the  remedy  in  equity  must  be  mutual ;  and  that,  where  a  bill  will 
lie  for  the  purchaser,  it  will  also  lie  for  the  vendor. 


ANONYMOUS. 

(In  Chancery  before  Lord  Cowper,  Chancellor,  1707.     1  Salk.  ir>4.) 

It  was  held,  1st,  That  if  one  by  will  or  deed  subject  his  lands  to  the 
payment  of  his  debts,  debts  barred  by  the  statute  of  limitations  shall 
be  paid ;  for  they  are  debts  in  equity,  and  the  duty  remains ;  the  stat- 
ute has  not  extinguished  that,  though  it  hath  taken  away  the  remedy. 


HERMANN  v.  HODGES. 

(In  Chancery  before  Lord  Selborne,  1873.     43  Law  J.  Ch.  192.) 

This  was  a  suit  for  specific  performance  of  an  agreement  to  execute 
a  mortgage  with  an  immediate  power  of  sale. 

The  advance  was  made  at  .the  time  the  agreement  was  entered  into. 

The;  Lord  Chancellor.  I  have  no  doubt  that  the  decree  is  prop- 
er. The  defendant  does  not  offer  to  pay  or  that  would  be  an  answer  to 
the  suit.    Decree  as  prayed  for. 


TRIEBERT  v.  BURGESS  et  al. 

BURGESS  et  al.  v.  TRIEBERT. 

(Court  of  Appeals  of  Maryland,  1857.    11  Md.  452.) 

Appeal  from  the  Circuit  Court  for  Baltimore  city. 

In  this  case,  Triebert,  the  defendant  below,  appealed  from  an  order 
granting  an  injunction  and  appointing  a  receiver,  upon  a  bill  filed 
against  him  by  Burgess  and  others,  and  the  latter,  the  complainants 
below,  appealed  from  an  order  directing  the  receiver  to  deliver  to  the 
defendant  all  the  property  taken  from  him  by  virtue  of  the  receiver's 
appointment,  passed  on  motion  of  the  defendant,  after  he  had  filed 
an  appeal  bond  upon  his  appeal  from  the  previous  order. 

The  bill  filed  by  Burgess  and  others,  partners,  under  the  firm  of 
Burgess,  Dale  &  Goddard,  on  the  10th  of  November,  1857,  alleges, 
that  upon  the  application  of  Triebert,  who  is,  and  for  some  time  has 
been,  engaged  in  the  business  of  buying  and  selling  china,  glass  and 
queensware   in   Baltimore,   the    complainants,   who   are    importers   of 


120  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Ch.  2 

such  goods  in  New  York,  sold  and  delivered  to  him,  from  time  to 
time,  large  quantities  of  goods,  of  which  an  account  is  filed  as  an  ex- 
hibit with  the  bill ;  that  on  the  29th  of  September,  1857,  a  consider- 
able amount,  though  not  the  whole,  being  then  due  for  the  goods,  and 
the  complainants  pressing  for  payment,  and  Triebert,  not  having  or 
possessing  the  necessary  means  then  in  his  hands,  proposed  to  com- 
plainants to  give  them  a  bill  of  sale  of  all  his  stock  in  trade  in  Balti- 
more, to  secure  them,  by  way  of  mortgage,  as  well  his  matured  as  his 
maturing  indebtedness,  and  also  the  further  sum  of  $900,  to  be  lent 
and  advanced  him  by  them,  provided  they  would  lend  and  advance 
him  $900  in  cash,  which  proposition  complainants  agreed  to  and  ac- 
cepted, and  on  that  day  paid  to  Triebert  the  stipulated  sum  of  $900 
in  cash,  in  consideration  of  which  he  had  promised  to  give  them  his 
bill  of  sale,  by  way  of  mortgage,  of  his  stock  in  trade,  and  was  bound 
by  it ;  that  the  greater  part  of  the  indebtedness  of  Triebert  to  them, 
for  his  purchase  as  well  as  this  $900,  is  due,  with  the  exception  of 
$200  paid  them ;  that  they  have  applied  to  him  to  execute  the  mort- 
gage he  had  stipulated  to  make,  but  he  has  neglected  and  refused  to 
do  so. 

The  bill  further  charges,  that  the  stock  in  trade  of  Triebert,  con- 
sisting of  china,  glass  and  queensware,  in  the  store  occupied  by  him, 
on  Baltimore  street,  is  the  same  (except  where  he  may  have  sold  part) 
which  was  held  by  him  at  the  time  of  his  aforesaid  promise,  and  which 
he  then  undertook  to  convey  to  complainants  as  security ;  that  he  not 
only  refuses  to  perform  his  undertaking,  but  is  selling  the  stock  and 
receiving  the  proceeds,  which  he  is  applying  to  his  own  use,  and  fails 
to  pay  over  to  complainants,  and  is  thereby  daily  diminishing  their 
security ;  that  he  is  greatly  embarrassed  in  his  circumstances  at  this 
time,  and  has  created  one  or  more  liens,  in  favor  of  one  or  more  of 
his  creditors,  on  other  property  belonging  to  him,  being  thereto 
pressed  and  unable  otherwise  to  satisfy  the  demand  made  on  him,  and 
they  apprehend  and  charge  there  is  great  danger  that  Triebert  will 
dispose  of  the  whole  of  his  said  stock  in  trade,  or  give  liens  thereon, 
to  persons  unaware  of  their  claims  and  equitable  lien  in  the  premises, 
and  so  put  said  stock  in  trade,  and  the  proceeds  thereof,  beyond  their 
reach.  And  they  further  charge,  that  if  liens  are  so  created  in  favor 
of  other  persons  on  said  stock,  or  the  same  shall  be  sold  by  Triebert, 
and  the  proceeds  pass  into  his  hands,  there  is  great  danger  that  they 
will  not  only  lose  their  promised  security,  which  is  now  ample  for 
their  debt,  but  also  their  debt  itself,  it  being  the  belief  of  the  com- 
plainants, which  they  hereby  charge,  that  Triebert  is  largely  indebted 
beyond  his  means  of  payment ;  that  they  are  advised  they  have,  under 
the  circumstances  above  stated,  an  equitable  lien  on  said  stock  in 
trade,  and  as  the  whole  indebtedness  which  it  was  meant  to  secure, 
has  now  matured,  they  are  entitled  to  a  sale  of  the  same,  under  a  de- 
cree, for  the  satisfaction  of  their  debt,  and,  in  the  mean  time,  to  the 
protection  of  the  court,  through  the  medium  of  a  receiver,  against 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        121 

what  they  charge  to  be,  on  the  part  of  Triebert,  not  only  a  fraudulent 
denial  of  the  security  promised  them,  but  also  a  fraudulent  misappro- 
priation, to  their  irreparable  injury,  of  the  property  agreed  to  be 
mortgaged  to  them. 

The  bill  then  prays  for  a  decree  that  the  complainants  may  have 
and  hold  the  said  stock  in  trade  as  security  for  the  indebtedness  of 
Triebert,  in  manner  and  form  as  promised,  and  for  a  sale  thereof,  and 
also  for  an  injunction,  restraining  Triebert  from  selling  or  disposing 
of  the  same,  and  for  a  receiver  to  take  charge  of  said  stock  in  trade, 
and  hold  the  same  subject  to  the  order  of  the  court,  and  for  general 
relief. 

The  affidavit  to  this  bill  is  stated  in  the  opinion  of  this  court.  On 
the  same  day  on  which  it  was  filed,  the  court  (Krebs,  J.)  passed  the 
order  from  which  the  defendant  appealed,  and,  on  the  next  day,  that 
from  which  the  complainants  appealed.  Both  these  orders  are  fully 
stated  in  the  opinion  of  this  court. 

EcclEston,  J.,  delivered  the  opinion  of  the  court. 

That,  in  Maryland,  a  parol  contract  for  a  mortgage  of  personal 
property,  based  upon  a  valuable  consideration,  may  be  enforced  in  a 
court  of  equity,  if  the  contract  is  not  such  as  the  statute  of  frauds  re- 
quires to  be  in  writing,  has  been  fullv  established  in  Alexander  et  al. 
v.  Ghiselin  et  al,,  5  Gill,  138,  and  Sullivan  v.  Tuck,  1  Md.  Ch.  59. 
According  to  the  views  of  the  chancellor,  in  the  latter  case,  courts  of 
equity  do  not  specifically  enforce  contracts  in  respect  to  personal  prop- 
erty, with  the  same  facility  and  universality  as  contracts  relating  to 
real  estate ;  the  cause  of  which  is,  that  in  contracts  of  the  first  class, 
courts  of  law  are  generally  competent  to  afford  full  redress.  2  Story's 
Eq.  §  '717.  But  when,  at  law,  a  party  cannot  have  a  complete  and  sat- 
isfactory remedy,  although  the  contract  relates  to  personal  estate,  a 
court  of  equity  will  grant  relief.     Id.  §  718. 

Under  the  circumstances  set  forth  in  this  bill,  there  was,  in  our 
opinion,  an  equitable  lien  upon  the  defendant's  stock  in  trade,  which 
authorized  the  court  to  grant  the  injunction.  According  to  the  facts 
stated,  there  was  no  reasonable  ground  to  believe  that  the  complain- 
ants could  secure  payment  of  their  claim,  except  by  enforcing  their 
equitable  lien. 

On  this  appeal  the  answer  is  not  before  us,  and  we  can  only  look  to 
the  bill  and  exhibits. 

That  portion  of  the  order  of  the  10th  of  November,  1857,  which 
appointed  the  receiver,  will  be  reversed,  but  the  portion  of  it  which 
relates  to  the  injunction,  will  be  affirmed. 

Inasmuch  as  the  receiver  was  improperly  appointed,  the  appeal  of 
the  complainants  from  the  order  of  the  11th  of  November,  cannot  be 
sustained,  for,  in  any  view  of  the  case,  that  order  did  them  no  injury 

The  order  appealed  from  by  Triebert,  is  reversed  in  part,  and  af- 
firmed in  part;  and  the  parties  are  to  pay  their  own  costs  in  this 
court. 


122  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

Order  reversed  in  part,  and  affirmed  in  part,  and  cause  remanded 
for  further  proceedings. 

Upon  the  appeal  of  Burgess  and  others,  the  same  Judge  delivered 
the  opinion  of  this  court : 

From  what  has  been  said  in  the  opinion  delivered  in  the  appeal  of 
Triebert  v.  Burgess  and  Others,  it  will  be  seen  that  we  think  the  order 
appealed  from  in  this  case  ought  to  be  affirmed.  A  decree  accordingly 
will  be  signed,  allowing  costs  in  this  court  in  favor  of  Triebert. 

Order  affirmed. 


SOUTH  AFRICAN  TERRITORIES,  Limited,  v.  WALLINGTON. 

(House  of  Lords.     [1S9S]  App.  Cas.  309.) 

The  following  statement  of  facts  is  taken  from  the  judgment  of  Lord 
Herschell : 

In  September,  1895,  the  appellant  company  issued  a  prospectus  offer- 
ing to  the  public  an  issue  of  £75,000  in  1500  first  mortgage  debentures 
of  £50  each,  bearing  interest  at  6  per  cent,  and  being  repayable  with  a 
bonus  of  £7.  10s.  each  on  December  31,  1900.  The  debentures  were 
to  form  a  floating  charge  on  the  whole  of  the  properties  and  assets  of 
the  company.  The  prospectus  stated  that  the  allottees  of  this  issue 
would  have  the  right  to  exchange  them  at  par  for  an  equal  amount  of 
shares  at  any  time  within  two  years  after  December  31,  1896,  that  the 
debentures  were  to  be  payable  10  per  cent,  on  application,  15  per  cent, 
on  allotment,  25  per  cent,  two  months  after  allotment,  25  per  cent,  four 
months  after  allotment,  and  25  per  cent,  six  months  after  allotment, 
and  that  failure  to  pay  any  instalment  when  due  would  render  previous 
payments  liable  to  forfeiture. 

In  the  same  month,  the  respondent  having  deposited  with  the  ap- 
pellants' bankers  £80,  being  the  10  per  cent,  required  by  the  prospectus, 
signed  a  form  of  application  for  the  allotment  to  him  of  sixteen  of  the 
debentures,  and  thereby  agreed  to  take  such  debentures,  or  any  less 
number  that  might  be  allotted  to  him,  on  the  terms  of  the  prospectus, 
and  to  pay  the  further  instalments  due  thereon  in  accordance  with  the 
terms  of  the  prospectus.  The  appellant  company  accordingly,  a  few 
days  later,  allotted  to  the  respondent  sixteen  debentures  in  the  company, 
and  gave  him  notice  thereof. 

The  respondent  having  refused  to  make  any  further  payments  the 
present  action  was  brought  against  him  by  the  appellants  on  March  6, 
1896,  when  all  the  instalments  except  the  last  had  become  due.  The 
appellants  claimed:  1.  specific  performance  of  the  contract;  2.  pay- 
ment of  the  balance  of  the  price  of  the  debentures ;   3.  damages. 

The  action  came  on  for  trial  before  Wright,  J.,  and  was  determined 
by  the  learned  judge  in  the  course  of  a  discussion  with  the  learned 
counsel  who  appeared  for  the  respective  parties,  initiated  by  the  learn- 
ed judge  during  the  course  of  the  opening  address  of  the  learned  coun- 


Sec.  1)  CONTRACTS   SUBJECT   TO   .SPECIFIC   PERFORMANCE  123 

sel  for  the  plaintiffs.  The  learned  judge  held  that  the  claim  for  specific 
performance  could  not  be  sustained,  but  gave  judgment  for  the  plain- 
tiffs on  the  ground  that  a  debt  had  been  created  by  the  defendant's 
promise  to  pay  contained  in  his  letter  of  application.  Judgment  was 
accordingly  entered  for  the  plaintiffs  for  £ 520,  the  amount  of  the  in- 
stalments due  and  unpaid  at  the  date  of  the  writ,  and  costs.  From  this 
judgment  the  defendant  appealed.     *     *     * 

The  Court  of  Appeal  (Lord  Esher,  M.  R.,  and  Lopes  and  Chitty, 
L.  J  J.)  reversed  the  judgment  of  the  court  below,  and  ordered  that 
judgment  should  be  entered  for  the  defendant.     *     *     * 

Earl  OF  Halsbury,  L.  C.13  My  Lords,  the  forms  which  have 
been  contrived  for  the  business  of  joint  stock  companies  and  which, 
when  applied  to  their  proper  purposes,  are  convenient,  are  nevertheless 
somewhat  calculated  to  mislead  when  their  mere  language  is  regarded. 
The  applicant  for  debentures  on  the  face  of  the  instrument  contracts 
to  pay  something,  but  the  real  nature  of  the  whole  transaction  is  an 
agreement  by  the  applicant  to  lend  money  at  certain  interest,  and  the 
action  in  this  case  was  in  truth  mainly,  if  not  altogether,  directed  to 
compel  the  intending  lender  to  perform  his  contract  to  lend,  which  un- 
doubtedly he  had  refused  and  neglected  to  do. 

With  respect  to  the  claim  for  specific  performance,  a  long  and  uni- 
form course  of  decision  has  prevented  the  application  of  any  such 
remedy,  and  I  do  not  understand  that  any  court  or  any  member  of  any 
court  has  entertained  a  doubt  but  that  the  refusal  of  the  learned  judge 
below  to  grant  a  decree  for  specific  performance  was  perfectly  right. 

Lord  Watson  (after  stating  the  facts  set  out  above).  My  Lords, 
the  only  engagement  made  by  the  respondent  with  the  company  con- 
sisted in  a  promise  to  advance  money  to  them  in  loan;  and  it  is  set- 
tled in  the  law  of  England  that  such  a  promise  can  not  sustain  a  suit 
for  specific  performance.  It  is  equally  clear,  in  my  opinion,  that  the 
obligation  of  the  company  to  issue  mortgage  bonds  against  the  loan  did 
not  in  any  way  alter  or  affect  the  character  of  the  transaction,  or  give 
the  company  any  right  to  sue  as  for  the  price  of  an  article  sold  by  them 
which  they  were  ready  to  deliver.  The  only  remedy  open  to  the  com- 
pany was  by  action  against  the  respondent  for  any  loss  or  damage  which 
they  might  sustain  through  his  breach  of  promise.     *     *     * 

Order  appealed  from  affirmed  and  appeal  dismissed  with  costs. 

13  The  statement  of  facts  is  abridged  and  parts  of  the  opinions  of  the 
Earl  of  Halsbury  and  Lord  Watson  are  omitted.  The  concurring  opinions  of 
Lords  Herschell,  Macnaghten,  and  Morris  are  also  omitted. 


124  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 


LOS  ANGELES  &  BAKERSFIELD  OIL  &  DEVELOPMENT 
CO.  OF  ARIZONA  v.  OCCIDENTAL  OIL  CO. 

(Supreme  Court  of  California,  1904.     144  Cal.  528,  7S  Pae.  25.) 

Gray,  C.14  *  *  *  The  main  object  of  the  contract  was  to  se- 
cure the  development  of  the  land  to  the  end  that  it  might  be  determin- 
ed whether  it  contained  oil,  and  this  was  the  principal  consideration  that 
induced  the  defendant  to  make  such  contract.  And  the  performance 
of  this  part  of  the  contract  on  the  part  of  plaintiff  cannot  be  enforced 
in  a  court  of  equity,  because  it  involves  the  performance  of  personal 
labor  and  services.  Hence  there  is  a  want  of  mutuality  as  to  the  reme- 
dy sought  to  be  enforced.  Equity  will  not  enforce  specific  performance 
of  a  contract  as  against  the  defendant  unless  the  plaintiff  has  perform- 
ed, or  can  be  compelled  specifically  to  perform,  his  side  of  the  contract. 
Stanton  v.  Singleton,  126  Cal.  657,  59  Pac.  146,  47  L.  R.  A.  334. 

Under  this  rule  the  contract  cannot  be  divided  up  into  "independent 
covenants"  and  "subsequent  conditions"  for  the  purpose  of  enforcing 
a  part  of  it  and  leaving  the  parties  to  some  subsequent  remedy  as  to 
the  rest  of  it,  but  the  whole  contract,  including  conditions  subsequent 
as  well  as  precedent,  must  be  kept  in  view;  for  our  statute  says  "nei- 
ther party  to  an  obligation  can  be  compelled  specifically  to  perform  it 
unless  the  other  party  thereto  has  performed  or  is  compellable  specific- 
ally to  perform  everything  to  which  the  former  is  entitled  under  the 
same  obligation,  either  completely  or  nearly  so,  together  with  full 
compensation  for  any  want  of  entire  performance."    Civ.  Code,  §  3386. 

The  forming  of  the  corporation  and  the  issuance  of  one-quarter  of 
the  stock  to  the  defendant  was  but  a  small  part  of  the  consideration  to 
be  performed  by  plaintiff.  The  contract  was  not  "nearly"  performed 
on  plaintiff's  part  by  the  forming  of  this  corporation  and  transfer  of  a 
quarter  of  the  stock.  The  main  object,  purpose,  and  consideration  of 
the  contract — the  development  of  the  land  for  oil — was  yet  to  be  per- 
formed by  plaintiff.  And,  though  plaintiff  may  be  entitled  at  law  to  a 
conveyance  and  to  be  let  into  possession  before  he  performs  this  part 
of  the  consideration,  yet,  as  this  part  of  the  consideration  has  not  been 
performed,  and  its  performance  cannot  in  equity  be  specifically  en- 
forced, no  enforcement  of  any  part  of  the  contract  can  be  h"  1.  This 
principle  is  clearly  illustrated  and  the  reasons  plainly  given  in  Lattin 
v.  Hazard,  91  Cal.  87,  27  Pac.  515.  To  the  same  effect  is  the  more 
recent  case  of  Moore  v.  Tuohy,  142  Cal.  342,  75  Pac.  896.     *     *     * 

[The  judgment  for  the  defendant  was  affirmed.] 

14  Parts  of  the  opinion  are  omitted. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        125 

DARBEY  v.  WHITAKER  et  al. 
(In  Chancery,  1857.    4  Drew.  134,  62  E.  R.  52.) 

An  agreement  for  sale  of  leasehold  premises  and  the  goodwill  of  a 
trade  and  certain  fixtures  to  be  taken  at  a  valuation,  to  be  made  by 
two  gaugers,  to  be  named,  or  their  umpire.     *     *     * 

This  was  a  bill  for  specific  performance.     *     *     * 

The  VicE-ChancEllor  desired  him  to  confine  his  reply  to  the  last 
objection. 

Mr.  Baily :  Why  is  the  fact  of  a  collateral  part  of  the  agreement, 
being  the  subject  of  valuation,  to  prevent  specific  performance?  The 
agreement  is,  in  fact,  in  two  distinct  parts.  There  is  the  contract  for 
sale  of  the  lease  and  goodwill ;  a  clear,  distinct  agreement.  Then 
there  is  the  contract  for  the  sale  of  the  fixtures  and  stock-in-trade  to  be 
the  subject  of  valuation.  The  Court  must  assume  that  the  valuers  will 
proceed. 

The:  Vice-Chancellor  [Sir  R.  T.  KinderslEy]  .1B  *  *  * 
It  is  said  there  can  be  no  specific  performance  of  a  contract  to  pur- 
chase a  goodwill.  No  doubt  you  cannot  have  a  specific  performance 
of  a  contract  to  purchase  a  goodwill  alone,  unconnected  with  business 
premises,  by  reason  of  the  uncertainty  of  the  subject-matter.  But  when 
a  goodwill  is  entirely  or  mainly  annexed  to  the  premises,  and  the  con- 
tract is  for  the  sale  of  the  premises  and  goodwill,  there  is  not  the  slight- 
est ground  for  doubt  that  such  a  contract  is  a  fit  matter  for  a  decree 
in  a  suit  for  specific  performance.     *     *     * 

Then,  lastly,  is  raised  a  question  in  which  it  is  with  great  regret  that 
I  feel  myself  under  the  necessity  of  refusing  a  decree. 

By  the  terms  of  the  contract,  the  premises  are  to  be  sold  for  a  fixed 
sum,  and  besides  the  premises  the  Plaintiff  agrees  to  sell  the  fixtures 
and  stock-in-trade.     [His  Honor  referred  to  the  passage  in  page  136.] 

Now  I  assume  it  to  be  clear  that  this  Court  has  no  power  to  decree 
specific  performance  of  a  contract  for  sale  or  purchase  at  a  price  to 
be  fixed  by  arbitration,  unless  the  arbitrators  have  actually  fixed  the 
price. 

It  appears  to  me  that  that  is  implied  by  the  very  nature  of  a  de- 
cree for  specific  performance.  What  would  it  be?  A  decree  that 
directs  payment  to  the  Plaintiff  of  such  a  sum  of  money  as  A.  and 
B.  shall  fix.  I  never  saw  such  a  decree,  and  I  think  the  Court  can- 
not make  it,  on  the  ground  that  this  Court  will  never  make  a  decree 
that  it  cannot  see  its  way  to  enforce.  Now,  how  could  I  enforce  such 
a  decree?  What  is  the  time  to  be  allowed  for  arbitration?  How  can 
I  compel  the  arbitration?  It  appears  in  this  case  as  a  fact  that  one 
of  the  arbitrators  has  refused  to  go  on,  because  he  was  told  by  the 
Defendant  that  he  did  not  mean  to  complete.     How  can  I  be  sure  that 

i"'  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


126  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

he- will  go  on?  And  even  if  the  arbitrators  do  go  on,  and  differ,  how- 
can  I  compel  the  appointment  of  an  umpire? 

[His  Honor  then  adverted  to  the  argument  that  the  agreement  was 
composed  of  separate  parts,  and  decided  that  it  was  not;  that  it  was 
one  agreement. 

The  bill  was  accordingly  dismissed,  but  without  costs,  the  Court  con- 
sidering that  moral  justice  was  on  the  Plaintiff's  side.] 


(C)   Other  Elements  Influencing  Equity  Jurisdiction 
TAYLOR  v.  NEVILLE. 

(Cited  in  Buxton  v.  Lister  [1740]  3  Atk.  382,  at  384,  in  the  words  of  Lord 
Hardwicke,  Chancellor.) 

*  1G  That  was  for  a  performance  of  articles  for  sale  of  eight 
hundred  ton  of  iron,  to  be  paid  for  in  a  certain  number  of  years,  and 
by  installments,  and  a  specific  performance  was  decreed. 

Such  sort  of  contracts  as  these,  differ  from  those  that  are  immedi- 
ately to  be  executed. 

There  are  several  circumstances  which  may  concur. 

A  man  may  contract  for  the  purchase  of  a  great  quantity  of  tim- 
ber, as  a  ship  carpenter,  by  reason  of  the  vicinity  of  the  timber,  and 
this  on  the  part  of  the  buyer. 

On  the  part  of  the  seller,  suppose  a  man  wants  to  clear  his  land, 
in  order  to  turn  it  to  a  particular  sort  of  husbandry,  there  nothing  can 
answer  the  justice  of  the  case,  but  the  performance  of  the  contract  in 
specie.     *     *     *  17 

is  Parts  of  the  opinion  are  omitted. 

it  In  Pollard  v.  Clayton  (1855)  1  Kay  &  J.  461,  Viee-Chancellor  Sir  W.  Page- 
Wood,  after  a  full  discussion  of  the  ground  for  a  specific  execution  of  an  in- 
stallment contract,  said:  "I  cannot  help  further  making  the  observation  that, 
notwithstanding  the  case  of  Taylor  v.  Neville  [cited  in  Buxton  v.  Lister],  and 
the  approbation  it  met  with  from  Lord  Hardwicke  in  Buxtou  v.  Lister  [(1746J 
3  Atk.  383],  it  seems  to  me  somewhat  singular,  looking  to  the  large  mercantile 
community  of  this  country,  that  we  do  not  find  in  the  books,  since  the  case 
of  Taylor  v.  Neville  (a  case  not  in  Peere  Williams,  not  reported  at  all,  and 
apparently  only  cited  from  manuscript^,  a  single  case  of  a  bill  for  the  per- 
formance of  any  contract  for  the  mere  supply  of  goods — cotton,  wool  or  the 
like — on  the  ground  of  their  being  supplied  by  instalments ;  no  such  case 
can  be  produced  at  any  late  period ;  and,  with  the  exception  of  Buxton  v. 
Lister,  the  only  case  in  which  the  doctrine  as  to  a  delivery  by  instalments. 
has  been  recognised  is  that  of  Adderley  v.  Dixon  [(1824)  1  Sim.  &  S.  607],  a 
totally  different  ease,  where  the  agreement  was  for  the  purchase  of  the  un 
ascertained  dividends  which  might  become  payable  from  a  bankrupt's  estate, 
and  specific  performance  was  decreed  at  the  suit  of  the  vendor,  the  Court 
holding  that  the  purchaser  as  Plaintiff  had  a  right  to  the  specific  thing  he 
brought,  and  ought  not  to  be  sent  to  a  Court  of  Law  to  try  what  damages 
he  had  sustained.*' 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  127 

PEALE  v.  MARIAN  COAL  CO. 

(Circuit  Court  of  the  United  States,  M.  D.  Pennsylvania,  1911.     190  Fed.  376.) 

In  Equity.  Suit  by  John  \Y.  Peale  against  the  Marian  Coal  Com- 
pany.   Decree  for  complainant. 

Witmer,  District  Judge.1  s  The  plaintiff,  by  bill  in  equity,  here 
seeks  relief  for  an  alleged  breach  of  the  defendant's  agreement  to  de- 
liver to  him  coal  from  its  washery  at  the  Holden  Culm  Dump,  which 
it  undertook  to  do,  in  return  for  money  advanced  by  the  plaintiff  to  lift 
defendant's  obligations  and  to  enable  it  to  make  necessary  improve- 
ments and  developments  for  the  successful  operation  of  its  washery. 

The  complaint  sets  forth  : 

That  on  the  11th  day  of  April,  1907,  a  contract  was  entered  into, 
between  the  plaintiff  and  the  defendant.     *     *     * 

That  pursuant  to  the  terms  of  said  contract  the  complainant  ad- 
vanced, by  way  of  loan,  to  the  defendant  a  large  sum  of  money,  to  wit, 
337,364.27,  exclusive  of  interest.  That  upon  the  amount  so  advanced 
there  has  been  repaid  the  sum  of  $12,781.77,  leaving  due  and  unpaid  on 
said  account,  January  28,  1909,  the  sum  of  $24,582.50. 

That  the  defendant  is  engaged  in  the  business  of  carrying  on  a  coal 
washery  operation  in  the  borough  of  Taylor,  county  of  Lackawanna, 
Pa.,  where  it  prepares  for  market  coal  from  the  Holden  Culm  Dump, 
located  along  the  Delaware,  Lackawanna  &  Western  Railroad.  That, 
pursuant  of  the  contract  between  the  complainant  and  the  defendant, 
the  latter  proceeded  to  ship  coal  to  the  former  on  the  17th  day  of  May, 
1907,  and  from  that  time  until  the  13th  day  of  October,  1908,  it  did 
ship  coal  to  the  complainant  and  receive  from  him  payment  therefor 
in  accordance  with  said  contract.  That  on  the  day  last  mentioned  the 
defendant  ceased  to  ship  its  coal  to  the  complainant,  as  it  had  under- 
taken to  do  by  virtue  of  its  contract,  and  until  henceforth  had  utterly 
failed  to  ship  to  the  complainant  the  product  of  its  washery,  or  any 
part  thereof,  without  excuse  or  just  cause,  although  having  often  been 
requested  to  do  so,  resulting  in  great  damage  to  the  complainant. 

That  the  defendant  has  since  been  operating  said  washery  and  pre-: 
paring  and  shipping  coal  to  market  from  the  said  culm  dump  through 
other  agents  or  parties  than  the  plaintiff,  and  that  such  culm  bank  is 
not  exhausted.  That  there  are  yet  remaining  many  thousand  tons  of 
coal  in  said  dump,  and  that  large  quantities  are  being  added  thereto 
daily  by  deposits  from  the  Delaware,  Lackawanna  &  Western  Railroad 
Company  in  connection  with  the  operation  of  the  said  Holden  Col- 
liery. That  it  is  impossible  to  anticipate  the  length  of  time  which  will 
be  required  to  exhaust  the  said  dump,  or  the  amount  of  coal  which 
may  be  ultimately  taken  therefrom,  for  the  reason  that  the  length  of 
time  will  largely  depend  upon  the  extent  of  the  operations  which  may 

is  Parts  of  the  opinion  are  omitted. 


12S  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

be  conducted  at  the  said  washery  and  the  amount  of  the  output,  and 
because  it  is  altogether  conjectural  and  uncertain  what  amount  of  ma- 
terials may  be  deposited  in  the  future  upon  the  said  dump  by  the  Dela- 
ware, Lackawanna  &  Western  Company  in  connection  with  the  oper- 
ation of  the  Holden  Colliery.  That  the  complainant  has  already  suf- 
fered large  damages,  and  will  continue  in  the  future  to  suffer  to  an  ex- 
tent which  it  is  impossible  now  to  determine.  Wherefore  he  is  remedi- 
less in  the  premises  at  law  and  prays  for  relief  in  this  court,  to  wit : 

(a)  For  damages  for  the  coal  diverted,  and  for  discovery  of  the 
amount  as  the  basis  for  determining  them. 

(b)  For  a  decree  requiring  the  defendant  to  repay  the  balance  of  the 
sum  advanced  by  the  plaintiff  to  the  complainant. 

(c)  For  specific  performance  of  said  contract. 

(d)  For  an  injunction  restraining  the  defendant  from  shipping  coal 
to  other  persons  than  the  complainant. 

(e)  For  general  relief. 

The  defendant  admits  the  execution  of  the  contract  in  suit  and  the 
loan  of  $35,000  by  the  plaintiff  to  it  on  account  of  which  it  insists  the 
plaintiff  has  received  a  credit  of  the  sum  of  $17,000,  and  that  it  (the 
defendant)  is  entitled  to  a  further  credit  of  $1,988.21  for  24,647  tons 
of  coal  delivered  to  the  plaintiff  and  sold  by  him  without  defendant's 
consent  at  various  prices  below  the  minimum  stipulated  in  said  con- 
tract. 

The  answer  furthermore  sets  forth  that  by  reason  of  the  plaintiff's 
violations  of  the  terms  of  said  contract  he  has  prevented  the  defend- 
ant from  further  attempting  to  comply  with  the  same.     *     *     * 

This  therefore  requires  a  partial  analysis  of  the  contract  to  deter- 
mine its  nature,  and  the  duties  and  obligations  of  the  several  parties 
thereunder.     *     *     * 

Under  its  provisions  the  plaintiff  agrees  to  advance  to  the  defendant 
moneys  to  the  amount  of  $35,000  for  its  benefit,  to  release  its  obliga- 
tions, and  to  enlarge  and  improve  its  plant  so  as  to  operate  it  to  better 
advantage.  In  consideration  of  such  advance,  the  defendant  agreed 
"to  deliver  to  the  party  of  the  first  part  (the  plaintiff)  or  his  assigns 
the  entire  output  of  the  culm  bank  and  washery  above  referred  to,  not 
only  until  the  payment  of  the  moneys  to  be  advanced,  with  interest,  but 
also  until  the  entire  exhaustion  of  said  culm  bank,  including  materials 
hereafter  deposited  thereon  by  the  Delaware,  Lackawanna  &  Western 
Railway  Company,  or  its  successors  or  assigns,  in  connection  with  the 
operation  of  the  Holden  Colliery." 

It  is  further  agreed  "to  prepare  all  the  coal  to  be  delivered  to  the 
party  of  the  first  part  (the  plaintiff)  as  to  the  sizes,  the  percentage  of 
impurities,  and  the  merchantability  and  appearance,  according  to  the 
standard  of  the  Delaware,  Lackawanna  &  Western  Railroad,  prevail- 
ing in  the  region  where  the  said  washery  is  situated,"  and  that  the 
respective  sizes  of  the  coal  shipped  from  said  washery  should  conform 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        129 

to  the  standard,  and  be  made  over  meshes  corresponding  in  size  to  the 
meshes  used  by  the  said  railway  company  in  the  Lackawanna 
region.     *     *     * 

The  defendant  demurs  and  contends  that  the  plaintiff  can  by  a  re- 
covery of  damages  have  a  complete  or  adequate  remedy  at  law,  and 
is  therefore  not  entitled  to  relief  here.  The  admission  of  this  doctrine 
and  its  application  to  such  cases  as  the  one  under  consideration  would 
practically  divest  courts  of  equity  of  all  jurisdiction  to  compel  specific 
performance  of  real  contracts. 

As  a  matter  of  fact  it  appears  impossible  to  anticipate  the  length  of 

time  required  to  exhaust  the  dump,  or  to  estimate  the  amount  of  coal 

that  may  ultimately  be  taken  therefrom,  because  it  will  largely  depend 

upon  the  extent   of  the   operation   which   may   be   conducted   at   the 

washery  and  the  amount  of  the  output,  and  because  it  is  altogether 

conjectural  and  uncertain  what  amount  of  materials  may  be  deposited 

in  the  future  upon  the  dump  of  the  Delaware,  Lackawanna  &  Western 

Railroad  Company  in  connection  with  the  operation  of  the  Holden 

Colliery,  and  therefore  the  plaintiff's  damages  are  not  susceptible  of 

liquidation. 

"That  the  plaintiff  could  maintain  an  action  at  law  for  damages,  for  breach 
of  the  contract,  there  is  no  doubt;  but  it  is  a  well-settled  rule  that,  although 
the  action  at  law  will  lie,  yet  if  there  is  an  utter  uncertainty  in  any  calcula- 
tion of  damages  for  the  breach  of  the  covenants,  and  the  measure  of  the  dam- 
ages is  largely  conjectural,  equity  will  intervene  because  of  the  inadequacy 
of  the  remedy,  and  enforce  performance  of  it  by  injunction.  Palmer  v.  Gra- 
ham, 1  Pars.  Eq.  Cas.  (Pa.)  476 ;  Wilkinson  v.  Colley,  164  Pa.  43  [30  Atl.  280, 
26  L.  R.  A.  114]." 

It  is  evident,  furthermore,  that  in  order  to  recover  damages  by  rem- 
edy at  law  it  would  be  necessary  to  resort  to  a  multiplicity  of  suits. 
The  plaintiff  might  bring  suit  monthly  to  recover  damages  for  loss  of 
profits  for  the  preceding  month,  or  he  might  resort  to  annual  suits. 
He  could  not  recover  in  any  one  suit  for  all  of  the  damages,  because 
it  would  be  impossible  to  ascertain  or  to  show  what  the  damages 
would  amount  to  in  any  one  suit,  for  reasons  which  are  clearly  obvi- 
ous. He  could  not  wait  until  the  entire  dump  should  have  become 
exhausted,  because  it  might  be  that  by  that  time  a  substantial  part  of 
his  claim  might  be  barred  by  the  statute  of  limitations.  Furthermore, 
no  plaintiff  is  required  to  wait  after  a  breach  of  contract  has  occurred, 
and  unless  one  action  can  be  brought  in  which  adequate  relief  could 
be  obtained  equity  will  always  take  jurisdiction.  Bank  of  Kentucky 
v.  Schuylkill  Bank,  1  Pars.  Eq.  Cas.  (Pa.)  180;  16  Cyc.  60,  63. 

Many  authorities  upon  this  general  proposition  might  be  cited ;  but 
the  court  is  satisfied,  as  argued  by  counsel  for  plaintiff,  that  this  ques- 
tion was  settled  by  this  court,  Judge  Archbald  presiding,  in  the  initial 
stage  of  the  case  upon  demurrer.     In  his  opinion  he  said : 

"'As  to  the  further  ground  of  demurrer,  that  the  plaintiff  has  a  complete 
remedy  at  law  by  action  for  damages,  it  is  sufficient  to  say  that  the  bill  seeks 
the  specific  performance  of  the  defendant's  agreement,  to  deliver  coal  from 
Poke  Eq. — 9 


130  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

their  washery  at  the  Holden  Culm  Dump,  which  they  undertook  to  do  in  re- 
turn for  the  money  advanced  by  the  plaintiff  to  make  the  necessary  develop- 
ments. For  this  it  is  evident  that  damages  for  a  breach  of  the  contract  would 
not  be  at  all  adequate.  Nor  is  this  disturbed  because  the  plaintiff,  in  the 
same  connection,  asks  damages  for  the  coal  so  far  diverted,  and  calls  for  a 
discovery  of  the  amount  as  the  basis  for  determining  them.  Equity,  having 
taken  jurisdiction,  will  dispose,  if  possible,  of  the  whole  of  the  controversy, 
and  the  plaintiff  is  entitled  to  be  made  good  for  the  commissions  which  he 
has  lost  as  a  part  of  it." 

Moreover,  it  is  now,  in  any  event,  too  late  to  take  objection  to  the 

jurisdiction  of  the  court.     As  stated  by  Justice  Brewer  in  Brown  v. 

Lake  Superior  Iron  Co.,  134  U.  S.  530,  536,  10  Sup.  Ct.  604,  606  (33 

L.  Ed.  1021),  adopting  the  language  in  earlier  cases: 

"  *  *  *  If  the  objection  of  want  of  jurisdiction  in  equity  is  not  taken 
in  proper  time,  namely,  before  the  defendant  enters  into  his  defense  at  large, 
the  court. having  the  general  jurisdiction  will  exercise  it:  and  in  a  note  (in 
1  Dan.  Ch.  Prac.  [4th  Am.  Ed.]  p.  550(  many  cases  are  cited  to  establish  that, 
'if  a  defendant  in  a  suit  in  equity  answers  and  submits  to  the  jurisdiction  of 
the  court,  it  is  too  late  for  him  to  object  that  the  plaintiff  had  a  plain  and 
adequate  remedy  at  law.  This  objection  should  be  taken  at  the  earliest  op- 
portunity.' " 

Attention  is  also  called  to  the  language  of  the  same  learned  justice 
in  Hollins  v.  Brierfield  Coal  &  Coke  Co.,  160  U.  S.  371,  380,  381,  14 
Sup.  Ct.  127,  37  L.  Ed.  1113. 

Regarding  the  remedy  provided  for  in  the  contract,  it  is  sufficient 
to  note  that,  while  it  might  afford  redress  for  the  failure  to  repay  the 
plaintiff's  loan,  it  gives  none  for  the  loss  of  his  commissions.  Further- 
more, this  court,  having  obtained  jurisdiction,  will  retain  such  for  the 
purpose  of  administering  complete  relief  and  doing  justice  with  respect 
to  the  subject-matter. 

It  is  therefore  adjudged  and  decreed: 

First.  That  the  defendant  be  ordered  and  directed  to  specifically 
perform  its  contract  with  the  plaintiff  by  delivering  to  the  plaintiff 
from  the  date  of  this  decree  the  output  of  its  washery. 

Second.  That  the  defendant  be  enjoined  by  perpetual  injunction 
from  delivering  any  of  the  output  of  the  washery  and  the  Holden 
Dump  to  any  one  other  than  the  plaintiff. 

Third.  That  the  defendant  be  and  it  is  hereby  required  to  account 
to  the  plaintiff  for  all  moneys  advanced  by  the  plaintiff  to  it  under  the 
contract,  which  has  not  already  been  repaid,  together  with  interest 
thereon,  and  that  the  defendant  be  required  to  account  to  the  plaintiff 
for  all  damages  sustained  by  the  plaintiff  by  reason  of  the  defendant's 
breach  of  contract. 

Fourth.  That  J.  Fred  Schaffer,  Esq.,  be  appointed  a  special  exam- 
iner to  state  an  account  between  the  parties  and  report  the  same  to  the 
court.10 

is  The  modern  rule  as  to  the  right  of  specific  performance  in  installment 
contracts  is  stated  by  Lord  Atkinson  in  Dominion  Coal  Co.,  Limited,  v.  Do- 
minion lion  &  Steel  Co.,  Limited,  and  National  Trust  Co.,  Limited,  [1909] 
A.  C.  293,  299,  311.  In  this  case  there  was  contract  for  the  delivery  of  coal 
to  be  used  in  the. manufacture  of  steel.     The  deliveries  were  to  be  by  install- 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE*        131 


CLARK  v.  ROSARIO  MIN.  &  MILL.  CO. 

(Circuit  Court  of  Appeals  of  the  United  States,  Ninth  Circuit,  1910.     17G 
Fed.  180,  99  C.  C.  A.  534.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Northern 
District  of  California. 

Suit  in  equity  by  the  Rosario  Mining  &  Milling  Company  against  C. 
W.  Clark  and  others.  Decree  for  complainant,  and  defendant  Clark 
appeals. 

Before  Gilbert  and  Ross,  Circuit  Judges,  and  De  Haven,  Dis- 
trict Judge. 

Ross,  Circuit  Judge.20  *  *  *  The  effect  of  the  contract  was 
to  require  the  appellant  and  his  associates  to  do  very  extensive  develop- 
ment work  upon  the  property  at  their  own  expense  for  one  year  (save 
the  right  to  apply  80  per  cent,  of  the  gross  bullion  output  to  expenses 
during  the  first  90  days) ;  to  operate  the  reduction  works  to  their  full 
capacity  for  one  year,  and  pay  the  appellee  20  per  cent,  of  the  gross 
output  during  the  first  90  days,  regardless  of  the  expense  of  getting  it 
out,  and  all  of  the  profits  thereafter ;  to  keep  open  their  offer  to  buy 
the  property  for  $400,000  at  any  time  within  the  year,  even  though  the 
development  work  should  prove  the  mine  valueless,  with  the  conse- 
quent liability  in  the  sum  of  $100,000  in  the  event  of  their  failure  to 
comply  with  the  terms  of  the  offer,  should  it  be  accepted ;  and  with  the 
reserved  right  on  the  part  of  the  appellee  to  sell  the  property  to  any 
other  party  at  any  price  it  might  fix,  in  the  event  the  development  work 
performed  by  the  appellant  and  his  associates  should  prove  the  mine  to 
be  of  great  value,  with  the  condition  that,  in  the  event  such  sale  to  a 
third  party  should  equal  or  exceed  $650,000,  the  appellee  would  pay 
$50,000  thereof  to  the  appellant  and  his  associates,  or  any  less  excess 
over  $600,000,  with  the  preferred  right  already  mentioned  to  the  appel- 
lant and  his  associates  to  become  the  purchaser  at  the  price  of  $600,000. 
The  only  real  obligation  the  contract  seems  to  have  imposed  upon  the 
appellee  was  to  pay  for  the  stores  and  supplies  the  appellant  and  his 
associates  might  have  on  hand  in  the  event  it  should  resume  possession 
of  the  property,  which  it  reserved  the  right  to  take  at  any  time  after  90 

ments  over  a  period  of  ninety-nine  years.  The  counsel  for  the  respondents 
contended  that  they  were  entitled  to  a  decree  for  specific  performance,  on  the 
ground  that  damages  were  an  inadequate  remedy ;  urging  that  the  contract 
was  of  au  exceptional  character,  that  the  length  of  time  over  which  the  con- 
templated obligations  extended,  and  the  consequent  impossibility  of  ascer- 
taining the  damages  in  anticipation  of  the  probable  conditions  of  the  market 
in  a  distant  future — that  is,  of  ascertaining  the  present  values  of  future  ob- 
ligations, even  the  proximity  of  the  appellant's  coal  fields  to  the  respondents' 
works — pointed  to  specific  performance  rather  than  damages  as  the  proper 
remedy  in  this  case.  In  reply  to  this  contention,  Lord  Atkinson,  delivering  the 
judgment  for  the  Privy  Council,  said:  'According  to  their  Lordships'  view, 
this  is  not  a  contract  of  which,  on  the  authorities  cited,  specific  performance 
would  be  decreed  by  a  Court  of  Equity." 

20  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


132  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

days  (thereby  depriving  the  appellant  and  his  associates  of  the  right  to 
further  explore  it),  and  to  sell  the  property  to  the  appellant  and  his 
associates  at  the  end  of  the  year  for  $600,000,  provided  it  had  not  al- 
ready sold  or  contracted  it  to  somebody  else. 

It  is  difficult  to  conceive  of  a  much  more  one-sided  contract.  It  is 
one  that  we  do  not  think  any  court  of  equity  should  decree  the  specific 
performance  of.  "To  stay  the  arm  of  a  court  of  equity  from  enforcing 
a  contract,"  said  the  Supreme  Court  in  Pope  Manufacturing  Co.  v. 
Gormully,  144  U.  S.  224,  236,  12  Sup.  Ct.  632,  637,  36  L.  Ed.  414,  "it 
is  by  no  means  necessary  to  prove  that  it  is  invalid.  From  time  im- 
memorial it  has  been  the  recognized  duty  of  such  courts  to  exercise  a 
discretion,  to  refuse  their  aid  in  the  enforcement  of  unconscionable, 
oppressive,  or  iniquitous  contracts,  and  to  turn  the  party  claiming  the 
benefit  of  such  contract  over  to  a  court  of  law."     *     *     * 

The  judgment  is  reversed,  and  the  case  remanded,  with  directions  to 
the  court  below  to  dismiss  the  suit,  at  the  complainant's  cost. 


J.  B.  BROWN  &  SONS  v.  BOSTON  &  M.  R.  R. 
(Supreme  Judicial  Court  of  Maine,  1909.    106  Me.  248,  76  Atl.  692.) 

WhiTEhousE,  J.21  This  is  a  bill  in  equity  brought  by  the  plaintiff 
corporation  to  compel  the  specific  performance  of  an  undertaking  on 
the  part  of  the  defendant,  created  by  a  reservation  in  a  deed  of  land, 
to  construct  and  maintain  an  overhead  street  crossing  suitable  for  foot 
passengers  and  teams.  The  case  was  reported  for  the  determination 
of  the  law  court  upon  bill,  answer,  and  replication,  and  so  much  of 
the  evidence  reported  as  is  legally  admissible.     *     *     * 

There  is  a  rule  respecting  this  remedy,  uniformly  recognized  by 
courts  of  equity,  that  is  also  applicable  to  the  facts  in  the  case  at  bar. 
It  has  not  been  overlooked  that  by  the  terms  of  the  reservation  the 
overhead  street  crossing  was  not  only  to  be  constructed  but  "always" 
maintained  by  the  defendant.  In  Beach,  Mod.  Eq.  Jr.  §  576,  the  au- 
thor says : 

"The  court  will  decree  specific  performance  only  when  it  can  dispose  of  the 
matter  by  an  order  capable  of  being  enforced  at  once.  It  will  not  direct  the 
performance  of  a  continuous  duty  extending  over  a  number  of  years." 

This  question  appears  to  have  been  carefully  examined  in  Ross  v. 
Union  Pacific  Ry.  Co.,  Woolw.  26,  Fed.  Cas.  No.  12,080,  in  which 
the  authorities  prior  to  that  time  are  fully  considered,  and  it  was  there 
decided  that  the  court  could  not  enter  upon  the  duty  of  compelling 
one  party  to  build  a  railroad  and  the  other  party  to  pay  for  it  accord- 
ing to  contract.  This  case  was  cited  with  approval  in  Texas  Ry.  v. 
Marshall,  136  U.  S.  406,  10  Sup.  Ct.  849  (34  h.  Ed.  385),  in  which  lat- 
ter case  it  is  said  in  the  opinion: 

2i  Part  of  the  opinion  is  omitted. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        133 

"If  the  court  has  rendered  a  decree  restoring  all  the  offices  and  machinery 
and  appurtenances  of  the  road  which  have  been  removed  from  Marshall  to 
other  places,  it  must  necessarily  superintend  the  execution  of  this  decree.  It 
must  be  making  constant  inquiry  as  to  whether  every  one  of  the  subjects  of 
the  contract  which  have  been  removed  has  been  restored.  It  must  consider 
whether  this  has  been  done  perfectly  in  good  faith,  or  only  in  an  evasive  man- 
ner. It  must  be  liable  to  perpetual  calls  in  the  future  for  like  enforcement  of 
the  contract,  and  it  assumes,  in  this  way,  an  endless  duty,  inappropriate  to 
the  functions  of  the  court,  which  is  as  ill  calculated  to  do  this  as  it  is  to 
supervise  and  enforce  a  contract  for  building  a  house  or  building  a  railroad, 
both  of  which  have  in  this  country  been  declared  to  be  outside  of  its  proper 
functions,  and  not  within  its  powers  of  specific  performance." 

See,  also,  Blackett  v.  Bates,  1  Chancery  App.  Cases,  117;  Powell 
Duffryn  Steam  Coal  Co.  v.  Taff  Vale  Ry.  Co.,  9  Law  Rep.  Chancery 
Appeal  Cases,  334. 

In  the  case  at  bar  it  is  manifest  that  performance  of  the  contract 
according  to  the  terms  of  the  reservation  would  not  be  beneficial  to 
the  plaintiff,  but  would  prove  imperfect  and  nugatory ;  that  it  would 
impose  an  unnecessary  expense  and  burden  upon  the  defendant ;  that, 
since  the  bridge  must  be  maintained  forever,  no  decree  could  be  made 
which  could  be  wholly  performed  at  once,  but  must  be  for  the  per- 
formance by  the  defendant  of  the  perpetual  duty  of  maintaining  the 
bridge,  and  necessarily  involve  the  frequent  interposition  of  the  court 
to  consider  the  new  conditions  that  might  arise  during  the  progress 
of  time. 

It  is  therefore  the  opinion  of  the  court  that  a  decree  of  specific  per- 
formance would  be  inequitable  and  ought  not  to  be  granted,  and  that 
the  certificate  must  accordingly  be : 

Bill  dismissed,  with  costs. 


TEXAS  CO.  v.  CENTRAL  FUEL  OIL  CO.  et  al. 

(Circuit  Court  of  Appeals  of  the  United  States,  Eighth  Circuit,  1912. 
194  Fed.  1,  114  C.  C.  A.  21.)  22 

TriEber,  District  Judge.  *  *  *  It  is  next  contended  that  the 
contract  in  respect  to  which  relief  is  sought  extends  over  a  period  of 
10  years,  necessitating  supervision  for  a  long  time  in  a  manner  which 
a  court  of  equity  will  not  undertake.     *     *     * 

The  contract  sought  to  be  enforced  in  this  case  runs  for  10  years 
only,  and  involves  no  "skill,  personal  labor,  and  cultivated  judgment." 
What  it  does  require  is  easily  ascertainable,  and,  if  carried  out  in 
good  faith,  ought  not  to  give  rise  to  any  disputes  requiring  the  inter- 
position of  the  court.  During  the  time  it  was  complied  with  by  ap- 
pellee no  disputes  arose,  and  there  is  no  reason  for  anticipating  any 
now  if  good  faith  will  control  the  actions  of  both  parties.  That  some 
differences  may  occur  is  true,  but  they  are  not  likely  to  be  of  a  nature 
requiring  much  consideration.     No  one  will  question  for  a  moment 

22  An  abridged  statement  of  the  facts  of  this  case  and  parts  of  the  opin- 
ion here  omitted  are  printed  at  page  1GG,  supra. 


134  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Ch.  2 

the  duty  of  a  court  of  equity  specifically  to  enforce  a  lease  of  ground 
for  a  term  of  ten  years  or  even  a  term  of  99  years  because  the  lessee 
is  bound  by  certain  covenants  such  as  paying  rents,  taxes,  and  assess- 
ments, keeping  the  buildings  in  repair  or  erecting  buildings  according 
to  certain  specifications,  keeping  the  buildings  insured  and  other  con- 
ditions usually  inserted  in  such  contracts  of  lease,  and  which  may 
give  rise  to  as  many  or  more  disputes  than  the  contract  in  the  case  at 

r\n  i~  *  ^  ^ 

Defendants  contracted  for  all  the  oil,  not  exceeding  540,000  barrels 
for  any  one  month  of  30  days.  It  had  the  pipe  lines  to  carry  that 
amount,  and  there  was  no  question  of  any  incoming  freight. 

In  Edelen  v.  Samuels  &  Co.  [126  Ky.  295,  103  S.  W.  360,  31  Ky. 
Law  Rep.  731]  the  contract  was  of  such  a  nature  that,  if  specifically 
enforced,  it  would  require  the  court's  constant  attention  for  a  period 
of  at  least  five  years.    As  stated  by  the  court : 

"In  order  to  make  the  whisky  contemplated  by  the  terms  of  the  instrument 
before  us,  the  court  will  be  forced  to  purchase  a  large  quantity  of  grain  and 
other  material  necessary  to  the  distillation  of  the  spirits  to  be  delivered;  also 
to  erect  a  bottling  works,  and  be  prepared  to  bottle  the  whisky  after  it  is 
made." 

There  are  no  such  facts  in  this  case.     *     *     * 

Many  other  cases  are  cited  by  the  learned  counsel  for  appellees  to 
this  point.  All  of  them  have  been  carefully  examined,  and  are  as  dis- 
tinguishable upon  the  facts  as  those  above  cited.  Some  of  them  apply 
to  construction  contracts  requiring  skill  and  judgment.  In  others  the 
parties  can  be  compensated  in  an  action  at  law ;  while  some,  sustain- 
ing appellee's  contention  to  some  extent  rely  upon  cases  determined 
long  ago,  overlooking  the  fact  that  equitable  remedies  have  steadily 
been  expanded  by  the  court  to  meet  the  increased  complexities  of 
modern  business  relations.  The  leading  cases  in  the  national  courts 
sustaining  the  right  of  having  specific  performance  decreed  in  cases 
of  this  nature,  although  it  may  necessarily  result  in  the  court  retain- 
ing the  cause  to  settle  questions  which  may  arise  under  the  contract 
thereafter,  are  Joy  v.  St.  Louis,  138  U.  S.  1,  11  Sup.  Ct.  243,  34  L. 
Ed.  843,  affirming  the  decision  of  Judge,  afterwards  Mr  Justice 
Brewer,  in  Central  Trust  Co.  v.  Wabash,  St.  L.  &  P.  Ry.  Co.  (C.  C.) 
29  Fed.  546;  Union  Pacific  Railway  Co.  v.  Chicago,  etc.,  Ry.  Co.,  163 
U.  S.  564,  16  Sup.  Ct.  1173,  41  L.  Ed.  265,  affirming  the  decision  of  the 
Circuit  Court  of  Appeals  for  this  Circuit  in  51  Fed.  309,  2  C.  C.  A. 
174,  which  had  affirmed  Mr.  Justice  Brewer's  decision  in  Chicago, 
R.  I.  &  P.  Ry.  Co.  v.  Union  Pac.  Ry.  Co.  (C.  C.)  47  Fed.  15. 

In  the  Joy  Case  Mr.  Justice  Blatchford,  who  delivered  the  unani- 
mous opinion  of  the  court,  in  reply  to  a  contention  similar  to  that  of 
the  instant  case,  said : 

"In  the  present  case  it  is  urged  that  the  court  will  be  called  upon  to  deter- 
mine from  time  to  time  what  are  reasonable  regulations  to  be  made  by  the 
Wabash  Company  for  the  running  of  its  trains  upon  its  tracks  by  tbe  Colo- 
rado Company.     But  this  is  no  more  than  a  court  of  equity  is  called  upon  to 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  135 

do  whenever  it  takes  charge  of  the  running  of  a  railroad  hy  means  of  a  re- 
ceiver. Irrespective  of  this,  the  decree  is  complete  in  itself  and  disposes  of 
the  controversy ;  and  it  is  not  unusual  for  a  court  of  equity  to  take  supple- 
mental proceedings  to  carry  out  its  decree  and  make  it  effective  under  altered 
circumstances." 

In  Union  Pacific  Railway  Co.  v.  Chicago,  etc.,  Ry.  Co.,  where  the 
contract  sought  to  be  enforced  was  for  999  years,  Mr.  Chief  Justice 
Fuller,  speaking  for  the  court  sustaining  a  decree  for  specific  per- 
formance, said : 

"But  it  is  objected  that  equity  will  not  decree  specific  performance  of  a 
contract  requiring  continuous  action  involving  skill,  judgment,  and  technical 
knowledge,  nor  enforce  agreements  to  arbitrate,  and  that  this  case  occupies 
this  attitude.  We  do  not  think  so.  The  decree  is  complete  in  itself,  is  self- 
operating,  and  self -executing ;  and  the  provision  for  referees  in  certain  con- 
tingencies is  a  mere  matter  of  detail,  and  not  of  the  essence  of  the  contract. 
It  must  not  be  forgotten  that  in  the  increasing  complexities  of  modem  busi- 
ness relations  equitable  remedies  have  necessarily  and  steadily  been  expanded, 
and  no  inflexible  rule  has  been  permitted  to  circumscribe  them.  As  has  been 
well  said,  equity  has  contrived  its  remedies,  'so  that  they  shall  correspond 
both  to  the  primary  right  of  the  injured  party,  and  to  the  wrong  by  which 
that  right  has  been  violated,'  and  'has  always  preserved  the  elements  of  flexi- 
bility and  expansiveness,  so  that  new  ones  may  be  invented,  or  old  ones  modi- 
tied,  in  order  to  meet  the  requirements  of  every  case,  and  to  satisfy  the  needs 
of  a  progressive  social  condition  in  which  new  primary  rights  and  duties  are 
constantly  arising  and  new  kinds  of  wrong  are  constantly  committed.'  Poin- 
eroy,  Eq.  Jur.  §  111." 

Judge  Brewer,  in  his  opinion  in  the  Circuit  Court  in  Central  Trust 

Company  v.  Wabash,  etc.,  R.  R.  Co.,  said  on  that  subject: 

"It  is  true  that  such  a  decree  cannot  be  executed  by  the  performance  of  a 
single  act.  It  is  continuous  in  its  operation.  It  requires  the  constant  exercise 
of  judgment  and  skill  by  the  officers  of  the  corporation  defendant;  and  there- 
fore, in  a  qualified  sense,  it  may  be  true  that  the  case  never  is  ended,  but  re- 
mains a  permanent  case  in  the  court,  performance  of  whose  decree  may  be 
the  subject  of  repeated  inquiry  by  proceedings  in  the  nature  of  contempt.  It 
is  also  true  that  in  the  changing  conditions  of  business  the  details  of  the  use 
may  require  change.  The  time  may  come  when  the  respondents'  business  may 
demand  the  entire  use  of  its  tracks  and  the  intervener's  rights  wholly  cease. 
But  other  decrees  are  subject  to  modification  and  change,  as  in  decrees  for 
alimony.  The  courts  are  not  infrequently  called  upon  to  modify  them  by  rea- 
son of  the  changed  condition  of  the  parties  thereto.  So,  when  a  decree  passes 
in  a  case  of  this  kind,  it  remains  as  a  permanent  determination  of  the  respec- 
tive rights  of  the  parties,  subject  only  to  the  further  right  of  either  party  to 
apply  for  a  modification  upon  any  changed  condition  of  affairs ;  and,  so  far  as 
any  matter  of  supervision  of  the  personal  skill  and  judgment  of  the  officers  of 
the  respondent  corporation,  the  contract,  in  terms,  provides  that  the  regula- 
tions of  the  running  of  trains  shall  be  subject  to  the  control  of  the  officers  of 
the  respondent.  While  I  concede  that  there  is  force  in  the  objection  that  this 
must  remain,  in  a  qualified  sense,  a  continuing  case  in  the  courts,  with  a  con- 
stant duty  of  supervising  the  acts  of  the  respondent,  yet  it  seems  to  me  that, 
where  there  is  a  right,  there  must  be  a  remedy,  and  that  the  mere  machinery 
of  court  procedure  is  flexible  enough  to  adapt  itself  to  the  necessity  of  pro- 
tecting a  right.  Clearly  a  mere  action  for  damages  would  be  a  grossly  inade- 
quate remedy."     29  Fed.  558. 

In  the  Rock  Island  Case  the  same  learned  justice  said : 

"I  know  to  one  who  is  only  familiar  with  the  narrow  limits  and  the  strict 
lines  within  and  along  which  courts  of  law  proceed  the  act  of  a  court  of  equity 
in  taking  possession  of  a  contract  running  for  999  years,  and  decreeing  its 
specific  performance  through  all  those  years  seems  a  strange  exercise  of 
power ;   but  I  believe  most  thoroughly  that  the  powers  of  a  court  of  equity  are 


136  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Ch.  2 

as  vast  and  its  process  and  procedure  as  elastic  as  all  the  changing  emergen- 
cies of  increasingly  complex  business  relations  and  the  protection  of  rights 
can  demand."    47  Fed.  26. 

While  it  is  true,  as  contended  by  counsel  for  appellees,  that  these 
cases  relate  to  contracts  between  railroads  and  therefore  might  have 
been  sustained  upon  the  ground  of  the  interests  of  the  public,  there 
are  other  cases  in  no  wise  affected  by  public  exigency,  especially  where 
violations  of  the  decree  could  only  occur  infrequently  and  each  viola- 
tion would  be  a  single  complete  act.  Franklin  Telegraph  Co.  v.  Har- 
rison, 145  U.  S.  459,  12  Sup.  Ct.  900,  36  L.  Ed.  776;  Hackett  v. 
Hackett,  67  N.  H.  424,  40  Atl.  434;  Chubb  v.  Peckham,  13  N.  J.  Eq. 
207;  Livesley  v.  Johnston,  45  Or.  30.  76  Pac.  13,  946,  65  L.  R.  A. 
783,  106  Am.  St.  Rep.  647 ;  St.  Regis  Paper  Co.  v.  Santa  Clara  Lum- 
ber Co.,  173  N.  Y.  149,  65  N.  E.  967. 

Prof.  Pomeroy,  the  editor  of  the  last  edition  of  Pomeroy's  Equity 
Jurisprudence,  in  his  article  on  the  subject  of  specific  performance, 
published  in  the  Encyclopedia  of  Law  &  Procedure,  after  discussing 
this  subject  and  referring  to  the  authorities,  says: 

"But  in  a  remarkable  series  of  cases,  beginning  with  the  year  1890,  con- 
tracts involving  the  operation  of  railroads,  often  of  the  utmost  complexity  and 
extending  over  a  long  term  of  years,  or  perpetual,  have  been  enforced  spe- 
cifically. In  the  leading  case  of  the  series  a  controlling  reason  for  the  deci- 
sion was  that  the  interests  of  the  general  public  would  have  been  injuriously 
affected  by  a  failure  to  make  the  decree ;  but  this  reason  appears  to  have 
dropped  out  of  sight  in  the  cases  following  this  precedent" — citing  numerous 
cases  sustaining  this  last  proposition.    36  Cyc.  5S7. 

As  counsel  for  appellees,  neither  in  their  exhaustive  brief  nor  ex- 
tended oral  argument,  contended  that  the  contract  is  unenforceable  in 
a  court  of  equity  upon  the  ground  that  the  court  cannot  efficiently 
compel  appellant  to  perform  its  obligations  under  the  contract,  this 
claim  must  be  treated  as  abandoned,  and  therefore  will  be  disre- 
garded.23    *     *     * 

23  in  Marble  Co.  v.  Ripley  (1870)  10  Wall.  339,  358,  19  L.  Ed.  955,  the  Su- 
preme Court  refused  specific  performance  of  a  contract  to  furnish  marble  on 
the  ground  that  it  involved  the  doing  of  continuing  acts ;  Mr.  Justice  Strong, 
speaking  for  the  court,  saying:  "Another  serious  objection  to  a  decree  for  a 
specific  performance  is  found  in  the  peculiar  character  of  the  contract  itself, 
and  in  the  duties  which  it  required  of  the  owners  of  the  quarries.  These  du- 
ties are  continuous.  They  involve  skill,  personal  labor,  and  cultivated  judg- 
ment. It  is,  in  effect,  a  personal  contract  to  deliver  marble  of  certain  kinds, 
and  in  blocks  of  a  kind,  that  the  court  is  incapable  of  determining  whether 
they  accord  with  the  contract  or  not.  The  agreement  being  for  a  perpetual 
supply  of  marble,  no  decree  the  court  can  make  will  end  the  controversy.  If 
performance  be  decreed,  the  case  must  remain  in  court  forever,  and  the  court 
to  the  end  of  time  may  be  called  upon  to  determine,  not  only  whether  the  pre- 
scribed quantity  of  marble  has  been  delivered,  but  whether  every  block  was 
from  the  right  place,  whether  it  was  sound,  whether  it  was  of  suitable  size, 
or  shape,  or  proportion.  Meanwhile  the  parties  may  be  constantly  changing. 
The  marble  company  are  liable  so  long  as  they  hold  the  land,  and  Ripley's 
rights  exist  only  while  he  holds  the  mill.  It  is  manifest  that  the  court 
cannot  superintend  the  execution  of  such  a  decree.  It  is  quite  impracticable. 
And  it  is  certain  that  equity  will  not  interfere  to  enforce  part  of  a  contract, 
unless  that  part  is  clearly  severable  from  the  remainder.     Many  of  the  dif- 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC  PERFORMANCE  137 

The  decree  of  the  court  below  is  reversed,  with  instructions  to 
grant  a  temporary  injunction,  and  proceed  in  conformity  with  this 
opinion. 


LONE  STAR  SALT  CO.  v.  TEXAS   SHORT  LINE  RY.  CO. 

(Court  of  Civil  Appeals  of  Texas,  1905.    86  S.  W.  355.) 

Appeal  from  District  Court,  Dallas  County;  Richard  Morgan, 
Judge. 

Action  by  the  Texas  Short  Line  Railway  Company  against  the  Lone 
Star  Salt  Company.  From  a  judgment  for  plaintiff,  defendant  ap- 
peals. 

Bookhout,  J.24  The  appellee  instituted  this  suit  December  11, 
1902,  for  the  purpose  of  compelling  specific  performance  of  a  contract 
alleged  to  exist  between  it  and  appellant,  in  words  and  figures  as  fol- 
lows : 

"Whereas,  on  January  ISth,  1901,  the  Board  of  Directors  of  this  Company 
adopted  a  resolution  authorizing  the  President  and  Secretary  to  enter  into  a 
contract  with  Henry  M.  Strong,  of  Battle  Creek,  Michigan,  in  form  and  sub- 
stance as  set  forth  in  said  resolution,  which  appears  in  full  in  the  minutes  of 
the  said  meeting  of  January  18th,  1901.     *     *     * 

"The  indenture  made  and  entered  into  by  and  between  the  Lone  Star  Salt 
Company,  a  corporation  under  the  laws  of  Texas,  of  the  first  part,  and  Henry 
M.  Strong,  of  Battle  Creek,  Michigan,  of  the  second  part,  on  this  the  15th  day 
of  February,  1901,  witnesseth: 

"That,  whereas,  the  first  party  has  built  and  now  in  operation  a  plant  of 
works  of  a  permanent  character  for  the  manufacture  of  salt  of  great  value,  lo- 
cated at  the  town  of  Grand  Saline,  in  Van  Zandt  County,  Texas ;  which  pro- 
duces annually  a  large  quantity  of  salt,  which  has  to  be  moved  to  market  by 
rail,  and  is  in  direct  competition  with  other  salt  produced  at  works  enjoying 
the  benefit  of  several  railways  at  point  of  origin,  and 

"Whereas,  there  now  exists  only  one  line  of  railway  at  Grand  Saline,  which 
is  detrimental  to  the  interest  of  the  said  first  party,  and  embarrasses  it  in  its 
competition  aforesaid  in  many  ways,  and 

"Whereas,  said  second  party  for  himself  and  associates,  and  the  corporation 
to  be  by  them  formed,  contemplates  building  another  line  of  railway  into 
Grand  Saline,  which  will  afford  to  the  first  party  an  additional  outlet  by  rail 
for  its  product,  provided  said  second  party  can  be  assured  for  a  definite  time 
of  sufficient  revenue  to  warrant  the  construction  of  said  contemplated  line. 

"Therefore,  the  said  first  party  hereby  agrees  with  the  said  second  party, 
and  hereby  covenants  and  [binds]  itself,  to  furnish  to  said  second  party  or  its 
assigns,  for  transportation,  for  the  full  term  of  twenty  years,  sixty-six  per 
cent,  of  all  the  tonnage  moved  by  rail  incident  to  the  operation  of  its  said 
works  at  Grand  Saline,  together  with  any  renewals  or  extensions  thereof, 
said  terra  to  begin  to  run  from  the  date  when  the  line  of  railway  of  said  sec- 
ond party  or  his  assigns  shall  be  open  for  traffic  to  a  point  of  intersection 
with  some  line  of  existing  railway  other  than  the  Texas  &  Pacific  Railway. 

"In  consideration  whereof  said  second  party  hereby  agrees  with  said  first 
party,  and  hereby  covenants  and  binds  himself  and  his  assigns,  to  construct 
a  line  of  railway  into  said  town  of  Grand  Saline,  which  shall  extend  thence 


liculties  in  the  way  of  decreeing  specific  performance  of  a  contract,  requiring, 
as  this  does,  continuous  personal  action,  and  running  through  an  indefinite 
period  of  time,  are  well  stated  in  Port  Clinton  Railroad  Company  v.  Cleveland 
&  Toledo  Railroad  Company,  13  Ohio  St.  544." 
2i  Parts  of  the  opinion  are  omitted. 


138  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

to  a  point  of  intersection  with  some  line  of  railway  now  existing,  other  than 
the  Texas  &  Pacific  Railway,  which  line  so  to  be  constructed  shall  be  open 
for  traffic  to  such  point  of  intersection  within  twenty-four  months  from  date 
hereof,  which  limitation  of  time  is  hereby  declared  to  be  of  the  essence  of  this 
contract. 

"And  to  receive  promptly  and  promptly  forward  all  freight  tendered  to  it 
by  said  first  party,  and  in  respect  to  said  freight  to  fully  discharge  all  of  its 
duties  as  a  common  carrier  of  freight,  and  to  make  to  said  first  party  on 
freight,  or  any  part  thereof,  the  lowest  rate  made,  quoted  or  given  by  any 
common  carrier  or  common  carriers  between  the  same  points,  on  such  freight, 
so  that  said  Lone  Star  Salt  Company,  first  party,  shall  never  be  compelled 
to  pay  more  freight  to  the  second  party  or  his  assigns  for  any  service,  than 
it  would  have  to  pay  for  the  same  service  to  any  other  carrier  or  carriers. 

"It  is  further  agreed  between  the  parties  hereto  that  inasmuch  as  the  dam- 
ages for  a  breach  of  this  contract  by  the  first  party  would  be  impossible  of 
satisfactory  estimation  under  the  rules  of  law,  the  same  are  hereby  liquidated 
at  the  sum  of  six  thousand  dollars  (.$6,000)  per  annum,  and  the  said  first 
party  hereby  agrees  to  pay  to  the  second  party  or  his  assigns  the  sum  of  six 
thousand  dollars  ($6,000.00)  liquidated  damages,  for  each  year  during  said  con- 
tract period  in  which  said  first  party  shall  fail  to  tender  to  second  party  or  his 
assigns  for  transportation  sixty-six  per  cent,  of  its  tonnage  into  and  out  of 
Grand  Saline,  which  damages  shall  be  payable  annually  as  they  accrue. 

"It  is  further  mutually  agreed  that  this  contract  shall  terminate  without 
notice  whenever  the  Texas  &  Pacific  Railway  and  the  proposed  railroad  shall 
cease  to  compete  for  business. 

"In  witness  whereof  the  parties  hereto  have  signed  these  presents  in  dupli- 
cate on  the  day  first  written  and  the  first  party  has  attached  hereto  its  cor- 
porate seal. 

"[Seal.]  F.  R.  Blount,  President, 

"D.  C.  Earnest,  Secretary, 
"Henry  M.  Strong, 

"Party  of  Second  Part." 

A  trial  on  January  28,  1904,  resulted  in  a  judgment: 

"That  the  said  contract  be  specifically  enforced  against  the  defendant,  and 
the  defendant,  its  agents,  officers,  and  employes,  are  hereby  enjoined  and  re- 
quired, so  long  as  the  Texas  &  Pacific  Railway  Company  and  the  plaintiff  shall 
compete  for  business,  but  not  after  the  8th  day  of  September,  A.  D.  1921,  to 
furnish  to  the  plaintiff  for  transportation,  as  it  accrues,  sixty -six  per  cent,  of 
all  outgoing  tonnage  moved  by  rail,  incident  to  the  operation  of  defendant's 
works  at  Grand  Saline,  Texas,  together  with  any  renewals  or  extensions 
thereof,  and  also  to  furnish  to  the  plaintiff  for  transportation,  as  it  accrues, 
in  addition  to  said  sixty-six  per  cent.,  such  amount  of  outgoing  tonnage  moved 
by  rail,  incident  to  the  operation  of  defendant's  works  at  Grand  Saline,  Texas, 
together  with  any  renewals  or  extensions  thereof,  as  will  equal  sixty-six  per 
cent,  of  all  the  incoming  tonnage  moved  by  rail,  incident  to  the  operation  of 
defendant's  works  at  Grand  Saline,  Texas,  together  with  any  renewals  or  ex- 
tensions thereof ;  provided,  such  additional  outgoing  tonnage,  when  added  to 
the  incoming  tonnage  incident  to  the  operation  of  defendant's  works  at  Grand 
Saline,  Texas,  together  with  any  renewals  or  extensions  which  defendant  may 
furnish  to  plaintiff  for  transportation,  if  any,  shall  not  exceed  sixty-six  per 
cent,  of  the  incoming  tonnage  aforesaid." 

Defendant  duly  perfected  an  appeal.     *     *     * 

Again,  it  is  insisted  that  a  contract  will  not  be  specifically  enforced 
unless  the  remedy  is  mutual ;  that  is,  the  court  will  not  compel  the  de- 
fendant to  perform  unless  it  can  at  the  same  time  compel  plaintiff  to 
perform  the  contract.  It  is  asserted  that  mutuality  is  lacking  in  the 
contract  sued  on,  for  two  reasons:  (1)  That  the  contract  is  terminable 
at  the  option  of  plaintiff;  and  (2)  the  duties  required  of  plaintiff  by  the 
contract  necessitate  the  maintenance  and  operation  of  its  railway  for 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        339 

20  years,  and  this  the  court  will  not  undertake  to  compel.  We  have 
held  that  the  contract  does  not  authorize  the  plaintiff  to  terminate  the 
same  at  its  option.  The  mutuality  required  is  that  which  is  necessary 
for  creating  a  contract  enforceable  on  both  sides  in  some  manner,  but 
not  necessarily  enforceable  on  both  sides  by  its  specific  performance. 
Eckstein  v.  Downing,  64  N.  H.  248,  9  Atl.  626,  10  Am.  St.  Rep.  404 ; 
Railway  Co.  v.  Walworth,  193  Pa.  207,  44  Atl.  253,  74  Am.  St.  Rep. 
683;  Jennings  v.  McComb,  112  Pa.  518,  4  Atl.  812;  Grove  v.  Hodges, 
55  Pa.  504. 

Again,  appellee's  road  has  been  constructed,  and  the  contract  to  that 
extent  has  been  fully  performed  by  the  appellee,  and  it  would  be  in- 
equitable, under  the  facts,  to  refuse  a  specific  performance  in  its  be- 
half. University  v.  Polk  Co.,  87  Iowa,  36,  53  N.  W.  1080;  Yerkes  v. 
Richards,  153  Pa.  646,  26  Atl.  221,  34  Am.  St.  Rep.  721 ;  Whitnev  v. 
Hay,  181  U.  S.  77,  21  Sup.  Ct.  537,  45  L.  Ed.  758;  Johnson  v.  Hub- 
bell,  10  N.  J.  Eq.  332,  64  Am.  Dec.  773 ;  Fry's  Specific  Performance, 
§  445;  3  Pomeroy's  Eq.  Juris,  p.  2163;  Woodruff  v.  Woodruff,  44  X. 
J.  Eq.  349,  16  Atl.  4,  1  L.  R.  A.  380;  Burdine  v.  Burdine,  98  Va.  515, 
36  S.  E.  992,  81  Am.  St.  Rep.  741 ;  Brown  v.  Sutton,  129  U.  S.  238, 
9  Sup.  Ct.  273,  32  L.  Ed.  664;  Townsend  v.  Vanderwerker,  160  U. 
S.  171,  16  Sup.  Ct.  258,  40  L.  Ed.  383;  French  v.  Boston  Xat.  Bank, 
179  Mass.  404,  60  N.  E.  793. 

It  is  contended  that  specific  performance  of  the  contract  sued  on 
cannot  be  accomplished  by  a  single  decree,  capable  of  execution  at 
once,  but  will  involve  the  continuous  performance  of  manifold  duties 
upon  the  part  of  both  parties  for  a  period  of  20  years;  that  the  con- 
stant supervision  of  the  court  for  such  period  would  be  required,  and 
its  powers  unduly  taxed.  The  evidence  shows  that,  under  its  present 
conditions,  plaintiff's  road  could  not  be  successfully  operated  on  the 
freight  that  is  tributary  to  it  if  the  freight  that  it  would  get  under  the 
contract  sued  on  is  excluded.  It  would  not  even  pay  operating  ex- 
penses. There  is  no  prospect  of  the  conditions  becoming  better.  The 
fact  that  the  contract  has  some  time  to  run,  and  the  acts  required  to  be 
done  by  the  decree  may  continue  as  much  as  20  years,  when  the  acts 
to  be  done  are  of  a  purely  ministerial  nature,  and  do  not  require  the 
exercise  of  personal  taste,  judgment,  or  discretion,  furnishes  no  suffi- 
cient excuse  for  not  enforcing  specific  performance.  Such  is  the  doc- 
trine announced  by  the  later  decisions.  Joy  v.  St.  Louis,  13S  U.  S. 
47,  11  Sup.  Ct.  243,  34  L.  Ed.  843.     *     *     * 

Nor  is  the  language  of  the  contract  so  general  and  uncertain  that  it 
cannot  be  definitely  determined  therefrom  what  it  binds  appellant  to 
do.  It  is  reasonably  certain  as  to  its  subject-matter,  its  stipulations, 
its  purposes,  its  parties,  and  the  circumstances  under  which  it  was 
made.  Such  being  the  case  it  is  not  subject  to  the  objection  of  uncer- 
tainty. Bay  City  Irrigation  Co.  v.  Sweeney  (Tex.  Civ.  App.)  81  S.  W. 
546.     *     *     * 


140  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

The  court  construed  the  contract  as  entitling  the  appellee  to  receive 

66  per  cent,  of  the  outgoing  tonnage  and  66  per  cent,  of  the  incoming 

tonnage  of  the  appellant.     The  contract,  in  that  part  relating  to  the 

tonnage  to  which  the  plaintiff  was  entitled,  reads : 

"Sixty-six  per  cent,  of  all  the  tonnage  moved  by  rail  incident  to  the  opera- 
tion of  its  said  works  at  Grand  Saline  together  with  any  renewals  or  exten- 
sions thereof." 

In  a  subsequent  part  of  the  contract  it  is  spoken  of  as  "sixty-six  per 
cent,  of  its  tonnage  into  and  out  of  Grand  Saline."  It  seems  clear  that 
the  contract  contemplates  both  the  incoming  and  outgoing  tonnage 
incident  to  the  operation  of  appellant's  works  at  Grand  Saline,  and  the 
decree  is  correct  in  so  interpreting  the  contract. 

The  remaining  assignments  of  error  have  been  carefully  considered 
by  the  court,  and  because,  in  our  opinion,  no  reversible  error  is  pointed 
out  by  any  of  them,  they  are  overruled. 

Finding  no  reversible  error  in  the  record,  the  judgment  is  affirmed.25 


WESTERN  WAGON  &  PROPERTY  CO.  v.  WEST. 

(Chancery  Division.    [1892]  1  Ch.  Div.  271.) 

Action  by  the  Western  Wagon  &  Property  Company,  Limited,  to  re- 
cover from  the  defendants  personally  the  sum  of  £500  alleged  to  have 
been  improperly  paid  by  them  to  one  Jonathan  Dumbleton   Pinfold. 

Chitty,  J.26  Now,  upon  the  facts,  the  case  stands  thus:  the  plain- 
tiffs are  the  assignees  for  value  of  the  benefit  of  a  contract  to  make  a 
loan  of  money  at  interest  upon  security.  Having  given  notice  of  their 
assignment,  they  claim  to  recover  from  the  defendants  the  £500  which 
the  defendants  lent  and  paid  to  Pinfold  under  the  contract.  They  are 
not  assigns  of  the  entire  contract,  but  they  are  assigns  of  the  benefit 
without  the  burden ;  they  claim  to  be  entitled  to  receive  and  keep  the 
£500,  without  being  liable  to  repay.  However,  I  pass  this  point  by  as 
not  being  material  to  my  judgment,  which  is  founded  on  the  following 

25  "As  another  reason  why  this  contract  will  not  be  enforced  specifically,  it  is 
alleged  that  it  calls  for  continuing  contributions  of  money  and  property,  and 
exercise  of  judgment  and  skill,  and  no  decree  that  could  be  entered  by  the 
court  would  be  final.  This  contention  is  much  insisted  upon,  and  requires  care- 
ful consideration.  A  prayer  for  a  specific  performance  always  appeals  largely 
to  the  discretion  of  the  court  whose  jurisdiction  is  invoked.  In  the  exercise 
of  this  discretion,  courts  have,  it  is  true,  in  many  cases  declined  to  enforce 
a  contract,  whose  provisions  are  multifarious,  and  whose  obligations  are  con- 
tinuing, so  that  a  tinal  decree  cannot  be  made,  which  will  end  the  matter,  but 
will  require  constant  supervision  and  supplemental  proceedings  to  enforce  the 
performance  of  constantly  recurring  duties.  Each  case,  however,  must  depend 
upon  its  own  circumstances."  Gray,  J.,  in  Western  Union  Telegraph  Co.  v. 
Pennsylvania  Co.  (1904)  129  Fed.  S49. 

20  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        141 

reasons :  A  Court  of  Equity  will  not  decree  specific  performance  of  a 
contract  to  make  or  take  a  loan  of  money,  whether  the  loan  is  to  be  on 
security  or  not.  This  was  decided  by  Sir  John  Romilly  in  Rogers  v. 
Challis,  27  Beav.  175,  and  Sichel  v.  Mosenthal,  30  Beav.  371,  and  these 
decisions  were  approved  of  by  the  Privy  Council  in  Larios  v.  Bonany  y 
Gurety,  Law  Rep.  5  P.  C.  346.  In  other  words,  a  Court  of  Equity  will 
not  compel  the  intended  lender  to  make,  or  the  intended  borrower  to 
take,  the  loan,  but  will  leave  the  parties  to  such  a  contract  to  their 
remedies  by  action  at  common  law  for  damages.  It  follows,  then,  that 
Pinfold  could  not  have  maintained  a  suit  in  equity  against  the  defend- 
ants to  compel  them  to  lend  the  £500,  and  that,  inasmuch  as  the  plain- 
tiffs, as  assigns  of  Pinfold,  are  in  no  better  position  than  Pinfold  him- 
self, the  plaintiffs  can  not  maintain  such  a  suit.  *  *  * 
The  action  is  dismissed  with  costs. 


ASHTON  v.  CORRIGAN. 

(In  Chancery,  1871.    L.  R.  13  Eq.  Cas.  76.) 

This  bill  was  filed  for  the  purpose  of  compelling  the  defendant  to 
execute  a  mortgage  to  the  plaintiff  of  certain  leasehold  premises  pur- 
suant to  an  agreement  dated  the  20th  of  August,  1870,  by  which  the 
defendant,  in  consideration  of  a  sum  of  money  then  due  from  him  to 
the  plaintiff,  charged  certain  long  leasehold  premises  with  the  repay- 
ment of  that  sum  and  interest,  and  agreed  that  he  (the  defendant),  his 
executors,  administrators,  or  assigns,  would  at  any  time  thereafter,  at 
the  request  of  the  plaintiff,  his  executors,  administrators,  or  assigns,  at 
his  own  cost,  execute  to  him  or  them  a  mortgage  of  the  premises  in  the 
usual  form,  containing"  an  absolute  power  of  sale,  and  all  the  usual 
trusts,  powers,  and  covenants,  subject  to  all  prior  charges.  The  de- 
fendant was  called  upon  to  execute  a  mortgage,  but  he  failed  to  keep 
an  appointment  for  that  purpose,  and  he  had  returned  no  answer  to  the 
communications  which  had  been  addressed  to  him  on  the  subject. 

Mr.  Cadman  Jones,  for  the  plaintiff,  asked  for  a  decree,  and  referred 
to  Jones  v.  Greatwood  and  Fraser  v.  Thomas,  referred  to  in  Seton  on 
Decrees  (3d  Ed.)  448,  443. 

An  appearance  had  been  entered  for  the  defendant,  but  no  one  ap- 
peared for  him  in  court. 

Sir  John  Wickens,  V.  C.  I  doubt  whether  a  contract  to  execute 
a  mortgage,  which  the  mortgagee  may  enforce  by  a  sale  the  day  after 
its  execution,  is  one  which  the  court  will  specifically  perform ;  and  I 
know  of  no  reported  case  in  which  such  relief  has  been  given  where 
the  right  to  it  has  been  contested.  However,  on  the  authority  of  the 
cases  cited  from  Seton  on  Decrees,  I  will  make  the  decree. 


142  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

CITY  OF  LONDON  v.  NASH. 
(In  Chancery  before  Lord  Hardwieke,  1747.    1  Yes.  Sr.  12,  27  E.  R.  S59.) 

The  bill  was  brought  to  have  a  specific  performance  of  an  agree- 
ment in  a  lease  of  some  old  houses,  made  with  G.  Graves  the  original 
lessee  of  the  premises,  which  were  now  vested  in  the  defendant.  The 
covenant  was  within  three  years  to  build  brick  messuages  on  the  prem- 
ises demised. 

The  defendant  insisted,  that  he  had  satisfied  the  covenant  by  building 
in  the  plural  number  two  houses,  and  only  repairing  the  rest. 

The  first  point  was.  as  to  the  true  intent  and  construction  of  the  cov- 
enant in  the  lease?  The  second,  whether  it  had  been  sufficiently  per- 
formed ? 

Lord  Chancellor.  As  to  the  first  it  was  plainly  intended  to  let 
on  a  building  lease,  which  is  for  61  years  at  least;  not  on  a  repairing 
lease,  which  can  only  be  for  21  years.  The  words  or  any  part  thereof 
were  inserted  in  the  covenant  in  the  draft,  but  rejected  in  the  lease  it- 
self very  properly,  which  shews,  that  the  meaning  of  the  covenant 
was  that  all  the  messuages  should  be  new-built :  for  an  indefinite  prop- 
osition is  equal  to  an  universal  one ;  and  the  whole  seems  to  mean  a 
building  lease.  If  therefore  an  action  at  law  had  been  brought  upon 
this  covenant,  and  a  breach  assigned;  and  Graves  had  pleaded  per- 
formance by  building  only  two  new  messuages,  that  plea  would  not  be 
allowed.  But  this  court  has  power  to  go  further  and  see  what  was  the 
intent,  supposing  no  lease  had  been  executed :  upon  a  bill  for  a  specific 
performance  the  court  would  decree  the  whole  to  be  built :  the  lease 
appears  not  to  have  been  made  in  a  proper  manner ;  for  Graves  did 
not  take  it  for  his  own  benefit,  but  as  trustee  for  the  defendant,  to  whom 
it  was  assigned  for  5s.  consideration :  and  who  was  at  the  time  one  of 
the  committee  for  letting  the  city  lands;  and  his  scheme  plainly  was  to 
get  a  longer  term  upon  repairing  the  houses  only. 

As  to  the  second  point,  it  has  not  been  performed  by  Graves  or  the 
defendant ;  for  though  the  houses  have  been  largely  repaired  and  new 
fronted  &c,  that  is  different  from  new  building.  The  first  defence 
made  is,  that  the  plaintiff  should  not  come  here  for  a  specific  perform- 
ance, but  be  left  to  a  court  of  law.  But  I  am  of  opinion,  that  upon  a 
covenant  to  rebuild,  the  landlord  may  come  here  for  a  specific  perform- 
ance ;  as  the  not  building  takes  away  his  security  :  but  upon  a  covenant 
to  repair  he  may  have  damages  at  law.  The  most  material  objection 
for  the  defendant,  and  which  has  weight  with  me,  is,  that  the  court  is 
not  obliged  to  decree  a  specific  performance,  and  will  not,  where  it 
would  be  a  hardship ;  as  it  would  be  here  upon  the  defendant  (sup- 
posing he  meant  an  evasion)  to  oblige  him,  after  having  very  largely 
repaired  the  houses,  to  pull  them  down  and  rebuild  them ;  which  would 
be  to  decree  destruction,  and  would  be  a  public  loss,  and  no  benefit  to 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        143 

the  plaintiffs,  who  only  want  to  be  repaired  in  damages,  which  will 
be  sufficient  satisfaction  to  them. 

Let  the  parties  therefore  proceed  to  a  trial  at  law,  to  see  what  dam- 
ages the  plaintiffs  have  sustained.    (Reg.  Lib.  1746,  B.  Fol.  475.) 


RAYNER  v.  STONE. 

(In  Chancery  before  Lord  Henley,  1762.    2  Eden,  128,  2S  E.  R.  845.) 

The  bill  in  this  case  was  for  a  specific  performance  of  several  con- 
tracts and  agreements  entered  into  by  the  defendant  as  contained  in  a 
lease,  dated  in  the  year  1746,  and  since  determined;  and  also  for  an 
account,  &c.     *     *     *  27 

The  Lord  Chancellor.  This  bill  is  founded  upon  an  equity  so 
extremely  refined  that  I  cannot  well  comprehend  it.  If  I  should  en- 
courage such  bills,  it  would  introduce  a  practice  most  prejudicial  to 
all  landlords  and  tenants :  especially  to  tenants,  who,  for  the  most  part, 
are  of  mean  and  low  circumstances.  I  am  sure  I  shall  never  consider 
what  are  called  common  covenants  in  a  lease  as  specific  covenants,  to 
be  subject  to  the  jurisdiction  of  this  court.  The  covenants  here  are  not 
at  all  of  that  specific  nature.  The  argument  which  has  been  mention- 
ed, that  I  have  no  officer  to  see  the  performance,  is,  to  me,  very  strong. 
How  can  a  Master  judge  of  repairs  in  husbandry?  What  is  a  proper 
ditch  or  fence  in  one  place  may  not  be  so  in  another.  It  is  said,  that  this 
is  an  equitable  right ;  and  it  is  insisted  that  I  should  now  put  the  plain- 
tiff in  a  better  state  than  what  he  can  be  at  law :  but  the  court  has  no 
jurisdiction  to  strip  the  defendant  to  try  the  supposed  breach  of  cove- 
nant at  law.  Besides,  how  can  a  specific  performance  of  things  of  this 
kind  be  decreed?  The  nature  of  the  thing  shews  the  absurdity  of 
drawing  these  questions  from  their  proper  trial  and  jurisdiction. 
Therefore  let  the  demurrer  be  allowed. 


MAYOR,  ALDERMEN,  AND  BURGESSES  OF  WOLVER- 
HAMPTON v.  EMMONS. 

(Court  of  Appeal.    [1901]  1  K.  B.  515.) 

Application  by  the  defendant  for  judgment  or  a  new  trial  in  an  ac- 
tion tried  before  Wills,  J.  and  a  jury. 

The  action  was  for  specific  performance  of  a  contract  by  the  defend- 
ant to  erect  buildings,  or,  in  the  alternative,  for  damages  for  breach  of 
the  contract. 

The  plaintiffs  had  obtained  a  provisional  order,  which  was  subse- 
quently confirmed  by  Act  of  Parliament,  authorizing  them,  as  the  sani- 

27  The  statement  of  facts  is  abridged. 


144  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

tary  authority  for  the  borough  of  Wolverhampton,  to  carry  out  an  im- 
provement scheme  dealing  with  an  insanitary  area  by  the  construction 
of  new  streets  and  the  erection  of  better  houses  and  buildings  therein. 
For  the  purposes  of  this  scheme  they  acquired  (among  others)  the 
properties  in  a  street  in  the  borough  called  Canal  Street,  and  proceeded 
to  put  them  up  for  sale  in  lots.  The  defendant  having  become  the 
purchaser  of  certain  lots,  by  indenture  dated  July  31,  1897,  the  plain- 
tiff's, in  consideration  of  the  sum  of  £1000,  conveyed  to  the  defendant  in 
fee  the  plot  of  land  fronting  upon  Canal  Street,  delineated  in  a  plan 
drawn  on  the  deed,  and  containing  1127  square  yards  or  thereabouts, 
and  the  defendant  thereby  covenanted  with  the  plaintiffs  that  he  would 
pull  down  the  existing  buildings  thereon,  that  he  would  not  erect  any 
building  on  the  land  until  an  elevation  of  the  proposed  building  had 
been  submitted  by  him  to,  and  approved  by  the  plaintiffs'  public  works 
committee,  and  that  he  would  commence  to  erect  upon  the  land  within 
twelve  calendar  months  from  May  25,  1897,  a  new  building,  or  new 
buildings,  fronting  to  Canal  Street,  of  a  minimum  height  of  thirty-five 
feet  from  the  pavement  to  the  eaves  or  parapet,  and  not  more  than  the 
height  regulated  by  the  by-laws  for  the  time  being  in  force  in  the  bor- 
ough of  Wolverhampton,  up  to  the  line  of  street  shewn  in  the  said  plan, 
and  would  complete  the  same  ready  for  occupation  within  two  years 
from  the  date  aforesaid.  The  defendant  pulled  down  the  existing 
buildings  on  the  plot  conveyed,  but  did  not  commence  to  erect  buildings 
in  pursuance  of  his  covenant.  After  the  lapse  of  rather  more  than  a 
year,  the  town  clerk  on  behalf  of  the  plaintiffs  wrote  to  the  defendant, 
reminding  him  that  he  had  not  complied  with  the  covenant ;  and  a  cor- 
respondence thereupon  ensued  between  the  town  clerk  on  one  side  and 
the  defendant  and  his  solicitors  on  the  other,  in  the  course  of  which  the 
town  clerk  threatened  that  legal  proceedings  would  be  taken  on  the 
covenant,  and  the  defendant  promised  on  several  occasions  to  submit 
plans  for  buildings.  The  effect  of  the  correspondence  was  held  by 
Wills,  J.,  and  subsequently  by  the  court  of  appeal,  to  be  that,  in  con- 
sideration of  the  plaintiffs'  giving  further  time  to  the  defendant  for  the 
fulfillment  of  his  obligation  to  erect  buildings,  the  defendant  agreed 
without  delay  to  commence  and  proceed  with  the  erection  on  the  land  of 
eight  houses,  in  accordance  with  plans  which  were  ultimately  submit- 
ted by  him  to,  and  approved  by  the  plaintiffs'  public  works  committee. 
The  court  of  appeal,  as  will  be  seen,  were  of  opinion  that  these  plans 
contained  sufficiently  definite  details  as  to  the  elevation,  form,  materials 
and  other  particulars  of  the  proposed  houses  for  the  purposes  of  an 
order  for  specific  performance.  The  defendant  failing  to  carry  out 
this  last-mentioned  agreement,  the  plaintiffs  brought  their  action  against 
him  as  above  mentioned.  The  learned  judge  at  the  trial  directed  the 
jury  to  assess  the  damages  provisionally,  in  case  he  should  ultimately 
be  of  opinion  that  the  contract  was  not  one  of  which  specific  perform- 
ance should  be  ordered.     The  jury  assessed  the  damages  at  i50.     The 


SeC.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        145 

learned  judge  subsequently  gave  judgment  for  the  plaintiffs,  ordering 
specific  performance. 

Romer,  L.  J.2S  I  also  am  of  opinion  that  the  judgment  of  Wills, 
J.,  should  be  affirmed.  The  question,  which  is  not  free  from  difficulty, 
is  whether,  under  the  circumstances  of  this  case,  an  order  for  specific 
performance  should  be  made  in  favour  of  the  plaintiffs.  There  is  no 
doubt  that  as  a  general  rule  the  court  will  not  enforce  specific  perform- 
ance of  a  building  contract,  but  an  exception  from  the  rule  has  been 
recognised.  It  has,  I  think,  for  some  time  been  held  that,  in  order  to 
bring  himself  within  that  exception,  a  plaintiff  must  establish  three 
things.  The  first  is  that  the  building  work,  of  which  he  seeks  to  en- 
force the  performance,  is  defined  by  the  contract ;  that  is  to  say,  that 
the  particulars  of  the  work  are  so  far  definitely  ascertained  that  the 
court  can  sufficiently  see  what  is  the  exact  nature  of  the  work  of  which 
it  is  asked  to  order  the  performance.  The  second  is  that  the  plaintiff 
has  a  substantial  interest  in  having  the  contract  performed,  which  is  of 
such  a  nature  that  he  can  not  adequately  be  compensated  for  breach  of 
the  contract  by  damages.  The  third  is  that  the  defendant  has  by  the 
contract  obtained  possession  of  land  on  which  the  work  is  contracted 
to  be  done.     *     *     * 

I  therefore  find  that  all  the  three  matters  which  I  have  mentioned  as 
essential  to  the  plaintiffs'  title  to  specific  performance  exist  in  this  case. 
No  case  has  been  cited,  and  I  do  not  know  of  any,  where,  upon  those 
three  matters  being  shewn  to  the  court  to  exist,  a  decree  for  specific 
performance  has  been  refused.     *     *     * 

For  these  reasons  I  think  that  the  appeal  should  be  dismissed.  Ap- 
plication dismissed. 


OWENS  v.  CARTHAGE  &  W.  RY.  CO. 

(Kansas  City  Court  of  Appeals,  Missouri,  1305.     110  Mo.  App.  320, 

85  S.  W.  987.) 

Appeal  from  Circuit  Court,  Jasper  County;  Joseph  D.  Perkins, 
Judge. 

Action  by  David  D.  Owens  against  the  Carthage  &  Western  Railway 
Company.    From  a  judgment  for  plaintiff,  defendant  appeals. 

Ellison,  J.29  The  plaintiff  is  the  owner  of  land  over  which  de- 
fendant constructed  its  railway.  Plaintiff  conveyed  the  right  of  way  to 
defendant  by  deed,  the  consideration  expressed  being  $400  in  money 
and  the  following  clause  : 

"Said  Carthage  &  Western  Railway  Company  hereby  agrees  to  construct 
cattle  or  wagon  pass  at  place  designated  by  the  chief  engineer  on  said  prem- 
ises." 

28  Parts   of  the  opinion  of  Romer,   L.  J.,  and  the  concurring  opinions  of 
Smith,  M.  R.,  and  Collins,  L.  J.,  are  omitted. 
23  Parts  of  the  opinion  are  omitted. 
Boke  Eq—  10 


146  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

Plaintiff  alleges  that  he  and  defendant  understood  that  the  contract 
and  agreement  was  that  defendant  would  construct  a  crossing  under 
the  tracks  of  sufficient  width  and  height  to  admit  of  the  passage  of 
cattle  and  loaded  wagons — that  is  to  say,  not  less  than  12  feet  wide  and 
10  feet  high — at  a  point  to  be  designated  by  the  defendant's  chief 
engineer.  He  further  alleges  that  he  and  defendant  by  mutual  mistake 
supposed  the  words  in  the  deed  above  quoted  meant  what  they  each 
understood.  Defendant  having  refused  to  comply  with  the  agreement 
alleged,  plaintiff  brought  this  action  to  reform  that  portion  of  the  deed 
referred  to  so  as  to  correct  the  mistake  of  the  parties,  and  to  set  out 
the  contract  as  it  was  understood,  and  to  require  defendant  to  perform 
it.  The  trial  court  found  the  issues  for  the  plaintiff,  and  directed  that 
a  passway  be  constructed  under  the  railroad,  sufficient  for  cattle  and 
loaded  wagons,  which  was  found  to  be  12  feet  wide  and  10  feet 
high.     *     *     * 

In  Mastin  v.  Halley,  61  Mo.  196,  it  was  held  that  specific  perform- 
ance of  a  contract  to  build  "a  certain  building,"  without  more  descrip- 
tion, could  not  be  decreed,  as  there  was  nothing  upon  which  to  base 
a  direction  as  to  what  description  of  building  was  to  be  built.  It  was 
likewise  said  in  that  case  that  a  court  of  equity  will  not  direct  specific 
performance  of  building  contracts,  because,  "If  one  will  not  build, 
another  may."  That  case  finds  no  application  to  the  facts  of  the  one 
at  bar.  From  what  we  have  already  said,  it  is  apparent  that  there  was 
sufficiency  of  description  here  to  justify  the  court's  decree  in  that  re- 
spect. 

As  to  the  objection  that  courts  of  equity  will  not  enter  upon  the  en- 
forcement of  building  contracts,  it  is  manifest  that  this  is  not  such 
case.  When  the  complaining  party  wants  a  building  contract  perform- 
ed, it  is  something  which  he  may  get  any  third  party  to  do  without  the 
aid  of  a  court  of  equity.  But  the  contract  in  this  case  is  something 
which  defendant  was  to  perform  for  plaintiff's  benefit  on  its  own  prem- 
ises (so  to  speak),  and  which  this  plaintiff,  in  the  nature  of  the  case, 
could  not  have  any  one  other  than  defendant  perform.  It  seems  that 
defendant  embodied  in  the  deeds  similar  agreements  with  other  land- 
owners from  whom  it  secured  right  of  way.  Plaintiff  was  permitted 
to  show,  against  defendant's  objection,  that  under  such  deeds  defend- 
ant had  constructed  under  passways  of  the  nature  he  is  now  demand- 
ing. We  regard  the  evidence  as  admissible  as  tending  to  show  what 
the  contract  with  plaintiff  was  understood  by  the  defendant  to 
be.     *     *     * 

After  a  full  consideration  of  the  points  made  against  the  judgment, 
we  do  not  feel  authorized  to  interfere  with  it,  and  it  is  accordingly 
affirmed.    All  concur. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        147 


INDIANAPOLIS  NORTHERN  TRACTION  CO.  et  al.  v. 
ESSINGTON. 

(Appellate  Court  of  Indiana,  Division  No.  2,  1912.     54  Ind.  App.  2S(5, 

99  N.  E.  757.) 

Suit  by  Mary  E.  Essington  against  the  Indianapolis  Northern  Trac- 
tion Company  and  others.  From  a  decree  for  plaintiff,  defendants 
appeal. 

Lairy,  J.30  Appellee  filed  this  suit  to  compel  specific  performance 
of  a  covenant  contained  in  a  deed,  by  which  she  conveyed  to  the  first- 
named  appellant  a  strip  of  land  constituting  its  right  of  way  across  her 
farm  for  an  electric  interurban  railway.  The  house  and  other  build- 
ings on  appellee's  land  were  situated  about  40  rods  back  from  the 
highway,  and  were  reached  by  a  private  lane  extending  over  her  lands. 
The  right  of  way  conveyed  to  appellants  crosses  the  land  of  appellee 
about  halfway  between  the  buildings  and  the  road,  and  at  the  point 
where  it  intersects  the  private  lane  there  is  a  cut  eight  or  ten  feet  in 
depth.  The  deed  contained  the  following  covenant,  which  constituted 
a  part  of  the  consideration  for  the  conveyance  : 

"It  is  agreed  between  the  parties  to  this  conveyance  that  the  grantee  shall 
construct  and  maintain  a  suitable  and  proper  overhead  crossing  14  feet  wide 
over  grantee's  railway  track  with  proper  approaches  on  either  side,  said 
crossing  not  to  be  less  than  22  feet  in  the  clear  from  the  rail  grade  and  to  be 
located  at  a  point  where  the  present  lane  of  grantor's  land  will  be  intersected 
by  grantees'  railroad  grade." 

The  Indianapolis  &  Northern  Traction  Company  took  possession 
of  such  right  of  way  under  this  deed,  and  an  electric  interurban  railway 
was  constructed  thereon,  and  has  been  operated  ever  since  by  said 
appellant  and  its  successors  the  other  appellants,  who  according  to 
the  averments  of  the  complaint  assumed  the  obligations  of  the  cove- 
nant contained  in  the  deed  by  subsequent  contracts.  Appellants  have 
provided  a  grade  crossing  on  appellee's  land  about  320  feet  north  of 
the  point  where  the  lane  intersects  the  right  of  way,  but  have  failed 
and  refused  to  construct  the  overhead  crossing  for  which  the  deed  pro- 
vides. The  trial  court  made  a  special  finding  of  facts  and  announced 
conclusions  of  law  thereon,  and  gave  judgment  in  favor  of  appellee 
decreeing  and  ordering  appellant  to  specifically  perform  the  covenant 
in  the  deed  by  the  construction  of  the  overhead  crossing.     *     *     * 

In  most  cases  involving  the  breach  of  a  contract  for  personal  services 
or  for  the  erection  of  buildings  or  other  structures  the  remedy  at  law 
is  adequate.  If  A.  employs  B.  to  erect  a  building  or  other  structure 
at  a  fixed  price,  and  B.  refuses  to  perform  his  contract,  A.  may  employ 
others  to  do  the  work  and  recover  from  B.  the  damages  occasioned  by 
his  breach  of  contract.  In  such  cases  the  award  of  damages  is  an 
adequate  remedy ;  but  in  cases  where  the  defendant  has  acquired  land 

30  Parts  of  the  opinion  are  omitted. 


148  SPECIFIC   PERFORMANCE  OF  CONTRACTS  (Ch.  2 

from  the  plaintiff  and  as  a  part  of  the  consideration  for  the  conveyance 
has  agreed  to  erect  a  structure  thereon  for  the  benefit  of  plaintiff,  and 
where  the  contract  has  been  partly  performed  so  that  the  defendant  is 
enjoying  the  benefits  of  the  same,  a  different  rule  applies.  Wilson  v. 
Furness  R.  Co.,  L.  R.  9  Eq.  28,  33 ;  Birchett  v.  Boiling,  19  Va.  (5 
Munf.)  442;  Stuyvesant  v.  New  York,  11  Paige  (N.  Y.)  414;  Grubb 
v.  Starkey,  90  Va.  831,  20  S.  E.  784.  In  such  a  case  the  plaintiff  has 
no  right  to  enter  upon  the  lands  conveyed  to  the  defendant  and  erect 
the  structure,  in  the  absence  of  a  statute  authorizing  him  so  to  do,  and 
he  is  therefore  without  adequate  remedy  unless  the  court  may  compel 
the  specific  performance  of  the  contract.  In  the  absence  of  such  a 
remedy,  the  defendant  may  retain  and  enjoy  the  land  without  yielding 
to  the  plaintiff  the  consideration  upon  which  the  conveyance  was  based. 
The  general  rule  that  a  court  of  equity  will  not  decree  the  specific  per- 
formance of  a  building  contract  does  not  apply  in  such  a  case.  Storer 
v.  Great  Western  R.  Co.,  12  L.  J.  Ch.  65 ;  Columbus  v.  Cleveland,  etc., 
R.  Co.,  25  Ohio  Cir.  Ct.  R.  663 ;  Gregory  v.  Ingwersen,  32  N.  J.  Eq. 
199. 

There  is  no  universal  rule  that  courts  of  equity  will  not  enforce 
a  contract  which  requires  some  building  to  be  done  or  some  supervi- 
sion to  be  exercised.  In  the  case  of  Union  Pacific  R.  Co.  v.  Chicago, 
etc.,  R.  Co.,  163  U.  S.  569,  16  Sup.  Ct.  1173,  41  L.  Ed.  265,  the  Su- 
preme Court  of  the  United  States  enforced  by  a  decree  for  specific 
performance  a  complicated  contract  made  by  one  railway  company 
to  permit  another  to  use  its  tracks.  In  Murray  v.  Northwestern  R. 
Co.,  64  S.  C.  520,  42  S.  E.  617,  the  court  specifically  enforced  a  con- 
tract on  the  part  of  a  railway  company  to  establish  and  maintain  a 
passenger  station.  Storer  v.  Great  Western  R.  Co.,  supra,  was  a  case 
in  which  the  court  compelled  the  defendant  to  construct  and  forever 
maintain  an  archway  and  its  approaches.  The  court  said  there  was 
no  difficulty  in  enforcing  such  a  decree.  In  Wilson  v.  Furness,  supra, 
the  defendant  was  compelled  to  erect  and  maintain  a  wharf.  The  ob- 
jection that  the  judgment  in  this  case  involves  continuous  acts  and 
supervision  of  the  court  is  well  met  by  the  reasoning  in  Joy  v.  St. 
Louis,  138  U.  S.  1,  11  Sup.  Ct.  243,  34  L.  Ed.  843,  where  the  court 
said: 

"In  the  present  case  it  is  urged  that  the  court  will  be  called  upon  to  deter- 
mine from  time  to  time  what  are  reasonable  regulations  to  be  made  by  the 
Wabash  Company  for  the  running  of  trains  upon  its  tracks  by  the  Colorado 
Company.  But  this  is  no  more  than  a  court  of  equity  is  called  upon  to  do 
whenever  it  takes  charge  of  the  running  of  a  railroad  by  means  of  a  receiver. 
Irrespectively  of  this,  the  decree  is  complete  in  itself  and  disposes  of  the  con- 
troversy ;  and  it  is  not  unusual  for  a  court  of  equity  to  take  supplemental 
proceedings  to  carry  out  its  decree,  and  make  it  effective  under  altered  cir- 
cumstances." 

To  the  same  effect  is  the  case  of  Prospect  Park,  etc.,  R.  Co.  v. 
Coney  Island,  etc.,  R.  Co.,  144  N.  Y.  152,  39  N.  E.  17,  26  L.  R.  A. 
610,  where  a  contract  to  run  street  cars  for  a  series  of  years  over  a 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        149 

track  of  another  company  to  a  depot  was  specifically  enforced  over  the 
objection  that  it  required  the  exercise  of  skill  and  judgment  and  a 
continuous  series  of  acts.  The  contract  which  this  complaint  seeks 
to  enforce  falls  clearly  within  the  exception  to  the  general  rule.  Cin- 
cinnati, etc.,  R.  Co.  v.  Wall,  48  Ind.  App.  605,  96  N.  E.  389;  Pomeroy, 
Equity  Jurisprudence  (3d  Ed.)  §  1402,  and  notes.     *     *     * 

The  decree  of  the  lower  court  is  clearly  right  upon  the  merits,  and, 
as  no  error  is  shown  affecting  the  substantial  rights  of  appellee,  it 
should  be  in  all  things  affirmed. 

Judgment  affirmed. 


In  re  CARY-ELWES'  CONTRACT. 
(Chancery  Division.     [1906]  2  Ch.  Div.  143.) 

May  3.  SwiNrEN  Eady,  J.31  It  is  well  settled  that  in  cases  of 
compulsory  purchase,  after  notice  to  treat  and  ascertainment  of  the 
price,  a  contract  is  established,  enforceable  in  a  court  of  equity,  and 
with  regard  to  which  both  vendor  and  purchaser  can  enforce  specific 
performance:  Adams  v.  London  and  Blackwall  Ry.  Co.,  2  Mac.  & 
G.  118;  Regent's  Canal  Co.  v.  Ware,  23  Beav.  575.  Following  these 
decisions,  it  was  held  by  Jessel  M.  R.  in  In  re  Pigott  and  Great  West- 
ern Ry.  Co.,  18  Ch.  D.  146,  that  as  specific  performance  of  the  con- 
tract, as  a  contract  of  purchase  and  sale,  or  sale  and  purchase,  may  be 
enforced,  all  the  ordinary  rules  apply,  unless  you  find  some  statutory 
enactment  in  the  way.  In  that  case  Jessel  M.  R.  applied  the  rule, 
stated  in  Dart's  Vendors  and  Purchasers,  5th  Ed.  pp.  629-30,  7th  Ed. 
p.  653,  that  where  the  vendor  has  shewn  his  title  the  purchaser  pays 
interest  from  the  time  at  which  he  might  prudently  have  taken  posses- 
sion, supposing  it  to  have  been  offered  him,  that  is,  the  time  when  a 
good  title  was  shewn.     That  is  the  ordinary  rule. 

The  reason  why  equity  interfered  to  enforce  a  statutory  contract, 
after  notice  to  treat  and  ascertainment  of  the  price,  is  stated  by  Wood 
V.  C.  in  Mason  v.  Stokes  Bay  Pier  and  Ry.  Co.,  32  L.  J.  Ch.  110.  It 
was  because  a  court  of  law  would  be  unable  to  do  complete  justice  be- 
tween the  parties,  having  no  machinery  either  for  investigating  the 
title  or  settling  the  conveyance.  In  that  case,  which  was  a  suit  to 
compel  specific  performance  of  a  compulsory  purchase  of  freeholds, 
he  made  a  decree  against  the  company,  and  said  that  Romilly  M.  R. 
had  put  the  matter  on  the  right  grounds  in  Regent's  Canal  Co.  v. 
Ware,  23  Beav.  575  ;  that  after  notice  given  and  the  price  fixed,  the 
relation  of  the  parties  as  vendor  and  purchaser  was  as  fully  consti- 
tuted as  in  the  case  of  a  formal  and  regular  agreement.  And  in  a 
subsequent  case  of  Harding  v.  Metropolitan  Ry.  Co..  L.  R.  7  Ch.  154, 
the  same  learned  judge,  when  Lord  Chancellor,  overruled  Lord  Rom- 

"!  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


150  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

illy  M.  R.  and  compelled  the  railway  company,  against  their  will,  to 
take  an  assignment  of  leasehold  premises  which  they  had  purchased 
cornpulsorily  and  had  already  paid  for. 

The  principle  is  fully  established  that  when  land  is  purchased  corn- 
pulsorily, after  the  price  has  been  ascertained,  the  purchaser  is  in  the 
same  position  with  regard  to  the  landowner  as  an  ordinary  purchaser, 
and  will  be  compelled  by  a  Court  of  Equity  to  complete  the  purchase. 
It  is  an  implied  term  of  every  contract  for  the  sale  of  real  property, 
if  not  expressed,  that  the  contract  shall  be  followed  by  a  deed  of  con- 
veyance conveying  the  property  to  a  purchaser,  and  this  may  be  en- 
forced by  a  suit  for  specific  performance.     *     *     * 

In  my  judgment  the  respondents  are  bound,  as  in  the  case  of  an 
ordinary  purchase,  to  take  a  conveyance,  and  there  must  be  an  order 
in  the  terms  of  the  summons — the  conveyance  in  case  of  disagreement 
to  be  settled  under  the  direction  of  the  court.  The  respondents  must 
pay  the  costs  of  the  application. 


JOYNER  et  al.  v.  CRISP. 
(Supreme  Court  of  North  Carolina,  1912.    158  N.  C.  199,  73  S.  E.  1001.) 

Appeal  from  Superior  Court,  Pitt  County ;    Whedbee,  Judge. 

Action  by  A.  L.  Joyner  and  another  against  S.  M.  Crisp.  Judg- 
ment for  plaintiffs,  and  defendant  appeals. 

The  action  was  brought  by  the  plaintiffs  to  have  set  aside  and  can- 
celed upon  the  ground  of  fraud  a  certain  paper  writing,  or  contract, 
in  reference  to  the  selling  of  land  entered  into  on  the  15th  day  of  Sep- 
tember, 1910,  between  Alice  Lee  Joyner  and  her  husband,  Andrew 
Joyner,  and  S.  M.  Crisp.32     *     *     * 

Brown,  J.  In  the  view  we  take  of  this  case,  it  is  unnecessary  to 
consider  the  first  exception  of  the  defendant  in  respect  to  the  refusal 
of  the  court  to  make  one  O.  L.  Joyner  and  others  parties  to  the  ac- 
tion. If  the  contract  is  one  which  a  court  of  equity  will  not  require 
to  be  specifically  performed,  then  a  defect  of  parties  is  of  no  material 
matter. 

His  honor  ruled  that  the  contract  is  one  upon  its  face  with  which 
the  plaintiffs  cannot  comply,  and  therefore  a  court  of  equity  will  not 
attempt  to  enforce  it,  and  consequently  in  respect  to  a  decree  compel- 
ling partial  performance,  as  asked  by  the  defendant,  his  honor  was  of 
opinion  that  the  contract  was  intended  as  an  entirety,  and  must  stand 
or  fall  as  such,  and  that  the  court  will  not  under  the  circumstances 
compel  partial  performance  of  the  contract,  and  require  abatement 
of  the  price. 

The  facts  are,  as  appears  by  the  pleadings :  That  the  property  in 
question,  known  as  the  "Peebles  Place,"  belonged  to  the  feme  plaintiff 

32  The  statement  of  facts  is  abridged. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        151 

for  her  life,  and  after  her  death  to  her  children,  some  of  whom  are 
minors.  At  the  time  the  contract  referred  to  was  entered  into  be- 
tween the  plaintiffs  and  the  defendant,  the  defendant  admits  he  knew 
the  status  of  the  title,  and  there  is  nothing  in  the  pleadings  themselves 
which  indicate,  or  even  allege,  that  any  imposition  was  practiced  upon 
the  defendant,  or  that  he  entered  into  this  contract  except  with  his 
eyes  open.  The  contract  upon  its  face  indicates  plainly  that  it  does 
not  lie  within  the  power  of  the  plaintiffs  of  their  own  will  to  comply 
with  it.  It  appears  upon  its  face  that  the  plaintiffs  own  practically 
nothing  but  a  life  estate,  and  that  the  only  method  to  carry  out  the 
contract  was  by  appealing  to  the  judicial  tribunal  to  decree  a  sale  of 
the  infants'  estate.  The  following  excerpts  from  the  contract  are 
plainly  indicative  that  resort  to  a  judicial  tribunal  was  absolutely  es- 
sential to  its  performance,  viz. : 

"This  option  is  to  remain  in  force  for  ninety  days,  or  until  such  time  as 
the  parties  of  the  first  part  can  obtain  by  special  proceedings  in  the  superior 
court  of  Pitt  county  a  judicial  decree  confirming  to  the  party  of  the  second 
part  a  fee-simple  title." 

Again : 

"Upon  the  performance  of  the  above  stipulations  by  the  party  of  the  sec- 
ond part,  the  parties  of  the  first  part  will  agree  to  execute  in  their  own  proper 
persons  and  by  the  decree  of  the  superior  court  a  deed  in  fee  simple,"  etc. 

The  plaintiffs  in  this  case  had  no  power  to  enter  into  a  contract  to 
sell  their  children's  land,  and  a  mere  promise  to  resort  to  a  court  for 
the  purpose  of  decreeing  a  sale  of  it  cannot  possibly  be  enforced,  for 
it  is  beyond  the  power  of  the  plaintiffs  to  predicate  what  the  judg- 
ment of  the  court  may  be.  Upon  this  principle  it  is  held  that  a  party 
cannot  recover  upon  a  contract  wherein  a  guardian  who  owned  cer- 
tain interest  in  land  of  which  his  ward  was  part  owner  agreed  to  in- 
stitute and  to  carry  through  court  proceedings  necessary  to  the  con- 
summation of  a  sale  or  exchange  of  such  property.  Zander  v.  Feely, 
47  111.  App.  660;  Le  Roy  v.  Jacobosky,  136  X.  C.  444,  48  S.  E.  796, 
67  L.  R.  A.  977.  There  have  been  cases  where  guardians  have  en- 
tered into  such  contracts,  and,  upon  failure  to  perform  them,  have 
been  held  liable  in  damages  personally.  Mason  v.  Wait,  4  Scam.  (111.) 
127,  and  Mason  v.  Caldwell,  5  Oilman  (111.)  196,  48  Am.  Dec.  330. 
But  we  find  no  instance  where  such  contract  has  been  specifically  per- 
formed by  decree  of  court,  unless  it  was  to  the  ward's  interest. 

In  regard  to  the  contention  that  the  defendant  is  entitled  to  the 
partial  performance  and  conveyance  of  the  life  estate,  and  damages 
in  the  way  of  abatement  of  the  price,  it  may  be  said  that  we  recog- 
nize the  general  rule  that,  where  the  vendor  has  not  substantially  the 
whole  interest  he  has  contracted  to  sell,  yet  the  purchaser  can  insist 
on  having  all  that  the  vendor  can  convey  with  compensation  for  the 
difference.  But  in  this  case  it  is  apparent  on  the  face  of  the  contract 
that  it  was  to  be  performed  as  a  whole,  stand  or  fall  as  an  entirety, 
and  therefore  it  cannot  be  specifically  enforced  as  to  part. 


152  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

It  is  admitted  by  the  defendant  in  his  answer  that  he  knew  that  the 
land  in  fee  belonged  to  the  plaintiffs'  children.  It  seems  to  be  well 
settled  that  the  rule  that  when  a  person  makes  a  contract  for  the  sale 
of  real  estate,  in  which  he  has  only  limited  interest,  he  may  be  com- 
pelled in  equity  to  convey  as  much  of  the  property  as  lies  in  his  power 
to  convey,  with  a  deduction  from  the  agreed  price,  does  not  apply 
where  the  purchaser  at  the  time  of  the  sale  had  notice  of  the  defect 
in  the  vendor's  title.  Knox  v.  Spratt,  23  Fla.  64,  6  South.  924;  26 
Am.  &  E.  Ency.  p.  84. 

For  the  reasons  given,  we  think  the  contract  is  one  which  cannot 
be  specifically  performed,  nor  can  the  defendant  recover  damages 
for  a  failure  on  the  part  of  the  plaintiffs  to  perform  it. 

The  judgment  of  the  superior  court  is  affirmed. 


RHOADES  v.  SCHWARTZ  et  al. 

(Supreme  Court  of  New  York,  Special  Term,  New  York  County,  1903.    41  Misc. 
Rep.  648,  85  N.  Y.  Supp.  229.) 

Action  by  Pauline  Rhoades  against  Emma  Schwartz  and  Emma 
Schwartz  Ruppert,  to  enforce  an  alleged  agreement  on  the  part  of 
Emma  Schwartz  to  devest  certain  real  estate.  Demurrer  to  com- 
plaint. 

Scott,  J.33  This  action  is  brought  to  enforce  specifically  an  al- 
leged agreement  on  the  part  of  one  Elise  Schmid,  now  deceased,  to 
devise  certain  real  estate  in  a  particular  way.  It  is  alleged  that  said 
Elise  Schmid  was  from  1878  to  the  time  of  her  death  in  1900  the 
owner  of  the  real  estate  in  question ;  that  in  the  year  1889,  being  de- 
sirous of  settling  the  said  premises  upon  and  for  the  benefit  of  the 
plaintiff  and  her  sister,  Josephine  Schmid,  the  younger,  she  entered 
into  a  contract  with  Josephine  Schmid,  the  elder,  mother  of  the  plain- 
tiff and  Josephine  Schmid,  the  younger,  to  the  effect  that  the  said 
Elise  Schmid  would  by  will  so  devise  the  said  premises  that  the  said 
Josephine  Schmid,  the  elder,  should  have  and  become  seised  of  the 
same,  in  trust,  however,  to  apply  the  income  thereof  to  the  mainte- 
nance of  the  plaintiff  and  her  sister,  Josephine  Schmid,  the  younger, 
until  said  plaintiff  should  attain  the  age  of  25  years,  and  then  to  di- 
vide the  said  premises,  share  and  share  alike,  between  the  plaintiff 
and  her  said  sister,  Josephine.  It  is  further  alleged  as  a  part  of  the 
agreement  that  said  Elise  Schmid  was  not  only  to  make  and  execute 
such  a  will,  but  also  to  allow  it  to  stand  in  full  force  and  effect  until 
her  death,  doing  nothing  to  defeat  the  full  intention  thereof.  The 
consideration  for  this  agreement  was  the  promise  and  undertaking 
on  the  part  of  Josephine  Schmid,  the  elder,  to  pay,  down  to  the  death 

33  Part  of  the  opinion  is  omitted. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         153 

of  said  Elise  Schmid,  the  taxes,  Croton  water  rents,  and  assessments 
which  might  be  imposed  upon  the  property  and  the  premiums  upon 
insurance  against  fire  upon  the  building  erected  upon  the  premises. 
It  is  further  alleged  that  the  said  Josephine  Schmid,  the  elder,  ful- 
filled the  agreement  upon  her  part  by  paying  the  taxes,  Croton  water 
rents,  and  insurance  premiums  which  she  agreed  to  pay.  It  is  alleged 
that  in  violation  of  her  agreement  the  said  Elise  Schmid  executed  a 
deed  and  a  will  under  which  the  defendants  claim  to  be  seised  and 
possessed  of  the  property,  and  for  such  deed  and  will  it  is  alleged  they 
gave  no  valuable  consideration.  Elise  Schmid  died  on  February  23, 
1900,  leaving  her  surviving  no  husband,  no  children,  and  no  grand- 
children, except  the  plaintiff,  Josephine  Schmid,  the  younger,  who 
was  also  a  grandchild,  having  died  intestate  and  unmarried  in  Feb- 
ruary, 1893.  At  the  time  of  Elise  Schmid's  death  the  plaintiff  had 
attained  the  age  of  25  years.  The  defendant  Emma  Schwartz  de- 
murs upon  the  ground  that  the  complaint  does  not,  as  to  her,  state 
facts  sufficient  to  constitute  a  cause  of  action.  The  defendant  Emma 
Schwartz  Ruppert  demurs  upon  this  ground,  and  also  for  that  there  is 
a  defect  of  parties  plaintiff  in  that  Josephine  Schmid,  the  elder,  and  the 
personal  representative  of  Josephine  Schmid,  the  younger,  now  de- 
ceased, are  necessary  parties  plaintiff;  and,  further,  that  there  is  a  de- 
fect of  parties  defendant  in  that  the  personal  representative  of  Elise 
Schmid,  deceased,  is  a  necessary  party  defendant. 

The  complaint  is  based  upon  the  principle  now  firmly  established 
in  this  state  that,  where  a  certain  and  definite  contract  is  clearly 
established,  even  though  it  involves  an  agreement  to  leave  property 
by  will,  and  it  has  been  performed  on  the  part  of  the  promisee,  equity, 
in  a  case  free  from  all  objection  on  account  of  the  adequacy  of  the 
consideration,  or  other  circumstances  rendering  the  claim  inequitable, 
will  compel  a  specific  performance.     *     *     * 

When  Josephine  Schmid,  the  younger,  died  in  1893,  there  was  in 
existence  a  contract  whereby  the  grandmother  had  undertaken  to 
transmit  to  her  the  title  to  one-half  the  premises  in  suit.  The  agree- 
ment had  then  become  irrevocable  by  reason  of  the  part  performance 
of  the  consideration,  and,  if  the  contract  was  fulfilled,  Josephine,  the 
younger,  must  in  clue  time,  upon  the  happening  of  the  precedent  con- 
dition, become  seised  of  an  interest  in  the  property.  The  position  of 
Josephine  Schmid,  the  younger,  at  the  time  of  her  death  was  there- 
fore closely,  if  not  quite,  analogous  to  that  of  a  person  who  holds  a 
contract  for  the  conveyance  of  real  estate.  It  is  well  settled  that  the 
interest  of  a  vendee  in  such  a  contract  is  real  estate,  and  in  case  of  his 
death  intestate  descends  to  his  heirs,  and  not  to  his  executor  or  ad- 
ministrator. Champion  v.  Brown,  6  Johns.  Ch.  398,  10  Am.  Dec.  343 ; 
Griffith  v.  Beecher,  10  Barb.  434;  Hathaway  v.  Payne,  34  N.  Y.  103. 
The  complaint  shows  that  Josephine  Schmid,  the  younger,  died  intes- 
tate and  unmarried,  leaving  as  her  sole  heirs  at  law  the  plaintiff  and 


154  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

her  mother,  Josephine  Schmid,  the  elder.  It  seems  to  be  quite  clear 
that  upon  the  death  of  Josephine,  the  younger,  the  mother  took  by  in- 
heritance from  her  an  estate  in  the  property  in  suit,  and  is  therefore 
a  necessary  party  to  an  action  to  determine  its  ownership.  I  have  not 
overlooked  the  allegation  of  the  complaint  that  the  agreement  between 
Elise  Schmid  and  Josephine  Schmid,  the  elder,  was  made  for  the  ex- 
press benefit  of  the  plaintiff  and  her  sister,  Josephine,  "and  the  sur- 
vivor of  them."  This,  however,  is  merely  the  statement  of  a  conclu- 
sion as  to  the  effect  of  the  agreement,  and,  in  so  far  as  it  asserts  that 
the  agreement  was  made  for  the  benefit  of  the  survivor,  is  not  borne 
out  by  the  terms  of  the  agreement  as  recited  in  the  complaint.  Be- 
cause the  interest  of  Josephine  Schmid,  the  younger,  under  the  con- 
tract, was  real  estate,  it  is  not  necessary  that  any  personal  representa- 
tive of  hers  should  be  a  party. 

The  demurrer  of  the  defendant  Emma  Schwartz  is  overruled,  with 
leave  to  withdraw  the  demurrer  and  answer  in  20  days.  The  demur- 
rer of  the  defendant  Emma  Schwartz  Ruppert,  upon  the  first  ground 
stated  by  her,  to  wit,  that  Josephine  Schmid,  the  elder,  is  a  necessary 
party  plaintiff,  is  sustained,  with  leave  to  plaintiff  to  amend  her  com- 
plaint within  20  days.  The  demurrer  of  said  Emma  Schwartz  Rup- 
pert upon  the  second,  third,  and  fourth  grounds  stated  by  her  is  over- 
ruled, with  leave  to  withdraw  her  demurrer  and  answer  within  20 
days. 

Ordered  accordingly. 


STROMME  v.  RIECK  et  al. 

(Supreme  Court  of  Minnesota,  1909.     107  Minn.  177,  119  N.  W.  948,  131  Am. 

St.  Rep.  452.) 

Appeal  from  District  Court,  Hennepin  County;  John  Day  Smith, 
Judge.  _ 

Specific  performance  by  Maude  H.  Stromme  against  Gustav  Rieck 
and  Anna  Rieck.  Judgment  for  plaintiff,  and,  from  an  order  denying 
a  new  trial,  defendants  appeal.  Affirmed  as  to  the  defendant  Gustav 
Rieck ;   reversed,  and  a  new  trial  granted,  as  to  defendant  Anna  Rieck. 

Brown,  J.34  Action  for  the  specific  performance  of  a  contract  for 
the  sale  and  exchange  of  certain  real  property.  On  the  trial  below 
judgment  was  directed  for  plaintiff,  and  defendants  appealed  from  an 
order  denying  a  new  trial. 

The  facts,  briefly  stated,  are  as  follows :  Plaintiff  owned  certain 
property  in  the  city  of  Minneapolis,  and  defendant  Gustav  Rieck  owned 
a  farm  in  Anoka  county.  They  entered  into  a  contract  for  the  ex- 
change of  these  properties ;   plaintiff  being  represented  in  the  transac- 

a*  Parts  of  the  opinion  are  omitted. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        155 

tion  by  her  husband,  W.  A.  Stromme.     The  contract  was  in  writing, 
and  in  the  following  language  : 

"This  agreement  made  and  entered  into  by  and  between  Gustav  Rieck  of 
St.  Paul,  Minn.,  party  of  the  first  part,  and  Maude  H.  Stromme  of  Minneapolis, 
Minn.,  party  of  the  second  part.  *  *  *  Maud  H.  Stromme,  by  W.  A. 
Stromme.     Gustav  Rieck.     Witness:   Anna  Rieck." 

Anna  Rieck,  who  signed  the  contract  as  a  witness,  was  and  is  the 
wife  of  Gustav  Rieck.  Plaintiff  acquiesced  in  and  confirmed  the  con- 
tract made  by  her  husband,  and  has  offered  and  tendered  perform- 
ance of  the  same.  Both  defendants  refused  to  perform  and  this  action 
followed.     *     *     * 

It  is  further  claimed  that  the  contract  is  not  enforceable  because 
not  signed  by  the  wife  of  defendant  Gustav  Rieck.  We  here  reach  the 
only  serious  question  in  the  case.  Mrs.  Rieck  did  not  in  fact  join  in  the 
contract,  and  the  question  presented  is  whether  it  may  be  enforced  as 
against  her  interest  in  the  land.  The  land  did  not  constitute  the  home- 
stead of  the  parties ;  and,  while  it  is  clear  under  our  decisions  that 
the  contract  may  be  enforced  as  to  the  husband  to  the  extent  of  his 
ability  to  perform,  it  is  equally  clear  that  it  cannot  be  enforced  as 
against  the  wife.  Schwab  v.  Baremore,  95  Minn.  295,  104  N.  W.  10; 
Weitzner  v.  Thingstad,  55  Minn.  244,  56  N.  W.  817.  It  rests  with  the 
opposite  party  in  such  case  to  determine  whether  to  accept  perform- 
ance by  the  husband  alone  or  abandon  the  contract.  He  may  not  be 
compelled  to  accept  part  performance,  but  may  do  so  at  his  option, 
unless,  as  in  the  Baremore  Case,  the  refusal  of  the  wife  to  join  in  the 
conveyance  constitutes  a  defect  in  the  title  which  renders  the  contract 
by  its  terms  wholly  void. 

The  contract  in  question  did  not  so  provide,  and  plaintiff  may  insist 
on  performance  by  the  husband,  but  not  against  the  wife,  unless  she 
in  some  way  legally  bound  herself  to  its  performance.  Counsel  for 
plaintiff  recognizes  this  situation,  and  in  avoidance  of  its  legal  conse- 
quences maintains  that  Mrs.  Rieck  did  consent  to  convey  her  interest 
in  the  property.  This  position  is  founded  on  the  claims  (1)  that  Mrs. 
Rieck  orally  contracted  to  sell  her  interest  in  the  land  and  that  there  was 
a  sufficient  part  performance  to  render  it  valid ;  and  (2)  that  her  sig- 
nature as  a  witness  appended  to  the  contract  was  a  sufficient  consent, 
within  the  meaning  and  purpose  of  our  statute  on  the  subject,  to  the 
sale  by  the  husband.  We  are  unable  to  concur  in  either  of  these  con- 
tentions. The  trial  court  found  an  oral  contract  by  Mrs.  Rieck  to  sell 
her  interest  in  the  land  and  also  part  performance ;  but  we  are  unable 
to  discover  evidence  sustaining  the  findings.  The  basis  of  the  claim 
that  there  was  an  oral  contract  is  found  in  the  fact  that  Mrs.  Rieck  had 
full  knowledge  of  the  transaction,  was  present  during  a  part  at  least 
of  the  negotiations,  and  interposed  no  objection  to  the  sale.  But  it 
does  not  appear  that  anything  was  said  in  reference  to  a  relinquish- 
ment of  her  interest  in  the  land,  and  it  is  apparent  that  the  parties  did 
not  consider  her  consent  at  all  necessary.     Nothing  was  said  about  it, 


156  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

and  we  find  no  sufficient  basis  in  the  record  before  us  to  support  the 
conclusion  that  she  either  orally  or  otherwise  contracted  or  agreed  to 
part  with  her  rights. 

Our  statutes  (section  3648,  Rev.  Laws  1905)  provide  that  a  wife  shall 
be  entitled  on  the  death  of  her  husband  to  a  one-third  interest  in  all 
land  owned  by  him  at  any  time  during  the  marriage  relation  to  the  sale 
or  disposition  whereof  she  did  not  consent  in  writing.  The  same 
right  is  extended  the  husband  in  the  wife's  land.  The  interest  thus 
granted  the  wife,  though  in  lieu  of  the  former  dower  right,  is  for  all 
substantial  purposes  identical  with  that  right,  and  is  protected  by  an 
application  of  the  same  rules  and  principles  of  law.  Before  a  wife 
can  be  divested  of  her  interest,  it  must  be  shown  that  she  consented  in 
writing  to  a  sale  of  the  land  in  which  she  subsequently  claims  a  right, 
though  it  may  be  conceded  for  the  purposes  of  the  present  case  that  a 
contract  of  sale  by  the  husband,  partly  performed  by  the  vendee,  might 
bind  the  wife  if  orally  consented  to  by  her,  where  she  received  and 
retained  a  substantial  benefit  from  the  transaction.  But  that  would  be 
by  force  of  the  equitable  doctrine  of  estoppel.  Such  is  not  this  case, 
however.  The  question  now  being  considered  is  whether  her  signature 
as  a  witness  to  an  executory  contract  by  the  husband  is  a  sufficient 
written  consent  to  the  sale  of  the  land.  A  careful  consideration  of  the 
question  leads  to  a  negative  answer.  The  consent  of  the  wife  rendered 
essential  by  the  statute  to  a  divestiture  of  her  rights  necessarily  in- 
volves an  intention  on  her  part  to  relinquish  her  interest  in  the  proper- 
ty. If  she  should  join  in  the  execution  of  the  contract,  though  not 
mentioned  in  the  body  thereof,  it  would  undoubtedly  bind  her.  But 
where  she  is  not  mentioned  in  the  contract,  nor  her  interests  in  any 
way  referred  to,  and  she  signs  as  a  witness,  expressly  so  designating 
her  signature,  no  consent  to  a  release  of  her  interest  can  follow  as  a 
matter  of  law.  The  written  contract  in  the  case  at  bar  contains  no 
reference  to  the  interests  of  the  wife,  and  no  attempt  appears  to  have 
been  made  to  sell  or  exchange  the  property  free  from  any  claim  on  her 
part. 

The  courts  have  been  quite  strict  in  the  protection  of  the  rights  of 
married  women  in  matters  of  this  kind,  both  under  statutes  creating 
and  defining  dower  rights  and  statutes  like  those  of  this  state,  and  the 
statutory  method  of  relinquishing  those  rights  and  interests  have  been 
held  to  be  exclusive,  barring,  of  course,  questions  of  estoppel  not  in- 
volved in  this  case.  Motley  v.  Motley,  53  Neb.  375,  73  N.  W.  738,  68 
Am.  St.  Rep.  608 ;  Lewis  v.  Apperson,  103  Va.  624,  49  S.  E.  978,  68  L. 
R.  A.  867,  106  Am.  St.  Rep.  903 ;  Higginbotham  v.  Cornwell,  8  Grat. 
(Va.)  83,  56  Am.  Dec.  130.  Mere  knowledge  of  or  acquiescence  in  a 
sale  by  the  husband  is  not  sufficient  to  bar  her  rights.  14  Cyc.  931, 
and  cases  cited;  Hunt  v.  Reilly,  24  R.  I.  68,  52  Atl.  681,  59  L.  R.  A. 
206,  96  Am.  St.  Rep.  707 ;  Foley  v.  Boulware,  86  Mo.  App.  674.  The 
statute  requires  the  consent  to  be  in  writing.  •  Wei  ford  v.  Beazely,  3 
Atk.  503,  and  Coles  v.  Trecothick,  9  Ves.   234,  cited  by  plaintiff's 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        157 

counsel,  are  not  in  point.  In  the  first  of  these  cases  it  appeared  that 
the  person  who  signed  under  the  designation  of  "witness"  was  describ- 
ed therein  as  one  of  the  contracting  parties.  Not  so  in  the  case  at  bar. 
In  the  second  case  the  signature  of  the  contract  was  by  an  agent  of  the 
principal,  and  as  follows:  "Witness  Evan  Phillips  for  Mr.  Smith, 
Agent  for  the  Seller."  It  was  held  that,  where  the  person  to  be  bound 
by  a  contract  signs  the  same  as  a  witness  when  he  cannot  be  a  witness, 
he  must  be  understood  to  have  signed  as  principal.  In  the  case  at  bar 
Mrs.  Rieck  was  not  designated  as  one  of  the  principals  in  this  contract, 
and  the  rule  of  that  case  has  no  application.     *     *     * 

For  the  reasons  given  the  order  appealed  from  is  affirmed  as  to  de- 
fendant Gustav  Rieck,  but  reversed  and  a  new  trial  granted  as  to  de- 
fendant Anna  Rieck. 


ROHDE  v.  HESELDEN. 

(Supreme  Court  of  New  York,  Equity  Term,  Lewis  County,  1910. 
134  N.  Y.  Supp.  103.) 

MERRELL,  J.  This  is  an  action  for  the  specific  performance  of  a 
contract  entered  into  between  the  parties  for  the  sale  of  real  estate, 
to  recover  back  the  sum  of  $200  paid  by  plaintiff  thereon  and  for  dam- 
ages by  reason  of  defendant's  failure  to  perform. 

The  contract  purports  to  have  been  made  on  August  18,  1909,  and 
was  negotiated  through  one  Walter  H.  Woodworth,  a  real  estate  agent, 
residing  at  Central  Square,  Oswego  county.  The  property  contracted 
to  be  sold  was  defendant's  farm  of  about  80  acres  situated  in  the  town 
of  Clay,  Onondaga  county,  N.  Y.,  together  with  10  cows  and  a  quantity 
of  hay  and  some  little  personal  property.  The  defendant  had  on  July 
8,  1909,  some  weeks  prior  to  the  making  of  the  contract  between  the 
parties,  employed  Woodworth  to  effect  a  sale  of  his  said  farm.  This 
employment  of  the  agent,  Woodworth,  was  by  a  written  instrument 
signed  by  defendant  giving  the  agent  the  exclusive  sale  of  the  premises 
for  a  sum  not  less  than  $4,000. 

By  the  terms  of  the  contract  the  purchase  price,  $4,300,  was  to  be 
paid  as  follows :  $200  cash  down,  the  receipt  whereof  was  acknowl- 
edged in  the  contract  itself;  $500  November  1,  1909;  and  the  balance 
in  payments  of  $100  or  more  each  year. 

The  dispute  between  the  parties  arises  over  the  first  payment  of 
$200,  which  under  the  terms  of  the  contract  writing  was  to  be  a  cash 
payment.  The  contract  was  signed  first  by  the  purchaser,  Rohde,  on 
August  18,  1909.  At  the  time  of  signing,  it  appears  that  Rohde  did  not 
have  the  money  to  make  the  cash  payment  of  $200,  and  gave  his  prom- 
issory note  for  that  amount  with  one  Edwin  Guyette  as  an  accommoda- 
tion maker,  payable  30  days  from  date  to  the  order  of  the  defendant 
at  the  agent  Woodworth's  office  at  Central  Square. 

Woodworth  testifies  that,  having  obtained  Rohde's  signature  to  the 


158  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

contract  and  the  latter's  note,  he  went  to  the  farm  of  the  defendant  and 
told  him  that  he  had  effected  a  sale  of  the  premises,  but  that  he  had 
been  compelled  to  take  Rohde's  30-day  note  for  the  first  cash  payment 
of  $200,  with  a  signer,  and  that  the  defendant  expressed  his  satisfac- 
tion with  such  arrangement.  Heselden  denies  that  he  consented  to  the 
taking  of  the  30-day  note  in  lieu  of  the  cash  payment,  but  admits  that 
Woodworth  did  inform  him  that  he  had  taken  a  note  for  the  $200 
which  defendant  says  Woodworth  told  him  would  be  paid  by  the  1st 
of  September  following.  Heselden  says  that,  when  so  informed  by 
Woodworth,  he  (defendant)  said  it  would  be  all  right  if  the  note  was 
paid  by  September  1st.  The  note  was  in  fact  given  on  August  18th 
and  was  payable  30  days  after  its  date.  It  was  in  fact  paid  to  Wood- 
worth  on  September  11,  1909. 

It  would  therefore  appear  that  Heselden  waived  the  express  provi- 
sion of  the  contract  that  the  $200  should  be  paid  in  cash  at  the  time  of 
executing  the  contract.  It  is  quite  significant  that  Heselden,  who 
is  a  man  of  intelligence,  signed  and  delivered  the  contract  without  re- 
quiring the  payment  of  the  $200  cash  down,  and  does  not  seem  to  have 
spoken  either  by  way  of  demanding  payment  or  recalling  his  contract 
until  Woodworth  sought  to  turn  over  to  him  the  $200  shortly  after 
the  note  was  paid.  Then  for  the  first  time  he  complains  that  the  con- 
tract had  been  broken  and  refused  to  proceed  further  in  its  perform- 
ance. Shortly  before  the  1st  of  November,  when  the  $500  was  to  be 
paid,  defendant  informed  the  plaintiff  that  he  would  not  perform  nor 
accept  the  further  payment. 

Another  matter  of  some  significance  is  the  provision  contained  in 
the  contract  as  to  the  $200  payment.  The  contract  was  drawn  by 
Woodworth,  the  agent,  and  after  specifying  that,  of  the  purchase  price, 
$200  was  to  be  paid  cash  down,  the  following  significant  words  appear, 
"receipt  of  which  is  hereby  acknowledged."  Of  course,  a  receipt  is 
always  open  to  explanation ;  but  the  acknowledgment  of  receipt  of  the 
cash  payment  is  rather  significant,  taking  into  consideration  the  fact 
that,  when  Heselden  signed  the  contract,  he  had  been  informed  that  a 
note  must  for  some  time  at  least  take  the  place  of  the  specified  payment 
of  $200  "cash  down."  I  think  the  circumstances  corroborate  the  agent 
Woodworth  in  his  testimony  as  to  the  transaction.  The  defendant  in- 
sists that  as  the  note  was  never  delivered  to  him  it  could  not  have  con- 
stituted payment.  In  answer  to  that  position,  Woodworth  muse  be 
regarded  as  Heselden's  agent.  He  had  months  before  invested  him 
with  authority  to  negotiate  the  sale,  and  the  delivery  of  the  note  and  its 
subsequent  payment  to  his  agent,  Woodworth,  must  be  regarded  as 
binding  upon  defendant. 

I  am  therefore  compelled  to  decide  that  the  defendant  waived  the 
express  terms  of  the  contract  as  to  the  payment  of  the  $200  in  cash, 
and  consented  to  and  did  receive  the  30-day  note  in  lieu  thereof,  and 
that  he  was  not  justified  in  his  refusal  to  accept  the  $500  payable  No- 
vember 1,  1909,  nor  in  refusing  to  carry  out  his  contract. 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  159 

The  plaintiff  is  entitled  to  relief  in  this  action. 

Upon  the  evidence,  it  is  somewhat  doubtful  if  defendant  would  be 
able  to  perform  his  contract.  Indeed,  it  is  discretionary  in  any  case  as 
to  whether  specific  performance  will  be  decreed.  Under  all  the  cir- 
cumstances I  think  justice  will  best  be  served  by  awarding  judgment 
to  the  plaintiff  that  he  recover  back  the  $200  paid  by  him  September 
11,  1909,  with  interest  to  date,  together  with  $200  damages  proven 
upon  the  trial  suffered  by  plaintiff  by  reason  of  defendant's  refusal  to 
perform  the  contract.  O'Beirne  v.  Allegheny,  etc.,  R.  R.,  151  N.  Y. 
372,  45  N.  E.  873. 

Judgment  is  ordered  accordingly,  with  costs.35 


HAMILTON  ST.  RY.  CO.  v.  CITY  OF  HAMILTON. 

(Supreme  Court  of  Canada,  1906.    39  Can.  Sup.  Ct.  Rep.  673.) 

Appeal  from  the  judgment  of  the  Court  of  Appeal  for  Ontario  (10. 
Ont.  L.  R.  594),  affirming  the  judgment  at  the  trial  (8  Ont.  L.  R.  642)  in 
favour  of  the  respondent. 

The  action  was  to  enforce  specific  performance  of  certain  agree- 
ments entered  into  by  the  appellants  in  virtue  of  by-laws  of  the  corpo- 
ration of  the  city  of  Hamilton,  and  for  a  mandamus  or  mandatory  in- 
junction to  compel  the  defendants  to  provide  and  keep  for  sale  on  their 
tramcars,  operated  in  the  city,  limited  transportation  tickets,  called 
"workmen's  tickets,"  good  for  the  payment  of  passenger  fares  on  the 
tramway  during  certain  fixed  hours  of  each  day. 

At  the  trial  Street,  J.,  held  that  the  respondent,  plaintiff,  was  entitled 
to  succeed  in  the  action  and  made  an  order  restraining  the  defendants, 
appellants,  from  operating  tramcars  in  which  they  did  not  have  such 
limited  tickets  for  sale.  By  the  judgment  appealed  from,  this  decision 
was  affirmed  and  it  was  held  that  the  agreement  of  which  the  enforce- 
ment was  sought  was  intra  vires ;  that  the  defendants  were  obliged  to 
sell  the  tickets  in  question  and  to  receive  them  from  all  persons  tender- 
ing the  same  in  payment  of  passenger  fares  during  the  specified  hours 

3  5  in  Hipgrave  v.  Case  (1885)  L.  R.  28  Ch.  Div.  356,  at  page  361,  Lord  Chan- 
cellor Selborue  said:  "The  plaintiff  thus  declaring  his  election  to  claim  specific 
performance,  and  offering  on  his  part  specifically  to  perform  the  agreement,  I 
construe  the  prayer  at  the  end  of  his  claim  to  be  a  prayer  for  specific  per- 
formance, with  an  alternative  prayer  for  damages  as  a  substitute  for  specific 
performance,  in  case  the  court  for  any  reason  should  not  see  its  way  to  grant- 
ing specific  performance.  I  do  not  think  that  with  regard  to  the  construc- 
tion of  such  a  claim  the  judicature  act  has  made  any  difference.  Therefore  I 
do  not  think  it  necessary  to  discuss  what  the  powers  of  the  court  might  be 
with  regard  to  damages  in  this  case  under  the  judicature  act.  Assuming  that 
on  a  properly  drawn  claim  for  them  the  court  could  give  the  damages  which 
it  is  now  asked  to  give,  I  think  that  the  damages  were  here  claimed  merely  as 
an  alternative  for  the  specific  performance  claimed  upon  an  allegation  of  readi- 
ness and  willingness  to  give  the  defendant  the  property  on  paying  the  price.' 


160  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

of  each  day ;  that  the  action  could  be  maintained  without  the  aid  of  the 
Attorney-General  of  the  province,  and  that  specific  performance  of  the 
contract  could  be  enforced  by  injunction. 

After  hearing  counsel  on  behalf  of  the  parties,  on  the  appeal,  the  Su- 
preme Court  of  Canada  reserved  judgment  and,  on  a  subsequent  day, 
dismissed  the  appeal  with  costs.  The  only  written  notes  of  the  reasons 
for  judgment  were  those  delivered,  as  follows,  by 

Idington,  J.  The  respondents'  right  to  the  injunction  granted 
herein  by  the  late  Mr.  Justice  Street  is  maintainable  for  the  reasons 
appearing  in  the  judgment  of  that  learned  judge  and  in  the  judgments 
of  the  Court  of  Appeal. 

The  appeal  should  be  dismissed  with  costs. 

Appeal  dismissed  with  costs. 


LORD  MANNERS  v.  JOHNSON. 

(In  Chancery,  1875.    1  Ch.  Div.  673.) 

At  the  date  of  the  agreements  and  conveyances  hereinafter  men- 
tioned, J.  H.  Manners  Sutton  and  J.  E.  B.  Dashwood  were  mortgagees 
in  fee  in  possession  of  lands  of  considerable  extent  in  the  parish  of 
Streatham,  known  as  the  Roupell  Park  Estate,  the  equity  of  redemp- 
tion in  which  was  vested  in  Richard  Roupell.  The  estate  had  been 
laid  out  for  building  purposes  according  to  a  regular  scheme ;  and 
upon  a  part  of  it,  known  as  Palace  Road,  five  houses,  Nos.  3  to  8, 
Palace  Road,  had  been  built  in  a  line  with  and  at  a  distance  of  about 
forty  feet  from  one  another,  the  fronts  of  which  houses  were  at  a 
distance  of  about  eighty  feet  from  Palace  Road,  from  which  they 
were  each  separated  by  a  wall  having  entrance  and  exit  gates  for 
carriages,  inside  which  wall  was  a  front  garden  and  carriage  drive  to 
the  house  door;  and  each  house  and  garden  was  divided  from  the 
other  by  garden  walls  about  eight  feet  in  height.  The  houses  were 
worth  i4000  to  £6000  apiece. 

By  an  agreement  in  writing,  dated  the  29th  of  April,  1873, 
and  made  between  Messrs.  Manners  Sutton  and  Dashwood  of 
the  first  part,  Mr.  Richard  Roupell  of  the  second  part,  and 
the  defendant  of  the  third  part,  the  defendant  agreed  to  purchase 
a  piece  of  land  in  Palace  Road  (upon  the  site  of  which  he  after- 
wards built  Nos.  1  and  2,  Palace  Road),  and  by  the  15th  clause  of  the 
agreement  it  was  provided  that  he  should  not  erect  "any  building" 
thereon  "nearer  to  the  said  Palace  Road  than  the  line  of  frontage  of 
the  then  present  houses  in  Palace  Road,"  but  should  "observe  a 
straight  line  of  frontage  with  the  line  of  houses  Nos.  3  to  8,  Palace 
Road,  aforesaid." 

By  a  similar  agreement,  dated  the  18th  of  June,  1873,  the  plaintiff, 
Mr.  B.  B.  Baker,  agreed  to  purchase  a  piece  of  land  in  Palace  Road, 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         161 

next  to  the  defendant's  plot,  with  the  messuage  erected  thereon,  and 
known  as  No.  3,  Palace  Road,  subject  to  a  similar  provision  as  to 
building;  and  upon  the  treaty  for  his  purchase  it  was  agreed  between 
him  and  the  mortgagees  and  mortgagor  that  he  should  have  and  be 
entitled  to  the  benefit  of  the  agreement  with  the  defendant  by  the  15th 
clause  of  his  agreement. 

By  an  indenture,  dated  the  31st  of  July,  1873,  and  made  between 
the  same  persons  as  were  parties  to  the  agreement  of  the  29th  of 
April,  the  premises  Nos.  1  and  2,  Palace  Road,  were  conveyed  to  the 
defendant  in  fee,  and  the  defendant  entered  into  a  covenant  with 
Messrs.  Manners  Sutton  and  Dashwood,  their  heirs  and  assigns,  pre- 
cisely similar  in  terms  to  the  15th  clause  of  his  agreement. 

By  an  indenture,  dated  the  26th  of  September,  1873,  the  premises 
No.  3,  Palace  Road,  were  similarly  conveyed  to  the  plaintiff  Baker 
in  fee. 

By  an  indenture  dated  the  9th  of  February,  1874,  Messrs.  Manners 
Sutton  and  Dashwood  transferred  to  the  plaintiff  Lord  Manners  their 
mortgage  debts  and  securities  on  the  Roupell  Park  estate,  and  con- 
veyed to  him  in  fee  the  said  estate,  subject  to  the  equity  of  redemption 
subsisting  therein. 

The  defendant  took  possession  of  his  piece  of  ground  and  erected 
two  houses  thereon,  the  general  line  of  which  was  nearer  to  Palace 
Road  than  the  line  of  the  existing  houses  therein,  by  a  distance  vari- 
ously stated  as  from  five  inches  to  one  foot.  These  houses  were,  more- 
over, built  with  bay  windows,  projecting  about  three  feet  further 
towards  the  road,  which  bays  were,  on  one  side  of  the  door  in  each 
house,  carried  from  the  foundation  up  to  the  roof.  Lord  Manners 
and  Mr.  B.  B.  Baker  conceived  this  mode  of  building  to  be  a  breach 
of  the  defendant's  covenant,  and  after  some  correspondence  they  filed 
the  present  bill  against  the  defendant,  and  prayed  for  a  declaration 
that  the  buildings  and  houses  being  erected  by  the  defendant  consti- 
tuted a  breach  of  the  covenant  entered  into  by  him  in  the  indenture  of 
the  31st  of  July,  1873,  and  for  an  injunction  to  restrain  him  from  fur- 
ther proceeding  with  the  erection  of  the  buildings  or  houses  erected 
or  commenced  to  be  erected  by  him,  and  from  erecting,  or  permitting 
to  continue  on  his  premises,  any  building  nearer  to  Palace  Road  than 
the  line  of  frontage  of  the  houses  which  existed  at  the  date  of  his 
conveyance,  and  from  not  observing  the  straight  line  of  frontage  with 
the  line  of  houses  Nos.  3  to  8,  Palace  Road. 

In  September,  1874,  the  plaintiffs  moved  for  an  injunction  in  the 
terms  of  the  prayer  of  their  bill,  and  the  motion  was  ordered  to  stand 
to  the  hearing  of  the  cause,  the  defendant  undertaking  to  abide  by 
any  order  the  court  might  make  at  the  hearing  as  to  pulling  down  his 
buildings. 

The  cause  now  came  on  for  hearing,  and  there  was  a  considerable 
amount  of  evidence  by  scientific  and  other  witnesses  on  either  side. 

Boke  Eq. — 11 


162  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Ch.  2 

Hall,  V.  C.36  *  *  *  Now  as  to  the  right  of  the  plaintiffs  to  sue. 
It  has  been  said  this  is  the  suit  of  Mr.  Baker,  and  that  Lord  Manners 
had  no  interest  whatever  in  it.  The  position  of  the  parties  I  conceive  to 
be  this :  Lord  Manners,  or  his  predecessors  as  mortgagees,  were  cove- 
nantees, and  the  covenants  were  entered  into  with  them,  their  heirs 
and  assigns.  Under  the  circumstances  of  the  case  Mr.  Baker  is  an 
assign  of  the  covenants,  as  far  as  regards  the  property  which  he  acquir- 
ed from  the  persons  who  sold  to  him.  The  covenants  in  respect  of  the 
property  retained  by  the  original  covenantees  passed  along  with  the 
property  so  retained  to  Lord  Manners,  the  other  plaintiff.  Although 
Lord  Manners  may  be  merely  a  mortgagee,  yet  I  cannot  assume  that 
it  is  a  matter  of  no  importance  to  him  to  have  the  covenant  performed. 
I  do  not  know  the  extent  or  value  of  the  security,  or  if  there  is  any- 
thing belonging  to  the  mortgagor  after  his  mortgage  is  paid.  But  he 
is  covenantee ;  and  something  was  said  about  his  having  entered  into 
covenants  with  the  purchasers  from  him,  and  that  he  would  enforce 
those  covenants.  I  do  not  know  how  that  was.  But  whether  that  was 
so  or  not,  he  being  a  covenantee,  he  would  be  reasonably  and  properly 
willing  to  concur  in  any  proceedings  taken  to  enforce  those  covenants 
and  protect  persons  for  whose  common  benefit  those  covenants  were 
obtained.  So  that  I  consider  both  parties  have  a  substantial  and  ma- 
terial interest.  It  is  not  very  material  whether  they  have  or  not,  for 
if  one  has  an  interest,  that  is  sufficient  to  maintain  the  suit.     *     *     *  37 


STATE  v.  O'LEARY  et  al. 

(Supreme  Court  of  Indiana,  1900.    155  Ind.  526,  58  N.  E.  703.) 

Appeal  from  circuit  court,  Porter  county;  Robert  Lowry,  Special 
Judge. 

Application  by  the  attorney  general,  on  behalf  of  the  state,  for  an 
order  to  restrain  James  O'Leary  and  others  from  keeping  and  main- 
taining a  gambling  house.  From  a  judgment  in  favor  of  defendants, 
and  from  an  order  denying  a  new  trial,  plaintiff  appeals. 

Dowling,  C.  J.3S  This  was  an  application,  on  behalf  of  the  state, 
for  a  restraining  order  forbidding  the  defendants  from  keeping  and 
maintaining  a  gambling  house  in  the  town  of  Roby,  in  Lake  county, 
Ind.  To  render  the  injunction  effectual,  the  appointment  of  a  re- 
ceiver to  take  possession  of  the  room  and  building  where  the  gambling 
was  alleged  to  be  carried  on  was  asked  for.  Prayer  for  a  permanent 
injunction  on  the  final  hearing  of  the  cause.  The  proceeding  was  by 
information  filed  in  the  Lake  circuit  court  by  the  attorney  general  and 

3s  The  omitted  parts  of  the  opinion  are  printed  at  page  315,  infra. 

37  The  Vice  Chancellor  granted  a  mandatory  injunction. 

38  Part  of  the  opinion  is  omitted. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         163 

the  prosecuting  attorney  of  that  county,  which  was  duly  verified.  The 
information  charges,  in  substance,  that  all  of  the  defendants  except 
Annie  O'Leary  are,  and  since  September  1,  1898,  have  been,  unlaw- 
fully engaged  in  the  business  of  selling  pools,  and  keeping  a  room  in 
which  to  sell  pools,  and  in  recording  and  registering  bets  and  wagers 
upon  the  results  of  trials  of  skill,  speed,  and  power  of  endurance  of 
man  and  beasts,  in  a  certain  room  and  building  in  Lake  county,  and 
state  of  Indiana,  owned  by  the  defendant  Annie  OXeary,  but  the  real 
ownership  of  which  is  believed  by  plaintiff  to  be  in  James  OXeary; 
that  the  defendants  on  every  day  since  September  1,  1898,  up  to  and 
at  the  time  of  the  filing  of  the  information,  unlawfully  kept  in  said 
county  and  state  a  certain  room  and  building,  afterwards  in  said  infor- 
mation particularly  described,  with  apparatus,  blackboard,  blanks,  pa- 
pers, and  other  devices  for  the  purpose  of  recording  and  registering 
bets  and  wagers  upon  the  results  of  trials  and  contests  of  skill,  speed, 
and  power  of  endurance  of  man  and  beasts,  etc.     *     *     * 

The  evidence  fully  sustained  the  charges  of  the  information  as  to 
the  nature  of  the  resort,  the  unlawful  practices  carried  on  therein,  the 
number  and  disreputable  character  of  the  patrons  of  the  establishment, 
and  the  "open,  repeated,  persistent,  and  intentional  violation  of  the 
statutes"  against  gambling  by  the  appellees  and  others  at  the  place 
and  in  the  manner  set  forth  in  the  information.  There  was  no  proof 
that  any  person  had  been  annoyed  or  disturbed  by  reason  of  the  main- 
tenance of  the  gambling  house,  or  that  any  property  rights  of  the  state 
were,  or  were  likely  to  be,  in  any  manner  injuriously  affected.  The 
gambling  house  was  remote  from  any  other  building,  and  was  situated 
upon  the  open  and  uninhabited  plain  or  prairie.  The  premises  de- 
scribed were  within  the  corporate  limits  of  the  town  of  Roby,  and  had 
been  so  located  and  operated  for  a  considerable  period  of  time.  It  was 
not  shown  that  any  of  the  inhabitants  of  Take  county  in  any  way  or 
under  any  circumstances  came  in  contact  with  the  persons  who  fre- 
quented the  gambling  house.  Nothing  prevented  the  enforcement  of 
the  ordinances  of  the  town  and  the  statutes  of  the  state  against  gam- 
bling and  the  maintenance  of  gambling  houses,  excepting  the  indiffer- 
ence or  sympathy  of  the  community,  or  the  indolence  or  faithlessness 
of  the  public  officers  of  the  town  and  county  charged  with  that  duty. 

The  question,  therefore,  for  decision,  is  whether  an  injunction  may 
be  had,  on  the  application  of  the  state,  to  suppress  a  gambling  house, 
where  no  injury  to  property  is  shown,  where  no  person  has  been  an- 
noyed or  disturbed,  where  gambling  in  all  of  its  forms  is  made  a  crim- 
inal offense  by  statute,  and  the  ordinary  criminal  process  for  its  pun- 
ishment and  suppression  is  in  full  force  and  available  to  the  state. 
While  it  is  probably  true  that  every  indictable  nuisance  may,  under  par- 
ticular circumstances,  be  enjoined,  it  cannot  be  said  that  a  court  of 
equity  is  bound  in  every  case  to  award  the  extraordinary  remedy  of 
injunction  upon  the  naked  proof  of  the  existence  of  such  a  nuisance. 


164  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

The  circumstances  that  the  acts  constituting  the  nuisance  are  crimes  or 
misdemeanors,  and  punishable  as  such,  is  not  of  itself  a  sufficient  rea- 
son for  refusing  the  writ.  Columbian  Athletic  Club  v.  State,  143 
Ind.  98,  40  N.  E.  914,  28  L.  R.  A.  727,  52  Am.  St.  Rep.  407 ;  State 
v.  Crawford,  28  Kan.  726,  42  Am.  Rep.  182;  State  v.  Saunders,  66 
N.  H.  39,  25  Atl.  588,  18  L.  R.  A.  646;  In  re  Debs,  158  U.  S.  564, 
15  Sup.  Ct.  900,  39  L.  Ed.  1092;  Littleton  v.  Fritz,  65  Iowa,  488,  22 
N.  W.  641,  54  Am.  Rep.  19;  Port  of  Mobile  v.  Louisville  &  N.  R. 
Co.,  84  Ala.  115,  4  South.  106,  5  Am.  St.  Rep.  342. 

Unless  it  appears  not  only  that  a  public  nuisance  exists,  but  that  the 
public  is  subjected  to  actual  annoyance  or  injury  by  it,  the  courts  gen- 
erally refuse  to  interfere  by  injunction,  at  least  before  indictment  and 
a  trial  and  conviction  at  law.  Another  element  is  usually  found  in  the 
cases  where  an  injunction  has  been  granted  to  suppress  an  indictable 
nuisance,  and  that  is  the  existence  of  some  circumstances  which  seem- 
ed to  render  the  immediate  interference  of  the  court  necessary  to  pre- 
vent a  real  injury  to  the  public;  proof  of  an  exigency  which  the  ordi- 
nary process  of  the  court  was  not  adequate  to  meet  generally  being 
required. 

In  the  present  case  every  unlawful  act  charged  in  the  information 
as  constituting  the  nuisance  complained  of  is  a  crime  or  a  misde- 
meanor, and  is  subject  to  indictment  and  punishment  under  the  Crim- 
inal Code.  The  premises  where  the  gambling  is  alleged  to  be  carried 
on  are  not  in  a  populous  neighborhood,  but  out  upon  a  prairie ;  the 
nearest  house  being  nearly  a  quarter  of  a  mile  distant.  The  place  has 
not  been  recently  established,  so  that  time  was  not  afforded  within 
which  to  present  the  offenders  before  the  grand  jury,  but  its  existence 
has  been  of  long  standing  and  notorious.  So  far  as  the  record  dis- 
closes, no  private  person  has  made  complaint  of  any  injury  sustained 
or  likely  to  be  sustained  by  himself  or  his  property. 

Under  these  circumstances,  we  can  see  no  legal  reason  why  resort 
should  not  be  had  to  criminal  proceedings  to  punish  and  suppress  acts, 
every  one  of  which  is  expressly  forbidden  by  the  Code,  as  a  crime  or 
a  misdemeanor,  instead  of  casting  the  burden  of  the  abatement  of  these 
unlawful  practices  upon  the  civil  side  of  the  court.  A  civil  suit  by 
information,  in  the  name  of  the  state,  filed  by  the  attorney  general  and 
the  local  prosecuting  attorney,  is  but  an  indirect  method  of  accomplish- 
ing an  end  which  could  more  properly  and  more  satisfactorily  be  at- 
tained by  indictment.  The  apathy  or  sympathy  of  the  local  communi- 
ty, and  the  negligence  of  the  public  officers,  which  prevent  a  criminal 
prosecution,  or  render  its  result  doubtful,  cannot  be  regarded  as  a  rea- 
son why  a  civil  action  should  be  substituted  for  a  criminal  proceeding, 
and  the  alleged  violations  of  the  criminal  law  should  be  tried  and 
determined  by  a  judge  instead  of  a  jury.  Mains  v.  State,  42  Ind.  327, 
13  Am.  Rep.  364;  State  v.  Houck,  73  Ind.  37;  2  Bish.  Cr.  Proc.  § 
813;    People  v.  Equity  Gaslight  Co.,  141  N.  Y.  232,  36  N.  E.   194; 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         1G5 

Attorney  General  v.  Tudor  lee  Co.,  104  Mass.  239,  6  Am.  Rep.  227 ; 
State  v.  Patterson,  14  Tex.  Civ.  App.  465,  37  S.  W.  478. 

Injunctions  have  been  granted,  at  the  instance  of  the  attorney  gen- 
eral of  the  state,  to  prevent  the  destruction  of  a  bridge  upon  a  public 
highway  (Attorney  General  v.  Forbes,  2  Mylne  &  C.  123) ;  to  prevent 
the  deposit  of  filth  and  noxious  refuse  matter  upon  a  private  vacant 
lot  in  the  city  of  London  (Attorney  General  v.  Heatley,  [1897]  1  Ch. 
Div.  560)  to  prevent  obstructions  to  the  freedom  of  interstate  com- 
merce (In  re  Debs,  158  U.  S.  564,  15  Sup.  Ct.  900,  39  L.  Ed.  1092); 
to  prevent  nuisances  upon  public  highways  (Green  v.  Oakes,  17  111. 
249;  Craig  v.  People,  47  111.  487) ;  to  prevent  the  obstruction  of  rivers, 
harbors,  or  other  navigable  waters  (People  v.  Vanderbilt,  28  N.  Y. 
396,  84  Am.  Dec.  351;  Davis  v.  Mayor,  14  N.  Y.  526,  67  Am.  Dec. 
186) ;  to  prevent  the  pollution  of  streams  (Attorney  General  v.  Board, 
h.  R.  18  Eq.  172);  to  restrain  a  corporation  from  exercising  a  fran- 
chise not  granted  to  it  by  law  (People  v.  Third  Ave.  R.  Co.,  45  Barb. 
[N.  Y.]  63).  On  the  other  hand,  there  are  many  cases  where  a  vio- 
lation of  law  occurs,  with  injury  either  to  the  public  or  to  private  in- 
dividuals, in  which  relief  by  injunction  has  been  denied.  It  is  said 
in  High,  Inj.  §  23,  that: 

"The  subject-matter  of  the  jurisdiction  of  equity  being  the  protection  of  pri- 
vate property  and  of  civil  rights,  courts  of  equity  will  not  interfere  for  the 
punishment  or  prevention  of  mere  criminal  or  immoral  acts,  unconnected  with 
violations  of  private  rights.  Equity  has  no  jurisdiction  to  restrain  the  com- 
mission of  crimes,  or  to  enforce  moral  obligations  and  the  performance  of 
moral  duties ;  nor  will  it  interfere  for  the  prevention  of  an  illegal  act,  merely 
because  it  is  illegal.  And,  in  the  absence  of  any  injury  to  property  rights, 
it  will  not  lend  its  aid  by  injunction  to  restrain  the  violation  of  public  or  penal 
statutes,  or  the  commission  of  immoral  or  illegal  acts.  Thus,  the  relief  has 
been  refused. to  prevent  persons  from  carrying  on  the  business  of  banking,  in 
violation  of  a  statute  restraining  unincorporated  banking  associations.  So, 
where  it  was  sought  to  enjoin  defendants  from  running  their  street  cars  on 
Sunday,  in  violation  of  a  statute  making  it  a  peual  offense,  the  relief  was  re- 
fused, although  the  action  was  brought  by  pew  holders  and  property  owners 
on  the  line  of  defendants'  track.  In  all  such  cases  ample  remedy  may  be  had 
by  proceedings  at  law,  and,  the  offense  being  damnum  absque  injuria,  courts 
of  equity  will  not  interfere.  And,  in  accordance  with  the  well-settled  doctrine 
that  equity  will  not  interfere  with  the  administration  of  the  criminal  laws 
of  the  state,  an  injunction  will  not  be  granted  against  the  enforcement  of  exe- 
cutions for  costs  issued  against  an  unsuccessful  party  to  a  criminal  prosecu- 
tion. Nor  will  a  court  of  equity  enjoin  a  judgment  imposed  for  violating  a 
law  of  the  state.    Nor  will  it  enjoin  suits  of  a  criminal  nature." 

See,  also,  Wood,  Nuis.  (2d  Ed.)  §  788;  Shoe  Co.  v.  Saxey,  131  Mo. 
212,  32  S.  W.  1106,  52  Am.  St.  Rep.  622;  State  v.  Patterson,  14  Tex. 
Civ.  App.  465,  37  S.  W.  478 ;  Attorney  General  v.  Tudor  Ice  Co.,  104 
Mass.  239,  6  Am.  Rep.  227 ;  State  v.  Uhrig,  14  Mo.  App.  413. 

It  may  be  stated  that  where  the  injury  is  pressing  or  imminent,  so 
that  the  public  safety  is  menaced  or  public  rights  are  obstructed  or 
interfered  with,  and  the  special  circumstances  are  such  that  the  ordi- 
nary process  of  the  courts  is  not  sufficiently  prompt  or  effective  to 
prevent  such  injury  or  obstruction,  the  remedy  by  injunction  may  be 
applied,  provided  the  right  is  clear,  and  the  wrong  has  not  been  ac- 


106  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

quiesced  in  by  the  plaintiff.  The  important  inquiry  in  each  case  is 
whether,  under  the  circumstances  of  the  particular  instance,  there  is 
a  necessity  for  the  exercise  of  that  jurisdiction.  The  evidence  in  the 
case  before  us  entirely  fails  to  establish  the  existence  of  such  a  neces- 
sity at  this  time.  We  do  not  undertake  to  lay  down  any  general  rule, 
or  to  decide  that  a  place  where  gambling  is  carried  on,  and  where  law- 
less and  disreputable  persons  congregate  for  the  purpose  of  gaming, 
may  not,  under  special  circumstances,  constitute  a  public  nuisance,  and 
be  a  proper  subject  for  the  exercise  of  the  powers  of  a  court  of  equity. 
But,  owing  to  a  total  failure  of  proof  in  the  important  particulars 
pointed  out  in  this  opinion,  we  are  constrained  to  hold  that  the  appel- 
lant failed  to  make  such  a  case  as  warranted  the  interposition  of  the 
court  by  its  extraordinary  writ  of  injunction.  Crighton  v.  Dahmer, 
70  Miss.  602,  13  South.  237,  21  L.  R.  A.  84,  35  Am.  St.  Rep.  666, 
and  notes;  Goodrich  v.  Moore,  2  Minn.  61  (Gil.  49),  72  Am.  Dec.  74; 
16  Am.  &  Eng.  Enc.  Law  (1st  Ed.)  927. 
Judgment  affirmed.39 


MOSS  &  RALEY  v.  WREN. 

(Supreme  Court  of  Texas,  190S.    102  Tex.  567,  113  S.  W.  739.) 

Certified  Questions  from  Court  of  Civil  Appeals  of  Second  Supreme 
Judicial  District. 

Action  by  D.  T.  Wren  against  Moss  &  Raley.  From  a  judgment  for 
plaintiff,  defendants  appeal  to  the  Court  of  Civil  Appeals,  which  certi- 
fies a  question  to  the  Supreme  Court. 

Gainf,s,  C.  J.  This  is  a  certified  question  from  the  Court  of  Civil 
Appeals  of  the  Second  District,  and,  in  order  to  save  copying  a  long 
statement,  we  undertake  to  state  the  point  in  the  case. 

The  appellee,  D.  T.  Wren,  was  employed  as  a  real  estate  broker  to 
make  sale  of  certain  land  belonging  to  appellants,  and,  having  effected, 
as  he  claimed,  a  sale  to  one  Clark,  brought  suit  for  his  commission.     In 

so  Insolvency  as  a  Defense. — The  effect  of  insolvency  upon  specific  per- 
formance is  discussed  in  the  case  of  Texas  Co.  v.  Central  Fuel  Oil  Co.  (1912)  194 
Fed.  1,  11,  114  C.  C.  A.  21,  31;  Trieber,  District  Judge,  saying:  "It  is  charged 
that  the  Central  Company  is  insolvent,  and  that  all  of  its  property  is  now 
covered  by  a  mortgage  to  secure  an  indebtedness  in  excess  of  its  value.  While 
there  is  high  authority  for  holding  that  insolvency  alone  may  sometimes  be 
a  cause  for  equitable  interference,  it  is  unnecessary  to  determine  that  ques- 
tion in  this  case,  but  we  do  hold  that  insolvency  is  a  circumstance  to  be  con- 
sidered in  connection  with  the  other  allegations  in  the  bill  for  the  purpose  of 
determining  whether  there  is  a  complete  and  adequate  remedy  at  law.  Mc- 
Namara  v.  Home  Land  &  Cattle  Co.  (1900,  C.  C.)  105  Fed.  202.  In  inany 
instances  insolvency  alone  will  justify  the  interposition  of  a  court  of  equity 
otberwise  cognizable  only  in  a  court  of  law.  Injunctions  are  often  granted 
against  trespassers  solely  upon  the  ground  of  insolvency."  See,  also,  Emirzian 
v.  Asato  (1913)  23  Cal.  App.  251,  137  Pac.  1072,  when  the  court  said:  "At- 
tention has  been  called  to  the  failure  to  find  upon  the  issue  of  insolvency.  In 
the  cases  cited  by  respondent  insolvency  was  a  material  factor.  Insolvency 
of  itself  is  not  a  ground. of  equitable  interference,  but,  as  said  by  Mr.  Justice 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        1G7 

the  contract  for  the  conveyance  of  the  land,  after  specifying  the  price, 
consideration,  etc.,  the  following  stipulation  was  inserted: 

"And  it  is  further  mutually  agreed,  in  case  purchaser  fails  to  comply  with 
the  terms  hereof  relating  to  the  payment  and  securing  of  the  purchase  price 
as  above  mentioned  and  by  the  time  herein  designated,  purchaser  shall  forfeit 
the  amount  paid  hereon  to  seller,  and  the  same  shall  be  paid  to  seller  by  said 
trustees  and  accepted  by  said  seller  as  and  for  liquidated  damages  for  such 
injury  and  damage  as  the  seller  may  suffer  by  reason  of  the  nonperformance 
of  this  contract  on  the  part  of  the  purchaser." 

The  question  certified  for  our  determination  is  whether  upon  this 
contract  a  sale  was  effected,  so  as  to  entitle  the  appellee  to  his  commis- 
sion. 

We  have  numerous  decisions  holding  that,  although  there  is  a  stipu- 
lation in  the  contract  of  this  character,  payment  of  a  fixed  sum  of  mon- 
ey as  liquidated  damages  does  not  affect  the  contract  for  sale  of  the 
land,  but  that  the  seller  can  enforce  specific  performance.  Hemming 
v.  Zimmerschitte,  4  Tex.  159;  Williams  v.  Talbot,  16  Tex.  1 ;  Varde- 
man  v.  Lawson,  17  Tex.  11 ;  Bullion  v.  Campbell,  27  Tex.  653;  Greg- 
ory v.  Hughes,  20  Tex.  345.  It  seems  to  us  that  these  decisions  are  de- 
cisive of  the  case.  If  the  vendor  of  the  land  can  enforce  a  specific  per- 
formance of  the  contract  to  pay  for  it,  then  the  broker  has  effected  a 
sale,  valid  in  law,  and  is  entitled  to  his  compensation.  We  have  also 
examined  the  authorities  cited  in  the  certificate  upon  the  same  proposi- 
tion and  find  it  is  amply  supported  by  them.  Lyman  v.  Gedney,  114 
111.  388,  29  N.  E.  282,  55  Am.  Rep.  871 ;  Hull  v.  Sturdivant,  46  Me. 
34;  Hooker  v.  Pynchon,  74  Mass.  (8  Gray)  550;  Ewins  v.  Gordon,  49 
N.  H.  444;  O'Connor  v.  Tyrrell,  53  N.  J.  Eq.  15,  30  Atl.  1061 ;  Palmer 
v.  Bowen,  138  N.  Y.  608,  34  N.  E.  291,  affirming  Palmer  v.  Gould,  63 
Hun  (N.  Y.)  636,  18  N.  Y.  Supp.  638;  Kettering  v.  Eastlack,  130 
Iowa,  498,  107  N.  W.  177,  8  Ann.  Cas.  357. 

We  therefore  answer  the  question  submitted  in  the  affirmative,  and 
say  that  the  contract  is  such  that  appellants  are  entitled  to  have  it  spe- 
cifically enforced,  and  that  therefore  the  appellee  is  entitled  to  his  com- 
mission for  making  the  sale.40 

Thompson,  in  Heilman  v.  Union  Canal  Co.  (1860)  37  Pa.  100,  referred  to  in 
Livesly  v.  Johnston  (1901)  45  Or.  30,  76  Pac.  13,  946,  65  L.  R.  A.  783,  106  Am. 
St.  Rep.  647,  cited  by  respondent:  'In  balancing  cases,  it  is  a  consideration 
that  gives  preponderance  to  the  remedy.'  In  the  present  case  it  was  alleged, 
and,  we  think,  was  a  controlling  factor  and  should  have  been  proven  and  found 
by  the  court." 

40  This  case  was  reversed  on  rehearing  (102  Tex.  567,  120  S.  W.  847  [1909]), 
where  the  court  said,  speaking  through  Gaines,  C.  J.:  "Upon  consideration  of 
the  motion  for  a  rehearing  in  this  case,  we  are  of  opinion  that  we  erred  in 
disposing  originally  of  the  question.  Referring  to  the  stipulation  quoted  at 
the  end  of  the  statement  of  the  case,  it  is  to  be  noted  that  it  provides  that 
the  $1,000  put  up  as  a  forfeit  'shall  be  paid  to  the  seller  by  said  trustees  and 
accepted  by  said  seller  as  liquidated  damages  for  such  injury  and  damage  as 
the  seller  may  suffer  by  reason  of  the  nonperformance  of  this  contract  on  part 
of  the  purchaser.'  Now  it  occurs  to  us  that,  if  nothing  had  been  said  as  to 
the  acceptance  of  the  $1,000  by  the  seller,  our  original  opinion  would  have 
been  correct ;  but,  if  the  seller  is  bound  to  accept  the  sum  for  such  damages 
as  may  be  suffered  by  reason  of  the  nonperformance  of  the  contract  on  part  of 


1G8  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Ch.  2 

SHIREY  v.  ALL  NIGHT  AND  DAY  BANK  et  al. 
(Supreme  Court  of  California,  1913.     166  Cal.  50,  134  Pac.  1001.) 

In  Bank.  Appeals  from  Superior  Court,  Los  Angeles  County  ;  Chas. 
Monroe,  Judge. 

Action  by  Ida  E.  Shirey  against  the  All  Night  and  Day  Bank,  W.  C. 
Weaver,  and  another,  to  compel  a  conveyance.  From  a  judgment  for 
damages  against  the  said  bank,  and  denying  relief  against  the  said 
Weaver,  the  plaintiff  and  the  bank  prosecute  appeals. 

Angf,IvLOTTi,  J.  There  are  two  appeals  in  this  case,  one  taken  by 
defendant  All  Night  and  Day  Bank,  from  the  judgment  in  favor  of 
plaintiff  against  it  for  the  sum  of  $898.67  and  costs,  and  from  an  order 
denying  its  motion  for  a  new  trial,  and  one  taken  by  plaintiff  from 
all  other  portions  of  the  judgment  in  said  action,  and  especially  that 
portion  thereof  denying  her  any  relief  as  against  defendant  Weaver. 
In  so  far  as  the  appeal  of  the  bank  is  concerned,  the  record  on  appeal 
consists  of  the  judgment  roll  and  a  bill  of  exceptions.  The  appeal  of 
plaintiff  is  before  us  on  the  judgment  roll  alone. 

The  facts  material  to  the  controversy  as  between  plaintiff  and  Weav- 
er established  by  the  findings  are  substantially  as  follows :  On  April 
23,  1909,  Weaver  was  the  owner  of  two  lots  in  the  city  of  Los  Angeles. 
He  was  desirous  of  selling  the  same.  By  reason  of  certain  representa- 
tions made  to  him  by  defendant  Baylis,  apparently  a  real  estate  agent, 
to  the  effect  that  it  would  be  necessary  for  Baylis  to  have  a  conveyance 
of  the  property  to  himself  in  order  to  effectuate  a  sale,  Weaver  con- 
veyed the  same  to  him  for  such  purpose  by  a  deed  absolute  on  its  face. 
This  deed  was  duly  recorded  in  the  recorder's  office  of  Los  Angeles 
county  on  April  23,  1909.  It  was  made  without  any  consideration,  and 
Weaver  has  not  received  any  consideration  whatever  therefor.     On 

the  purchaser,  can  he  sue  the  proposed  purchaser  for  specific  performance  of 
the  contract?  The  contract  evidently  was  that  the  proposed  purchaser  should 
have  until  a  future  day  to  pay  the  price  and  accept  a  conveyance,  yet,  should 
he  decline  for  any  reason  to  pay  the  price  and  to  accept  the  land,  he  may  pay 
the  liquidated  damages  and  be  absolved  from  further  suit.  Moss  &  Raley  en- 
tered into  a  contract  with  Clark  to  sell  him  certain  lands,  and  stipulated  that, 
in  case  he  failed  to  buy,  he  should  forfeit  $1,000,  which  had  been  put  up  to  en- 
force the  bargain.  They  chose  to  forfeit  the  $1,000,  which  absolved  them  from 
further  obligation.  Before  Wren  was  entitled  to  his  commission,  he  should 
have  procured  a  purchaser  who  was  willing  to  enter  into  a  contract  to  pur- 
chase the  land  absolutely.  For  this  reason,  we  answer  the  question  in  the 
negative." 

In  Buckhout  v.  Witwer  et  al.  (1909)  157  Mich.  406,  at  page  410,  122  N.  W. 
1S4,  at  page  1S6,  the  court  says:  "We  are  of  the  opinion  that  the  provision  in 
the  contract,  'If  you  do  so  and  do  not  fulfill  on  your  part  both  in  the  spirit 
and  language  of  this  letter,  you  shall  forfeit  to  me  one  thousand  dollars, 
$1,000,  per  annum  until  the  end  of  the  five  years  from  the  time  you  shall  not 
have  acted  in  good  faith  in  performing  the  terms  of  this  sale,'  should  be  con- 
strued to  provide  for  a  penalty,  and  therefore  that  it  does  not  preclude  com- 
plainant from  filing  a  bill  for  specific  performance.  It  is  within  the  rule 
stated  in  Daily  v.  Litchfield,  10  Mich.  29,  followed  in  Powell  v.  Dwyer,  149 
Mich.  145,  112  N.  W.  499,  11  L.  R.  A.  (N.  S.)  97S." 


Sec.  1)  CONTRACTS   SUBJECT  TO   SPECIFIC  PERFORMANCE  169 

the  same  day  Baylis  borrowed  from  defendant  All  Night  and  Day 
Bank  the  sum  of  $500,  giving  two  notes  therefor,  one  for  $100  and  one 
for  $400,  and  conveyed  said  property  to  such  bank  by  deed  of  convey- 
ance absolute  on  its  face.  The  bank  had  no  knowledge  that  Weaver 
had  any  interest  in  the  property.  It  was  alleged  by  all  the  parties  and 
found  by  the  trial  court  that  this  deed  was  solely  by  way  of  security  and 
intended  as  a  mortgage  to  secure  the  payment  of  said  notes,  and  this 
fact  was  known  to  plaintiff  at  all  times.  This  deed  was  recorded  April 
23,  1909.  On  October  8,  1909,  for  the  sum  of  $670.61  paid  him  by 
plaintiff,  and  the  agreement  on  her  part  with  him  to  pay  the  notes  held 
by  the  bank,  Baylis  "agreed  to  and  did  sell"  said  property  to  said  plain- 
tiff, and  in  writing  authorized  the  bank  "to  convey  said  lots  to  Ida  E. 
Shirey  when  the  said  Ida  E.  Shirey  shall  assume  and  take  over  my  two 
notes  amounting  to  $100.00  and  $400.00  respectively,  now  held  by  said 
bank,  and  for  which  said  deed  was  given  as  security."    On  October  11, 

1909,  the  bank  sent  to  the  plaintiff  and  her  husband  the  following  let- 

ter'  Vlz- :  "Los  Angeles,  Cal.,  October  11,  1909. 

"Mr.  J.  W.  Shirey  and  Ida  E.  Shirey — Dear  Sir  and  Madam:  We  received 
a  notification  dated  October  8th,  signed  by  T.  H.  Baylis,  authorizing  us,  on 
payment  of  his  two  notes  to  us  for  $100  and  .$400,  respectively,  with  such  in- 
terest as  may  be  due,  to  deed  to  you  lots  11  and  12  in  block  9  of  the  Schmidt 
tract,  Los  Angeles,  California.  We  understand  that  Mr.  Baylis  has  trans- 
ferred all  of  his  title  in  this  property  to  you  subject  to  your  payment  of  these 
notes,  and  you  understand  that  we  hold  the  property  as  security  for  the  pay- 
ment of  these  notes.  We  want  it  thoroughly  understood  that  we  will  give 
you  due  notice  of  the  sale  of  this  property,  if  necessary  to  secure  the  pay- 
ment of  these  notes,  and  that  we  in  no  way  waive  our  rights  by  giving  you 
this  notice  or  writing  you  this  letter. 

"Yours  very  truly,  All  Night  and  Day  Bankn 

"By  Newton  J.  Skinner,  President." 

On  January  14,  1910,  plaintiff  paid  to  the  bank  the  principal  sum  on 
the  $100  note,  together  with  the  interest  thereon,  and  also  interest  on 
the  $400  note,  amounting  in  all  to  $110.20.  She  also  expended  $13.88 
taxes  on  said  lots,  and  $38.98  in  payment  of  an  assessment  for  street 
improvements.  On  December  14,  1909,  Baylis  notified  the  bank  in 
writing  that,  as  the  contract  between  him  and  the  Shireys  had  not  been 
carried  out,  it  should  cancel  his  instructions  and  hold  the  deeds  until 
further  notice.  Plaintiff  was  never  informed  by  the  bank  of  this  no- 
tice, and  so  far  as  appears  had  no  knowledge  thereof.     On  April  29, 

1910,  the  bank,  upon  an  order  given  by  Baylis  to  it,  conveyed  all  its 
interest  in  the  property  to  Weaver ;  the  deed  of  conveyance  being  duly 
recorded.  This  conveyance  was  made  without  any  notice  to  plaintiff. 
On  May  10,  1910,  plaintiff  tendered  to  the  bank  the  sum  then  due  on 
the  $400  note,  if  the  same  had  not  been  paid,  namely,  $410.65,  for  the 
payment  of  said  note,  and  demanded  a  conveyance ;  but  the  bank  re- 
fused to  accept  the  money  so  tendered,  and  refused  to  make  any  con- 
veyance. "Plaintiff  at  all  times,  since  said  tender  by  said  sum  of 
$410.65  was  made,  has  been,  and  now  is,  ready,  able,  and  willing  to  pay 
the  same"  to  said  defendant  bank.    Plaintiff  did  not  know  prior  to  May 


170  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

10,  1910,  that  Weaver  claimed  any  interest  whatever  in  said  property, 
and  was  a  purchaser  in  good  faith  and,  as  we  have  seen,  for  a  valuable 
consideration.  Weaver  did  not  know  that  plaintiff  had  any  interest  in 
or  claim  to  said  property  until  the  complaint  in  this  action  was  served 
upon  him.  There  is  nothing  in  either  pleadings  or  findings  to  show 
that  any  money  was  paid  to  the  bank  by  either  Baylis  or  Weaver  in 
consideration  of  the  purported  transfer  by  the  bank  to  Weaver,  or  that 
the  $400  note  has  ever  been  paid. 

The  action  was  one  to  compel  a  conveyance  of  the  property  by  Weav- 
er and  the  bank  to  plaintiff,  upon  payment  of  the  sum  tendered  by  her 
to  the  bank,  to  have  it  determined  that  neither  Baylis  nor  Weaver  has 
any  interest  in  the  property,  and  for  such  further  relief  as  to  the  court 
might  seem  just.  The  trial  court  concluded  upon  the  facts  we  have 
stated  that  plaintiff  was  entitled  to  no  relief  as  against  Weaver,  but 
rendered  judgment  against  both  the  bank  and  Baylis,  who  had  failed 
to  appear,  though  duly  served  with  summons,  and  whose  default  had 
been  regularly  entered,  for  the  sum  of  $898.67  and  costs. 

So  far  as  Baylis  is  concerned,  a  valid  contract  for  the  sale  of  this 
property  by  him  to  plaintiff  is  undoubtedly  shown  by  the  findings,  un- 
der the  terms  of  which  contract  plaintiff,  having  paid  $670.61  to  Baylis, 
was  entitled  to  a  conveyance  upon  the  further  payment  to  the  bank  of 
the  amount  of  the  notes.  It  is  clear  that  this  contract  must  be  held  to 
be  binding  upon  Weaver,  who  was,  in  view  of  the  facts  shown  by  the 
findings,  the  real  owner  of  the  property,  subject  to  the  lien  of  the  mort- 
gage held  by  the  bank. 

It  cannot  be  doubted  that  the  deed  to  the  bank  was  simply  a  mortgage 
and  vested  it  with  nothing  more  than  a  mortgage  lien.  "Every  transfer 
of  an  interest  in  property,  other  than  in  trust,  made  only  as  a  security 
for  the  performance  of  another  act,  is  to  be  deemed  a  mortgage,"  ex- 
cept in  cases  of  pledges  of  personal  property.  Section  2924,  Civ.  Code. 
"Notwithstanding  an  agreement  to  the  contrary,  a  lien,  or  a  contract 
for  a  lien,  transfers  no  title  to  the  property  subject  to  the  lien."  Sec- 
tion 2888,  Civ.  Code.  The  contract  for  sale  was  binding  upon  Weaver 
for  the  same  reason  that  the  mortgage  to  the  bank  was  a  valid  mort- 
gage upon  his  property.  By  his  deed  to  Baylis,  who  was  in  fact  his 
agent  for  the  sale  of  his  property,  he  had  clothed  him  with  every  indicia 
of  ownership  necessary  to  make  him  the  absolute  owner  of  the  prop- 
erty, and  permitted  him  to  so  hold  himself  out  to  the  world,  and  to  deal 
with  all  persons  as  such  absolute  owner. 

As  against  persons  who  in  good  faith  dealt  with  Baylis  as  such  own- 
er, without  any  knowledge  or  notice  that  the  conditions  were  otherwise 
than  he,  Weaver,  had  allowed  them  to  appear  by  the  execution  and 
delivery  of  his  absolute  deed  of  conveyance,  he  is  estopped  to  deny  the 
authority  of  Baylis.  The  general  principle  applicable  in  such  a  case  is 
recognized  in  our  Civil  Code  as  follows : 

"Where  one  of  two  innocent  persons  must  suffer  by  the  act  of  a  third,  he 
by  whose  negligence  it  happened  must  be  the  sufferer."     Section  3543. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         171 

As  originally  said  in  McNeil  v.  Tenth  National  Bank,  46  N.  Y.  325, 
7  Am.  Rep.  341,  and  several  times  approvingly  quoted  by  this  court  (see 
Woodsum  v.  Cole,  69  Cal.  142,  10  Pac.  331,  Dover  v.  Pittsburg  Oil 
Co.,  143  Cal.  501,  77  Pac.  405,  and  Conklin  v.  Benson,  159  Cal.  793, 
116  Pac.  38,  36  L.  R.  A.  [N.  S.]  537) : 

"Where  the  true  owner  holds  out  another,  or  allows  him  to  appear  as  the 
owner  of  or  as  having  full  power  of  disposition  over  the  property,  and  inno- 
cent third  parties  are  thus  led  into  dealing  with  such  apparent  owner,  they  will 
be  protected.  Their  rights  in  such  cases  do  not  depend  upon  the  actual  title 
or  authority  of  the  party  with  whom  they  deal  directly,  but  are  derived  from 
the  act  of  the  real  owner,  which  precludes  him  from  disputing,  as  against  them, 
the  existence  of  the  title  or  power,  which  through  negligence,  or  mistaken  con- 
fidence, he  caused  or  allowed  to  appear  to  be  vested  in  the  party  making  the 
conveyance." 

See,  also,  Schultz  v.  McLean,  93  Cal.  329,  357,  28  Pac.  1053,  1058, 

where  this  court  said : 

"In  this  case  plaintiffs  and  defendant  were  both  innocent.  Neither  knew 
that  the  fraud  was  being  practiced ;  but,  if  that  fraud  was  productive  of  in- 
jiuy,  the  injury  must  result  to  the  plaintiffs,  for  they  placed  it  in  the  power 
of  the  wrongdoer  to  perpetrate  the  fraud.  The  vendee  will  not  be  compelled 
by  a  court  of  equity  to  lose  the  benefit  of  a  bargain  obtained  in  all  fairness 
and  honesty,  because  of  a  fraud  practiced  upon  the  vendors  by  their  own 
agents.  Under  such  circumstances  they  must  bear  the  consequences,  for  the 
loss  is  chargeable  to  the  trust  reposed  in  their  agent — in  this  case  a  trust  so 
complete  and  entire  as  to  cause  them  to  disregard  the  dictates  of  ordinary 
prudence." 

Relying  upon  the  appearances  created  by  Weaver,  as  she  had  the 
right  to  do,  plaintiff  in  good  faith  entered  into  this  contract  with  Bay- 
lis,  paying  $670.61  to  him,  and  expending  the  other  money  heretofore 
specified. 

As  said  in  Schultz  v.  McLean,  supra,  she  "will  not  be  compelled  by 
a  court  of  equity  to  lose  the  benefit  of  a  bargain  obtained  in  all  fairness 
and  honesty,  because  of  a  fraud  practiced  upon''  the  vendor  by  his  own 
agent. 

In  view  of  what  we  have  said,  it  seems  clear  that  upon  the  facts 
found  plaintiff  was  entitled,  upon  performing  or  offering  to  perform 
her  part  of  the  contract,  to  a  conveyance  of  the  property  by  Weaver, 
who  was,  in  substance  and  effect,  her  vendor.  The  only  objection  of 
any  possible  merit  to  such  relief,  being  granted  her  upon  the  findings 
already  made,  was  that  it  was  not  alleged  in  the  complaint  or  found 
that  she  made  any  tender  to  Weaver  of  the  amount  remaining  unpaid. 
Her  allegations  as  to  such  a  tender  to  the  bank,  and  her  readiness, 
ability,  and  willingness  ever  since  and  now  to  pay  to  the  bank  the 
amount  tendered  are  full  and  complete,  as  are  the  findings.  Her  tender 
to  the  bank  was  in  substantial  accord  with  the  terms  of  her  contract, 
which  could  not  be  effectually  changed,  so  far  as  she  was  concerned, 
without  her  consent,  and  we  think  that  under  the  circumstances  of  the 
case  it  should  be  held  to  have  constituted  a  sufficient  compliance  with  all 
conditions  on  her  part  to  enable  her  to  maintain  an  action  to  enforce 
her  rights  under  the  contract.  See,  in  this  connection,  Corbus  v.  Teed, 
69  111.  205. 


172  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

It  would  be  too  narrow  a  construction  of  her  complaint  to  hold  that 
plaintiff,  in  this  action  against  all  the  persons  who  can  possibly  be  held 
to  have  any  interest  in  the  matter,  did  not  therein  sufficiently  offer  to 
do  equity.  With  all  the  parties  interested  before  it,  the  trial  court  is  in 
a  position  to  provide  that  the  money  that  must  be  paid  by  plaintiff  as  a 
condition  precedent  to  the  obtaining  of  the  relief  sought  shall  go  to  the 
parties  who  are  justly  entitled  to  the  same.  It  would  seem  that  upon 
the  merits  there  can  be  no  question  as  to  the  right  of  plaintiff  to  have 
this  property  upon  the  further  payment  by  her  of  the  sum  of  $410.65. 
If  by  any  arrangement  with  Mr.  Weaver  the  bank  has  abandoned  all 
claim  on  the  property,  and  transferred  all  its  interest  therein  to  him, 
which  appears  to  be  clearly  found  by  the  trial  court,  and  which  is  also 
conceded  by  all  the  parties  in  their  briefs,  the  $410.65  should  be  paid,  of 
course,  to  him.  We  see  no  good  reason  why  judgment  should  not  be 
entered  upon  the  findings  in  favor  of  plaintiff  in  this  matter. 

As  to  the  appeal  of  the  All  Night  and  Day  Bank,  we  are  entirely  in 
accord  with  the  view  of  the  District  Court  of  Appeal  that  the  judgment 
of  the  trial  court  cannot  be  sustained.  The  amount  of  $898.67  award- 
ed plaintiff  against  the  bank  was  made  up  of  the  $670.71  paid  by  her 
to  Baylis  on  account  of  the  purchase  price,  the  $110.20  paid  by  her  on 
the  $100  note  (also  a  part  of  the  purchase  price),  $13.88,  taxes  on  said 
property,  $38.98,  street  assessment  on  the  property,  and  $65  interest. 
This  was  awarded  plaintiff  on  the  theory  that  she  was  damaged  in  the 
amount  specified  by  a  failure  to  obtain  the  property ;  the  court  con- 
cluding that  the  bank  was  negligent  in  making  the  conveyance  to  Weav- 
er and  in  failing  to  convey  its  interest  in  the  property  to  plaintiff.  In 
view  of  what  we  have  said  as  to  the  nature  of  the  only  interest  held  by 
the  bank  in  the  property,  viz.,  that  of  a  mortgagee,  it  is  obvious  that 
the  rights  of  the  plaintiff  were  in  no  way  injuriously  affected  by  the 
transfer  by  the  bank  to  Weaver  of  all  its  interest  in  the  property.  The 
bank  had  nothing  but  a  mortgage  lien  to  transfer.  If  the  bank  had 
executed  a  deed  of  conveyance  of  its  interest  in  the  property  to  plain- 
tiff, such  conveyance  would  have  transferred  "no  title  to  the  property" 
to  her.  And,  of  course,  the  conveyance  to  Weaver  transferred  "no 
title  to  the  property"  to  him,  and  in  no  way  affected  any  interest  of 
plaintiff  in  the  property.  The  only  effect  thereof  was  to  transfer  the 
mortgage  lien  of  the  bank  to  Weaver  (Brandt  v.  Thompson,  91  Cal.  458, 
27  Pac.  763),  or  rather,  in  view  of  the  fact  that  Weaver  was  the  own- 
er of  the  property  subject  to  the  lien  and  the  contract  of  purchase  held 
by  plaintiff,  to  release  and  extinguish  the  lien  of  the  mortgage,  unless 
it  was  necessary  for  the  protection  of  Weaver's  rights  that  the  same 
should  be  kept  alive.  See  Anglo-Californian  Bank  v.  Field,  146  Cal. 
653,  80  Pac.  1080. 

It  is  not  made  to  appear  that  Weaver  has  purported  to  transfer  or 
incumber  the  property,  so  there  is  no  question  as  to  the  rights  of  inno- 
cent third  parties.  Thus,  as  we  said,  there  is  nothing  to  show  that 
plaintiff's  rights  have  been  in  any  way  injuriously  affected  by  any  act 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        173 

or  neglect  of  the  bank.  Her  right  to  obtain  the  property  from  the  own- 
er upon  payment  of  the  balance  of  the  purchase  price  was  precisely  the 
same  after  the  transfer  by  the  bank  to  Weaver  as  it  was  before,  and 
was  in  no  degree  affected  thereby.  Of  course,  it  cannot  well  be  claim- 
ed that  plaintiff  should  recover  this  money  from  the  bank,  and  at  the 
same  time  be  allowed  to  obtain  the  property  upon  complying  with  the 
terms  of  her  contract. 

We  are  of  the  opinion  that,  in  place  of  the  judgment  given  in  this 
cause,  judgment  should  be  given  upon  the  findings  substantially  decree- 
ing as  follows :  That  neither  defendant  Baylis  nor  defendant  bank  has 
any  interest  in  the  property ;  that  defendant  Weaver  convey  the  prop- 
erty to  plaintiff  upon  the  payment  by  plaintiff  to  him  or  into  court  for 
his  benefit,  within  a  time  to  be  specified  therein,  of  the  sum  of  $410.65  ; 
and  that,  except  for  the  adjudication  that  the  bank  has  no  interest  in 
the  property,  plaintiff  take  nothing  against  it,  said  bank.  The  matter 
of  costs,  except  costs  on  appeal,  should  be  left  to  the  discretion  of  the 
trial  court. 

The  order  denying  a  new  trial  is  affirmed.  The  judgment  is  revers- 
ed, with  directions  to  the  trial  court  to  give  judgment  in  accord  with 
the  views  herein  expressed.  Appellant  Shirey  is  entitled  to  her  costs 
on  appeal  as  against  defendant  Weaver,  and  appellant  bank  is  entitled 
to  its  costs  of  appeal  as  against  plaintiff  Shirey. 

We  concur:  Beatty,  C.  J.;  Shaw,  J.;  Sloss,  J.;  Lorigan,  J.; 
Henshaw,  J. ;   Melvin,  J. 


II.  Negative  Contract? 

(A)   General  Nature  of  Negative  Contracts 

(a)  Trade  Contracts 

PEPERNO  v.  HARMISTON. 

(Court  of  Appeal,  1887.    31  Solicitors'  Journal,  154.) 

This  was  an  appeal  from  a  decision  of  the  Divisional  Court  (Manis- 
ty  and  A.  L.  Smith,  J  J.)  refusing  an  order  for  an  interim  injunction. 
It  appeared  that  the  plaintiff  and  defendant  were  circus  proprietors 
and  had  entered  into  a  partnership  agreement  to  take  their  joint  circus 
for  a  year's  tour,  beginning  at  Leamington.  The  defendant  was  to  sup- 
ply certain  performing  horses  and  ponies  and  some  performers.  The 
plaintiff  supplied  for  exhibition  certain  persons  known  as  the  Burmese 
Hairy  Family.  The  defendant  committed  various  breaches  of  the  part- 
nership agreement  by  failing  to  supply  the  agreed  number  of  horses 
and  performers,  in  consequence  of  which  the  tour  was  unsuccessful 


174  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

The  plaintiff  refused  to  supply  any  more  money  for  carrying  on  the 
concern,  and  upon  the  defendant  threatening  to  remove  his  property 
and  live  stock,  applied  for  an  injunction  to  restrain  him  from  remov- 
ing the  horses  and  ponies  and  the  paraphernalia  which  he  had  supplied 
from  Leamington  where  the  circus  then  was.  It  was  urged  for  the 
plaintiff  that,  on  the  authority  of  Lumley  v.  'Wagner  (1  De  G.  M.  &  G. 
604)  and  De  Mattos  v.  Gibson  (4  De  G.  &  J.  276),  where  the  court  will 
not  grant  a  decree  for  specific  performance  it  will,  nevertheless,  grant 
an  injunction  to  indirectly  compel  it. 

The  Court  (Lord  Esher,  M.  R.,  and  Lixdley  and  Lopes,  L.  JJ.) 
refused  the  application  and  dismissed  the  appeal.  They  said  the  princi- 
ple of  the  decision  in  Lumley  v.  Wagner  was  that  the  circumstances  in 
that  case  were  such  that  no  amount  of  damages  would  have  given  ade- 
quate relief  to  the  plaintiff,  and  that  the  court,  therefore,  granted  the 
injunction,  and  that  in  De  Mattos  v.  Gibson  it  was  still  doubtful  wheth- 
er specific  performance  could  be  granted  or  not.  The  rule  now  was 
that  the  court  would  not  grant  an  injunction  where  specific  perform- 
ance could  not  be  obtained  unless  they  considered  that  damages  would 
be  an  absolutely  inadequate  remedy  for  the  non-performance  of  the 
agreement.41 


ALTMAN  v.  ROYAL  AQUARIUM  SOCIETY. 

(Chancery  Division,  1876.    L.  R.  3  Ch.  Div.  228.) 
Motion. 

By  an  agreement  dated  the  3d  of  July,  1876,  and  made  between  the 
defendants,  the  Royal  Aquarium  and  Summer  and  Winter  Garden 
Society,  Limited,  at  Westminster,  by  William  Wybrow  Robertson,  the 
managing  director  of  the  society,  of  the  one  part,  and  the  plaintiffs, 
Lewis  Joseph  Altaian  and  Harris  Brown,  trading  as  L.  J.  Altman  & 
Co.,  thereinafter  called  the  exhibitor,  of  the  other  part,  the  society 
agreed  to  let,  and  the  exhibitor  agreed  to  take,  certain  spaces  in  the 
Aquarium  for  the  term  of  three  years,  from  the  22nd  of  January, 
1876,  at  the  rent  of  £325,  payable  by  equal  quarterly  payments  in  ad- 
vance, such  spaces  to  be  used  by  the  exhibitor  for  the  purpose  and 
with  the  sole  right  of  exhibiting  therein  and  selling  English  and  foreign 
china,  glass,  and  earthenware,  chandeliers  and  lamps  of  all  descrip- 
tions, with  the  exception  of  Venetian  glass  and  terra  cotta ;    and  the 

4i  In  Kemble  v.  Kean,  (1S29)  6  Sim.  333,  at  page  335,  Vice-Chancellor  Shad- 
well,  while  denying  the  injunction  to  enforce  an  express  negative  clause  in  a 
service  contract,  states  he  would  enforce  a  negative  clause  in  a  trade  con- 
tract, saying:  "In  the  case  of  a  mere  contract  between  two  persons  who  are 
both  carrying  on  the  same  trade,  that  one  shall  not  carry  on  his  trade  within 
a  limited  distance  in  which  the  party  contracted  with  intends  to  carry  mi 
his  trade,  the  whole  agreement  is  of  so  genuine  a  kind,  that  the  court  would 
enforce  the  performance  of  the  agreement  by  restraining  the  party,  by  in- 
junction, from  breaking  the  agreement  so  made." 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        175 

sole  right  to  sell  and  exhibit  all  descriptions  of  scents  and  perfumes 
within  the  company's  premises.  No  goods  or  articles  of  any  other 
description  were  to  be  exhibited  therein  or  sold  by  the  exhibitor  with- 
out the  permission  in  writing  of  the  said  society  being  first  obtained. 
In  case  the  exhibitor  failed  to  pay  the  rent,  or  to  observe  and  perform 
the  regulations  from  time  to  time  made  by  the  directors,  the  society 
should  have  the  power  of  putting  an  end  to  the  agreement  on  giving 
seven  days'  notice  in  writing;  but  the  exhibitor  should,  notwithstand- 
ing the  agreement  be  so  terminated  by  the  society,  remain  liable  for  the 
rent  to  the  end  of  the  current  year. 

The  plaintiffs  took  possession  of  the  stall,  and  used  it  for  the  sale 
of  china,  glass,  earthenware,  and  other  articles  named  in  the  agree- 
ment. The  Aquarium  was  opened  on  the  22nd  of  January.  Finding 
that  other  exhibitors  were  exhibiting  and  selling  china,  glass,  and 
earthenware  articles,  the  plaintiffs  called  the  attention  of  the  managing 
director  to  the  fact,  but  without  redress;  and  on  the  13th  of  May  a 
writ  was  issued  indorsed  for  specific  performance  of  the  agreement, 
for  an  injunction  to  restrain  the  sale  of  the  goods,  and  for  damages. 

The  plaintiffs  now  on  notice  dated  the  13th  of  May,  moved  that 
the  defendants  might  be  restrained  from  permitting,  or  neglecting  to 
prevent,  the  exhibition  or  sale  of  English  and  foreign  china,  glass,  and 
earthenware,  chandeliers  and  lamps  (not  being  Venetian  glass  or  terra 
cotta),  by  any  other  persons  or  person  than  the  plaintiffs  within  the 
premises  of  the  defendants. 

From  the  evidence  in  support  it  appeared  that  the  other  exhibitors 
who  were  exhibiting  and  selling  china,  glass,  and  earthenware  at  the 
opening  of  the  Aquarium,  were  named  Wills,  Marie  Louise,  the  Lon- 
don Stereoscopic  Company,  and  Fentum,  who  were  still  exhibiting, 
and  two,  named  Ramsay  and  Mrs.  Ryan,  who  had  left. 

Julia  Cohen,  a  witness  for  the  plaintiffs,  deposed  that  she  had  bought 
at  Wills'  stall  an  earthenware  flower-pot  and  stand,  and  a  glass  flower 
vase  or  tube ;  that  at  Marie  Louise's  stall  she  had  bought  a  glass  scent 
bottle ;  and  at  the  stall  of  the  London  Stereoscopic  Company  a  mag- 
nifying glass,  and  that  articles  similar  to  those  she  purchased  were  be- 
ing exhibited.  At  the  last-mentioned  stall  other  articles  of  glass  were 
being  exhibited.     *     *     *  42 

Bacon,  V.  C.  In  my  opinion  the  plaintiffs  are  entitled  to  that  right 
which  the  defendants  have  granted  them  by  way  of  agreement. 

I  agree  with  Mr.  Swanston  that  the  terms  of  the  agreement  must  be 
construed  according  to  the  common  and  ordinary  sense  and  meaning 
of  the  words.  (His  Lordship  read  the  words,  and  continued :)  The 
defendants  have  the  entire  control  over  this  exhibition,  or  bazaar,  or 
whatever  it  is  called,  and  they,  for  valuable  consideration,  have  con- 
tracted with  the  plaintiffs  that  none  but  they  shall  have  the  right  to  sell 
these  goods  within  the  building.     Then  what  sort  of  excuse  is  offered 

'2  The  statement  of  facts  is  abridged. 


s 


176  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Ch.  2 

in  the  course  of  the  argument  for  the  sale  by  Ramsay,  for  example, 
of  articles  of  biscuit,  majolica,  and  faience?  It  is  true  that  all  such 
acts  of  selling  are  now  over  and  gone;  but  the  plaintiffs'  complaint 
is,  that  when  they  remonstrated,  their  remonstrances  were  unheeded. 

There  are  in  truth,  no  facts  in  dispute.  The  facts  as  to  Wills,  the 
florist,  are  that  he  not  only  sells  flowers  in  glazed  flower-pots,  but  that 
he  has  a  sale  of  Minton's  coloured  tiles  for  flower-pots  and  boxes ; 
and  it  is  to  be  observed  that  it  is  the  defendants — they  who  ought  to 
have  protected  the  plaintiffs  from  breach  of  the  agreement — who  bring 
into  court  exhibited  articles  of  their  own  selection,  and  ask  the  court 
to  say  whether  the  sale  of  such  articles  is  a  breach  of  the  agreement. 
The  plaintiffs  cannot,  of  course,  except  by  purchasing  them,  bring  into 
court  the  articles  which  other  persons  not  parties  to  the  dispute  are 
selling.  But  taking  the  defendants  on  their  own  shewing,  earthenware 
brooches  are  as  much  within  the  covenant  as  anything  else  made  of 
earthenware ;  and  though  a  very  small  article  is  produced,  if  made 
of  earthenware,  it  is  not  the  less  within  the  agreement  on  that  account. 

As  to  the  photographs,  the  selling  of  a  magnifying  glass,  or  the 
putting  of  a  glass  front  to  a  photograph,  can  scarcely  be  called  an  in- 
fringement of  this  agreement. 

But  enough  has  been  proved  to  shew  that  the  defendants  have  not 
been  dealing  fairly  with  the  plaintiffs ;  that  they  have  broken  the  con- 
tract they  have  entered  into  with  them ;  and  the  consequence  is,  the 
defendants  must  be  restrained  from  doing  or  permitting  to  be  done 
anything  in  violation  of  the  agreement. 

There  must  be  an  injunction  as  moved  for;  and  the  costs  of  the 
motion  will  be  costs  in  the  cause. 


SEVIN  v.  DESLANDES. 

(In  Chancery  before  Lord  Romilly,  1860.    30  Law  J.  Ch.  457.) 

The  bill  in  this  case  was  filed  by  Messrs.  Sevin,  Chinery  &  Co.,  of 
London,  merchants,  against  George  Deslandes,  who  carried  on  the 
business  of  shipowner  and  builder  in  Jersey,  under  the  firm  of  Des- 
landes &  Son,  and  against  George  Seymour  and  Martin  Diederich 
Rucker,  who  carried  on  the  business  of  ship  and  insurance  agents  in 
London,  under  the  firm  of  Seymour,  Peacock  &  Co.,  praying  that  the 
defendants,  and  each  of  them,  and  their  servants,  agents,  &c,  might 
be  restrained  until  after  the  performance  by  George  Deslandes  of  a 
charter-party  entered  into  with  the  plaintiffs,  or  until  further  order, 
from  taking  or  permitting  to  be  taken  any  goods  or  passengers  in  or 
on  board  the  ship  Just,  other  than  for  the  plaintiffs,  or  with  their  con- 
sent in  writing,  and  from  preventing  or  interrupting  the  preparation 
and  loading  of  the  ship  according  to  the  charter-party,  and  from  ad- 
vertising, navigating  or  using  the  ship  for  Messrs.  Seymour  &  Co.  as 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        177 

a  general  ship,  or  for  any  other  person  or  persons,  or  purposes,  or 
otherwise  than  for  the  purposes  of  the  charter-party,  and  from  pre- 
venting or  interrupting  the  voyages  of  the  ship  according  to  the  char- 
ter-party, the  plaintiffs  offering  to  perform  the  charter-party  on  their 
part.  The  bill  also  prayed  for  damages  from  the  defendants,  and  that 
they  might  pay  the  costs  of  the  suit. 

On  the  22nd  of  November,  1860,  Messrs.  Sevin  &  Co.  applied  to 
Messrs.  Gamman  Brothers,  of  London,  ship-brokers,  for  a  charter  of 
the  ship  Just,  and  subsequently  on  the  same  day,  upon  the  telegraphic 
authority  of  Messrs.  Deslandes,  Messrs.  Gamman  signed  a  charter- 
party  on  their  behalf.     *     *     * 

On  the  evening  of  the  23d  of  November  Messrs.  Sevin  &  Co.  sent 
letters  of  advice  by  the  post  which  was  made  up  on  that  day  to  their 
agents  in  Africa,  informing  them  that  they  had  chartered  the  ship, 
and  of  her  intended  departure  for  various  stations  on  the  western 
coast  of  Africa,  and  instructing  them  respecting  the  receipt  and  sale 
of  the  cargo,  and  at  the  same  time  they  gave  various  orders  in  con- 
templation of  the  ship's  voyage. 

On  the  24th  of  November,  in  the  morning,  Henry  Gamman  met 
George  Deslandes  in  the  city,  and  gave  him  a  copy  of  the  charter- 
party.     *     *     * 

This  charter-party,  among  the  usual  provisions,  contained  a  clause, 
that  no  goods  or  passengers  should  be  taken  in  the  Just,  other  than  for 
the  charterers,  or  with  their  consent  in  writing. 

Messrs.  Sevin  subsequently  received  a  letter  from  Messrs.  Seymour 

&  Co.,  inclosing  the  following  letter : 

"26th  Nov.  1860. 
"Messrs.   Sevin,  Chinery  &  Co. — Gents:    We  find  it  is  impossible  to  carry 
out  the  charter  of  the  Just  agreed  with  you  on  Saturday,  as  the  engagements 
for  the  vessel  are  too  far  advanced.     I  therefore  give  you  notice  at  once,  to 
prevent  your  suffering  any  loss  or  inconvenience.    We  are,  Gents, 

"Yours  faithfully,  Deslandes  &  Son." 

On  the  29th  of  November  Messrs.  Sevin  &  Co.  informed  the  master 
of  the  Just  that  their  coopers  were  about  to  send  down  for  loading 
certain  palm-oil  casks.  On  the  same  day  the  master  wrote  to  Messrs. 
Sevin  &  Co.,  saying  that  he  could  not  take  in  any  goods  "without  the 
consent  of  Messrs.  Seymour  &  Co.,  with  whom  my  owners  have  ar- 
ranged for  loading  the  vessel.  With  reference  to  the  charter  you 
allude  to,  I  beg  to  state  that  my  owners  have  instructed  me  not  to 
fulfill  it,  and  they  gave  you  notice  thereof  on  Monday  morning  last." 

Messrs.  Sevin  then  filed  this  bill  and  obtained  an  injunction  upon 
their  undertaking  to  submit  to  any  order  respecting  damages  which 
the  court  might  make.  It  was  afterwards  arranged  that  the  cause 
should  be  brought  on  upon  a  motion  for  a  decree.     *     *     * 

The  Master  of  the,  Roles.43    The  owner  of  a  vessel  having  the 

43  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 
Boke  Eq.— 12 


178  SPECIFIC  PERFORMANCE  OF   CONTRACTS  (Ch.  2 

sixty-four  sixty-fourths,  without  any  mortgage  upon  it,  enters  into 
a  charter-party  with  the  plaintiffs  for  a  particular  voyage :  this  prima 
facie  is  perfectly  good.  The  charter-party  is  produced  duly  signed 
by  the  parties;  it  lies  therefore  upon  the  defendants  to  shew  why  the 
plaintiffs  are  not  entitled  to  the  benefit  of  it.  The  law  is,  and  it  is  laid 
down  in  De  Mattos  v.  Gibson  [4  De  Gex  &  Jo.  276;  s.  c.  28  L.  J. 
Rep.  (N.  S.)  165,  498]  that  if  a  charter-party  is  bona  fide  entered  into 
between  the  owner  of  the  vessel  and  the  charterer,  either  party  is  en- 
titled to  an  injunction  to  restrain  the  other  from  doing  anything  incon- 
sistent with  the  contract  entered  into.  If  there  is  nothing  that  can  be 
adduced  by  the  defendant  to  shew  that  the  charter-party  ought  not 
to  be  acted  upon,  it  is  a  case  in  which  the  charterer  is  entitled  to  an 
injunction  to  restrain  the  defendant  from  doing  anything  inconsistent 
with  the  rights  which  he  has  given  to  the  plaintiffs.     *     *     * 

Upon  the  facts  stated  the  plaintiffs  are  entitled  to  an  injunction  to 
restrain  any  act  inconsistent  with  the  charter-party  which  has  been 
entered  into  by  the  defendant. 

The  defendants  appealed  against  this  order  to  the  Lords  Justices ; 
but  they  subsequently  agreed  to  withdraw  it,  and  allow  the  costs  to 
be  disposed  of  at  the  hearing  of  the  cause. 


HARRIS  v.  BOOTS,  CASH  CHEMISTS  (SOUTHERN),  Limited. 

(Chancery  Division.     [1904]  2  Ch.  Div.  376.) 

Action. 

The  only  question  raised  by  this  action  which  calls  for  any  report 
was  as  to  the  right  of  the  assignor  of  leasehold  premises  to  enforce 
by  injunction  the  specific  performance  by  his  assignee  of  the  negative 
covenants  contained  in  the  original  lease  by  means  of  the  usual  cove- 
nant by  the  assignee  "to  perform  and  observe"  the  covenants  and  con- 
ditions contained  in  the  lease,  and  to  indemnify  the  assignor  from  and 
against  all  claims  and  demands  on  account  of  the  same.  The  facts, 
so  far  as  material,  were  as  follows : 

By  a  lease  of  October  29,  1902,  a  house  and  shop,  No.  162,  Western 
Road,  Brighton,  were  demised  by  one  Broadbridge  to  the  plaintiffs 
for  a  term  of  thirty  years  at  the  rent  therein  mentioned,  with  a  cove- 
nant by  the  plaintiffs  with  the  lessor  that  they  would  not  at  any  time 
during  the  said  term  "make  any  alteration  or  addition  whatsoever  to 
the  said  premises"  without  the  previous  approval  in  writing  of  the 
lessor  first  had  and  obtained. 

The  plaintiffs  subsequently  entered  into  negotiations  with  the  de- 
fendants, who  were  already  in  possession  of  No.  161  and  other  hous- 
es in  Western  Road,  for  the  sale  of  this  lease  to  the  defendants.  One 
term  of  the  negotiations  was  that  the  defendants  should  be  at  liberty 
to  make  a  connection  between  No.  161  and  No.  162  by  means  of  open- 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  179 

ings  on  the  ground  and  first  floors ;  to  this  Broadbridge,  the  lessor, 
consented,  and  the  transaction  was  carried  out  by  three  deeds  of  June 
24,  1903.  By  one  of  these  deeds  the  lessor  formally  consented  to  the 
proposed  alterations. 

By  another  deed  the  premises  comprised  in  the  lease  of  October  29, 
1902,  were  assigned  to  the  defendants  for  the  unexpired  residue  of 
the  said  term  of  thirty  years,  subject  to  the  rent  reserved  by,  and  the 
covenants  and  conditions  contained  in,  the  said  lease,  and  the  defend- 
ants thereby  covenanted  with  the  plaintiffs,  in  the  usual  form,  during 
the  residue  of  the  said  term  to  pay  the  said  rent,  and  "to  observe  and 
perform  the  covenants  and  conditions  therein''  (i.  e.,  in  the  lease) 
"contained,  and  which  henceforth  on  the  lessees'  part  ought  to  be  ob- 
served and  performed,"  and  to  indemnify  the  plaintiffs  from  and 
against  all  claims  and  demands  on  account  of  the  same. 

By  the  remaining  deed  the  defendants  covenanted  with  the  plain- 
tiffs to  make  the  proposed  openings  in  conformity  with  the  plan  there- 
in referred  to,  and  at  the  expiration  of  the  term  to  close  up  the  com- 
munications so  made;  and  again  covenanted  "to  observe  and  per- 
form" the  covenants  in  the  lease,  in  identical  terms. 

The  defendants,  having  entered  into  possession  of  No.  162,  were 
advised  that  it  was  desirable  for  the  convenient  carrying  on  of  their 
business,  and  for  the  better  accommodation  of  their  own  servants  and 
of  customers,  that  they  should  rearrange  the  water-closet  accommo- 
dation of  No.  162,  which  was  insufficient  and  insanitary ;  and  they  ac- 
cordingly proceeded  to  construct  further  and  more  suitable  accommo- 
dation on  the  first  floor,  and  in  carrying  out  this  additional  alteration 
they  opened  a  new  window  in  the  eastern  wall  of  the  premises,  and 
put  in  the  necessary  soil  and  ventilating  pipes,  which  also  passed 
through  this  wall  and  remained  exposed  on  its  outer  face. 

As  these  further  alterations  had  been  made  without  the  leave  of 
the  plaintiffs  the  present  action  was  commenced,  claiming  a  manda- 
tory order  on  the  defendants  to  remove  these  alterations,  and  to  re- 
store all  such  parts  of  the  said  messuage  and  premises  as  had  been  al- 
tered (otherwise  than  in  accordance  with  the  said  agreed  plan)  to  the 
condition  in  which  the  same  were  at  the  date  of  the  execution  of  the 
deeds  of  June  24,  1903. 

The  action  was  tried  with  witnesses,  and  several  other  defenses 
were  raised  on  the  evidence ;  but,  having  regard  to  the  view  taken  by 
the  court  on  the  question  of  law,  namely,  the  plaintiffs'  claim  to  an 
injunction  as  covenantees  in  the  assignment  of  the  lease,  it  is  not  nec- 
essary to  make  any  reference  to  them,  and  the  facts  and  arguments  on 
this  portion  of  the  case  are  accordingly  omitted. 

Warrington,  J.44  *  *  *  There  remains  only  the  one  serious 
question  of  law,  namely,  whether  the  plaintiffs,  who  no  longer  have 
any  interest  in  the  premises,  are  entitled  to  require  the  defendants 

44  Parts  of  the  opinion  are  omitted. 


180  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

specifically  to  perform  the  negative  covenant  contained  in  the  lease 
not  to  make  any  alteration  without  the  lessor's  consent.     *     *     * 

The  lessor  can  clearly  obtain  no  injunction  against  the  plaintiffs, 
and  that  for  two  reasons.  He  cannot  obtain  an  injunction  restraining 
them  from  committing  a  breach  of  the  negative  covenant  in  future, 
because  they  have  not  committed  a  breach  of  it  in  the  past.  The 
breach  has  been  committed  by  somebody  over  whom  they  have  no  con- 
trol. He  cannot  obtain  a  mandatory  injunction  requiring  the  plain- 
tiffs to  restore  the  premises  to  their  original  condition,  because  the 
plaintiffs  are  not  in  possession  and  have  no  right  to  possession.  The 
lessor,  therefore,  could  not  obtain  an  injunction  against  these  plain- 
tiffs in  any  form,  and  could  not  obtain  specific  performance  of  this  cov- 
enant against  them.  On  the  other  hand,  he  could  obtain  damages,  if 
he  had  suffered  any  by  the  breach  of  this  covenant.     *     *     * 

I  think  the  true  object  of  the  covenant  entered  into  on  the  assign- 
ment of  the  lease  is  to  indemnify  and  protect  the  original  lessee 
against  breaches  of  covenant  contained  in  the  lease  under  which  he 
holds.  Now  there  is  admittedly  no  direct  authority  on  this  point ;  so 
far  as  the  reports  go,  there  is  no  reported  case  in  which  a  lessee  has 
sought  to  enforce  by  injunction,  as  against  an  assignee,  a  negative 
covenant  contained  in  a  lease.     *     *     * 

The  covenant  in  the  present  case  is,  in  terms,  an  affirmative  cove- 
nant, and  I  think  that  that  fact  does  distinguish  it  from  the  cases  in 
which  it  has  been  held  the  court  has  no  discretion,  but  must  enforce 
by  way  of  injunction  specific  performance  of  a  negative  covenant. 

On  the  whole  I  come  to  the  conclusion,  therefore,  that  the  action 
fails,  and  there  must  be  judgment  for  the  defendants  with  costs. 


POPE-TURNBO  v.  BEDFORD. 

(St.  Louis  Court  of  Appeals,  Missouri,  1910.    147  Mo.  App.  G92,  127  S.  W.  426.) 

Appeal  from  St.  Louis  Circuit  Court;   Jas.  E.  Withrow,  Judge. 

Suit  by  Annie  M.  Pope-Turnbo  against  Maggie  Bedford.  From  a 
judgment  dismissing  the  bill,  complainant  appeals.  Reversed  and  re- 
manded, with  directions  to  enter  judgment  as  stated. 

GoodE,  J.45  These  parties  entered  into  a  contract,  which  we  tran- 
scribe : 

"This  contract  made  and  entered  into  this  29th  day  of  August,  1907,  by  and 
between  Annie  M.  Pope  of  the  city  of  St.  Louis,  state  of  Missouri,  party  of 
the  first  part,  and  Mrs.  Maggie  Bedford,  of  3964A  Finney  avenue,  party  of 
the  second  part,  witnesseth  that:  Whereas,  said  Annie  M.  Pope  has  knowl- 
edge of  a  certain  system  or  method  of  treating  the  scalp  and  hair,  having 
for  its  object  the  production  or  increase  of  a  growth  of  hair,  which  system  of 
treatment  said  party  of  the  first  part  has  practiced  on  large  numbers  of  per- 
sons for  years,  and  for  use  in  which  said  party  of  the  first  part  has  adopted 

*s  Parts  of  the  opinion  are  omitted. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         181 

certain  preparations  known  as  'Poro'  Temple  Grower,  'Pope'  Hair  Grower, 
'Poro'  Pressing  Oil,  etc.,  which  said  preparations  the  party  of  the  first  part 
has  found  by  experience  to  be  especially  suitable  for  and  adapted  to  her  afore- 
said system  or  method  of  treatment  of  the  scalp  and  hair:  Now,  therefore,  in 
consideration  of  the  said  party  of  the  first  part  instructing  said  party  of  the 
second  part  in  said  system  or  method  of  treatment  of  the  scalp  and  hair  and 
in  the  use  and  application  of  said  'Poro'  remedies  and  hair  applications,  said 
party  of  the  second  part  hereby  agrees  as  follows:  (1)  That  the  party  of  the 
second  part  will  pay  to  the  party  of  the  first  part  the  sum  of  twenty-five  dol- 
lars ($25).  (2)  That  the  party  of  the  second  part  will  not  use  in  the  prac- 
tice of  said  system  or  method  of  scalp  or  hair  treatment  so  taught  the  party 
of  the  second  part  by  the  party  of  the  first  part  as  aforesaid  any  temple 
grower,  hair  grower,  pressing  oil,  or  other  application  or  preparation  except 
the  above  mentioned  'Poro'  preparations  of  the  party  of  the  first  part,  and 
said  party  of  the  second  part  agrees  not  to  mention  having  learned  the  sys- 
tem or  method  of  treatment  of  the  scalp  and  hair  of  the  party  of  the  first 
part  except  in  connection  with  the  use  by  the  party  of  the  second  part  of  said 
'Poro'  preparations  of  the  party  of  the  first  part  and  not  in  connection  with 
the  use  of  any  other  hair  or  scalp  applications  or  treatments ;  and  said  party 
of  the  second  part  furthermore  agrees  that  if  the  party  of  the  second  part 
teaches  said  system  or  method  of  hair  and  scalp  treatment  of  the  party  of  the 
first  part  to  any  one  else,  it  shall  be  only  after  having  first  obligated  any  such 
pupil  by  a  contract  similar  to  the  one  contained  in  this  paragraph  not  to  prac- 
tice or  mention  said  treatment  of  the  party  of  the  first  part  without  using  said 
'Poro'  preparations  of  the  party  of  the  first  part.  In  testimony  whereof  the 
parties  hereto  have  hereunto  affixed  their  signatures  and  seals  at  St.  Louis, 
Missouri,  the  day  and  year  first  aforesaid.  Mrs.  Maggie  Bedford.  [Seal.] 
Annie  M.  Tope.     [Seal.]     Witnesses:       Lena  Love.     Mrs.  Octavia  A.  Rainey." 


Defendant  testified  she  applied  to  plaintiff  to  be  taught  the  latter's 
method,  paid  $25,  and  afterwards  the  contract  was  presented  to  her, 
and  she  signed  it  without  reading,  but  would  not  have  signed  if  she 
had  known  it  bound  her  to  use  Poro  preparations  forever.  After  re- 
ceiving a  diploma  from  plaintiff,  defendant  began  to  practice  at  her 
own  home  No.  3964A  Finney  avenue,  St.  Louis ;  plaintiff's  place  of 
business  being  No.  2223  Market  street.  Defendant  must  have  com- 
menced to  practice  in  September,  1907,  and  she  testified  she  used  plain- 
tiff's Poro  decoctions  until  March,  1908,  then  ceased  to  use  them,  and 
instead  used  her  own  preparation,  known  as  "Bedford's  Wonderful 
Hair  Grower."  On  March  21,  1907,  defendant  inserted  this  advertise- 
ment in  a  newspaper  published  in  St.  Louis  and  admitted  to  have  a 
wide  circulation : 

"Mrs.  Bedford,  3964  Finney  avenue,  is  now  in  business  for  herself.  She 
was  formerly  a  pupil  of  Mrs.  A.  M.  Pope  nee  Turnbo,  and  thoroughly  un- 
derstands her  business  and  guarantees  all  work.  She  would  be  pleased  to 
have  you  give  her  a  call.    Telephone,  Lindell  2646." 

Plaintiff  testified  her  process  of  treatment  of  the  hair  and  scalp  was 
a  secret  one  for  which  she  had  built  up  a  reputation,  and  it  was  be- 
coming famous ;  that  plaintiff  was  known  in  St.  Louis  and  over  the 
country  to  cause  hair  to  grow  rapidly  on  people's  heads ;  that  the 
secret  of  the  treatment  consisted  in  the  application  of  the  Poro  reme- 
dies to  the  hair  and  scalp.  She  said  these  remedies  produced  a  growth 
of  hair,  as  had  been  proved  in  many  instances ;   that,  when  defendant 


182  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Ch.  2 

applied  for  instruction,  defendant  said  she  was  using  a  treatment  dif- 
ferent from  plaintiff's,  but  wanted'  to  learn  the  latter's  so  defendant 
could  "establish  herself  in  business  on  the  same  basis."  There  was  tes- 
timony to  prove  the  treatment  administered  by  defendant,  in  the  course 
of  which  her  remedies  were  used  on  patients  instead  of  plaintiff's,  did 
not  yield  a  good  result.  One  patient  treated  by  defendant  testified  the 
latter  said  she  was  doing  the  same  work  plaintiff  was,  and  only  "used 
a  different  soap'';  that  in  connection  with  the  treatment  defendant  ap- 
plied to  the  hair  and  scalp  two  remedies  called  "Temple  Grower"  and 
"Bedford's  Wonderful  Hair  Grower."  Another  witness  testified  she 
had  taken  plaintiff's  treatment  for  three  years  and  had  been  benefited ; 
that  she  was  nearly  bald  when  she  commenced  the  course,  and  it  had 
improved  the  growth  of  her  hair. 

1.  The  petition  in  this  case  might  be  considered  either  a  bill  in  equity 
to  restrain  defendant  from  advertising  or  saying  she  had  been  a  pupil 
of  plaintiff  and  had  learned  plaintiff's  system  and  method  of  treatment, 
unless  defendant  practiced  the  same  method  and  treatment,  and  also  to 
enjoin  her  from  practicing  the  system  without  using  plaintiff's  reme- 
dies ;  or  it  might  be  considered  as  uniting  a  case  at  law  for  damages 
for  breach  of  the  contract  with  a  suit  in  equity  for  an  injunction. 
Paddock  v.  Somes,  102  Mo.  226,  14  S.  W.  746,  10  L.  R.  A.  254.  The 
cause  was  tried  without  a  jury,  and  no  declarations  of  law  were  asked. 
The  parties  appear  to  treat  the  case  as  one  in  equity  for  an  injunction, 
and  we  will  dispose  of  the  appeal  on  the  theory  that  it  is.     *     *     * 

2.  The  petition  accuses  defendant  of  telling  her  patients  she  had 
learned  her  system  of  treatment  from  plaintiff,  and  of  advertising  her- 
self as  plaintiff's  pupil  after  she  had  ceased  to  apply  the  latter's  rem- 
edies and  was  applying  her  own.  It  is  alleged  the  reputation  of  plain- 
tiff's business,  her  method  of  treating  the  hair,  and  her  preparations 
were  being  greatly  damaged  by  said  conduct,  which  constituted  a 
breach  of  the  agreement  and  worked  detriment  to  plaintiff's  business 
and  the  reputation  she  had  established  for  her  system,  by  "imposing 
responsibility  for  the  harmful,  deleterious,  and  inadequate  results  of 
the  use  of  said  'Bedford's  Wonderful  Hair  Grower.'  "  The  testimony 
for  plaintiff  conduced  to  prove  she  had  established  a  good  will  for  her 
remedies  and  system  of  treatment  and  was  enjoying  an  increasing  busi- 
ness. This  testimony  is  uncontradicted  and  must  be  accepted  as  true. 
The  good  will  of  her  preparations  and  system  of  treatment  is  a  species 
of  property.  14  Ency.  Law  (2d  Ed.)  1086 ;  Beebe  v.  Hatfield,  67  Mo. 
App.  609;  Met.  Nat.  Bank  v.  Dispatch  Co.  (C.  C.)  36  Fed.  722.  It 
was  of  value  to  plaintiff,  and  she  had  the  right  to  protect  it  from  un- 
fair competition  by  inserting  a  restrictive  stipulation  in  contracts  made 
with  pupils  to  prevent  them  from  leading  the  public  to  believe  they 
applied  plaintiff's  remedies,  when,  in  fact,  they  applied  others  less  effi- 
cacious. Goodyear,  etc.,  Co.  v.  Rubber  Co.,  128  U.  S.  598,  9  Sup.  Ct. 
166,  32  L.  Ed.  535;    Lawrence  Mfg.  Co.  v.  Term.  Mfg.  Co.,  138  U. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        183 

S.  537,  11  Sup.  Ct.  396,  34  L.  Ed.  997;  Hopkins  on  Unfair  Trade, 
§  12,  and  notes. 

Probably  she  would  have  the  same  right  in  the  absence  of  such  a 
stipulation,  but  as  to  that  we  need  not  inquire.  In  view  of  the  restric- 
tion, it  was  unfair  for  defendant  to  advertise  herself,  either  verbally  or 
in  the  press,  as  having  been  a  pupil  of  plaintiff,  thereby  giving  the  im- 
pression she  administered  plaintiff's  system  of  treatment  after  she  had 
ceased  to  do  this.  In  this  aspect  the  case  strikes  us  as  simply  one  to 
restrain  the  breach  of  a  negative  stipulation  in  a  contract;  a  relief 
readily  granted  in  equity  if  the  stipulation  is  supported  by  a  considera- 
tion, and  is  not  oppressive,  opposed  to  the  policy  of  the  law,  or  for 
personal  services.  Those  conditions  of  relief  exist  in  the  present  case, 
and  this  further  one,  too,  if  it  is  essential :  The  damages  plaintiff 
would  suffer  from  breaches  of  the  stipulation  are  not  recoverable  in 
a  legal  action  because  they  cannot  be  measured.  Beekman  v.  Marsters, 
195  Mass.  205,  80  N.  E.  817,  11  L.  R.  A.  (X.  S.)  201,  122  Am.  St. 
Rep.  232,  11  Ann.  Cas.  332. 

There  is  authority  for  saying  the  violation  of  a  negative  covenant 
inserted  in  a  contract  to  protect  property  will  be  restrained  even 
though  it  does  not  appear  irreparable  damage  will  flow  from  a  viola- 
tion of  it.  Schlitz  Brew.  Ass'n  v.  Neilsen,  77  Xeb.  86S,  110  X.  W. 
746,  8  L.  R.  A.  (X.  S.)  494;  Dickerson  v.  Canal  Co.,  15  Beav.  260; 
Hulme  v.  Shreve,  4  X.  J.  Eq.  116.  Commentators  say  injunctions  are 
granted  almost  as  a  matter  of  course  to  prevent  the  breach  of  such 
covenants.  3  Pomeroy,  Eq.  Jur.  §  1342.  See,  too,  2  High,  Injunctions, 
§  1142.  Those  writers  refer  to  the  restraint  of  breaches  of  negative 
covenants  in  leases ;  but  we  do  not  see  any  reason  why  the  principle 
does  not  apply  to  the  stipulation  in  question. 

Plaintiff  considered  it  would  be  detrimental  to  the  good  will  of  her 
method  of  treatment  and  remedies  to  have  persons  who  had  studied 
under  her  as  pupils  advertise  that  fact  after  they  had  commenced  to 
practice,  unless  they  used  plaintiff's  remedies ;  and  this  opinion  stood 
on  solid  ground,  if,  as  she  testified,  the  beneficial  part  of  her  system 
consisted  in  applying  the  Poro  remedies  to  the  scalp.  The  use  of  rem- 
edies which  lacked  their  virtue  would  impair  their  reputation  and 
diminish  the  value  of  plaintiff's  good  will.  We  have  no  doubt  the  con- 
tract ought  to  be  enforced  to  this  extent,  and  find  abundant  authority 
for  our  conclusion  in  the  text  of  sections  1342  to  1344,  inclusive,  of  3 
Pomeroy,  Eq.  Jur.,  and  cases  cited  in  the  notes.  See,  too,  Hall  v. 
Wesster,  7  Mo.  App.  56;  St.  Louis  Safe  Dep.  &  Sav.  Bank  v.  Kennett, 
101  Mo.  App.  370,  389,  74  S.  W.  474;  Manhattan  Mfg.  Co.  v.  Stock 
Yards,  23  X.  J.  Eq.  161. 

The  judgment  entered  below  dismissing  plaintiff's  bill  and  denying 
any  relief  by  injunction  will  be  reversed,  and  the  cause  will  be  remand- 
ed, with  directions  to  enter  judgment  that  defendant  be  enjoined  from 
mentioning  to  patients  she  had  learned  from  plaintiff  the  latter's  method 


184  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

of  treatment  of  the  scalp  and  hair,  and  from  advertising  herself  as 
the  former's  pupil,  unless  she  uses  plaintiff's  Poro  preparations,  instead 
of  her  own,  in  treating  patients ;  and  that  the  costs  of  this  action  be 
taxed  against  the  defendant.    All  concur. 


ANDREWS  v.  KINGSBURY. 

(Supreme  Court  of  Illinois,  1904.     212  111.  97,  72  N.  E.  11.) 

Appeal  from  Appellate  Court,  Fourth  District. 

Suit  by  Edwin  C.  Kingsbury  against  Harry  B.  Andrews.  From  a 
decree  of  the  Appellate  Court  (112  111.  App.  518),  affirming  a  decree 
for  plaintiff,  defendant  appeals. 

At  the  April  term,  1903,  of  the  circuit  court  of  Richland  county  the 
appellee,  Edwin  C.  Kingsbury,  filed  his  bill  to  restrain  the  appellant, 
Harry  B.  Andrews,  from  engaging  in  the  newspaper  business  in  the 
city  of  Olney,  either  as  proprietor,  editor,  manager,  or  in  any  way 
whatever,  either  for  himself  or  any  one  else,  for  a  period  of  five  years, 
as  provided  in  a  certain  alleged  contract  executed  between  the  parties. 
A  temporary  injunction  was  issued  as  prayed,  and  upon  a  hearing  it 
was  made  perpetual  for  the  period  of  five  years  from  November  2, 
1901.  An  appeal  was  prayed  to  the  Appellate  Court  for  the  Fourth 
District,  where  the  decree  of  the  circuit  court  was  affirmed,  and  a  fur- 
ther appeal  has  been  prosecuted  to  this  court.     *     *     * 

Wilkin,  J.4G  *  *  *  It  is  urged  that  the  court  erred  in  refus- 
ing to  admit  competent  testimony  offered  by  appellant.  It  is  said  that 
on  the  hearing  he  offered  to  prove  the  distinctive  characters  of  the 
Olney  Advocate  and  the  Olney  Times  as  to  their  respective  classes  of 
business  and  sources  of  patronage,  and  therefore  no  financial  injury 
would  result  to  appellee,  which  evidence  the  court  refused  to  admit. 
The  record  does  not  sustain  the  contention,  except  as  to  an  offer  to 
prove  the  politics  of  the  papers.  But,  in  any  view,  the  evidence  was 
wholly  immaterial.  Appellant  entered  into  a  contract  not  to  engage 
in  the  newspaper  business  in  the  city  of  Olney  for  five  years.  The 
Olney  Times  was  a  newspaper  published  in  the  city  of  Olney,  and  the 
management  of  that  paper  by  appellant  was  therefore  in  open  viola- 
tion of  the  terms  of  the  contract,  which  was  the  only  material  issue  in 
the  case.    The  testimony  was  therefore  properly  excluded. 

The  general  rule  that  a  writ  of  injunction  should  only  issue  where 
there  is  an  unquestionable  right,  and  where  irreparable  injury  will 
be  suffered,  and  there  is  no  adequate  remedy  at  law,  either  on  account 
of  the  insolvency  of  the  defendant  or  for  some  other  cause,  is  not 
applicable  to  this  case.  Courts  of  equity  will,  and  frequently  do,  inter- 
pose by  injunction,  thereby  indirectly  enforcing  the  performance  of 

46  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  185 

negative  covenants  by  prohibiting  their  breach ;  and  where  there  is  an 
express  negative  covenant,  courts  of  equity  will  entertain  bills  for  in- 
junctions to  prevent  their  violation,  even  though  the  same  will  occasion 
no  substantial  injury,  or  though  the  remedy  be  adequate  at  law.  Con- 
solidated Coal  Co.  v.  Schmisseur,  supra;  Hursen  v.  Gavin,  supra. 
Nor  is  the  position  that  the  decree  below  is  broader  than  the  terms  of 
the  contract,  for  the  reason  that  appellant  is  enjoined  from  engaging 
in  the  newspaper  publishing  or  printing  business  in  the  city  of  Olney, 
while  the  appellant  only  agreed  not  to  engage  in  the  "newspaper  busi- 
ness" in  the  city  of  Olney,  sustained  by  the  abstract  of  the  record. 
The  terms  of  the  injunction  are  that  "the  injunction  in  the  above  en- 
titled cause  be,  and  the  same  is  hereby,  decreed  to  be  in  full  force, 
etc.,  as  prayed  in  complainant's  bill."  The  abstract  as  presented  to  this 
court  does  not  show  that  the  injunction  ordered  is  in  its  terms  broader 
than  the  contract.  If  that  fact  appears  from  the  record,  counsel  for 
appellant  should  have  shown  it  by  the  abstract.47  *  *  * 
Decree  affirmed. 

47  In  Johnston  v.  Blanehard  (Cal.  App.  1911)  116  Pac.  973,  which  was  an 
action  to  enjoin  defendant  from  conducting  the  business  of  distributing  ad- 
vertising matter  in  the  county  of  Los  Angeles,  in  violation  of  the  terms  of  an 
agreement,  whereby  he  covenanted  tbat  he  would  not  do  so,  the  court  said  in 
part:  "The  complaint  alleges  that  Blanehard,  the  defendant,  notwithstanding 
his  contract,  did,  a  few  months  after  making  said  agreement,  enter  into  a 
similar  business  to  the  one  sold  to  Lee,  and  at  the  time  of  the  instituting  ot 
the  suit  he  was  engaged  in  conducting  an  advertising  distributing  business  in 
the  city  of  Los  Angeles.  The  only  point  argued  by  appellant  is  the  sufficiency 
of  the  complaint  tested  by  a  general  demurrer,  which  was  overruled.  *  *  * 
The  purpose  of  the  action  was  to  specifically  enforce  a  negative  covenant,  the 
violation  of  which  must  necessarily  constitute  an  invasion  of  plaintiff's  rights. 
The  specific  point  urged  by  appellant  is  that  it  is  not  alleged  that  defendant 
has  succeeded  in  securing  any  of  plaintiff's  customers.  In  such  case  as  this. 
the  right  to  enforce  a  covenant  does  not  depend  upon  a  showing  of  the  actual 
loss  of  customers  who  might  in  any  event  have  discontinued  their  patronage, 
but  upon  the  conclusion  of  the  court,  justified  by  the  facts  alleged,  that  in- 
jury to  plaintiff  would  very  probably  result  from  defendant's  acts,  and  that 
such  injury  would  be  irreparable.  The  re-entry  of  defendant  in  the  active 
management  of  a  business  in  Los  Angeles  county  of  like  character  to  that 
which  he  had  sold  would  necessarily  result  in  depriving  plaintiff  of  the  good 
will  of  the  business  purchased,  and  hinder  and  obstruct  the  latter's  success- 
ful conduct  and  management  thereof.  That  defendant  was  actually  engaged 
in  soliciting  plaintiff's  customers  was,  not  only  a  breach  of  his  implied  war- 
ranty (section  1776,  Civ.  Code),  but,  in  effect,  an  impending  threat  of  injury 
to  the  latter,  for  which  injury,  inconvenience,  and  perplexity  the  law  afforded 
no  adequate  remedy.  The  facts  alleged  are  ample  to  show  not  only  a  breach 
of  the  contract,  but  that  plaintiff  would  by  reason  of  a  continuance  thereof 
be  irreparably  damaged." 


1S6  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Ch.  2 


PEERLESS  PATTERN  CO.  v.  GAUNTLETT  DRY  GOODS  CO. 

(Supreme  Court  of  Michigan,  1912.     171  Mich.  158,  136  N.  W.  1113, 
42  L.  R.  A.  [N.  S.]  S43.) 

Moore,  C.  J.48  This  is  an  injunction  bill  and  one  for  specific  per- 
formance of  a  contract.  A  demurrer  was  interposed  to  the  bill  of 
complaint.  It  was  overruled,  which  action  is  sought  to  be  reviewed 
here. 

The  complainant  is  the  maker  of  paper  patterns.     The  defendant  is 

the  proprietor  of  a  large  dry  goods  store.     A  written  contract  was 

made  between  the  parties,  the  material  parts  of  which  are  as  follows : 

"State,  Mich.  The  Peerless  Pattern  Company,  192%  to  200  Greene  Street, 
New  York  City:  (1)  Please  send  us  an  assortment  of  Peerless  patterns  includ- 
ing the  May,  1911,  issue,  amounting  to  $200.00  at  5  cents  each  pattern,  paya- 
ble as  follows:  $100  in  thirty  days,  and  the  balance  $100  to  remain  as  a 
standing  debit  during  the  term  of  this  agreement  at  4  per  cent,  interest  per 
annum,  payable  semiannually.  *  *  *  (5)  We  will  reorder  at  least  once 
each  week,  all  patterns  that  we  sell,  so  as  to  keep  our  assortment  complete. 
We  will  offer  and  display  the  patterns  for  sale  on  the  main  floor.  We  will 
not  handle  directly  or  indirectly  any  other  make  of  pattern.  We  will  pay 
for  all  goods  on  or  before  the  tenth  day  of  the  month  following  the  month  of 
shipment  and  will  pay  all  transportation  charges  to  and  from  your  New  York 
office.  (6)  It  is  understood  that  you  are  to  exchange  at  full  purchase  price  all 
patterns  in  our  stock  that  you  discard  in  January  and  July  for  other  patterns 
to  be  reordered  by  us  thereafter.  After  the  return  by  us  of  such  discarded 
patterns,  if  our  remaining  stock  exceeds  the  amount  of  our  original  assort- 
ment we  may  return  to  you  the  excess  of  such  sum  in  Peerless  patterns  pur- 
chased from  you  to  be  selected  out  of  our  stock  by  us ;  such  return  excess 
patterns   to   be   credited   to   our   exchange   account   at  full   purchase   price. 

*  *  *  (7)  This  order  is  to  take  effect  on  acceptance  by  you  and  to  remain 
in  force  for  a  term  of  five  years  from  the  date  of  the  first  shipment  to  us 
from  term  to  term  thereafter  unless  either  party  shall  give  notice  of  desire 
to  cancel  in  writing  within  thirty  days  before  the  expiration  of  any  term.  If 
such  notice  is  given  by  us,  we  will  continue  the  agreement  for  four  months 
thereafter   in   order   to   give   you    an   opportunity   to   transfer   the   account. 

*  *  *  Purchaser's  Name,  The  Gauntlett  Dry  Goods  Co.  Date,  March  2, 
1910. 

''Accepted:   The  Peerless  Pattern  Co.,  by  E.  L.  Genth." 

The  bill  of  complaint,  after  the  formal  part  thereof,  set  out  the 

making  of  the  contract.    It  avers :   That  complainant  entered  upon  the 

performance  thereof.     That  defendant  failed  and  refuses  to  perform 

its  part  thereof.    That  it  began  selling  the  patterns  of  a  rival  concern 

and  prayed : 

"(2)  That  the  said  defendant,  the  Gauntlett  Dry  Goods  Company,  its  at- 
torneys, agents,  and  servants,  may  be  restrained  by  an  injunction  of  this 
honorable  court  from  selling  or  handling,  directly  or  indirectly,  during  the 
term  of  said  contract  or  agreement,  any  make  of  pattern  other  than  that  of 
your  orator.  (3)  That  the  said  defendant,  the  Gauntlett  Dry  Goods  Company, 
its  attorneys,  agents,  and  servants,  may  be  decreed  specifically  to  perform  all 
and  singular  the  terms,  conditions,  and  stipulations  of  said  agreement,  by  it 
to  be  performed,  and  it  be  compelled  to  order  and  buy  from  your  orator  and 
expose  for  sale,  as  by  said  agreement  stipulated,  the  said  patterns  of  your 
orator,  your  orator  being  ready,  willing,  and  able,  and  hereby  offering  spe- 
cifically to  perform  said  contract  or  agreement  as  on  its  part  stipulated  to  be 

48  Parts  of  the  opinion  are  omitted. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SrECIFIC  PERFORMANCE         187 

performed.  (4)  That  your  orator  may  be  decreed  to  recover  from  the  saia 
Gauntlett  Dry  Goods  Company,  the  said  defendant,  for  the  price  and  value  of 
goods,  patterns,  fashion  guides,  and  fashion  books  prepared  for  the  defend- 
ant and  shipped  to  it,  amounting  in  the  neighborhood  of  $300.'' 

A  prayer  for  general  relief  followed. 

It  is  claimed  the  demurrer  should  have  been  sustained  because  :  First. 
It  appears  from  the  allegations  in  the  bill  of  complaint  that  the  com- 
plainant has  a  full,  adequate,  and  complete  remedy  at  law.  That  if  the 
allegations  therein  contained  are  true,  the  only  relief  to  which  the  com- 
plainant   is    entitled   is    a   moneyed    judgment    at   law    for    damages. 

The  case  at  bar  is  more  like  Standard  Fashion  Co.  v.  Siegel  Cooper 
Co.,  157  N.  Y.  60,  51  N.  E.  408,  43  L.  R.  A.  854,  68  Am.  St.  Rep.  749, 
where,  among  other  things,  it  is  said  : 

"But  even  if  upon  a  trial  of  action,  specific  performance  of  the  contract  in 
its  entirety  were  refused  as  impracticable,  still  the  bill  should  be  retained  as 
one  permitting  an  injunction,  in  the  sound  discretion  of  the  court,  to  restrain 
the  defendant  from  violating  the  negative  and  severable  covenant  of  the  Siegel 
Cooper  Company,  that  it  would  not  sell,  or  allow  to  be  sold,  on  its  premises, 
during  the  duration  of  this  contract,  any  other  make  of  paper  patterns  than 
those  of  the  plaintiff.  The  learned  Appellate  Division,  one  of  the  judges  dis- 
senting, overruled  the  demurrer  on  this  ground,  holding  that  the  court  should 
extend  its  remedy  as  far  as  it  is  able,  and  thus  prevent  principal  defendant 
not  only  from  making  money  by  breaking  its  agreement,  but  from  inflicting 
a  double  wrong  upon  the  plaintiff,  by  depriving  it  of  the  right  to  sell,  and 
conferring  that  right  on  a  business  competitor.  We  think  this  a  sound  and 
just  conclusion,  because  it  will  compel  the  Siegel  Cooper  Company  to  either 
perform  its  agreement  or  lose  all  benefit  from  breaking  it,  and  at  the  same 
time  will  shield  the  plaintiff  from  part  of  the  loss  caused  by  the  breach,  if 
persisted  in.  Lumley  v.  Wagner,  1  De  G.  M.  &  G.  604 ;  Donnell  v.  Bennett, 
L.  R.  22  Ch.  Div.  S35 ;  Montague  v.  Flockton,  L.  R.  16  Eq.  1S9 ;  Singer  Sew- 
ing Mach.  Co.  v.  Union  Buttonhole  &  E.  Co.,  Holmes,  253  [Fed.  Cas.  No.  12,- 
904] ;  Chicago  &  A.  R.  Co.  v.  New  York,  L.  E.  &  W.  R.  Co.  [C.  C]  24  Fed. 
516,  521;  Goddard  v.  Wilde  [C.  C]  17  Fed.  846;  Western  Union  Teleg. 
Co.  v.  Union  P.  R.  Co.  [C.  C]  3  Fed.  423,  429;  Western  Union  Teleg.  Co.  v. 
Rogers,  42  N.  J.  Eq.  311  [11  Atl.  13].  The  injunction,  when  granted,  may 
not  be  absolute,  but  may  be  based  on  some  equitable  condition  that  will  pre- 
vent either  party  from  taking  advantage  of  the  other,  such  as  the  waiver  by 
the  plaintiff  of  the  breach  of  the  contract  by  the  principal  defendant.  The 
question  raised  by  the  demurrer  does  not  relate  to  any  matter  of  discretion  or 
property,  but  to  the  power  of  the  court,  to  grant  any  relief,  conditional  or 
otherwise.  We  are  satisfied  with  the  opinion  below  upon  the  subject,  and 
should  adopt  it  as  our  own  without  comment,  but  for  a  point  not  thus  far 
considered,  which  seems  to  us  a  conclusive  answer  to  the  demurrers,  and 
which,  if  overlooked,  might  lead  to  some  confusion.  The  action  is  for  the 
specific  performance  of  a  lawful  contract,  duly  executed  by  both  parties 
thereto.  It  is  capable  of  performance  by  both,  and  there  is  no  reason  for  non- 
performance by  either.  A  court  of  equity  has  jurisdiction  of  such  actions, 
and  the  complainant  set  forth  the  contract,  readiness  to  perform  on  one  side, 
a  refusal  to  perform  on  the  other,  and  facts  showing  no  adequate  remedy  at 
law.  A  complete  cause  of  action  is  therefore  alleged,  and  the  only  reason  for 
not  awarding  general  relief  to  the  plaintiff  is  that  its  nature  is  so  complicated 
as  possibly  to  require  multiplicity  of  orders  by  the  court  in  its  efforts  to  super- 
intend the  details  of  an  extensive  and  peculiar  business.  This  fact  does  not 
deprive  the  court  of  jurisdiction,  but  justifies  a  refusal,  in  its  sound  discre- 
tion, to  exercise.  It  confers  no  right  upon  either  party.  The  court  does  not 
refuse  to  act  lecause  the  defendants  object  to  its  acting,  for  it  would  refuse, 
under  the  circumstances,  if  both  parties  requested  it  to  proceed;  but  it  re- 
fns  s  because  the  execution  of  its  decree  would  require  protracted  supervision. 


1S8  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

It  is  the  difficulty  of  enforcing,  not  of  rendering,  judgment  that  causes  it  to 
hesitate.  The  office  of  a  demurrer  is  to  sweep  away  a  defective  pleading,  and 
in  the  case  before  us  it  attacks  the  substance  of  the  complaint ;  yet  the  com- 
plaint is  good  in  substance,  for  it  sets  forth  a  cause  of  action  in  equity.  It  is 
true  that  the  court,  in  its  discretion,  may  not  hear  the  cause,  or  after  the 
hearing  may  refuse  relief  owing  to  tbe  difficulty  of  enforcing  its  decree,  still 
this  does  not  make  the  complaint  defective,  nor  authorize  a  general  demurrer, 
which  must  be  founded  upon  an  absolute,  certain,  and  clear  proposition  that, 
taking  the  charges  in  the  bill  to  be  true,  the  bill  must  be  dismissed  at  the 
hearing.  Beach,  Modern  Eq.  Pr.  No.  225.  Upon  the  facts  before  us,  it  is  in 
the  power  of  the  court  to  enforce  the  agreement  the  same  as  it  is  in  the  case 
of  railroad  contracts;  but  the  difficulties  attending  the  enforcement  are  so 
great  that  tbe  court  would  ordinarily  refuse  to  undertake  it,  as  there  is  no 
public  interest  involved.  As  there  was  complete  jurisdiction  and  a  perfect 
cause  of  action  against  both  defendants,  the  demurrers  must  be  over- 
ruled.    *     *     * " 

The  decree  of  the  court  below  is  affirmed,  with  costs,  and  defendant 
is  given  20  days  in  which  to  answer. 

SteERE,  Brooke,  and  Stone,  JJ.,  concurred  with  Moore,  C.  J. 
Blair,  J.,  being  ill,  took  no  part  in  the  decision.  Ostrander,  J.,  con- 
curs upon  the  ground  that  the  contract  in  question  is  not  in  restraint 
of  trade  within  the  meaning  of  the  contract  in  question. '  McAlvay, 
J.,  concurred  with  Ostrander,  J. 


MERCHANTS'  TRADING  CO.  v.  BANNER. 

(In  Chancery,  1S71.     L.  R.  12  Eq.  18.) 

This  was  a  demurrer.  The  bill  contained  allegations  to  the  following 
effect : 

The  plaintiffs,  being  the  owners  of  a  screw  steamship  called  the 
Bolivian,  and  being  desirous  that  certain  alterations  should  be  made 
in  the  vessel,  in  the  month  of  January,  1870,  entered  into  a  contract 
for  that  purpose  with  a  firm  of  W.  C.  Miller  &  Sons,  then  carrying  on 
business  as  shipbuilders  at  Garston,  near  Liverpool.  The  agreement 
(the  terms  of  which  were  in  writing)  provided  that  Messrs.  W.  C.  Mil- 
ler &  Sons  should  cut  in  two,  lengthen,  complete  and  finish  for  the 
plaintiff's  the  screw  steamship  Bolivian  in  accordance  with  a  specifica- 
tion, and  would  use  their  best  endeavours  to  complete,  finish,  and  duly 
deliver  to  the  plaintiffs  the  said  steamship  with  all  reasonable  despatch, 
and  contained  provisions  authorizing  the  plaintiffs'  engineer  to  inspect 
the  ship  at  all  reasonable  times;  and  in  consideration  of  the  premises 
the  plaintiffs  agreed  to  pay  Messrs.  W.  C.  Miller  &  Sons  for  the  price 
of  such  alterations  and  additions  of  and  to  the  said  steamship  the  sum 
of  £27,600  by  the  instalments  and  at  the  times  therein  mentioned ;  and 
Messrs.  W.  C.  Miller  &  Sons  were  to  have  a  lien  on  the  ship  for  secur- 
ing the  due  payment  of  all  the  instalments. 

The  agreement  then  provided  that  the  steam-vessel  and  its  parts 
should  be  deemed  to  be,  and  should  be  the  property  of  the  company, 
without  prejudice  to  the  lien  of  the  shipbuilders  for  any  unpaid  in- 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  189 

stalments ;  that  in  case  of  refusal,  neglect  or  failure  of  the  latter  to 
complete  the  vessel  according  to  the  agreement,  the  company  should  be 
entitled  to  possession  of  the  vessel  and  its  parts,  and  all  articles,  mat- 
ters and  things  lying  about  the  yard  and  wharf  intended  by  the  ship- 
builders for  the  alteration  and  completion  of  the  steamship,  upon  pay- 
ment of  a  reasonable  compensation.  The  agreement  then  proceeded  as 
follows : 

"And  it  is  hereby  further  agreed  that  in  case  of  such  refusal  or  failure  as 
aforesaid  it  shall  and  may  be  lawful  for  the  said  company,  its  successors  or 
assigns,  with  workmen  or  others,  to  enter  and  go  into  the  yard  or  dock  of 
the  said  W.  C.  Miller  &  Sons  wherein  the  said  vessel  shall  be  building  or  be 
in  progress  of  construction,  and  either  to  take  away  the  said  steam-vessel,  or 
parts  thereof,  and  the  said  engines,  boilers,  and  machinery,  or  parts  thereof, 
or  to  employ  workmen  to  finish  the  same,  without  any  molestation  or  hin- 
drance whatsoever  from  the  said  W.  C.  Miller  &  Sons,  their  executors,  ad- 
ministrators, or  assigns,  or  the  workmen  or  other  persons  employed  by  them, 
and  without  making  any  allowance  for  the  use  of  the  said  dockyard,  machin- 
ery or  premises." 

Messrs.  W.  C.  Miller  &  Sons  subsequently  to  entering  into  the  agree- 
ment took  the  vessel  into  the  dock  at  Garston  in  which  they  carried  on 
business,  and  they  proceeded  to  cut  the  vessel  in  two,  but  made  no  fur- 
ther progress  with  the  alterations.  The  vessel  was  still  lying  in  the 
dock,  cut  in  two  pieces. 

In  November,  1870,  Messrs.  W.  C.  Miller  &  Sons  were  adjudicated 
bankrupts,  and  the  defendant  was  appointed  trustee  under  their  bank- 
ruptcy. As  such  trustee  the  defendant  caused  advertisements  to  be 
issued  of  the  sale  of  the  graving-dock,  machinery,  and  other  property 
of  Messrs.  W.  C.  Miller  &  Sons.  Amongst  the  property  so  intended 
to  be  sold  were  divers  articles  intended  for  the  alteration  and  comple- 
tion of  the  Bolivian.  The  advertisement  took  no  notice  of  the  plain- 
tiffs' rights  under  their  agreement. 

The  bill  prayed  for  a  declaration  that  the  plaintiffs  were  entitled  to 
complete  the  alterations  in  the  said  steamship  Bolivian  agreed  to  be 
executed  by  the  said  W.  C.  Miller  &  Sons,  and  that  the  plaintiffs  and 
their  workmen  were  entitled  to  enter  upon,  go  into,  and  use  the  graving- 
dock,  workshops,  machinery,  and  premises  of  the  said  W.  C.  Miller  & 
Sons  in  which  the  said  ship  was,  and  the  said  alterations  were  being 
carried  on,  without  making  any  allowance  for  the  use  of  the  said  dock- 
yard, machinery,  and  premises,  and  that  the  plaintiffs  were  entitled 
to  all  such  articles,  matters,  and  things  lying  in  or  about  the  said  yard 
or  wharf  of  the  said  W.  C.  Miller  &  Sons  as  were  intended  by  them  for 
the  alteration  and  completion  of  the  said  steamship,  upon  paying  for 
such  articles,  matters,  and  things  in  the  manner  provided  for  by  the 
said  agreement;  and  for  an  injunction  to  restrain  the  defendant  from 
selling  or  otherwise  dealing  with  the  dock  in  which  the  said  steamship 
was  lying,  and  the  workshops,  machinery,  and  premises  in  and  by  means 
of  which  the  said  alterations  in  the  said  ship  were  being  made,  in  such 
manner  as  to  exclude  or  interfere  with  the  right  of  the  said  company, 
their  successors  or  assigns,  to  complete  the  alteration  in  the  said  steam- 


190  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Ch.  2 

ship  in  the  said  dock,  and  their  right,  and  the  right  of  their  workmen, 
to  enter  and  go  into  the  said  dock  and  yard,  and  to  use  the  said  dock, 
workshops,  machinery,  and  premises  for  completing  the  alterations  in 
the  said  steamship ;  and  that  the  defendant  might  in  like  manner  be 
restrained  from  removing  the  said  ship  or  the  said  machinery  from 
the  said  premises,  and  from  removing  or  selling  the  articles,  matters, 
and  things  lying  and  being  in  or  about  the  said  dockyard  and  premises 
which  were  intended  by  the  said  W.  C.  Miller  &  Sons  for  the  altera- 
tions and  completion  of  the  said  steamship,  the  plaintiffs  being  willing, 
and  thereby  offering,  to  pay  for  such  articles,  matters,  and  things  ac- 
cording to  the  said  agreement. 

April  21.  Lord  Romilly,  M.  R.  I  cannot  avoid  allowing  the  de- 
murrer in  this  case.  It  appears  to  me  totally  impossible  to  give  any 
relief  upon  this  agreement  in  a  Court  of  Equity.  I  am  of  opinion 
that  this  must  be  looked  at  exactly  as  if  it  were  a  suit  for  specific  per- 
formance without  any  bankruptcy  at  all ;  and  that  the  defendant,  or 
rather  the  persons  for  whom  the  defendant  is  a  trustee,  have  either 
refused  or  declined  to  perform  the  agreement.  The  agreement  is  of  a 
singular  description.  If  this  agreement  could  be  specifically  enforced, 
what  railway  contract  is  there  for  making  a  tunnel,  or  the  like,  that 
could  not  be  specifically  enforced  ?  The  two  things  are  really  very  much 
of  the  same  character.  There  is  a  stipulation  that  if  Messrs.  Miller 
refuse  or  neglect  to  perform  the  contract  (which  in  my  opinion  they 
have  done,  for  I  think  that  the  bankruptcy  amounts  to  that)  there  is  a 
power  to  the  plaintiff  to  take  possession  and  complete  the  vessel.  That 
exists  in  all  railway  contracts ;  and  the  only  difference  is  this,  that  in 
railway  contracts  there  is  usually  added  (at  least  in  all  those  which  I 
have  seen)  a  provision  to  charge  the  person  with  whom  they  have 
made  the  contract  with  the  expenses  of  performing  the  contract.  But 
that  is  not  so  here.  It  is  merely  a  power  to  enter.  That  can  make  no 
difference,  and  it  appears  to  me  to  be  a  contract  which  the  court  can 
not  possibly  perform.  Then,  as  was  laid  down  by  Lord  Eldon  in  Clarke 
v.  Price,  2  Wils.  C.  C.  157,  if  the  court  can  not  perform  the  contract 
as  a  whole,  it  will  not  enforce  performance  of  a  part ;  and  if  there  is 
any  remedy  it  must  be  at  law.  In  Morris  v.  Colman,  18  Ves.  437,  and 
Lumley  v.  Wagner,  1  D.  M.  &  G.  604,  there  appear  to  have  been  some 
grounds  on  which  it  was  held  that  those  cases  were  taken  out  of  the 
rule.  In  the  former  case  Lord  Eldon  granted  an  injunction  because 
the  defendant,  as  part  of  a  partnership  transaction  which  he  and  the 
plaintiff  had  entered  into  as  proprietors  of  the  Haymarket  Theatre, 
had  agreed  to  write  plays  for  that  theatre,  while  his  partner  was  to  get 
up  the  performances.  In  Lumley  v.  Wagner  the  court  seems  to  have 
treated  it  as  if  there  was  a  separate  and  distinct  contract  in  which  one 
said,  "In  consideration  of  my  doing  so  and  so,  you  shall  not  perform 
for  anybody  else."  Thereupon  the  court  enjoined  the  defendant  from 
performing  in  any  other  place.  At  all  events,  I  do  not  think  any  of 
the  cases  touch  the  real  principle,  which  is,  that  where  the  stipulation 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        191 

sought  to  be  enforced  is  really  a  part  of  the  contract  itself,  this  court 
cannot  specifically  perform  the  contract  piecemeal,  but  it  must  be  per- 
formed in  its  entirety,  if  performed  at  all ;  and  where  the  court  can  not 
perform  it  in  its  entirety,  neither  can  it  perform  any  particular  portion 
of  it.  Here  it  is  obvious  that  the  contract  can  not  be  performed  in  its 
entirety.  The  result,  no  doubt,  is  that  a  very  serious  evil  is  inflicted 
upon  the  Merchants'  Trading  Company ;  but  I  think,  under  the  Bank- 
ruptcy Act,  the  parties  will  be  able  to  get  such  relief  as  in  the  case  of 
any  person  who  has  a  large  claim  upon  a  bankrupt  which  he  can  not 
obtain  in  any  other  form,  or  in  any  other  way.  I  presume  the  Court  of 
Bankruptcy  will  give  them  some  means  of  getting  their  vessel  out  of 
the  dock,  and  the  like.  At  all  events,  I  am  of  opinion  that  I  can  not  do 
it  by  specific  performance ;  and  therefore  I  allow  the  demurrer. 


LACY  v.  HEUCK  et  al. 
(Superior  Court  of  Cincinnati,  Ohio,  1S83.    9  Ohio  Dec.  Reprint,  347.) 

Motion  for  temporary  injunction. 

Peck,  J.  The  plaintiff  alleges  that  in  September,  1883,  he  entered 
into  a  written  contract  with  the  defendants  for  the  use  of  Heuck's 
opera  house  for  the  week  now  next  ensuing,  the  house  to  be  lighted  and 
heated  by  defendants,  who  also  agreed  to  furnish  the  services  of  ticket 
sellers,  door  keepers,  ushers,  stage  carpenters,  an  orchestra,  and  certain 
other  persons  necessary  for  the  production  of  a  play  to  be  performed 
during  that  time  by  a  company  of  actors  and  actresses  employed  by, 
and  under  the  control  of  plaintiff.  That  defendants  were  also  to  per- 
form certain  services  in  and  about  advertising  the  play,  and  the  parties 
were  to  be  compensated  respectively,  by  a  division  of  the  receipts  from 
the  sale  of  tickets  in  certain  agreed  proportions.  That  plaintiff  is  now  on 
his  way  to  Cincinnati  with  his  company,  where  they  will  arrive  in  time 
to  produce  the  play  as  agreed  and  that  he  is  ready  and  willing  to  per- 
form all  the  stipulations  of  the  contract  incumbent  upon  him,  but  that 
defendants  have  refused  to  perform  their  part  of  the  contract,  have 
declined  to  do  what  is  required  of  them  by  its  terms  as  to  the  advertis- 
ing, have  notified  plaintiff  that  he  cannot  occupy  the  opera  house  dur- 
ing the  period  agreed  upon,  and  are  now  advertising  another  company 
to  appear  there  during  that  time. 

The  plaintiff  moves  the  court  to  enjoin  defendants  from  permitting 
the  opera  house  to  be  occupied  by  others  or  put  to  other  use  than  the 
production  of  his  play,  during  the  period  named  in  the  contract;  that 
defendants  be  enjoined  from  advertising  or  permitting  any  other  play 
there  during  the  week  mentioned,  and  also  for  a  mandatory  injunction 
restraining  defendants  from  failing  or  refusing  to  provide  the  opera 
house  and  perform  the  services  stipulated  in  the  contract. 

The  defendants  appear  in  person  and  by  counsel,  and  have  filed  their 
affidavit.    They  do  not  deny  the  execution  of  the  contract,  or  its  intend- 


192  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

ed  breach,  but  it  is  claimed  by  their  counsel  that  injunction  is  not  a 
proper  remedy  for  such  an  injury;  and  that  presents  the  only  question 
before  us.  The  reasons  assigned  to  support  the  claim  that  injunction 
is  an  improper  remedy  in  such  case,  are  two:  First — that  the  plaintiff 
will  have  an  adequate  remedy  at  law  ;  and  second — that  this  is  not  such 
a  contract  as  can  be  enforced  in  equity,  either  by  a  mandatory  injunc- 
tion or  by  means  of  a  decree  for  specific  performance,  because  it  is 
largely  a  contract  for  personal  services,  and  such  contracts,  cannot  from 
their  very  nature,  be  specifically  enforced.  Port  Clinton  R.  R.  Co.  v. 
Toledo  Railroad  Co.,  13  Ohio  St.  544. 

As  to  the  first  point,  it  seems  clear  that  the  only  remedy  at  law  acces- 
sible to  plaintiff  would  be  an  action  for  unliquidated  damages  for 
breach  of  contract.  In  such  case  it  would  be  necessary  for  the  jury  to 
determine  as  best  they  might  from  the  evidence  adduced  what  would 
be  the  probable  receipts  from  the  performances  contracted  to  be  given. 
To  show  that  it  would  not  be  impossible  to  furnish  proof  on  the  sub- 
ject, defendants,  in  their  affidavit,  set  forth  the  receipts  during  two 
previous  weeks  of  performance  by  plaintiff's  company  at  their  theater 
within  a  year  or  two  past,  but  it  is  obvious  that  even  with  all  the  aid 
to  be  derived  from  such  testimony,  the  jury  could  not  fix  the  amount 
of  such  receipts  with  any  degree  of  certainty.  That  plaintiff  could 
maintain  an  action  for  damages  after  the  breach  had  occurred  is  beyond 
question,  but  it  is  not  at  all  certain  that  such  an  action  would  furnish 
him  with  an  adequate  remedy  for  the  wrong  he  had  suffered. 

In  the  language  of  the  Lord  Chancellor  in  Lumley  v.  Wagner,  1  D. 
G.  &  M.,  618,  a  court  of  equity  "will  not  suffer  persons  to  depart  from 
their  contracts  at  their  pleasure,  leaving  the  party  with  whom  they 
have  contracted  to  the  mere  chance  of  any  damage  which  a  jury  may 
give." 

As  to  the  other  proposition  that  this  is  not  such  a  contract  as  can  be 
specifically  enforced,  I  am  inclined  to  the  opinion  that  the  point  is  well 
taken.  The  contract  provides  not  only  for  the  use  and  occupation  of 
the  opera  house,  but  for  the  personal  services  of  a  large  number  of 
persons.  It  would  be  impracticable  for  the  court  to  supervise  or  en- 
force the  performance  of  such  services.  See  Port  Clinton  R.  R.  v. 
Cleveland  R.  R.,  above  cited ;  and  Chapman  v.  R.  R.  Co.,  6  Ohio  St. 
119,.  139. 

But  there  is  a  part  of  the  relief  asked  to  which  the  same  objections 
do  not  apply.  Among  other  things  plaintiff  prays  that  the  defendants 
may  be  enjoined  from  putting  the  opera  house  to  any  use  during  the 
time  covered  by  his  contract,  other  than  the  production  of  the  play  by 
his  company,  and  from  advertising  or  permitting  any  other  play  dur- 
ing that  time. 

As  to  actors  and  singers  it  has  been  held  in  a  number  of  cases  in 
England  and  this  country,  that  they  may  be  enjoined  from  playing  or 
singing  at  any  other  place  than  the  one  where  they  have  agreed  to  play 
or  sing,  and  in  this  indirect  manner  their  contracts  for  personal  serv- 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         193 

ices  have  been  enforced.  Lumley  v.  Wagner,  1  D.  G.  M.  &  G.,  604, 
and  S.  C.  5  De  G.  &  S.,  485 ;  Montague  v.  Flockton,  16  L.  R.  Eq., 
189;  Webster  v.  Dillon,  3  Jur.  N.  S.,  432;  Daly  v.  Smith,  38  N.  Y. 
Super.  Ct,  158. 

In  the  first  case  above  cited  the  Lord  Chancellor  placed  his  decision 
largely  upon  the  ground  that  the  contract  provided  that  the  defendant 
should  sing  at  a  certain  place  and  not  elsewhere.  The  injunction  was 
granted  because  of  the  negative  words,  and  she  was  accordingly  re- 
strained from  singing  elsewhere,  but  in  the  latter  cases  that  distinction 
is  said  to  be  ill-founded,  and  it  has  been  pointed  out  that  a  contract  to 
play  at  a  certain  place  at  a  certain  time  necessarily  excludes  the  idea 
that  the  actor  may  perform  at  another  place  at  the  same  time  and  in- 
junctions restraining  such  breaches  of  contract  were  granted  in  those 
cases,  although  the  contract  contained  no  negative  words.  There  are 
cases  in  this  country  holding  that  such  an  injunction  will  not  be  granted 
as  there  were  such  decisions  in  England  prior  to  Lumley  v.  Wagner. 
One  of  these  is  Delavan  v.  Macarte,  1  Dec.  R.,  226  (4  W.  L.  ].,  555), 
decided  in  the  court  of  common  pleas  of  this  country,  in  the  year  1847, 
prior  to  Lumley  v.  Wagner,  and  in  accord  with  the  English  authorities 
overruled  by  that  case. 

Under  the  circumstances,  the  question  is  fairly  an  open  one  in  Ohio, 
and  in  that  situation  we  should  be  guided  by  the  cases  best  grounded 
in  principle.  The  only  reason  assigned  for  the  refusal  to  grant  a  man- 
datory injunction  is  that  it  is  impracticable  to  apply  such  a  remedy 
because  it  might  involve  the  supervision  and  direction  by  the  officers 
of  the  court,  of  the  performance  of  the  services  contracted  for.  But 
how  is  it  impracticable  to  afford  such  relief  as  was  granted  in  Lumley 
v.  Wagner?  Difficult  as  it  might  be  to  compel  a  singer  to  sing  at  the 
proper  time  and  place  and  in  the  proper  manner,  it  would  not  be  at  all 
difficult  to  compel  him  to  desist  from  singing  except  at  a  specified 
place.  Such  a  writ  might  not  in  all  cases  afford  a  remedy  to  plaintiff, 
as  the  defendant  might  elect  not  to  sing  at  all,  but  it  is  safe  to  believe 
that  the  ordinary  motives  governing  human  action  would  lead  him  to 
prefer  to  comply  with  his  contract,  rather  than  to  be  altogether  pre- 
vented from  the  exercise  of  his  talents,  and  such  appears  to  have  been 
the  result  in  cases  where  this  sort  of  relief  was  granted.  Why  then 
should  not  a  plaintiff  in  such  case  have  an  injunction  of  this  sort?  His 
contract  rights  are  clear,  the  proposed  violation  of  them  is  clear,  and 
here  is  a  remedy  not  impracticable.  It  would  seem  to  be  a  sound  gen- 
eral rule  that  where  the  right  of  one  party  is  plain,  and  the  wrong  done 
or  intended  to  be  done  by  the  other  equally  plain  the  court  should  not 
be  sparing  in  the  application  of  its  remedies,  but  rather  should  grant 
them  with  a  liberal  hand. 

The  case  at  bar  differs  from  all  the  cases  cited  in  that  the  position 
of  the  parties  is  here  reversed.  In  those  cases  it  was  manager  against 
actor,  in  this  it  is  actor  against  manager  but  in  both  the  personal  serv- 
Boke  Eq. — 13 


194  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

ices  of  the  other  party  are  sought,  and  in  that  respect  they  are  the  same 
in  principle.  If  Heuck  could  enjoin  Lacy  from  performing  next  week 
in  any  other  place  than  his  opera  house,  why  should  not  Lacy  have 
similar  relief  to  secure  the  services  of  Heuck  and  his  subordinates  in 
the  management  of  the  opera  house? 

The  contract  for  the  use  of  the  opera  house  adds  an  element  not 
found  in  the  above  cases,  but  there  appears  to  be  no  reason  why  the 
same  remedy  may  not  be  applied  as  to  it.  This  part  of  the  agreement, 
if  it  stood  alone,  could  be  enforced  by  mandatory  injunction  or  decree 
for  specific  performance.  Taylor  on  Landlord  and  Tenant,  sec.  46, 
and  cases  cited.  It  has  been  a  common  practice  for  courts  of  equity  to 
interfere  to  restrain  a  tenant  from  putting  the  property  to  uses  other 
than  agreed  upon.  2  Daniel's  Chy.  Practice,  1655,  et  seq.  Also  to  re- 
strain the  landlord  from  the  violation  of  his  covenants.  Kerr  on  In- 
junctions, *417.  In  the  case  of  Hooper  v.  Broderich,  11  Simons,  47, 
the  vice-chancellor  held  that  a  mandatory  injunction  in  effect  requir- 
ing defendant  to  keep  an  inn  upon  certain  premises  which  he  had 
leased  for  that  purpose  ought  not  to  have  been  granted,  but  that  de- 
fendant might  be  restrained  "from  doing  or  causing  or  permitting  to 
be  done  any  act  which  would  have  put  it  out  of  his  power,  or  the  pow- 
er of  any  other  person,  to  carry  on  that  business  on  the  premises." 
See  also  Tipping  v.  Eckersley,  1  K.  &  J.  264.  There  appears  to  be  no 
reason  why  defendant  should  not  be  restrained  from  managing,  adver- 
tising, assisting  or  providing  assistance  for  any  other  play  or  perform- 
ance at  their  opera  house  during  the  week  covered  by  the  contract,  and 
from  using  or  causing  or  permitting  their  opera  house  to  be  used  for 
any  other  purpose  than  the  production  of  plaintiff's  play  during  that 
time,  and  it  will  be  so  ordered  upon  condition  that  plaintiff  gives  a  sat- 
isfactory bond  in  the  sum  of  $3,000. 

The  prayer  for  a  mandatory  injunction  is  refused. 


JAMES  JONES  &  SONS,  Limited,  v.  EARL  OF  TANKERVILLE. 

(Chancery  Division.     [1909]  2  Ch.  Div.  440.) 

The  plaintiffs,  James  Jones  &  Sons,  Limited,  were  a  company  carry- 
ing on  business  as  timber  merchants.  In  October,  1907,  they  entered 
into  a  contract  in  writing  contained  in  letters  and  memoranda  with  the 
defendant,  the  Earl  of  Tankerville,  for  the  purchase  of  timber  grow- 
ing on  the  Chillingham  estates.  By  this  contract  the  plaintiffs  were 
to  have  the  right  to  enter  upon  the  estates  and  cut  the  timber  and  saw 
it  up  thereon,  and  for  that  purpose  to  erect  sawmills  and  to  remove 
the  timber  from  the  estates;  the  plaintiffs  were  to  pay  £1565  for  the 
timber,  and  the  defendant  was  to  give  free  exit  to  hard  roads  for  all 
timber  and  free  sites  for  sawmills.  The  plaintiffs  thereupon  erected  a 
sawmill  and  commenced  to  cut  timber,  saw  it  up  at  the  mill,  and  re- 
move it. 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  195 

In  February,  1908,  a  second  contract  was  entered  into  whereby  the 
plaintiffs  were  to  pay  £4310  for  further  timber  on  the  estates  on  sim- 
ilar terms.  They  accordingly  entered  and  erected  sawmills  and  ma- 
chinery, and  proceeded  to  fell  timber  and  saw  it  up  and  carry  it  away. 
In  September,  1908,  Lord  Tankerville  repudiated  the  contracts  and  de- 
manded that  further  cutting  should  cease,  and  on  October  27,  1908,  he 
forcibly  ousted  the  plaintiffs  and  their  men  from  the  Chillingham  es- 
tates, wrecked  their  sawmills,  and  upset  their  machinery,  buildings, 
and  stacks  of  timber. 

The  plaintiffs  brought  this  action  against  him,  asking  for  injunctions 
restraining  him  from  preventing  the  due  execution  of  the  contracts, 
and  for  damages.  The  defendant  raised  many  defences,  but  the  only 
question  that  calls  for  a  report  was  his  contention  that  the  plaintiffs' 
claim  for  injunctions  was  equivalent  to  a  claim  for  specific  perform- 
ance, and  that  the  court  would  not  grant  specific  performance  of  such 
contracts,  but  would  leave  the  plaintiffs  to  their  remedy  by  way  of 
damages  only. 

Parker,  J.43  *  *  *  Equity  in  granting  an  injunction  would 
only  be  restraining  the  violation  of  a  legal  right.  An  injunction  re- 
straining the  revocation  of  the  license,  when  it  is  revocable  at  law, 
may  in  a  sense  be  called  relief  by  way  of  specific  performance,  but  it  is 
not  specific  performance  in  the  sense  of  compelling  the  vendor  to  do 
anything.  It  merely  prevents  him  from  breaking  his  contract,  and 
protects  a  right  in  equity  which  but  for  the  absence  of  a  seal  would  be 
a  right  at  law,  and  since  the  Judicature  Act  it  may  well  be  doubted 
whether  the  absence  of  a  seal  in  such  a  case  can  be  relied  on  in  any 
Court:  Walsh  v.  Lonsdale,  21  Ch.  D.  9.  I  do  not  think,  therefore, 
that  there  is  any  substance  in  the  objection  that  a  timber  contract  of 
the  kind  I  am  considering  can  not  be  specifically  enforced  by  injunc- 
tion because  of  a  want  of  mutuality,  and  though  there  is  no  direct  au- 
thority on  the  point,  it  seems  clear  from  the  judgments  in  Buxton  v. 
Lister  (1746)  3  Atk.  383,  and  Gervais  v.  Edwards,  2  D.  &  War.  80,  83, 
that  neither  Lord  Hardwicke  nor  Lord  St.  Leonards  can  have  thought 
any  such  objection  could  be  entertained.  It  is  clear  in  both  these  cases 
that  what  was  contemplated  was  specific  performance  in  the  sense  of 
compelling  the  execution  of  an  instrument  under  seal  which  would 
turn  into  legal  rights  what  were  under  the  contract  rights  in  equity 
only,  and  I  see  no  reason  why  the  legal  rights  of  entry  which  would 
be  conferred  by  the  execution  of  such  an  instrument  would  be  rights 
which  a  Court  of  Equity  would  refuse  to  protect  by  injunction  because 
the  instrument  might  contain  provisions  which  the  court  could  not 
specifically  enforce.     *     *     * 

I  come  to  the  conclusion,  therefore,  that  the  Court  has  ample  juris- 
diction to  grant  the  injunctions  asked  for,  though,  of  course,  it  is  in 
its  discretion,  if  it  so  thinks  fit,  to  award  damages  in  lieu  of  relief  by 

40  Parts  of  the  opinion  are  omitted. 


L9G  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

way  of  injunction.  Under  the  circumstances  of  this  case,  however, 
there  is,  in  my  opinion,  every  reason  for  not  exercising  this  discretion. 

With  regard  to  the  timber  already  cut  which  is  the  plaintiffs'  prop- 
erty ;  with  regard  to  their  tenancy  of  the  cattle  boxes ;  with  regard  to 
their  sawmills,  machinery,  and  other  property  on  the  defendant's  land, 
their  rights  at  law  under  the  contract  have  not  only  been  infringed,  but 
have  been  deliberately  and  wantonly  disregarded  with  every  circum- 
stance of  indignity  and  violence,  and  even  if  I  thought  that  damages 
would  be  an  adequate  remedy  for  what  they  have  suffered,  I  should 
feel  it  incumbent  on  me,  if  I  could,  to  assert  the  authority  of  the  law 
by  refusing  to  allow  the  defendant  to  retain  the  benefits  he  has  at- 
tempted to  gain  by  his  high-handed  and  illegal  action.  I  propose, 
therefore,  to  grant  relief  by  way  of  injunction,  not  by  way  of  damages 
only. 

(His  Lordship  then  proceeded  to  assess  damages  to  be  paid  by  the 
defendant  to>  the  plaintiffs.) 


(b)  Contracts  of  Personal  Service,  Not  Unique 

COLUMBIA  COLLEGE  OF  MUSIC  AND  SCHOOL  OF  DRA- 
MATIC ART  v.  TUNBERG. 

(Supreme  Court  of  Washington,  1911.    64  Wash.  19,  116  Pac.  280.) 

Action  for  an  injunction  by  the  Columbia  College  of  Music  and 
School  of  Dramatic  Art  against  Karl  E.  Tunberg.  Plaintiff  non- 
suited, and  it  appeals.  Reversed  and  remanded  for  further  proceed- 
ings. 

Chadwick,  J.50  Respondent  was  employed  by  appellant  to  teach 
music  in  its  school  at  Seattle  for  a  term  of  two  years  beginning 
September  1,  1909.  In  consideration  of  50  per  cent,  of  all  indi- 
vidual tuitions,  respondent  agreed  "to  give  his  entire  time  and  atten- 
tion, and  devote  his  best  efforts  as  may  be  required  during  the  life  of 
this  contract,  in  giving  instructions  to  such  pupils  as  shall  be  assigned 
by  the  Columbia  College  of  Music  and  School  of  Dramatic  Art,  to  said 
party  of  the  second  part.  The  said  party  of  the  second  part  agrees  to 
devote  his  best  efforts  in  promoting  the  interest  of  the  said  Columbia 
College  of  Music  and  School  of  Dramatic  Art,  and  to  give  his  services 
in  public  on  any  occasion  when  the  best  interests  of  the  said  college 
may  demand."  It  was  also  agreed  "that  the  said  party  of  the  second 
part  shall  not  engage  himself  unto  nor  connect  himself  with  any  other 
musical  organization  requiring  pupils  unless  they  become  enrolled  as 
regular  students  of  said  Columbia  College  of  Music  and  School  of 
Dramatic  Art,  and  will  not  teach  in  the  city  of  Seattle  save  and  except 

60  Part  of  the  opinion  is  omitted. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         197 

in  the  said  College  during  the  life  of  this  contract."  Respondent  en- 
tered upon  the  performance  of  his  contract,  and  so  continued  until 
August  1,  1910,  when  he  resigned  and  refused  to  longer  fulfill  his  ob- 
ligations. *  *  *  No  damages  are  claimed  in  this  action,  but  ap- 
pellant has  asked  for  an  injunction  restraining  respondent  from  teach- 
ing or  from  giving  lessons  upon  the  piano  in  the  city  of  Seattle  from 
the  time  the  action  was  instituted  until  the  1st  day  of  September,  1911, 
and  for  general  relief. 

The  rule  is  well  settled  that  a  court  will  not  enjoin  the  breach  of  a 
contract  for  personal  services,  unless  it  is  alleged  and  proven  that  the 
services  of  the  contracting  party  are  special,  unique,  or  extraordinary, 
or  the  services  are  of  such  a  character  that  they  cannot  be  supplied 
elsewhere  with  reasonable  effort,  or  the  act  is  such  that  it  cannot  be 
done  by  another.  22  Cyc.  857,  and  citations  thereunder;  Universal 
Talking  Machine  Co,  v.  English,  34  Misc.  Rep.  342,  69  N.  Y.  Supp. 
813 ;  Wni.  Rogers  Mfg.  Co.  v.  Rogers,  58  Conn.  356,  20  Atl.  467,  7 
L.  R.  A.  779,  18  Am.  St.  Rep.  278;  Cort  v.  Lassard,  18  Or.  221,  22 
Pac.  1054,  6  L.  R.  A.  653,  17  Am.  St.  Rep.  726;  Taylor  Iron  &  Steel 
Co.  v.  Nichols,  70  N.  J.  Eq.  541,  61  Atl.  946;  Sternberg  v.  O'Brien, 
48  N.  J.  Eq.  370,  22  Atl.  348 ;  Carter  v.  Ferguson,  58  Hun,  569,  12  N. 
Y.  Supp.  580;  Strobridge  Litho.  Co.  v.  Crane,  58  Hun,  611,  12  N.  Y. 
Supp.  898;  Johnston  Co.  v.  Hunt,  66  Hun,  504,  21  N.  Y.  Supp.  314; 
Kessler  v.  Chappelle,  73  App.  Div.  447,  77  N.  Y.  Supp.  285 ;  Chain 
Belt  v.  Von  Spreckelsen,  117  Wis.  106,  94  N.  W.  78;  H.  W.  Gossard 
Co.  v.  Crosby,  132  Iowa,  155,  109  N.  W.  483,  6  L.  R.  A.  (N.  S.)  1115; 
Simms  v.  Burnette,  55  Fla.  702,  46  South.  90,  16  L.  R.  A.  (N.  S.)  389, 
127  Am.  St.  Rep.  201,  15  Ann.  Cas.  690;  Philadelphia  Ball  Club  v. 
Lajoie,  202  Pa.  210,  51  Atl.  973,  58  L,  R.  A.  227,  90  Am.  St.  Rep.  627; 
Duff  v.  Russell,  133  N.  Y.  678,  31  N.  E.  622. 

Upon  oral  argument  this  rule  is  admitted,  but  it  is  contended  that, 
although  respondent  might  sever  his  relations  with  appellant  and  leave 
it  remediless  to  compel  his  future  service  or  to  restrain  his  employ- 
ment by  another,  yet  his  conduct  has  been  such  as  to  bring  him  within 
the  rule  of  those  cases  which  hold  that  one  who  covenants  that  he  will 
not  engage  in  a  particular  business  for  a  certain  limited  time  for  a 
consideration  may  be. enjoined  if  he  breach  his  contract.  These  cases 
usually  arise  where  an  established  business  has  been  sold ;  the  seller's 
agreement  to  remain  out  of  the  trade  for  a  time  being  a  part  consid- 
eration for  the  sale.  Andrews  v.  Kingsbury,  212  111.  97,  72  N.  E.  11; 
Spier  v.  Lambdin,  45  Ga.  319;  Brown  v.  Kling,  101  Cal.  295,  35  Pac. 
995  ;  Downing  v.  Lewis,  56  Neb.  386,  76  N.  W.  900 ;  Gordon  v.  Mans- 
field, 84  Mo.  App.  367;  Bailey  v.  Collins,  59  N.  H.  459;  Carter  v. 
Ailing  (C.  C.)  43  Fed.  208;  McCaull  v.  Braham  (C.  C.)  16  Fed.  37; 
Hayes  v.  Willio,  11  Abb.  Prac.  (N.  S.,  N.  Y.)  167;  Daly  v.  Smith,  49 
How.  Prac.  (N.  Y.)  150;  Hursen  v.  Gavin,  162  111.  377,  44  N.  E.  735  ; 
Eisel  v.  Hayes,  141  Ind.  41,  40  N.  E.  119;  Angier  v.  Webber,  14  Al- 
len (Mass.)  211,  92  Am.  Dec.  748;   Up  River  Ice  Co.  v.  Denier,  114 


198  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

Mich.  296,  72  N.  W.  157,  68  Am.  St.  Rep.  480;  Carll  v.  Snyder  (N. 
J.)  26  Atl.  977;  Genelin  v.  Reisel,  10  N.  J.  Law  J.  208;  Stofflet  v. 
Stofflet,  160  Pa.  529,  28  Atl.  857 ;  Eckart  v.  Gerlach,  12  Phila.  (Pa.) 
530;  Carroll  v.  Hickes,  10  Phila.  (Pa.)  308.  These  authorities  run 
upon  the  theory  that  one  who  has  sold  a  business,  agreeing  to  remain 
out  of  a  like  line  for  a  definite  time,  cannot  destroy  the  good  will  with 
which  he  has  agreed  that  he  will  not  interfere. 

It  is  clear  to  us  that,  although  respondent  cannot  be  enjoined  from 
giving  piano  lessons  in  the  city  of  Seattle,  it  appearing  that  he  is  not 
possessed  of  unusual  skill  or  craft  .in  his  profession,  or  that  his  name 
is  of  particular  benefit  to  the  appellant,  and  his  place  being  supplied 
by  another,  yet  he  has  nevertheless  so  conducted  himself  as  to  warrant 
the  exercise  of  the  restraining  influence  of  a  court  of  equity.  He  can 
seek  his  livelihood  by  following  his  profession  or  business,  and  no 
court  will  interfere ;  but,  under  the  terms  of  his  contract,  he  has  en- 
gaged to  promote  the  good  will  of  appellant's  business  for  a  definite 
time,  and  he  cannot  solicit  those  known  to  be  the  clients  of  appellant 
or,  for  the  mere  sake  of  advancing  his  own  interest,  charge  dishonor- 
able or  disreputable  methods  to  appellant.  He  can  build  up  his  own 
business  by  legitimate  methods,  but  he  cannot  destroy  the  business  of 
his  former  employer  by  methods  that  do  not  appeal  to  that  sense  of 
fairness  common  among  men. 

The  motion  for  nonsuit,  in  so  far  as  it  goes  to  the  point  under  dis- 
cussion, was  based  upon  the  ground  that  it  had  not  been  shown  that 
any  pupils  had  left  the  appellant's  school  on  account  of  respondent's 
leaving  its  employ.  We  grant  that  the  record  fails  to  disclose  this 
fact.  But  it  does  disclose  an  ill,  will,  as  well  as  an  endeavor  to  influ- 
ence the  minds  of  certain  of  the  pupils  against  appellant  and  its  offi- 
cers. And  respondent  should  not  be  allowed  to  claim  that  immunity 
which  equity  gives  to  those  who  walk  within  its  precepts,  because  his 
effort  and  his  influence  failed  of  results.  His  continued  effort  may 
succeed.  To  prevent  wrong  is  the  peculiar  province  of  equity.  His 
conduct  has  been  such,  and  promises  to  be  of  such  character,  that  dam- 
ages may  result.  If  so,  they  would  be  irreparable,  in  the  sense  that 
they  could  be  estimated  only  by  conjecture  and  not  by  any  accurate 
standard.  Commonwealth  v.  Pittsburgh,  etc.,  R.  Co.,  24  Pa.  160,  62 
Am.  Dec.  372. 

A  review  of  the  authorities  relied  on  would  be  engaging  to  the  writ- 
er and  of  possible  interest  to  the  profession,  but  would  unnecessarily 
extend  the  limits  of  this  opinion;  for  it  is  our  judgment  that  appel- 
lant's rights  depend,  not  so  much  on  the  simple  breach  of  the  positive 
covenants  of  its  contract,  as  upon  the  general  equitable  doctrine  that 
a  person  who  has  engaged  to  support  the  good  will  of  a  business  will 
not  be  permitted  to  destroy  it  by  unfair  methods.  To  the  observance 
of  this  duty  respondent  bound  himself  for  the  whole  term,  and,  while 
he  may  relieve  himself  of  his  negative  covenant,  he  is  still  bound  to 
maintain,  to  the  extent  of  inaction  at  least,  the  good  will  of  the  appel- 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  199 

lant's  business.  That  injunctions  will  issue  within  the  facts  of  the 
particular  case,  as  for  instance  if  there  be  unusual  talent,  knowledge 
of  trade  secrets,  business  methods,  and  express  covenants  to  maintain 
the  good  will  of  a  business,  or  the  good  faith  of  a  transaction,  finds 
abundant  support  in  the  authorities. 

Our  conclusion  is  that  appellant  has  made  out  a  case,  and,  unless 
upon  a  retrial  respondent  makes  a  showing  that  will  exonerate  him, 
an  injunction  should  issue  restraining  him  from  invading  the  good 
will  of  appellant's  business,  and  from  soliciting  its  clients  and  patrons. 

Reversed,  and  remanded  for  further  proceedings. 

Dunbar,  C.  J.,  and  Morris,  Ellis,  and  Crow,  JJ.,  concur. 


WM.  ROGERS  MFG.  CO.  v.  ROGERS. 

(Supreme  Court  of  Errors  of  Connecticut,  1890.    58  Conn.  356,  20  Atl.  467, 
7  L.  R.  A.  779,  18  Am.  St.  Rep.  278.) 

Appeal  from  superior  court,  Hartford  county;    Fenn,  Judge. 

This  was  a  suit  to  enjoin  the  violation  of  a  contract  between  Frank 

W.   Rogers  and  the  Wm.  Rogers   Manufacturing  Company  and  the 

Rogers  Cutlery  Company  as  follows : 

"(1)  That  said  companies  will  employ  said  Rogers  in  the  business  to  be  done 
by  said  companies,  according  to  the  stipulations  of  said  agreement,  for  the  pe- 
riod of  twenty-five  years  therein  named,  if  said  Rogers  shall  so  long  live  and 
discharge  the  duties  devolved  upon  him  by  said  Watrous  as  general  agent  and 
manager  of  the  business  to  be  done  in  common  by  said  companies,  under  the 
directions  and  to  the  satisfaction  of  said  general  agent  and  manager ;  it  be- 
ing understood  that  such  duties  may  include  traveling  for  said  companies, 
whenever,  in  the  judgment  of  said  general  agent,  the  interest  of  the  business 
will  be  thereby  promoted.  (2)  The  said  companies  agree  to  pay  said  Rogers 
for  such  services  so  to  be  rendered,  at  the  rate  of  $1,000  per  year  for  the  first 
five  years  of  such  services,  and  thereafter  the  same  or  such  larger  salary  as 
may  be  agreed  upon  by  said  Rogers  and  the  directors  of  said  companies,  said 
salary  to  be  in  full  during  said  term  of  all  services  to  be  rendered  by  said 
Rogers,  whether  as  an  employe  or  an  officer  of  said  companies,  unless  other- 
wise agreed.  (3)  The  said  Rogers,  in  consideration  of  the  foregoing,  agrees 
that  he  will  remain  with  and  serve  said  companies  under  the  direction  of  said 
Watrous,  as  general  agent  and  manager,  including  such  duties  as  traveling 
for  said  companies,  as  said  general  agent  may  devolve  upon  him,  including 
also  any  duties  as  secretary  or  other  officer  of  either  or  both  of  said  com- 
panies, as  said  companies  may  desire  to  have  him  perform  at  the  salary  here- 
inbefore named  for  the  first  five  years  and  at  such  other  or  further  or  dif- 
ferent compensation  thereafter  during  the  remainder  of  the  twenty-five  years 
as  he,  the  said  Rogers,  and  the  said  companies  may  agree  upon.  (4)  The  said 
Rogers  dxiring  said  tenn  stipulates  and  agrees  that  he  will  not  be  engaged 
or  allow  his  name  to  be  employed  in  any  manner  in  any  other  hardware,  cut- 
lery, flatware,  or  hollow-ware  business  either  as  manufacturer  or  seller,  but 
will  give,  while  he  shall  be  so  employed  by  said  companies,  his  entire  time 
and  services  to  the  interests  of  said  common  business,  diminished  only  by  sick- 
ness, and  such  reasonable  absence  for  vacations  or  otherwise  as  may  be 
agreed  upon  between  him  and  said  general  agent." 

The  complaint  was  held  insufficient,  and  the  plaintiffs  appealed. 
Andrews,  C.  J.     Contracts   for  personal  service  are  matters   for 
courts  of  law,  and  equity  will  not  undertake  a  specific  performance. 


200  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

2  Kent,  Comm.  258,  note  b ;  Hamblin  v.  Dinneford,  2  Edw.  Ch.  (N. 
Y.)  529;  Sanquirico  v.  Benedetti,  1  Barb.  (N.  Y.)  315;  Haight  v. 
Badgeley,  15  Barb.  (N.  Y.)  499;  De  Rivafinoli  v.  Corsetti,  4  Paige  (N. 
Y.)  264,  25  Am.  Dec.  532.  A  specific  performance  in  such  cases  is 
said  to  be  impossible  because  obedience  to  the  decree  cannot  be  compel- 
led by  the  ordinary  processes  of  the  court.  Contracts  for  personal  acts 
have  been  regarded  as  the  most  familiar  illustrations  of  this  doctrine, 
since  the  court  cannot  in  any  direct  manner  compel  the  party  to  render 
the  service.  The  courts  in  this  country  and  in  England  formerly  held 
that  they  could  not  negatively  enforce  the  specific  performance  of  such 
contracts  by  means  of  an  injunction  restraining  their  violation.  3 
Wait,  Act.  &  Def.  754;  Marble  Co.  v.  Ripley,  10  Wall.  340,  19  L.  Ed. 
955;  Burton  v.  Marshall,  4  Gill  (Md.)  487,  45  Am.  Dec.  171 ;  De  Pol 
v.  Sohlke,  7  Rob.  (N.  Y.)  280;  Kemble  v.  Kean,  6  Sim.  333;  Baldwin 
v.  Society.  9  Sim.  393;  Fothergill  v.  Rowland,  L.  R.  17  Eq.  132.  The 
courts  in  both  countries  have,  however,  receded  somewhat  from  the 
latter  conclusion,  and  it  is  now  held  that  where  a  contract  stipulates 
for  special,  unique,  or  extraordinary  personal  services  or  acts,  or 
where  the  services  to  be  rendered  are  purely  intellectual,  or  are  pecul- 
iar and  individual  in  their  character,  the  court  will  grant  an  injunc- 
tion in  aid  of  a  specific  performance.  But  where  the  services  are  ma- 
terial or  mechanical,  or  are  not  peculiar  or  individual,  the  party  will  be 
left  to  his  action  for  damages.  The  reason  seems  to  be  that  services 
of  the  former  class  are  of  such  a  nature  as  to  preclude  the  possibility 
of  giving  the  injured  party  adequate  compensation  in  damages,  while 
the  loss  of  services  of  the  latter  class  can  be  adequately  compensated 
by  an  action  for  damages.  2  Story,  Eq.  Jur.  §  958a ;  3  Wait,  Act.  & 
Def.  754;  3  Pom.  Eq.  Jur.  §  1343;  California  Bank  v.  Fresno  Canal, 
etc.,  Co.,  53  Cal.  201 ;  Singer  Sewing-Machine  Co.  v.  Union  Button- 
Hole  Co.,  1  Holmes,  253,  Fed.  Cas.  Xo.  12,904;  Lumlev  v.  Wagner, 
1  De  Gex,  M.  &  G.  604;  Railroad  Co.  v.  Wvthes,  5  De  Gex,  M.  &  G. 
880;   Montague  v.  Flockton,  L.  R.  16  Eq.  189. 

The  contract  between  the  defendant  and  the  plaintiffs  is  made  a  part 
of  the  complaint.  The  services  which  the  defendant  was  to  perform 
for  the  plaintiffs  are  not  specified  therein,  otherwise  than  that  they 
were  to  be  such  as  should  be  devolved  upon  him  by  the  general  man- 
ager; "it  being  understood  that  such  duties  may  include  traveling  for 
said  companies  whenever,  in  the  judgment  of  said  general  agent,  the 
interests  of  the  business  will  be  thereby  promoted ;"  and  also  "includ- 
ing such  duties  as  traveling  for  said  companies  as  said  general  agent 
may  devolve  upon  him,  including  also  any  duties  as  secretary  or  other 
officer  of  either  or  both  of  said  companies  as  said  companies  may  de- 
sire to  have  him  perform."  These  services,  while  they  may  not  be 
material  and  mechanical,  are  certainly  not  purely  intellectual,  nor  are 
they  special,  or  unique,  or  extraordinary ;  nor  are  they  so  peculiar  or 
individual  that  they  could  not  be  performed  by  any  person  of  ordinary 
intelligence  and  fair  learning.     If  this  was  all  there  was  in  the  con- 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  201 

tract  it  would  be  almost  too  plain  for  argument  that  the  plaintiffs 
should  not  have  an  injunction. 

The  plaintiffs,  however,  insist  that  the  negative  part  of  the  contract, 
by  which  the  defendant  stipulated  and  agreed  that  he  would  not  be  en- 
gaged in  or  allow  his  name  to  be  employed  in  any  manner  in  any  other 
hardware,  cutlery,  flatware  or  hollow-ware  business,  either  as  a  man- 
ufacturer or  seller,  fully  entitles  them  to  an  injunction  against  its  vio- 
lation. They  aver  in  the  complaint,  on  information  and  belief,  that 
the  defendant  is  planning  with  certain  of  their  competitors  to  engage 
with  them  in  business,  with  the  intent  and  purpose  of  allowing  his 
name  to  be  used  or  employed  in  connection  with  such  business  as  a 
stamp  on  the  ware  manufactured ;  and  they  say  such  use  would  do 
them  great  and  irreparable  injury.  If  the  plaintiffs  owned  the  name 
of  the  defendant  as  a  trade-mark,  they  could  have  no  difficulty  in  pro- 
tecting their  ownership ;  but  they  make  no  such  claim,  and  all  argu- 
ments or  analogies  drawn  from  the  law  of  trade-marks  may  be  laid 
wholly  out  of  the  case. 

There  is  no  averment  in  the  complaint  that  the  plaintiffs  are  entitled 
to  use,  or  that  in  fact  they  do  use,  the  name  of  the  defendant  as  a 
stamp  on  the  goods  of  their  own  manufacture,  nor  any  averment  that 
such  use,  if  it  exists,  is  of  any  value  to  them.  So  far  as  the  court  is 
informed,  the  defendant's  name  on  such  goods  as  the  plaintiffs  manu- 
facture is  of  no  more  value  than  the  names  of  Smith  or  Stiles  or  John 
Doe.  There  is  nothing  from  which  the  court  can  see  that  the  use  of 
the  defendant's  name  by  the  plaintiffs  is  of  any  value  to  them,  or  that 
its  use  as  a  stamp  by  their  competitors  would  do  them  any  injury  oth- 
er than  such  as  might  grow  out  of  a  lawful  business  rivalry.  If  by 
reason  of  extraneous  facts  the  name  of  the  defendant  does  have  some 
special  and  peculiar  value  as  a  stamp  on  their  goods,  or  its  use  as  a 
stamp  on  goods  manufactured  by  their  rivals  would  do  them  some  spe- 
cial injury,  such  facts  ought  to  have  been  set  out  so  that  the  court 
might  pass  upon  them.  In  the  absence  of  any  allegation  of  such  facts 
we  must  assume  that  none  exist.  The  plaintiffs  also  aver  that  the  de- 
fendant intends  to  make  known  to  their  rivals  the  knowledge  of  their 
business,  of  their  customers,  etc.,  which  he  has  obtained  while  in  their 
employ.  But  here  they  have  not  shown  facts  which  bring  the  case 
within  any  rule  that  would  require  an  employe  to  be  enjoined  from 
disclosing  business  secrets  which  he  has  learned  in  the  course  of  his 
employment,  and  which  he  has  contracted  not  to  divulge.  Peabody  v. 
Norfolk,  98  Mass.  452,  96  Am.  Dec.  664. 

There  is  no  error  in  the  judgment  of  the  superior  court.  The  other 
judges  concurred. 


202  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 


(B)   Where  Agreement  is  N unenforceable  against   Complainant 

WELTY  v.  JACOBS  et  al. 
(Supreme  Court  of  Illinois,  1S9S.     171  111.  624,  49  N.  E.  723,  40  L.  R.  A.  98.) 

Appeal  from  appellate  court,  First  district. 

Bill  in  equity  by  George  M.  Welty  to  restrain  H.  R.  Jacobs  from 
^refusing  to  perform  a  contract  for  the  use  of  a  theater,  and  to  enjoin 
Ulysses  D.  Newell  from  the  use  and  occupation  of  the  same.  From 
the  decree  of  the  appellate  court  (64'  111.  App.  285),  affirming  the  de- 
cree of  the  superior  court  of  Cook  county,  in  favor  of  defendants, 
plaintiff  appeals. 

Carter,  J.51  This  was  a  bill  for  an  injunction  filed  December  28, 
1895,  in  the  superior  court  of  Cook  county,  by  the  appellant,  in  which 
he  alleged  that  he  was  a  theatrical  manager  and  proprietor;  that  on 
April  9,  1895,  he  entered  into  a  written  contract  with  H.  R.  Jacobs, 
manager,  and  representing  M.  J.  Jacobs,  proprietor,  of  the  Alhambra 
Theater,  in  Chicago,  to  play  his  company  in  the  "Black  Crook"  at  such 
theater  for  seven  consecutive  nights,  commencing  December  29,  1895 ; 
that  Jacobs  was  to  furnish  the  house,  well  cleaned,  lighted,  and  heated, 
together  with  the  stock,  scenery,  and  equipments  contained  therein, 
stage  hands,  stage  carpenter,  fly  men,  regular  ushers,  gas  man,  prop- 
erty man,  janitor,  ticket  seller,  doorkeepers,  orchestra,  house  pro- 
grammes, licenses,  billboards,  bill  posting,  distribution  of  printed  mat- 
ter, usual  newspaper  advertisements,  and  the  resources  of  the  theater 
in  stage  furniture  and  properties  not  perishable;  that  Welty  was  to 
furnish  a  company  of  first-class  artists,  to  the  satisfaction  of  Jacobs, 
together  with  special  scenery,  calcium  lights,  etc.,  and  also,  10  days 
in  advance,  certain  printing,  prepaid  and  free  from  all  charges,  consist- 
ing of  a  variety  of  bills,  etc. ;  that  appellant  was  to  receive  60  per  cent. 
of  the  gross  receipts  up  to  $5,000,  and  70  per  cent,  on  all  over  $5,000; 
that  if  the  company  should  not  prove  satisfactory  to  Jacobs,  whose 
judgment  was  to  be  conclusive,  or  if  the  company  should  prove  not  to 
be  as  represented,  then  Jacobs  should  have  the  right  to  cancel  the  con- 
tract by  giving  appellant  at  least  one  week's  notice,  by  mail  or  other- 
wise ;  that  appellant's  company  was  not  to  appear  at  any  other  house 
in  the  city  prior  to  the  date  of  the  performance  specified;  that  if,  by 
any  unforeseen  accident,  fire,  or  for  any  reason  whatever,  Jacobs  could 
not  furnish  the  house  for  said  performance  the  contract  was  to  become 
null  and  void. 

The  bill  further  alleged  that  appellant  had  kept  and  performed  all 
his  covenants ;  that  he  had  tendered  the  printing  as  required,  and  that 
he  was  ready  to  furnish  a  satisfactory  company ;  that  he  had  received 
no  notice  from  Jacobs  that  his  company  was  not  satisfactory  nor  as 

si  Parts  of  the  opinion  are  omitted. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         203 

represented,  and  had  been  given  no  notice  of  the  termination  of  his 
contract  as  therein  provided ;  that  within  the  then  last  30  days  Jacobs 
had  entered  into  a  contract  with  U.  D.  Newell  for  the  Alhambra  The- 
ater for  the  same  week  that  appellant's  contract  provided  for;  that 
Newell  claims  to  be  the  manager  of  another  company,  also  engaged  in 
producing  the  "Black  Crook" ;  that  Jacobs  and  Newell  were  combin- 
ing and  confederating  to  injure  and  defraud  appellant,  as  Newell  had 
agreed  to  produce  the  play  for  a  less  percentage  than  appellant ;  that 
appellant  had  40  performers  under  contract,  and  would  be  obliged  to 
pay  them  their  salaries  whether  they  performed  or  not,  and  that  he 
could  procure  no  other  place  for  his  performance  during  said  time,  and 
would  be  compelled  to  remain  idle,  at  great  expense;  that  the  money 
value  of  his  contract  could  not  be  determined,  either  actually  or  ap- 
proximately, in  any  other  manner  than  by  carrying  out  and  fully  per- 
forming it  according  to  its  conditions ;  that  Jacobs  and  Newell  had 
announced  their  intention  of  keeping  appellant  out  of  the  possession 
and  use  of  said  theater;  that  appellees  were  financially  irresponsible. 
The  bill  prays  for  an  order  enjoining  appellees  from  hindering  appel- 
lant and  his  company  from  taking  possession  of  the  Alhambra  The- 
ater, its  appurtenances  and  stage  property,  and  from  hindering,  delay- 
ing, interfering  with,  or  preventing  appellant  from  producing  said  play 
in  accordance  with  said  contract,  and  also  restraining  appellees  from 
using  or  occupying  said  theater,  its  stock,  scenery,  and  equipments, 
during  said  period  of  seven  days,  and  from  allowing  any  other  person 
or  company  to  use  or  occupy  the  same ;  and  also  restraining  and  en- 
joining appellees  from  refusing  to  furnish  to  appellant,  during  such 
period,  the  usual  and  necessary  light,  heat,  music,  regular  stage  hands, 
stage  carpenter,  etc.,  and  for  general  relief. 

The  injunction  was  granted,  and  served  on  appellees  December  28, 
1895.  On  December  30,  1895,  a  rule  was  entered  on  appellees  to  show 
cause  why  they  should  not  be  punished  for  contempt  of  court  in  violat- 
ing this  injunction.  The  next  day  an  order  was  entered  modifying 
the  injunction  so  as  to  permit  Newell  to  produce  the  play  at  the  Al- 
hambra, and  Jacobs  was  ordered  to  pay  into  court  60  per  cent,  of  the 
entire  receipts  received  by  him  at  the  Alhambra  for  the  week,  and  to 
pay  to  Newell  30  per  cent,  of  such  receipts,  and  the  cause  was  contin- 
ued to  January  3,  1896.  On  that  day  both  appellees  answered,  repli- 
cation was  filed,  and  Newell  moved  for  a  dissolution  of  the  injunction. 
Appellee  Jacobs  in  his  answer  admitted  the  making  of  the  contract 
with  appellant,  but  denied  that  appellant's  company  was  satisfactory 
or  as  represented,  and  alleged  that  he  had  notified  appellant  thereof, 
and  had  canceled  the  contract;  denied  all  combination  to  injure  appel- 
lant ;  admitted  that  he  had  made  a  contract  with  Newell  for  the  same 
week  he  had  formerly  contracted  to  appellant;  denied  that  appellant 
had  furnished  the  printing  as  required ;  and  that  he  was  without  rem- 
edy except  in  a  court  of  equity.  Appellee  Newell  in  his  answer  alleged 
that  he  had  been  informed  that  appellant's  contract  had  been  canceled ; 


204  SPECIFIC   PERFORMANCE   OF   CONTRACTS  ^Ch.  2 

that  on  November  29,  1895,  he  had  made  a  contract  with  Jacobs  to 
play  the  Tompkins  Black  Crook  Company  in  the  Alhambra  for  seven 
successive  nights,  beginning  December  29,  1895,  the  contract  being  in 
all  particulars  like  appellant's,  except  as  to  the  percentage  of  receipts; 
that  as  early  as  December  27th  he  had  removed  to  the  Alhambra  a 
number  of  articles  belonging  to  his  company  and  had  taken  possession 
of  the  same ;  alleged  various  communications  and  negotiations  be- 
tween all  the  parties  to  this  suit  from  December  16th  until  the  bill  was 
filed ;  that,  becoming  alarmed  that  Jacobs  would  close  up  the  Alham- 
bra entirely  during  that  week,  he  (Newell)  had  procured  an  injunction 
from  the  circuit  court  on  December  27,  1895,  and  had  it  served  on 
Jacobs  the  same  day,  restraining  Jacobs  from  closing  up  the  theater 
during  said  week  and  excluding  his  company  from  presenting  their 
play ;  charges  appellant  with  laches  and  bad  faith  in  suppressing  all 
information  in  regard  to  such  first  injunction,  and  alleged  that  appel- 
lant's contract  was  in  violation  of  the  statutes,  which  forbid  any 
amusement  or  diversion  on  Sunday,  so  that  specific  performance  could 
not  be  enforced. 

The  cause  was  heard  by  the  court,  and  a  decree  entered  finding  that 
the  injunction  had  been  violated  by  appellees,  and  that  under  the  order 
modifying  the  injunction  there  had  been  paid  into  court  $1,134.75; 
that  the  equities  were  with  the  appellees ;  and  that  the  appellant  had 
a  complete  and  adequate  remedy  at  law,  and  that  the  injunction  was 
improvidently  issued ;  and  the  bill  was  therefore  dismissed,  and  the 
money  ordered  returned  to  Jacobs.  Appellant  appealed,  and  asked 
that  the  money  be  retained  in  the  clerk's  hands  pending  the  appeal, 
which  was  allowed,  and  the  money  ordered  left  with  the  clerk  until 
the  final  determination  on  appeal.  The  appellate  court  affirmed  the 
decree,  and  appellant  has  further  appealed  to  this  court. 

There  was  no  sufficient  proof  that  Jacobs  canceled  his  contract  with 
Welty  on  any  of  the  grounds  stipulated  in  it,  and  the  question  is  not 
whether  Jacobs  was  justified  in  violating  the  contract,  but  whether  his 
bill  of  complaint  for  equitable  relief  can  be  sustained  or  he  should  be 
remitted  to  his  action  at  law.  Strictly  speaking,  the  bill  was  not  one 
for  specific  performance,  but  for  injunction  only.  It  is  clear  from  its 
allegations  and  the  authorities  bearing  upon  the  question  that  specific 
performance  of  the  contract  could  not  be  decreed.  It  is  not,  and  can- 
not be,  contended  that  appellant  could  have  been  compelled,  by  any 
writ  the  court  could  have  issued,  to  occupy  the  theater  with  his  com- 
pany of  actors  and  give  the  performances  contracted  for,  any  more 
than  a  public  singer  or  speaker  can  be  compelled  specifically  to  per- 
form his  contract  to  sing  or  speak.,  Negative  covenants  not  to  sing 
or  perform  elsewhere  at  a  certain  time  than  a  designated  place  have 
been  enforced  by  the  injunctive  process,  but  further  than  this  such 
contracts  have  not  been  specifically  enforced  by  the  courts,  by  injunc- 
tion or  otherwise.  Lumley  v.  Wagner,  1  De  Gex,  M.  &  G.  604;  Daly 
v.  Smith,  38  N.  Y.  Super.  Ct.  158.     In  Lumley  v.  Wagner  there  was 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         205 

an  express  covenant  not  to  sing  elsewhere  than  at  the  complainant's 
theater,  and  the  injunction  was  placed  on  that  ground. 

But  it  is  urged  that  negative  covenants  may  be  implied  as  well  as 
expressed,  and,  when  necessarily  implied  from  the  terms  of  the  con- 
tract, they  will  be  enforced  in  like  manner.  *  *  *  While  there 
was  a  negative  covenant  in  the  contract  under  consideration  against 
Welty,  it  is  not  important  to  consider  whether  or  not  appellant  might 
have  been  enjoined  from  performing  elsewhere  than  at  Jacobs'  theater 
at  the  time  in  question,  for  it  is  manifest  he  could  not  have  been  com- 
pelled to  perform  at  said  theater.  Before  a  contract  will  be  specific- 
ally enforced  there  must  be  mutuality  in  the  contract,  so  that  it  may 
be  enforced  by  either ;  and,  as  this  contract  was  of  such  a  nature  that 
it  could  not  have  been  specifically  enforced  by  appellee  Jacobs,  it 
should  not  be  so  enforced  by  appellant.     *     *     * 

But  it  is  urged  that  courts  of  equity  will  by  injunction  restrain  the 
violation  of  contracts  of  this  character  in  many  cases  where  they  can- 
not decree  specific  performance,  and  the  following  among  other  cases 
are  referred  to :  Western  Union  Tel.  Co.  v.  Union  Pac.  Ry.  Co.  (C. 
C.)  3  Fed.  423-429;  Wells  v.  Oregon  &  C.  R.  Co.  (C.  C.)  15  Fed.  561, 
and  Wells,  Fargo  &  Co.  v.  Oregon  Ry.  &  Nav.  Co.  (C.  C.)  18  Fed. 
517;  Wells,  Fargo  &  Co.  v.  Northern  Pac.  R.  Co.  (C.  C.)  23  Fed.  469. 
Without  determining  whether  there  may  not  be  exceptional  cases  not 
falling  within  the  general  rule,  we  think  the  rule  is  as  stated  in  Chi- 
cago M.  G.  L.  &  F.  Co.  v.  Town  of  Lake,  130  111.  42,  22  N.  E.  616, 
and  the  authorities  there  quoted.  It  was  there  said  (page  60,  130  111., 
and  page  619,  22  N.  E.) : 

"The  bill  of  complaint  in  this  case,  though  not  strictly  a  bill  for  the  specific 
performance  of  a  contract,  is  in  substance  a  bill  of  that  kind.  In  3  Pom.  Eq. 
Jur.  §  1341,  it  is  said:  'An  injunction  restraining  the  breach  of  a  contract  is  a 
negative  specific  enforcement  of  that  contract.  The  jurisdiction  of  equity  to 
grant  such  injunction  is  substantially  coincident  with  its  jurisdiction  to  com- 
pel a  specific  performance.  Both  are  governed  by  the  same  doctrine  and  rules. 
It  may  be  stated,  as  a  general  proposition,  that  whenever  the  contract  is  one 
of  a  class  which  will  be  affirmatively  specifically  enforced,  a  court  of  equity 
will  restrain  its  breach  by  injunction,  if  this  is  the  only  practical  mode  of 
enforcement  which  its  terms  permit.'  " 

It  is  plain  that,  as  a  general  rule,  to  enjoin  one  from  doing  some- 
thing in  violation  of  his  contract  is  an  indirect  mode  of  enforcing  the 
affirmative  provisions  of  such  contract,  although  such  an  injunction 
may  often  fall  short  of  accomplishing  its  object.  It  is  obvious  from 
what  has  been  said  and  from  the  authorities  that  to  enjoin  appellee 
Jacobs,  as  prayed  in  the  bill,  from  refusing  to  furnish  the  usual  and 
necessary  light,  heat,  music,  regular  stage  hands,  stage  carpenter,  ush- 
ers, equipments,  etc.,  provided  for  in  the  contract,  would  be  the  same, 
in  substance,  as  to  command  him  to  furnish  them,  and  without  them 
the  use  of  the  theater  building  would  seem  to  be  of  little  use.  It  is 
practically  conceded  by  counsel  for  appellant  that  this  part  of  the  con- 
tract could  not  be  specifically  enforced  as  prayed,  or  otherwise,  in  eq- 
uity ;   but  it  is  contended  that  this  part  of  the  contract  is  merely  inci- 


206  '  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

dental  to  the  more  important  part  of  it,  which  was  the  right  to  occupy 
and  use  the  theater  and  its  furnishings,  and  give  therein  the  perform- 
ances provided  for,  and  to  exclude  from  a  like  occupation  and  use  the 
other  appellee,  Newell,  and  that  the  injunction  was  proper  for  that 
purpose.  This  would  have  been  an  indirect  method  of  enforcing  a 
part  performance  of  the  contract,  and  courts  will  not  enforce  specific 
performance  of  particular  stipulations  separated  from  the  rest  of  the 
contract,  where  they  do  not  clearly  stand  by  themselves,  unaffected  by 
other  provisions.  Baldwin  v.  Fletcher,  48  Mich.  604,  12  N.  W.  873. 
Even  if  such  a  decree  might  have  been  sustained,  we  are  satisfied  the 
sound  legal  discretion  of  the  court  was  not  violated  in  refusing  it,  or 
in  dissolving  the  injunction  after  it  was  granted.  Appellant's  remedy, 
if  any  he  had,  was  at  law.  The  judgment  of  the  appellate  court  is  af- 
firmed. 

Judgment  affirmed. 


HARLOW  et  al.  v.  OREGONIAN  PUB.  CO.  et  al. 
(Supreme  Court  of  Oregon,  1904.     45  Or.  520,  7S  Pac.  737.) 

Appeal  from  Circuit  Court,  Multnomah  County;  John  B.  Cleland, 
M.  C.  George,  and  Alfred  F.  Sears,  Judges. 

Suit  by  F.  E.  Harlow  and  another  against  the  Oregonian  Publishing 
Company  and  another.  From  a  decree  in  favor  of  defendants,  com- 
plainants appeal. 

On  April  11,  1864,  the  defendant  Pittock,  at  that  time  the  owner  and 

proprietor  of  the  Daily  Morning  Oregonian,  entered  into  the  following 

written  contract  with  one  Myron  M.  Southworth  : 

"A  memorandum  of  an  agreement  made  this  11th  day  of  April,  A.  D.  1S64, 
between  Henry  L.  Pittoek,  of  the  City  of  Portland,  Oregon,  and  .Myron  M. 
Southworth,  of  the  same  place,  that  the  said  Henry  L.  Pittoek  has  for  the 
sum  of  $350  to  be  paid  in  weekly  installments  of  $5  each,  sold  and  trans- 
ferred to  the  said  Myron  M.  Southworth  the  sole  right  and  privilege  to  carry 
and  collect  subscriptions  for  the  Daily  Morning  Oregonian  newspaper  in  all 
that  portion  of  said  city  south  of  Alder  street ;  that  the  said  Myron  M.  South- 
worth  is  to  have  one-third  of  the  subscription  price  of  the  said  newspaper  for 
his  labor,  with  the  privilege  of  selling  his  interest  therein  to  a  suitable  party, 
and  cannot  otherwise  be  deprived  of  the  advantages  and  benefits  of  this  con- 
tract, although  the  said  newspaper  may  change  hands,  unless  he  willfully  neg- 
lects or  refuses  to  fulfill  his  portion  of  said  contract,  and  that  said  Myron 
M.  Southworth  agrees  to  carry  faithfully  and  carefully  the  said  newspaper 
to  every  paying  subscriber  in  said  district  for  the  above-named  compensation, 
to  endeavor  to  increase  its  circulation  on  all  occasions,  to  procure  as  much  ad- 
vertising patronage  for  it  as  possible  without  any  percentage,  to  enter  into 
no  contract  with  any  other  newspaper  published  in  this  city  without  permis- 
sion from  the  proprietor  of  said  newspaper,  to  be  responsible  and  pay  weekly 
for  all  papers  taken  from  the  office  and  to  comply  with  all  rules  and  regula- 
tions not  directly  contrary  to  the  above  agreement,  the  proprietor  may  from 
time  to  time,  as  he  thinks  proper,  to  adopt  for  the  benefit  of  said  newspaper. 
It  is  also  agreed  that  in  case  either  party  considers  separation  necessary  and 
both  cannot  agree  upon  a  proper  method  of  doing  so,  each  shall  appoint  a  man 
to  act  for  him;  if  they  cannot  auree  they  shall  have  power  to  call  on  a  third 
man  whose  decision  shall  be  binding.     The  said  M.  M.  Southworth  binds  him- 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  207 

self  to  carry  the  said  paper  for  12*4  cents  for  each  subscriber  weekly,  whether 
the  subscription  price  be  raised  or  not.  ^Signed]  Henry  L.  Pittock.  [Signed] 
Myron  M.  Southworth." 

Southworth  carried  and  delivered  the  paper,  collected  subscriptions, 
and  otherwise  fulfilled  the  obligations  of  his  contract,  until  May  25, 
1865,  when  he  sold  and  assigned  his  interest  therein  to  Ballard  &  Sap- 
pington.  They  performed  the  contract  for  some  time,  and  then  sold 
to  other  parties ;  and  thus,  through  successive  sales  and  purchases,  it 
came  to  John  Harlow  in  1868.  Harlow  in  turn  carried  out  the  con- 
tract, complying  with  all  its  terms,  until  his  death,  in  1882,  when 
he  bequeathed  it  to  his  son,  the  plaintiff  F.  E.  Harlow.  On  the  27th 
of  September,  1898,  F.  E.  Harlow  sold  to  his  coplaintiff  an  undivided 
one-third  interest  therein.  In  February,  1873,  the  Oregonian  Publish- 
ing Company  succeeded  to  the  rights  of  Pittock  in  the  newspaper. 
During  the  period  from  the  date  of  the  Southworth  contract,  in  1864, 
until  September  18,  1901,  with  the  knowledge,  consent,  and  acquies- 
cence of  the  defendants,  Southworth  and  his  various  assignees,  in- 
cluding the  plaintiffs  and  their  father,  delivered  the  paper  and  collected 
subscriptions  in  all  that  portion  of  the  city  of  Portland  south  of  Alder 
street.  On  Septen.L  or  18,  1901,  the  defendant  publishing  company 
notified  the  plaintiffs,  in  writing,  that  it  had  decided  to  confine  their 
operations  under  the  Southworth  contract  to  the  territory  north  of 
Alder  street,  which  was  embraced  within  the  corporate  limits  of  Port- 
land at  the  time  the  contract  was  made  in  April,  1864,  and  that  on 
and  after  November  4th  following  it  would  place  other  carriers  in 
the  territory  theretofore  covered  by  plaintiffs,  but  which  was  not  in- 
cluded within  such  boundaries. 

This  suit  was  thereupon  immediately  commenced  by  plaintiffs  to 
enjoin  and  restrain  defendants  from  refusing  to  furnish  them  papers 
to  deliver  to  subscribers  residing  south  of  Alder  street,  but  outside  the 
boundaries  of  the  city  as  they  existed  in  1864,  and  also  to  enjoin  and 
restrain  defendants  from  undertaking  on  their  own  behalf  to  deliver 
papers  or  collect  subscriptions  in  the  disputed  territory,  on  the  ground 
that  such  territory  was  embraced  within  the  terms  of  the  Southworth 
contract.  A  demurrer  to  the  complaint  was  overruled,  and  defendants 
answered.  On  April  1,  1902,  but  before  the  trial,  the  defendant  pub- 
lishing company  served  written  notice  on  the  plaintiffs  that  on  and 
after  June  7,  1902,  it  would  cease  to  sell  or  deliver  the  Morning 
Oregonian  to  them  or  their  agents  or  representatives  for  delivery  to 
subscribers  within  that  part  of  the  city  south  of  Alder  street,  and  that 
it  would,  from  and  after  the  date  mentioned,  deliver  or  cause  the 
papers  to  be  delivered  to  subscribers  residing  within  such  territory. 
The  plaintiffs  thereupon  filed  a  supplemental  complaint,  setting  out 
the  repudiation  and  threatened  breach  of  the  contract  by  the  defend- 
ants, and  praying  for  an  injunction  restraining  them  from  refusing 
to  comply  with  the  Southworth  contract,  and  from  delivering  papers 
or  causing  them  to  be  delivered  to  subscribers  residing  within  the  dis- 


208  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

trict  covered  by  such  contract.  A  demurrer  to  the  supplemental  com- 
plaint was  overruled.  Defendants  answered,  admitting  the  service  of 
the  notice,  and  that  it  claimed  the  contract  to  be  void,  but  denying 
the  other  allegations  therein.  The  cause  was  tried  upon  the  pleadings 
and  evidence,  and  a  decree  entered  dismissing  the  suit,  from  which 
the  plaintiffs  appeal. 

Bean,  J.52  (after  stating  the  facts).  Assuming,  for  the  purposes  of 
the  opinion,  that  the  plaintiffs  have  legally  succeeded  to  the  rights  of 
Southworth  under  the  original  contract,  and  stand  in  his  place  and 
stead,  entitled  to  all  the  rights  and  privileges  given  him  by  its  terms, 
and  that  it  embraces  all  the  territory  claimed  by  them,  there  are  two 
reasons  why  this  suit  could  not  be  maintained  after  the  repudiation  of 
the  entire  contract  by  the  defendants,  and  the  service  on  the  plaintiffs 
of  notice  to  that  effect  in  June.  1902 :  First,  the  plaintiffs,  if  they  are 
entitled  to  any  relief  at  all,  have  a  full  and  complete  remedy  at  law; 
and,  second,  the  remedy  by  injunction  or  specific  performance  is  not 
mutual.  It  could  not  be  invoked  by  the  defendants  against  the  plain- 
tiffs, as  the  contract  is  not,  and  never  was,  capable  of  being  specifically 
enforced  or  enjoined  at  the  suit  of  Pittpck  or  the  defendant  publish- 
ing company.  The  contract  between  Pittock  and  Southworth  created 
substantially  the  relation  of  employer  and  employe,  and  this  relation 
continued  as  to  those  who  succeeded  to  Southworth's  interest.  By  its 
terms,  Southworth  (whom  we  shall  hereafter  assume  includes  parties 
who  have  legally  succeeded  to  his  rights),  was  to  carry  and  deliver  the 
paper  to  all  paying  subscribers  within  the  designated  territory,  to  en- 
deavor to  increase  its  circulation,  to  collect  subscriptions  therefor,  and 
to  pay  weekly  for  all  papers  he  took  from  the  office,  receiving  as  a 
compensation  for  "his  labor"  a  certain  proportion  of  the  subscription 
price  of  the  paper.     *     *     * 

Southworth  paid  $350  for  the  sole  right  to  carry  and  deliver  the  pa- 
pers, and  to  receive  as  a  compensation  therefor  a  certain  portion  of 
the  subscription  price.  This  he  supposed  to  be  a  valuable  right,  and 
one  which  would  increase  largely  in  value,  according  to  his  industry 
and  diligence  in  extending  the  circulation  of  the  paper,  and  the  char- 
acter of  the  services  which  he  should  render  to  its  patrons.  Pittock, 
on  the  other  hand,  was  contracting  for  the  future  circulation  of  his 
paper,  and  the  collection  of  subscriptions  therefor  in  the  given  terri- 
tory, and  this  he  undoubtedly  believed  to  be  of  value  to  the  pa- 
per.    *     *     * 

The  only  question  between  the  parties  remaining  for  adjustment  is 
the  amount,  if  any,  to  be  paid  by  the  defendants  to  the  plaintiffs  on  ac- 
count of  such  separation  or  breach.  That  question  is  not  cognizable 
by  a  court  of  equity.  An  injunction  to  restrain  the  breach  of  a  per- 
sonal contract,  or  one  relating  to  personal  property,  or  a  mandatory 
injunction  to  compel  specific  performance  of  such  a  contract,  will  not 

52  Parts  of  the  opinion  are  omitted. 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  209 

be  granted  when  the  recovery  of  damages  at  law  would  adequately 
redress  the  impending  injury.     *     *     * 

It  is  admitted,  as  we  understand  it,  that  a  court  of  equity  will  not 
decree  a  specific  performance  of  the  contract  in  suit  because  it  requires 
varied  and  continuous  acts  on  the  part  of  the  defendants,  but  it  is  ar- 
gued that  it  will  enjoin  the  defendants  from  violating  the  contract  by 
delivering  papers,  or  causing  them  to  be  sold  and  delivered,  within  the 
territory  embraced  in  plaintiffs'  contract,  until  such  time  as  the  defend- 
ants take  the  proper  steps  provided  in  the  contract  for  its  termination. 
Although  the  remedy  suggested  is  negative  rather  than  affirmative,  it 
is,  in  effect,  a  decree  for  the  performance  of  the  contract.  Enjoining 
the  defendants  from  delivering  papers  or  causing  them  to  be  sold  and 
delivered  in  the  disputed  territory  would  practically  enforce  the  con- 
tract, and  require  them  to  furnish  the  papers  to  the  plaintiffs  to  be  so 
delivered.  A  prohibition  preventing  a  violation  of  the  contract  by  the 
defendants  would  in  this  case  as  effectually  compel  its  performance  as 
an  affirmative  order  to  that  effect. 

The  leading  case  holding  that,  although  a  court  of  equity  cannot 
compel  the  specific  performance  of  a  personal  service  contract,  it  may 
enjoin  a  violation  of  the  negative  provisions  thereof,  is  that  of  Lum- 
ley  v.  Wagner,  1  De  Gex,  M.  &  G.  604.  In  that  case  the  defendant 
had  agreed  with  plaintiff  to  sing  at  his  theater  for  a  definite  time,  and 
not  to  sing  elsewhere.  She  threatened  to  sing  at  another  theater  in 
violation  of  her  contract.  In  a  suit  to  enjoin  her  from  so  doing,  the 
court  held  that  it  could  not  enforce  the  affirmative  part  of  the  contract, 
because  it  could  not  compel  the  defendant  to  sing,  but  it  could  and 
would  enjoin  and  restrain  her  from  singing  elsewhere.  In  this  case 
the  contract  was  for  a  definite,  fixed  time,  and  plaintiff's  remedy  at 
law  was  manifestly  inadequate,  because  the  damages  which  would  ac- 
crue to  him  by  a  violation  of  the  contract  by  the  defendant  could  not 
be  ascertained  with  any  certainty.  The  same  is  true  of  Singer  Sewing 
Machine  Co.  v.  Union  Buttonhole  Co.,  1  Holmes,  253,  Fed.  Cas.  No. 
12,904;  Standard  Fashion  Co.  v.  Siegel-Cooper  Co.,  157  N.  Y.  60,  51 
N.  E.  408,  43  L.  R.  A.  854,  68  Am.  St.  Rep.  749 ;  Burlington  v.  Bur- 
lington Water  Co.,  86  Iowa,  266,  53  N.  W.  246 ;  and  other  cases  cited 
by  the  plaintiffs.     *     *     * 

For  these  reasons,  the  decree  of  the  court  below  should  be  affirmed, 
and  it  is  so  ordered. 
P.OKE  Eq—  14 


210  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Ch.  2 

MONTGOMERY  LIGHT  &  POWER  CO.  v.  MONT- 
GOMERY TRACTION  CO. 

(Circuit  Court  of  the  Uuited  States,  M.  D.  Alabama,  N.  D.,  1911.    191  Fed.  657.) 

In  Equity.  Suit  by  the  Montgomery  Light  &  Power  Company 
against  the  Montgomery  Traction  Company.    On  demurrer  to  bill. 

The  substance  of  the  contract  here  involved  and  the  allegations  of 
the  bill  in  reference  to  it  are  sufficiently  stated  in  the  opinion.  On  the 
filing  of  the  bill  a  restraining  order  was  issued  prohibiting  the  defend- 
ant "from  receiving,  accepting,  or  using  direct  electrical  current  from 
any  person,  firm,  or  corporation  other  than  the  complainant  until  the 
further  order  of  the  court,"  and  requiring  defendant  on  a  day  named 
to  appear  and  show  cause  why  a  preliminary  injunction  should  not  is- 
sue. The  defendant  made  such  answer,  and  afterwards  by  consent, 
with  the  approval  of  the  court,  withdrew  its  answer  in  order  to  test 
the  rights  of  the  parties  on  demurrer  to  the  bill.     *     *     * 

Jones,  District  Judge  5S  (after  stating  the  facts  as  above).  The  de- 
murrer, of  course,  admits  the  truth  of  all  the  facts  well  pleaded  in  the 
bill.  We  have  then  this  case:  The  complainant,  a  quasi  public  cor- 
poration, engaged  in  the  business  of  generating  and  supplying  electri- 
cal current  for  lighting  and  power  purposes  to  individuals  and  the 
public  here,  has  a  contract  with  the  Traction  Company,  another  quasi 
public  corporation,  engaged  in  the  street  car  business,  whereby  the 
Power  Company  agrees,  in  substance,  to  sell  and  deliver  for  a  certain 
price,  and  the  Traction  Company  agrees  to  purchase  and  receive  from 
it  exclusively,  for  a  period  of  15  years,  7  of  which  have  not  expired, 
such  direct  electrical  current  as  may  be  required  for  propelling  its 
cars  and  those  of  any  other  corporation  which  it  may  operate  or  per- 
mit to  use  its  tracks,  and  for  lights  for  parks,  places  of  amusement, 
offices,  etc. 

The  complainant,  immediately  upon  the  execution  of  the  contract, 
began  to  furnish,  and  the  Traction  Company  to  receive,  the  electrical 
current  contracted  for,  and  has  expended  some  $200,000  in  machinery 
and  apparatus  to  enable  it  the  better  to  carry  out  the  terms  of  the 
contract,  and  has  at  all  times  faithfully  lived  up  to  the  terms  and  pro- 
visions of  the  contract,  and  is  ready,  able,  and  desirous  to  carry  out 
every  stipulation  of  the  contract  until  it  expires,  as  required  by  its 
terms.  The  defendant  Traction  Company  is  about  to  discontinue  re- 
ceiving electrical  current  from  the  complainant  and  to  take  it  from  an- 
other source,  in  disregard  of  its  contractual  obligation,  and  without 
excuse  for  its  breach. 

If  the  Traction  Company  is  permitted  to  do  this,  complainant  will 
have  no  adequate  remedy  at  law  for  the  recovery  of  the  damages  it 
will  suffer  from  the  respondent's  causeless  breach  of  the  contract. 
The  extent  of  defendant's  business,   the  lines  it  would  construct  or 

53  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  211 

operate,  the  number  of  cars  it  would  use,  the  conditions  under  which 
it  would  run  them,  the  places  of  amusement  it  would  operate,  and  the 
quantity  of  electrical  energy  it  would  consume,  during  the  ensuing 
seven  years  of  the  life  of  the  contract,  are  uncertain  and  speculative, 
and  could  not  be  recovered  in  an  action  at  law.  Irreparable  injury 
would  therefore  be  inflicted  upon  the  complainant  if  the  defendant  be 
permitted  to  breach  the  contract  without  just  cause,  by  refusing  to 
take  electrical  power  exclusively  from  the  complainant.  It  would  be 
a  reproach  to  justice,  under  such  circumstances,  if  a  court  of  equity 
were  powerless  to  intervene  and  charge  the  conscience  of  the  defend- 
ant with  the  duty  of  not  wantonly  inflicting  such  irreparable  injury 
upon  the  other  party  to  the  contract,  and  the  court  ought  to  prevent 
it,  if  it  can  give  any  relief,  consistent  with  the  settled  principles  of  eq- 
uity and  the  rights  of  the  parties  under  the  contract,  as  they  them- 
selves have  therein  measured  and  determined  them. 

Although  counsel  for  respondent  necessarily  admit,  in  the  present 
posture  of  the  case,  that  there  is  no  excuse  for  defendant's  refusal  to 
receive  electricity  from  the  complainant,  they  insist,  notwithstanding, 
that  there  is  no  equity  in  the  bill,  as  the  relief  sought  practically 
amounts  to  specific  performance  of  the  contract,  extending  over  a 
term  of  years,  requiring  the  exertion  of  skill  and  the  performance  of 
personal  services,  which  the  court  would  be  compelled  to  supervise, 
and  defendant  could  not  have  a  decree  against  the  complainant  for 
the  specific  performance  of  the  contract  on  its  part.     *     *     * 

The  earlier  authorities,  and  some  comparatively  late  ones  in  this 
state,  bear  out  the  contention  of  the  defendant  that  the  court  ought 
not  to  specifically  enforce  the  negative  covenant  arising  from  the  con- 
tract here,  to>  take  exclusively  from  complainant.  The  fundamental 
doctrines  upon  which  courts  of  the  United  States  administer  equity 
must  be  the  same  in  every  state,  and  cannot  be  changed  by  state  de- 
cisions or  state  statutes.  Kirby  v.  Lake  Shore  R.  R.  Co.,  120  U.  S. 
138,  7  Sup.  Ct.  430,  30  L.  Ed.  569.  The  decisions  of  the  Supreme 
Court  upon  such  questions  necessarily  control  this  court. 

It  is  said  in  2  High  on  Injunctions,  §  1164,  that: 

"While  in  cases  of  contracts  containing  both  affirmative  and  negative  stip- 
ulations the  authorities  are  exceedingly  conflicting  and  irreconcilable  as  to 
whetber  equity  may  interfere  by  injunction  to  prevent  a  breach  of  the  nega- 
tive covenant,  when  the  affirmative  is  of  such  a  nature  that  it  cannot  be  spe- 
cifically enforced  by  a  judicial  decree,  yet  the  later  and  better  considered 
doctrine  is  that  equity  may  thus  interfere  to  restrain  tbe  violation  of  the 
negative  stipulation,  although  it  cannot  specifically  enforce  the  affirmative 
one." 

And  the  statement  is  sustained  by  the  numerous  citations  in  the 
notes  to  the  text. 

In  Waterman  on  Specific  Performance  of  Contracts,  §§  203,  204, 

p.  271,  it  is  said: 

"It  has  been  observed,  with  particular  reference  to  specific  performance, 
that  in  the  increasing  complexities  of  modern  business  relations  equitable 
remedies  have  necessarily  and  steadily  expanded,  and  no  inflexible  rule  has 


212  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

been  permitted  to  circumscribe  them.  The  jurisdiction  of  courts  of  equity  is 
not  now,  therefore,  confined  in  the  narrow  limits  that  once  bound  it ;  but  the 
constant  tendency  has  been  to  broaden  their  power,  and  especially  has  this 
been  true  in  suits  for  specific  performance." 

Pomeroy,  in  his  work  on  Equity  Jurisprudence  (section  '769),  says: 

"The  frequent  statement  of  the  rule  of  mutuality — 'that  the  contract  to  be 
specifically  enforced  must,  as  a  general  rule,  be  mutual,  that  is  to  say,  such 
that  it  might,  at  the  time  it  was  entered  into,  have  been  enforced  by  either  of 
the  parties  against  the  other' — is  open  to  so  many  exceptions  that  it  is  of  little 
value  as  a  rule." 

Touching  the  same  subject,  he  says  in  his  work  on  Specific  Per- 
formance (section  169) : 

"It  is  evidently  based  on  no  principle  of  abstract  justice  or  right,  but  at 
most  upon  notions  of  expediency,  and  the  arguments  offered  in  its  support  are 
but  mere  repetition  of  time-honored  verbal  formulae,  which  when  closely  ana- 
lyzed are  found  to  be  of  little  or  no  force  or  meaning." 

A  clear  statement  of  the  rule  is  found  in  Northern  Central  Rail- 
way Company  v.  Walworth,  193  Pa.  207,  44  Atl.  253,  74  Am,  St.  Rep. 
683: 

"The  principle  that  contracts  must  be  mutual,  must  bind  both  parties  or 
neither,  does  not  mean  that  in  every  case  each  party  must  have  the  same 
remedy  for  a  breach  by  the  other.  Covenant  may  lie  against  one,  where  only 
assumpsit  can  be  maintained  against  the  other.  *  *  *  The  mutuality  re- 
quired is  that  which  is  necessary  for  creating  a  contract  on  both  sides  in 
some  manner,  but  not  necessarily  enforceable  on  both  sides  by  specific  per- 
formance." 

Other  courts  have  met  the  objection  (when  lack  of  mutuality  is 
urged  to  the  indirect  enforcement  of  a  contract  by  an  injunction 
against  the  violation  of  the  negative  clause  of  the  defendant's  agree- 
ment) by  a  conditional  decree  (an  injunction  good  so  long  as  plaintiff 
continues  to  do  his  part,  but  dissolvable  on  his  failure  to  perform). 
Though  clearly  lack  of  mutuality  may  exist  in  the  terms  of  the  agree- 
ment, inasmuch  as  some  of  the  terms  are  unenforceable  in  equity,  yet 
the  final  test  shows  that  the  remedy  of  a  conditional  decree  does  not 
leave  the  defendant  to  a  legal  remedy,  as  plaintiff  must  give  perform- 
ance as  long  as  he  receives  it.  See  Pomeroy's  Equity  Jurisprudence, 
§  775,  and  the  authorities  in  the  note.  The  doctrine  thus  laid  down 
has  received  the  approval  of  the  Supreme  Court  in  three  late  cases, 
specifically  enforcing  contracts  similar  in  character  to  that  involved 
here.  Franklin  Telegraph  Co.  v.  Harrison,  145  U.  S.  459,  12  Sup. 
Ct.  900,  36  L.  Ed.  776;  Joy  v.  St.  Louis  Railroad  Co.,  138  U.  S.  1, 
1 1  Sup.  Ct.  243,  34  L.  Ed.  843 ;  and  Union  Pacific  Railroad  v.  Chica- 
go Ry.  Co.,  163  U.  S.  564,  601,  16  Sup.  1173,  41  L.  Ed.  265.     *     *     * 

Under  the  authorities  and  in  the  light  of  reason,  the  court  has  no 
doubt  of  its  jurisdiction  to  prevent  the  irreparable  injury  threatened 
by  defendant's  arbitrary  refusal  to  receive  the  electric  current,  and 
that  it  is  its  duty  to  do  so  in  the  present  posture  of  the  case,  to  the 
extent  of  enjoining  the  defendant  from  refusing  to  receive  the  electric 
current  until  it  has  been  judicially  ascertained,  by  some  tribunal,  either 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE 


213 


in  this  court  by  the  taking  of  proof  or  by  judgment  in  some  other 
court,  that  the  defendant  has  the  right  to  treat  the  contract  as  abro- 
gated, because  complainant  has  not  performed  it.     *     *     * 

In  such  a  situation  it  is  the  duty  of  the  court  to  preserve  the  status 
quo,  until  it  can  ascertain  the  facts  which  must  determine  whether  the 
decree  shall  go  for  or  against  the  complainant  on  the  final  hearing. 
Pending  the  dispute  between  the  parties  as  to  their  respective  rights, 
the  court  should  make  such  decree  as  will  save  both  the  parties  harm- 
less, no  matter  what  may  be  the  final  result,  rather  than  make  one 
which  may  irreparably  injure  one  of  the  parties  to  the  suit,  if  its  con- 
tentions turn  out  to.be  correct.  When  the  actual  situation  is  disclosed 
by  the  answer  and  the  complainant  takes  issue  upon  it,  the  nature  of  the 
relief  which  may  be  proper  can  better  be  determined.  No  order  will 
be  made  now  except  that  the  demurrers  be  overruled,  and  that  re- 
spondent, according  to  the  agreement  of  counsel,  file  its  answer  within 
five  days  from  this  date.54 


(C)  Enforcement  of  Part  of  Defendant's  Contracts  Not  Enforceable 

as  a  Whole 

(a)  Indirect  Enforcement 

LANE  v.  NEWDIGATE. 

(In  Chancery  before  Lord  Eldon,  1804.     10  Ves.  192.> 

The  Plaintiff  was  assignee  of  a  lease,  granted  by  the  Defendant,  for 
the  purpose  of  erecting  mills,  and  other  buildings ;  with  covenants  for 
the  supply  of  water  from  canals  and  reservoirs,  on  the  Defendant's  es- 
tates, reserving  to  the  Defendant  the  right  of  working  and  using  his 
then  or  future  collieries,  either  with  regard  to  the  supply  of  water,  or 
other  use  of  the  collieries,  or  any  locks  for  the  passage  of  his  boats 
or  otherwise :  the  liberties  and  privileges  granted  being,  as  expressed 
in  the  lease,  intended  to  be  subordinate  to  the  use  and  enjoyment  of 
the  collieries :  the  Defendant  to  have  due  regard  to  the  mills,  &c.  and 
doing  as  little  mischief  as  the  nature  of  the  case  would  admit. 

s*  See  Pollard  v.  Clayton  (1855)  1  Kay  &  Johnson's  V.  C.  Reports,  462,  at 
474,  where  the  court  distinguishes  between  a  "substantial  contract"  and  a 
mere  negative  covenant  as  follows:  "This  demurrer  must  be  allowed.  Mr. 
Speed  has  argued  it  extremely  well  and  extremely  fairly.  He  has  not  rested 
it  on  the  minor  question  which  I  thought  might  possibly  be  raised,  namely, 
whether  a  negative  contract  was  not  involved,  so  as  to  disable  the  defendants 
from  supplying  other  persons  with  coal,  they  having  contracted  to  sell  the 
whole  to  the  plaintiff.  He  has  exercised  a  very  proper  discretion  as  counsel 
in  not  pressing  that  point.  I  do  not  think  it  could  have  been  sustained,  the 
contract  here  being  a  substantial  contract,  not  a  mere  negative  contract,  de- 
signed to  prevent  the  defendants  from  dealing  with  other  parties  to  the  preju- 
dice <>f  one  who  wishes  to  exercise  a  monopoly.  The  bill  simply  avers  a  con- 
tract for  the  sale  of  all  the  coal." 


214  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

The  bill  prayed,  that  the  Defendant  may  be  decreed  so  to  use  and 
manage  the  waters  of  the  canals  as  not  to  injure  the  Plaintiff  in  the 
occupation  of  his  manufactory ;  and,  in  particular,  that  he  may  be  re- 
strained from  using  the  locks,  and  thereby  drawing  off  the  waters, 
which  would  otherwise  run  to  and  supply  the  manufactory ;  and  that 
he  may  be  decreed  to  restore  the  cut  for  carrying  the  waste  waters 
from  the  Arbury  canal  to  Kenilworfh  pool,  and  to  restore  Kenilworth 
stop-gate,  and  the  banks  of  the  canal  to  their  former  height ;  and  also 
to  repair  such  stop-gates,  bridges,  canals,  and  towing-paths,  as  were 
made  previously  to  granting  the  lease ;  and  that  he  may  be  decreed  to 
make  compensation  for  the  injury  sustained  by  their  having  been  suf- 
fered to  go  out  of  repair ;  and  that  he  may  be  decreed  to  remove  the 
locks,  which  have  been  made  since  the  lease,  and  to  make  compensation 
for  the  injury  sustained  by  the  said  locks  having  been  made  so  near 
the  manufactory;  thereby  injuring  the  machinery;  and,  that  he  may 
be  decreed  to  pay  the  Plaintiff  the  expense  he  has  been  put  to  by  work- 
ing the  steam  engine,  to  supply  the  want  of  water. 

The  Lord  Chancellor,  upon  the  motion  for  the  injunction,  expressed 
a  difficulty,  whether  it  is  according  to  the  practice  of  the  Court  to  de- 
cree, or  order,  repairs  to  be  done. 

Mr.  Romilly,  in  support  of  the  Injunction,  said,  the  repairs  to  be 
done  in  this  case  are  in  effect  nothing  more  than  was  done  in  Robinson 
v.  Lord  Byron,  1  Bro.  C.  C.  588,  viz.  raising  the  damheads,  so  that  the 
water  shall  not  escape ;    as  it  will  otherwise. 

The  Lord  Chancellor.  So,  as  to  restoring  the  stop-gate,  the 
same  difficulty  occurs.  The  question  is,  whether  the  Court  can  specif- 
ically order  that  to  be  restored.  I  think  I  can  direct  it  in  terms  that 
will  have  that  effect.  The  injunction,  I  shall  order,  will  create  the  ne- 
cessity of  restoring  the  stop-gate;  and  attention  will  be  had  to  the 
manner  in  which  he  is  to  use  these  locks ;  and  he  will  find  it  difficult, 
I  apprehend,  to  avoid  completely  repairing  these  works. 

The  order  pronounced  was,  that  the  Defendant,  his  agents,  &c.  be 
restrained  until  further  order,  from  further  impeding,  obstructing,  or 
hindering,  the  Plaintiff  from  navigating  the  canal  for  the  necessary 
purposes  of  the  mill,  or  from  using  and  enjoying  the  demised  prem- 
ises, and  the  mills  and  buildings  erected  thereon,  or  the  liberties  and 
privileges,  granted  by  the  indenture  of  lease,  &c.  contrary  to  the  cove- 
nant, by  continuing  to  keep  the  said  canals,  or  the  banks,  gates,  locks, 
or  works,  of  the  same  respectively,  out  of  good  repair,  order,  or  con- 
dition ;  and  also  from  further  troubling,  molesting,  and  preventing,  the 
Plaintiff,  contrary  to  the  covenant,  in  the  use  and  enjoyment  of  the  said 
mills  and  buildings,  or  the  liberty,  privilege  and  power,  of  drawing  for 
the  use  of  the  said  mill  from  the  canals,  &c.  a  sufficient  quantity  of  wa- 
ter for  the  use  and  working  of  the  said  mill,  by  diverting,  draining,  or 
drawing  off  water;  or  preventing  the  same  by  the  use  of  any  lock  or 
locks,  erected  by  the  Defendant,  from  remaining  and  continuing  in 
the  said  canals,  or  by  continuing  the  removal  of  the  stop-gate,  men- 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         215 

tioned  in  the  pleadings  in  the  action,  brought  by  the  Plaintiff,  to  have 
been  erected ;  and  by  means  of  which  the  water  could  and  would  have 
been  kept  and  retained  in  the  said  pool  for  the  use  of  the  mill ;  but 
nothing  in  this  order  is  to  extend  to  diminish,  lessen,  hinder,  or  preju- 
dice, the  working,  using,  or  enjoying,  by  the  Defendant  or  his  present 
and  future  collieries,  either  with  regard  to  the  supply  of  water  for  his 
fire-engine,  or  other  uses  of  the  collieries,  or  of  any  locks  to  be  erected 
for  the  passage  of  his  boats,  or  otherwise :  the  Defendant  having  due 
regard  to  the  said  mills,  and  doing  as  little  damage  thereto,  as  the  na- 
ture of  the  case  will  admit. 


YORKSHIRE  MINERS'  ASS'N  et  al.  v.  HOWDEN  et  al. 
(House  of  Lords.     [1905]  App.  Cas.  256.) 

The  Yorkshire  Miners'  Association  had  registered  their  rules  under 
the  Trade  Union  Acts,  1871  and  1876.  Among  the  objects  for  which 
the  trade  union  was  established  was — rule  3  (g) — to  provide  a  weekly 
allowance  for  the  support  of  members  and  their  families  who  might 
be  locked  out  or  on  strike.  By  rule  3  (j)  the  whole  of  the  moneys  re- 
ceived by  the  association  should  be  applied  to  carrying  out  the  speci- 
fied objects  according  to  rules.  Rules  64  and  65  stated  the  conditions 
under  which  support  might  be  given  to  members  or  branches  on  strike. 
The  respondent  Howden,  a  miner  and  member  of  the  association, 
brought  this  action  against  the  association  and  some  of  its  officials 
claiming  an  injunction  to  restrain  them  from  misapplying  the  funds  of 
the  association  by  the  payment  of  strike  moneys  contrary  (as  was  al- 
leged) to  the  rules.  The  circumstances  under  which  the  payments 
were  being  made  are  fully  set  out  in  the  report  of  the  decision  below 
and  need  not  be  repeated  here.  The  main  question  was  whether  the 
action  fell  within  the  scope  of  the  Trade  Union  Act,  1871  (c.  31),  s.  4, 
which  provides  that  nothing  in  the  Act  shall  enable  any  court  to  enter- 
tain any  legal  proceeding  instituted  with  the  object  of  "directly  enforc- 
ing" or  recovering  damages  for  the  breach  of  any  of  the  following 
agreements  *  *  *  (3)  an  agreement  for  the  application  of  the 
funds  of  a  trade  union,  (a)  to  provide  benefits  to  members.  Gran- 
tham, J.,  who  tried  the  case  with  a  special  jury  held  that  the  payments 
were  not  authorized  by  the  rules  and  that  the  action  could  be  main- 
tained, and  gave  judgment  for  the  plaintiff  for  an  injunction  restrain- 
ing the  defendants  from  misapplying  the  funds  of  the  association  and 
dealing  with  them  contrary  to  the  rules.  This  decision  was  affirmed 
by  the  Court  of  Appeal  (Yaughan  Williams,  Stirling,  and  Mathew,  L. 
JJ.)  with  a  variation  extending  the  injunction  to  the  trustees  of  the 
association  who  were  added  as  defendants.     [1903 J   1  K.  B.  308. 

The  House  took  time  for  consideration. 

April  14.  Earl  of  Halsbury,  L.  C.  (read  by  Lord  Macnagh- 
TEn).    My  Lords,  in  this  case  the  plaintiff,  a  member  of  the  Yorkshire 


216  SrECTFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

Miners'  Association,  a  trades  union  registered  under  the  Act  of  1871, 
complains  that  the  funds  of  that  society  are  being  diverted  from  their 
proper  object,  and  seeks  by  injunction  to  prevent  that  misapplication. 

It  appears  to  me  that  the  sole  question  in  this  case  is  whether  the 
plaintiff  is  at  liberty  to  bring  the  action,  or  whether  the  action  is  one 
which  is  prohibited  by  the  provision  in  the  Act  of  1871,  which  pro- 
vides that  nothing  in  the  Act  shall  enable  any  court  to  entertain  any 
legal  proceedings  with  the  object  of  directly  enforcing  or  recovering 
damages  for  the  breach  of  any  of  the  following  agreements,  and  then 
the  agreements  are  inserted  which  the  court  are  in  effect  prohibited 
from  directly  enforcing.  But  for  the  differences  of  judicial  opinion 
which  have  arisen  upon  the  construction  of  this  provision,  it  would 
have  been,  to  my  mind,  enough  to  say  that  this  action  does  not  seek  di- 
rectly to  enforce  any  one  of  the  agreements  referred  to  in  the  statute, 
or  to  seek  damages  for  their  breach ;  but,  inasmuch  as  the  question  has 
been  raised  and  argued  at  great  length,  I  do  not  feel  at  liberty  to  dis- 
pose of  it  in  so  summary  a  manner. 

The  question  is  not  a  new  one.     It  was  raised  twenty-three  years 

ago  before  Fry,  J.,  and,  in  my  judgment,  rightly  decided.     Fry,  J.,  says, 

upon  the  exact  question  which  is  here  in  debate : 

"An  order  that  the  defendant  should  pay  money  to  the  plaintiff  would  be  a 
direct  enforcement  of  the  agreement  for  the  application  of  the  funds,  but  all 
that  is  sought  here  is  to  prevent  the  payment  of  the  money  to  somebody  else. 
Either  that  is  no  enforcement  of  an  agreement  at  all  or  it  is  an  indirect  en- 
forcement." 

My  Lords,  I  cannot  escape  from  this  reasoning,  nor  do  I  see  any 
inconsistency  between  that  decision  and  the  case  before  Sir  George 
Jessel,  and  a  long  line  of  judicial  decisions  has  recognized  the  distinc- 
tion which  the  learned  judge  himself  pointed  out  between  the  case  be- 
fore him  and  the  decision  given  by  Sir  George  Jessel.  I  am  bound, 
however,  to  say  if  that  decision  ever  came  up  for  review  I  think  it 
would  have  to  be  considered  whether  it  does  not  strike  the  word  "di- 
rect" out  of  the  statute. 

My  Lords,  I  do  not  think  that  if  this  provision  is  out  of  the  way 
the  plaintiff's  claim  can  be  seriously  contested.  That  the  proposed  use 
of  the  funds  which  he  seeks  to  restrain  is  a  flagrant  violation  of  their 
own  rules  seems  to  me  to  be  proved,  and  the  language  and  object  of 
the  4th  section  of  the  Act  seems  to  me  not  at  all  what  the  argument 
on  the  other  side  assumes  it  to  be.  That  argument  seems  to  assume 
that  the  object  of  the  enactment  was  to  keep  the  trades  unions  out  of 
the  jurisdiction  of  the  court  altogether.  I  do  not  think  it  does  any- 
thing of  the  kind.  It  recites  with  great  care  what  the  courts  are  not 
to  interfere  with,  and  that  exemption  from  their  jurisdiction  is  very 
precisely  limited. 

It  seems  to  me  that  it  would  have  been  a  very  colourable  concession 
to  the  trades  unions  if  the  legislature  had  left  their  funds,  which  under 
the  arrangement  made  constituted  a  trust  for  particular  purposes, 
without  any  protection  against  those  entrusted  with  the  distribution  of 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         217 

their  funds.  That  the  court  should  not  interfere  with  their  distribu- 
tion according  to  their  own  rules  when  such  distribution  was  within  the 
purposes  of  the  trust  is  one  thing,  but  that  there  should  be  no  recourse 
to  the  courts  where  it  is  threatened  to  divert  them  is  another. 

What  can  be  the  object  of  registering,  as  is  required  by  the  3rd  sec- 
tion, the  purposes  for  which  the  funds  are  available?  Its  trustees  are 
the  persons  in  whom  their  property  is  vested.  What  is  there  to  pre- 
vent the  operation  of  the  ordinary  law  which  protects  trust  property 
from  being  diverted  from  its  proper  objects?  Of  course,  there  is 
nothing  except  the  section  to  which  I  have  referred,  and  surely  that 
section  can  not  mean  that,  because  the  preservation  of  the  property 
in  trust  is  one  that  indirectly  will  benefit  the  beneficiaries,  therefore  it 
is  a  suit  for  enforcing  one  of  the  recited  agreements  which  certainly 
in  their  terms  are  inapplicable. 

I  therefore  move  your  Lordships  that  the  appeal  be  dismissed  with 
costs. 

Lord  DavEy.55  *  *  *  Now,  my  Lords,  I  cannot  doubt  that  the 
object  of  this  action  is  to  enforce  what  I  have  called  the  negative  stip- 
ulation in  the  agreement,  and  that  it  is  in  fact  and  in  truth  for  specific 
performance  of  the  agreement.  In  Lumley  v.  Wagner  (1852)  1  D.  M. 
&  G.  604,  Lord  St.  Leonards  could  not  compel  Miss  W'agner  to  sing 
for  Mr.  Lumley,  but  he  could  prevent  her  from  singing  elsewhere  in 
breach  of  her  agreement.  Is  it  doubtful  that  the  court  was  thereby 
directly  enforcing  the  performance  of  the  agreement  in  the  only  man- 
ner in  which  it  could  be  enforced  by  a  court  of  equity?     *     *     * 

My  Lords,  I  must  apologize  for  having  troubled  you  at  such  great 
length ;  but  as  I  have  the  misfortune  to  differ  from  the  unanimous 
judgment  of  the  court  below  and  from  the  majority  of  your  Lord- 
ships, I  thought  it  my  duty  to  state  the  reasons  for  the  opinion  I  have 
formed  fully,  even  at  the  risk  of  trespassing  on  the  patience  of  your 
Lordships. 

In  my  opinion  the  appeal  should  be  allowed,  and  the  action  dis- 
missed with  costs  here  and  below.     *     *     * 

Order  of  the  court  of  appeal  discharged  and  order  of  the  King's 
Bench  Division  varied  as  proposed  by  Lord  Macnaghten :  appeal  dis- 
missed with  costs :    cause  remitted  to  the  King's  Bench  Division. 

Lords'  Journals,  April  14,  1905. 

■"•"•  Tarts  of  the  opinion  of  Lord  Davey  and  the  concurring  opinions  of 
Lords  Lindley,  Macnaghten,  James,  and  Robertson  are  omitted. 


218  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Ch.  2 


(b)  Subsidiary  or  Interdependent  Parts  as  Distinguished  from  Substan- 
tial  ok  Equal  and  Independent  Parts    of  Positive  and 
Negative  Contracts 

SOUTH  WALES  RY.  CO.  v.  WYTHES. 

(In  Chancery,  1S54.    5  De  Gex,  M.  &  G.  880.) 

The,  Lord  Justice  Knight  Bruce.56  There  are  several  very  sat- 
isfactory reasons  in  my  opinion  disabling  a  Court  of  Equity  from  en- 
forcing a  specific  performance  of  a  contract  such  as  this  of  the  1st  of 
August,  1851.  I  will  mention  some,  I  do  not  say  all  of  those  reasons. 
In  the  first  place,  by  the  agreement  it  is  provided,  in  the  most  vague 
terms,  that  the  plaintiffs  shall  find  the  land — the  land,  I  suppose,  for 
the  stations — within  a  reasonable  time,  and  build  the  stations;  then 
the  contractors  are  to  give  a  bond  for  £50,000  to  secure  the  perform- 
ance of  the  contract,  and  they  are  to  undertake  to  execute  the  works 
for  a  double  line  of  railway  according  to  the  terms  of  the  specifica- 
tion to  be  prepared  by  the  engineer  for  the  time  being  of  the  company 
for  the  sum  of  £290,000  with  interest.  It  is  obvious  that  the  engineer 
of  one  day  may  not  be  the  engineer  of  the  day  following,  and  that, 
skilful,  experienced,  and  honourable  as  the  engineer  of  the  present  day 
may  be,  the  engineer  of  the  company  who  may  have  to  prepare  the 
specification  may  be  incompetent  and  dishonest.  In  my  opinion,  it  is 
not  within  the  proper  province  of  a  Court  of  Equity  to  enforce  a  con- 
tract of  this  description  against  any  man  or  body  of  men.  But  then  it 
has  been  said  that  a  specification  has  been  prepared  by  the  gentleman 
who  was  at  first,  and  happens  to  be  still,  the  engineer  of  the  company, 
Mr.  Brunei.  That  circumstance,  I  think,  is  nothing.  Whether  it 
would  have  made  any  difference  if  such  a  specification  had  not  only 
been  prepared,  but  had  been  approved  and  accepted  by  the  defendants, 
I  need  not  and  do  not  say,  because  there  is  no  such  allegation  in  the 
bill,  the  only  statement  being  that  the  contents  of  a  particular  letter 
are  true,  which  letter  merely  states  that  the  writer  believed  that  the 
specification  had  been  approved  of. 

It  has  been  said,  however,  that  at  all  events  the  Court  may  enforce 
specific  performance,  so  far  as  regards  the  execution  and  delivery  of  a 
bond  for  £50,000  to  secure  the  performance  of  the  contract.  For  this 
the  authority  of  the  case  of  Lumley  v.  Wagner,  1  De  G.,  M.  &  G.  604, 
has  been  cited.  Assuming,  again,  for  the  sake  of  the  argument,  that  the 
agreement  is  intelligible,  and  acceding  as  I  do  to  the  authority  of  Lum- 
ley v.  Wagner  and  other  cases  of  that  description,  I  cannot  accede  to 
the  propriety  of  their  application  to  a  case  where  the  main  part  of  an 
agreement  is  not  fit  to  be  specifically  enforced  in  equity,  and  where  it 
is  sought  to  enforce  the  performance  of  a  subsidiary  part  of  it,  and 
more  especially  where  that  subsidiary  part  is  of  such  a  nature  as  that 

"  The  statement  of  facts  and  parts  of  the  opinions  are  omitted. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        219 

which  in  the  present  case  the  Court  is  asked  to  be  instrumental  in  en- 
forcing.    *     *     * 

The  Lord  Justice  Turner.  *  *  *  It  has  been  argued  that 
the  case  of  Lumley  v.  Wagner,  1  De  G.,  M.  &  G.  604,  and  cases  of 
that  kind,  afford  some  authority  for  such  a  bill.  I  think  they  afford 
no  authority  for  it.  In  Lumley  v.  Wagner  the  negative  covenant  was 
a  distinct  and  substantive  part  of  the  agreement.  But  here  the  other 
parts  are  the  whole  substance  of  the  contract,  and  the  agreement  to 
give  the  bond  is  a  mere  incident  to  the  rest  of  the  contract.  That  dis- 
tinction takes  the  case  out  of  the  authority  of  Lumley  v.  Wagner  as 
to  the  bond ;  for  if  the  Court  refuses  to  enforce  the  performance  of 
the  principal  contract,  it  will  not  decree  the  execution  of  that  which  is 
merely  incidental  to  it.  The  case  of  Avery  v.  Langford,  Kay,  663,  has 
been  relied  upon  as  an  authority  for  enforcing  a  bond ;  but  the  com 
tract  there  was  enforced,  and  the  bond  as  incidental  to  it.  I  entirely 
agree  that  this  appeal  must  be  dismissed  with  costs.57 


RYAN  v.  MUTUAL  TONTINE  WESTMINSTER 
CHAMBERS  ASS'N. 

(Court  of  Appeal.    [1893]  1  Ch.  116.) 

Appeal  from  the  judgment  of  Mr.  Justice  A.  L.  Smith,  sitting  for 
Mr.  Justice  Romer.     [1892]   1  Ch.  427. 

The  action  was  brought  upon  a  covenant  in  a  lease,  by  which  the 
defendants  demised  to  the  plaintiff  for  twenty-one  years  a  residential 
fiat  in  a  building  known  as  Westminster  Chambers,  which  was  let  in 
flats  to  several  tenants.  *  *  *  By  the  covenant  sued  upon  it  was 
agreed  and  declared  by  and  between  the  parties  to  the  lease  that  the 
premises  were  let  subject  to  the  regulations  made  by  the  lessors,  with 
respect  to  among  other  things  the  duties  of  the  resident  porter,  which 
were  set  forth  in  a  schedule  thereto.  These  regulations,  in  effect,  pro- 
vided that  the  block  of  buildings  should  be  in  charge  of  a  resident  por- 
ter, appointed  by  the  lessors,  who  was  to  act  as  the  servant  of  the  ten- 
ants in  the  block,  to  be  constantly  in  attendance  either  by  himself  or, 
in  his  temporary  absence,  by  some  trustworthy  assistant,  and  to  per- 
form certain  services  specified  by  the  regulations.     *     *     * 

The  action  was  commenced  on  the  24th  of  December,  1890.  The 
statement  of  claim  alleged  that  since  the  date  of  the  lease. the  plaintiff 
had  occupied  the  demised  premises  and  paid  his  rent  and  performed 

57  In  Whittaker  et  al.  v.  Howe  (1811)  3  Beav.  383,  Lord  Langdale,  M.  R., 
says:  "The  motion  is  for  an  injunction  to  restrain  the  defendant  from  detain- 
ing and  keeping  possession  of,  or  destroying  certain  documents,  and  also  to 
restrain  him  from  practicing  or  carrying  on  business  as  an  attorney  and 
solicitor.  *  *  *  I  do  not  think  that  this  court  can  refuse  to  grant  an  in- 
junction to  restrain  the  violation  of  a  contract  or  covenant,  because  there  may 
be  some  part  of  the  agreement  which  the  court  could  not  compel  the  defend- 
ant specifically  to  perform." 


220  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

his  covenants,  but  that  the  defendants  had  omitted  and  refused  to  ap- 
point a  resident  porter  to  take  charge  of  the  block  in  which  the  plain- 
tiff's premises  were  situate,  to  be  and  act  as  the  plaintiff's  servant  ac- 
cording to  the  regulations  in  the  schedule.  The  plaintiff  also  alleged 
that  a  porter  had  been  appointed  by  the  defendants,  but  that  such  por- 
ter was  not  constantly  in  attendance  in  the  section  of  the  building  com- 
mitted to  his  charge,  either  by  himself  or,  in  his  temporary  absence,  by 
some  trustworthy  assistant,  and  that  such  porter  had  wilfully  and  per- 
sistently omitted  and  neglected  to  attend  on  the  plaintiff  according  to 
the  said  regulations,  and  to  receive  and  deliver  to  the  plaintiff  all  let- 
ters, parcels,  and  messages  ;  and  that  such  porter  had  not  been  available 
when  required  for  the  plaintiff  to  arrange  with  him  for  any  extra  serv- 
ices not  inconsistent  with  his  general  duties.  The  plaintiff  claimed — 
(1)  an  injunction  against  the  defendants  to  restrain  them  from  em- 
ploying as  the  porter  in  charge  of  the  said  block  any  person  who  is  not 
resident  and  constantly  in  attendance  therein,  and  able  and  willing  to 
act  as  the  servant  of  the  plaintiff,  according  to  the  regulations  con- 
tained in  the  said  schedule ;  (2)  specific  performance  of  the  agreement 
to  appoint  a  resident  porter  in  charge  of  the  said  block;  (3)  £100  dam- 
ages for  breaches  of  covenant. 

The  facts  proved  at  the  trial  with  regard  to  the  alleged  breach  of 
covenant  were  as  follows :  The  plaintiff  became  lessee  of  the  flat  as 
from  midsummer,  1889.  There  was  only  one  other  residential  set  of 
chambers  in  the  block  besides  that  of  the  plaintiff ;  but  there  were  sev- 
eral sets  of  business  chambers  in  such  block.  In  1887  a  man  named 
Benton  was  appointed  to  the  situation  of  porter,  who,  with  his  wife, 
resided  on  the  premises.  Benton  was  by  avocation  a  cook,  and  at  that 
time  was  acting  as  chef  at  a  city  hotel  or  restaurant,  and  continued  so 
to  act  till  July,  1889.  From  November,  1890.  till  August,  1891,  he 
had,  at  the  instance  of  the  directors  of  the  defendant  company,  been 
employed  from  11  A.  M.  to  3  P.  M.  on  weekdays  at  a  luncheon  club 
at  3  Victoria  Street,  Westminster.  He  was  at  home  on  Sundays ; 
but  on  that  day  an  old  woman  usually  acted  for  him  in  his  duties  as 
porter ;  and  he  was  backwards  and  forwards  on  weekdays.  He  had 
the  assistance  of  a  lad  in  the  performance  of  his  duties,  who,  however, 
did  not  reside  on  the  premises.  It  was  proved  by  the  plaintiff  and  his 
witnesses  that  Benton  rarely  acted  as  porter;  that  the  door  was  occa- 
sionally opened  by  his  wife,  or  niece,  or  by  a  charwoman,  but  usually 
by  a  boy  in  his  shirt-sleeves,  and  wearing  an  apron ;  and  that  boys  and 
charwomen  were  the  persons  who  really  performed  the  duties  assigned 
by  the  regulations  to  the  porter. 

The  learned  Judge  gave  judgment  for  the  plaintiff,  concluding  in 
these  terms  ([1892]1  Ch.  433): 

"My  judgment,  is  that  the  defendants  appoint  a  resident  male  porter  pur- 
suant to  the  covenant.  I  will  grant  an  injunction,  or  decree  specific  perform- 
ance of  the  covenant,  if  that  is  the  more  appropriate  course;  and  in  case  it  is 
held  in  the  court  of  appeal  that  I  ought  not  to  have  done  so,  I  assess  the  dam- 
ages down  to  date  of  action  brought  at  £-!5." 


Sec.  1)  CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE  221 

The  judgment  of  the  court  as  drawn  up  between  the  parties  was : 
(1)  The  court  doth  order  that  the  defendants  be  restrained  from  em- 
ploying as  a  porter  in  charge  of  the  block  Xo.  7,  Victoria  Street,  any 
person  who  is  not  resident  and  constantly  in  attendance  therein,  and 
able  and  willing  to  act  as  the  servant  of  the  plaintiff  according  to  the 
regulations  contained  or  referred  to  in  the  lease.  (2)  The  court  doth 
declare  that  the  agreement  contained  or  referred  to  in  the  lease  to  ap- 
point a  resident  porter  in  charge  of  the  said  block  ought  to  be  specifi- 
cally performed,  and  doth  order  and  adjudge  the  same  accordingly. 

Lord  Esher,  M.  R.58  I  do  not  think  that  the  points  on  which  we 
are  about  to  decide  this  case  were  brought  so  fully  before  the  learned 
judge  below  as  they  have  been  before  us.  It  seems  to  me  that  this 
case  comes  within  one  or  the  other,  according  to  the  point  of  view 
from  which  it  is  regarded,  of  two  well-recognised  rules  of  chancery 
practice,  which  prevent  the  application  of  the  remedy  by  compelling 
specific  performance.  I  do  not  myself  put  this  case  as  coming  within 
any  rule  as  to  contracts  to  perform  personal  services.  It  is  not  neces- 
sary for  me  therefore  to  express  any  opinion  as  to  such  a  rule.  The 
contract  sought  to  be  enforced  here  is  not  a  contract  with  a  person  em- 
ployed as  a  servant.  It  is  a  contract  between  a  person  who  has  to  em- 
ploy a  servant  and  a  person  for  whose  benefit  the  employment  of  such 
servant  is  to  take  place.  It  is  a  contract  between  a  landlord  and  his 
tenant,  by  which  the  former  undertakes  to  employ  a  porter  to  perform 
certain  services  for  the  benefit  of  the  latter.  The  contract,  therefore, 
is  not  merely  that  the  landlord  shall  employ  a  porter,  but  that  he  shall 
employ  a  porter  who  shall  do  certain  specified  work  for  the  benefit  of 
the  tenant.  That  is,  in  my  opinion,  one  indivisible  contract.  The  per- 
formance of  what  is  suggested  to  be  the  first  part  of  the  contract,  viz., 
the  agreement  to  employ  a  porter,  would  be  of  no  use  whatever  to  the 
tenant  unless  he  performed  the  services  specified.  The  right  of  the 
tenant  under  the  contract  is  really  an  entirety,  viz.,  to  have  a  porter 
employed  by  whom  these  services  shall  be  performed ;  and  the  breach 
of  the  contract  substantially  is  that  these  services  were  not  performed. 
The  contract  is  that  these  services  shall  be  performed  during  the  whole 
term  of  the  tenancy ;  it  is  therefore  a  long-continuing  contract,  to  be 
performed  from  day  to  day,  and  under  which  the  circumstances  of 
non-performance  might  vary  from  day  to  day.  I  apprehend,  there- 
fore, that  the  execution  of  it  would  require  that  constant  superintend- 
ence by  the  court,  which  the  court  in  such  cases  has  always  declined 
to  give.  Therefore,  if  the  contract  is  regarded  as  a  whole,  there  is 
good  ground  for  saying  that  it  is  not  one  of  which  the  court  could 
compel  specific  performance.  It  was  contended  that  the  court  could 
grant  specific  performance  of  the  defendants'  obligation  to  appoint  a 
porter.  But  then  the  case  is  brought  within  another  rule,  viz.,  that, 
when  the  court  cannot  compel  specific  performance  of  the  contract  as 

68  The  statement  of  facts  is  abridged  and  parts  of  the  opinions  of  Lopes 
and  Kay,  L.  JJ.,  are  omitted. 


222  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Cll.  2 

a  whole,  it  will  not  interfere  to  compel  specific  performance  of  part 
of  a  contract.  That  clearly  appears  to  be  a  rule  of  chancery  practice 
on  the  subject.  Therefore,  if  it  is  urged  that  what  the  judge  has  or- 
dered to  be  performed  is  merely  the  obligation  to  appoint  a  porter,  the 
case  falls  within  that  rule,  and  on  that  ground  his  decision  must  be  re- 
versed. It  was  argued  that  the  case  of  Rigby  v.  Great  Western  Rail- 
way Company,  15  L.  J.  Ch.  266,  shewed  that  a  contract  such  as  this 
might  be  severed,  and  that  performance  of  part  of  it  could  be  en- 
forced. But  that  is  not  what  the  case  appears  to  have  decided.  It  de- 
cided that,  where  in  one  contract  there  were  really  several  wholly  in- 
dependent stipulations,  the  court  could  grant  specific  performance  of 
one  of  them.  It  is  no  authority  for  the  proposition  that  the  court  can 
separate  part  of  what  is  really  one  single  indivisible  contract  and  grant 
specific  performance  of  that  part.  Then  it  was  said  that  this  case  fell 
within  the  exception  which  has  been  established  in  the  railway  cases. 
That  is  admitted  to  be  an  exception  grafted  upon  the  chancery  juris- 
diction by  decisions,  in  which  the  court,  for  the  reasons  stated,  treated 
cases  where  railway  companies  had  taken  land  on  condition  of  doing 
works  as  exceptional,  and  granted  specific  performance.  But  being 
admittedly  exceptions,  these  cases  do  not  do  away  with  the  general 
rule,  which  appears  to  be  applicable  to  the  case  before  us.  The  lan- 
guage used  by  James,  V.  C,  in  Wilson  v.  Furness  Railway  Company, 
Law  Rep.  9  Eq.  28,  was  cited  to  us  as  an  authority  to  shew  that  the 
court  ought  in  this  case  to  grant  specific  performance.  That  language, 
as  applied  by  the  counsel  for  the  defendants,  is  really  cited  as  an  au- 
thority for  the  proposition  that  the  court  of  chancery  will  always,  re- 
gardless of  any  rules,  do  what  the  justice  of  the  particular  case  re- 
quires. But  the  answer  is  that  the  court  of  chancery  has  never  acted 
on  any  such  proposition.  Then  the  judgment  of  Lord  Eldon  in  Lane 
v.  Newdigate,  10  Ves.  192  was  cited,  in  which  that  learned  judge  ap- 
pears on  that  occasion  to  have  deliberately  held  that  the  court  ought  to 
do  indirectly  that  which  it  had  no  power  to  do  directly.  That  is  a  doc- 
trine that  I,  for  one,  must  decline  to  follow.  It  appears  to  me  that  the 
appeal  must  be  allowed,  and  the  judgment  for  the  plaintiff  must  stand 
only  for  the  damages  found  by  the  learned  Judge. 

LopES,  L.  J.  *  *  *  I  think  that  it  is  an  entire  contract.  If  that 
be  so,  it  is  clear  that  it  is  such  a  contract  that,  in  order  to  give  effect 
to  it  by  an  order  for  specific  performance,  the  court  would  have  to 
watch  over  and  supervise  its  execution.  But  it  is  a  recognized  rule 
that  the  court  cannot  enforce  a  contract  by  compelling  specific  per- 
formance, where  the  execution  of  the  contract  requires  such  watching 
over  and  supervision  by  the  court.  It  is  another  rule  that  the  court 
will  only  interfere  by  way  of  compelling  specific  performance,  where 
it  can  give  specific  performance  of  the  contract  as  a  whole;  and  that 
it  will  not  interfere  to  compel  specific  performance  of  part  of  an  en- 
tire contract.  On  that  ground,  I  think  the  remedy  asked  for  cannot  be 
given.     Another  ground  on  which  the  plaintiff  fails,  in  my  opinion  is 


Sec.  1)  CONTRACTS   SUBJECT  TO   SPECIFIC  PERFORMANCE  223 

this.  The  court  will  not  compel  specific  performance  when  there  is 
another  adequate  remedy.  Here  there  is  such  a  remedy,  viz.,  by  com- 
pensation in  damages  for  breach  of  the  contract.  The  judge  has  found 
£25  to  be  adequate  damages  in  respect  of  the  breach  of  the  contract 
up  to  the  time  of  action  brought.  But  there  does  not  appear  to  be  any- 
thing to  prevent  the  plaintiff  from  bringing  fresh  actions  for  future 
breaches  of  the  covenant,  and  obtaining  in  this  way  an  adequate  rem- 
edy. 

Kay,  L.  J.  I  agree.  This  remedy  by  specific  performance  was  in- 
vented, and  has  been  cautiously  applied,  in  order  to  meet  cases  where 
the  ordinary  remedy  by  an  action  for  damages  is  not  an  adequate  com- 
pensation for  breach  of  contract.  The  jurisdiction  to  compel  specific 
performance  has  always  been  treated  as  discretionary,  and  confined 
within  well-known  rules.     *     *     * 

The  lessors'  covenant,  being  in  substance  that  the  lessee  should  have 
the  advantage  of  the  performance  of  certain  services  by  the  porter,  a 
covenant  which  I  cannot  conceive  to  be  divisible,  as  was  ingeniously 
suggested,  the  plaintiff's  claim  is  shaped  thus.  It  is  alleged  that  the 
lessee  took  possession  under  the  lease,  but  that  a  proper  porter  was  not 
appointed,  and  the  lessee  does  not  get  the  advantage  of  the  perform- 
ance of  the  porter's  duties.  He  therefore  asks  for  some  remedy  by 
means  of  which  he  may  have  these  duties  performed.  That  is  really 
the  nature  of  the  action.  But  now  it  is  sought  to  overlook  that,  and 
to  say  that,  though  a  contract  that  the  lessee  shall  have  the  benefit  of 
the  performance  by  the  porter  of  his  duties  is  not  the  sort  of  contract 
of  which  the  plaintiff  can  have  specific  performance,  yet  he  can  claim 
to  have  the  contract  performed  specifically  to  this  extent :  he  can  ask 
the  court  to  compel  the  appointment  of  a  proper  porter,  though,  when 
he  is  appointed,  the  court  is  not  asked  to  compel  performance  of  his 
duties.  As  I  have  said,  the-  contract  is  really  a  single  contract — viz., 
that  the  plaintiff  shall  have  the  advantage  of  performance  by  the  por- 
ter of  his  duties ;  and  I  dissent  entirely  from  the  notion  that  this  con- 
tract can  be  divided  into  two  parts  in  the  way  suggested,  and  the  court 
asked  to  grant  specific  performance  of  one  part,  but  not  of  the  other. 

There  are,  no  doubt,  certain  cases  where  a  contract  may  be  treated 
as  divisible  for  the  purpose  of  specific  performance.  The  common 
case  is  where  there  is  a  contract  like  that  in  Lumley  v.  Wagner,  1  D. 
M.  &  G.  604 ;  in  which  case  the  contract  was  to  sing  for  the  plaintiff, 
and  also  not  to  sing  for  others.  The  court  says  in  such  cases,  though 
we  cannot  enforce  performance  of  the  contract  to  sing  for  a  particu- 
lar person,  and  so  cannot  enforce  the  whole  contract ;  nevertheless, 
there  being  the  independent  negative  stipulation  against  singing  for 
others,  we  can  enforce  that  by  injunction.  In  the  case  of  Lumley  v. 
Wagner,  the  Lord  Chancellor,  in  the  passage  which  I  cited  in  Whit- 
wood  Chemical  Company  v.  Hardman,  [1891]  2  Ch.  416,  expressly 
said  that,  if  he  had  had  to  deal  with  the  affirmative  covenant  only,  that 


224  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

the  defendant  would  sing  for  the  plaintiff,  he  would  not  have  granted 
an  injunction.     That  is  one  exception  to  the  rule.     *     *     * 

For  these  reasons  I  differ  respectfully  from  the  learned  judge,  and 
think  that  nothing  but  a  judgment  for  the  damages  found  by  him 
should  be  given. 


(c)  Enforcement  of  Negative  Part  of  Contract  Where  Affirmative  Part  is 
Unenforceable,  with  Particular  Reference  to  Contracts  fob  Service 

KIMBERLEY  v.  JENNINGS. 

(In  Chancery  before  Sir  Lancelot  Shadwell,  1836.     6  Sim.  340.) 

The  Bill  stated  that  the  Plaintiffs  carried  on  the  business  of  Factors 
and  Merchants,  in  co-partnership,  at  Birmingham ;  that  on  the  27th 
of  January,  1834,  they  took  into  their  employment  the  Defendant  Jen- 
nings, as  their  Clerk,  upon  the  terms  and  conditions  after  mentioned; 
and,  thereupon,  the  Plaintiffs  and  the  Defendant  duly  made  and  exe- 
cuted an  Agreement,  dated  the  27th  of  January,  1834,  and  which  was 
as  follows : 

"The  said  John  Richard  Jennings,  for  the  considerations  hereinafter  men- 
tioned, doth  hire  himself  to  the  said  James  Kimberley  and  William  Kiniber- 
ley,  and  the  Survivor  of  them,  and  he  doth  hereby  undertake  and  agree  that 
he  will  serve  them  and  the  Survivor  of  them,  for  the  term  of  .Six  Years,  to 
commence  and  be  computed  from  the  day  of  the  date  of  these  Presents,  and 
work  for  and  be  employed  by  and  in  the  name  and  on  the  behalf  of  the  said 
James  Kimberley  and  William  Kimberley  and  the  Survivor  of  them,  in  the 
capacities  of  a  Clerk,  Traveller  and  Bookkeeper,  in  the  trade  or  business  of 
Factors  now  carried  on  by  said  James  Kimberley  and  William  Kimberley,  in 
Birmingham  aforesaid,  and  in  obtaining  orders  for  and  selling  all  sorts  of 
Goods,  Wares,  Merchandize  and  Commodities  belonging  thereto,  and  receiv- 
ing the  prices  for  the  same,  as  they  the  said  James  Kimberley  and  William 
Kimberley  or  the  Survivor  of  them,  shall  order  and  direct,  *  *  *  aud 
also  shall  not  nor  will,  during  the  said  term  of  Six  Years,  work  for,  or  for 
the  use  or  benefit  of,  or  be  otherwise  engaged  or  employed  by  any  other  Per- 
son or  Persons  other  than  the  said  James  Kimberley  and  William  Kimberley, 
or  the  Survivor  of  them,  in  the  capacities  aforesaid,  or  in  any  other  Trade, 
Business,  Profession  or  Employment  whatsoever,  without  the  license  or  con- 
sent of  the  said  James  Kimberley  and  William  Kimberley,  or  the  Survivor  of 
them,  in  writing,  under  their  or  his  hands  or  hand,  for  that  purpose,  first  had 
and  obtained:  *  *  *  Provided  that,  in  case  the  said  John  Richard  Jen- 
nings shall,  during  the  said  term  of  Six  Years,  become  and  be  incapable,  from 
illness  or  indisposition,  of  serving  the  said  James  Kimberley  and  William 
Kimberley  or  the  Survivor  of  them,  in  the  capacities  aforesaid  or  otherwise 
in  the  said  Trade  or  Business  according  to  the  true  intent  and  meaning  of 
these  Presents,  or  shall  absent  himself  from  or  neglect  the  service  of  the 
said  James  Kimberley  and  William  Kimberley,  without  their,  or  one  of  their, 
license  and  consent,  in  writing,  under  their,  or  one  of  their  hands  or  hand, 
for  that  purpose,  first  had  and  obtained,  then,  and  in  either  of  the  said  Cases, 
it  shall  be  lawful  for  the  said  James  Kimberley  and  William  Kimberley  and 
the  Survivor  of  them,  wholly  and  absolutely  to  dismiss  and  discharge  the  said 
John  Richards  Jennings  from  their  service,  and  to  discontinue  the  payment 
of  the  said  Salary  or  Wages  from  thenceforth,     *     *     *" 

The  Bill  then  stated  that,  for  some  time  after  the  Agreement  was 
made,  the   Plaintiffs  employed  the  Defendant  to  travel  for  them,  in 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         225 

various  parts  of  the  Country,  in  the  way  of  their  Business,  in  selling 
and  obtaining  orders  for  Goods  and  Merchandizes  in  which  they  dealt, 
and  in  receiving  Monies  for  the  same,  subject,  however,  to  such  direc- 
tions as  the  Plaintiffs  thought  proper,  from  time  to  time,  to  give 
him.     *     *     * 

The  Bill  then  alleged  that  the  Defendant,  in  his  subsequent  dealings 
with  the  Plaintiffs'  Customers,  greatly  relaxed  in  his  diligence  and  ef- 
forts to  serve  the  Plaintiffs ;  and,  on  that  account,  they,  in  October 
1835,  deemed  it  expedient  to  employ  him,  as  a  Clerk  and  Bookkeeper, 
in  their  Counting-house,  instead  of  sending  him  on  Journies ;  but  he 
refused  to  be  so  employed,  and  quitted  their  Service,  on  the  6th  No- 
vember 1835,  without  their  consent :  that  the  Plaintiffs  always  had 
been,  and  still  were  ready  to  perform  their  parts  of  the  Agreements 
of  January  1834  and  January  1835  :  that  the  Defendant  had  lately 
commenced  Business,  as  a  Factor  and  General  Merchant,  in  Birming- 
ham, in  opposition  to  the  Plaintiffs  and  contrary  to  the  true  intent  and 
meaning  of  the  first  Agreement ;  and  threatened  to  engage  himself  with 
other  Factors  and  Merchants,  and  to  act  for  them  as  their  Traveller, 
either  separate,  or  in  addition  to  the  said  Business  on  his  own  account. 
The  Bill  prayed  that  the  Defendant  might  be  restrained,  by  the  Decree 
of  the  Court,  and,  in  the  meantime,  by  the  Order  of  the  Court  during 
the  remainder  of  the  term  of  Six  Years  mentioned  in  the  first  Agree- 
ment, from  working  for  or  for  the  use  or  benefit  of,  or  otherwise  being 
engaged  or  employed  by  any  other  person  or  persons  than  the  Plaintiffs, 
in  the  capacities  in  that  Agreement  mentioned,  or  in  any  other  Trade, 
Business,  Profession  or  Employment  whatsoever,  without  the  consent 
of  the  Plaintiffs,  and,  in  particular,  from  carrying  on  the  Trade  which 
he  was  then  carrying  on,  the  Plaintiffs  being  ready  and  willing  and 
thereby  offering  to  perform  the  two  Agreements  on  their  parts. 

The  Defendant  demurred  for  want  of  Equity. 

The  Vice-Chancellor.59  It  does  not  clearly  appear  to  be  the 
meaning  of  the  Agreement,  that,  if  the  event  happened  that  the  De- 
fendant did  not  continue,  during  the  whole  term  of  Six  Years,  in  the 
Service  of  the  Plaintiffs,  he  should  be  disabled  from  engaging  in  any 
other  Service  or  Employment  for  the  remainder  of  the  term.  It  has 
been  assumed,  in  the  course  of  the  Argument,  that  this  part  of  the 
Agreement  is  to  be  taken  by  itself,  and  that,  whatever  might  happen 
during  the  term,  the  Defendant  should  not  engage  in  any  other  Em- 
ployment. But,  attending  to  the  whole  of  the  Agreement,  the  true  Con- 
struction of  it  seems  to  be  that,  during  such  portion  of  the  term  as  the 
Defendant  should  continue  in  the  Service  of  the  Plaintiffs,  he  should 
not  enter  into  any  other  Employment;  but,  if  he  should  be  dismissed 
during  the  term,  then  that  he  might  engage  himself  in  the  Service  of 
other  Persons.     *     *     * 

59  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 
Boke  Eq. — 15 


226  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Cll.  2 

Then  it  was  said  that  the  Court  might  execute  a  negative  Contract. 
I  admit  it.  I  remember  a  Case  in  which  a  Nephew  wished  to  go  on 
the  Stage,  and  his  Uncle  gave  him  a  large  sum  of  Money  in  considera- 
tion of  his  covenanting  not  to  perform  within  a  particular  District ; 
the  Court  would  execute  such  a  Covenant,  on  the  ground  that  a  valu- 
able Consideration  had  been  given  for  it.  But  here  the  negative  Cove- 
nant does  not  stand  by  itself :  it  is  coupled  with  the  Agreement  for 
Service  for  a  certain  number  of  Years,  and  then  for  taking  the  De- 
fendant into  Partnership. 

In  the  first  place,  this  Agreement  cannot  be  performed  in  the  whole, 
and  therefore,  this  Court  cannot  perform  any  part  of  it ;  in  the  next 
place,  it  is  not  to  be  construed  as  the  Plaintiffs  contend  for :  and,  last- 
ly, it  is  a  Hard  Bargain,  and,  therefore,  this  Court  will  not  interfere. 

Demurrer  allowed. 


MORRIS  v.  COLMAN. 

(In  Chancery  before  Lord  Eldon,  1812.    IS  Ves.  Jr.  437,  34  E.  R.  3S2.) 

Various  disputes  having  arisen  among  the  proprietors  of  the  The- 
atre in  the  Haymarket,  a  bill  was  filed ;  praying  an  execution  of  the 
articles  of  agreement,  an  injunction  to  restrain  Mr.  Colman  from  act- 
ing as  manager,  and  a  reference  to  the  Master  for  the  appointment  of 
a  manager. 

An  injunction  was  granted;  and  a  reference  directed  to  the  Master 
to  inquire,  whether  the  Defendant  Mr.  Colman  had  performed  the  du- 
ties of  manager,  and  what  he  was  doing  and  could  do  in  the  discharge 
of  those  duties.  Upon  a  motion  to  dissolve  the  injunction  a  question 
arose  upon  the  validity  of  a  clause  in  the  articles,  restraining  Mr.  Col- 
man from  writing  dramatic  pieces  for  any  other  theatre,  or,  as  the  con- 
struction was  represented  for  the  Plaintiff,  giving  the  Haymarket  The- 
atre a  right  of  pre-emption. 

Mr.  Hart,  and  Mr.  Shadwell,  for  the  Defendant  Colman,  in  support 
of  the  Motion,  compared  this  provision  to  covenants  in  restraint  of 
trade;   which  are  void  on  principles  of  public  policy. 

Sir  Samuel  Romilly,  and  Mr.  Bell,  for  the  Plaintiff,  contended,  that 
this  provision  was  no  more  against  public  policy  than  a  stipulation, 
that  Mr.  Garrick  should  not  perform  at  any  other  theatre  than  that, 
at  which  he  was  engaged,  would  have  been. 

The  Lord  Chancellor.  I  cannot  perceive  any  violation  of  public 
policy  in  this  provision.  The  case  of  trade,  to  which  it  has  been  com- 
pared, is  perfectly  distinct.  It  is  well  settled  upon  that  principle,  that 
notwithstanding  such  a  covenant,  restraining  trade  in  general,  a  man 
shall  be  at  liberty  to  engage  in  commerce :  but  that  has  been  broken 
in  upon  to  the  extent  of  giving  effect  to  covenants  restraining  trade 
within  particular  limits ;  and  in  partnership  engagements  a  covenant, 
that  the  partners  shall  not  carry  on  for  their  private  benefit  that  par- 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         227 

ticular  commercial  concern,  in  which  they  are  jointly  engaged,  is  not 
only  permitted,  but  is  the  constant  course. 

If  that  is  so  with  regard  to  trade,  it  is  impossible  to  maintain,  that 
theatrical  performers,  who  act  only  under  a  license,  and  are  treated  as 
vagrants,  if  not  licensed,  may  not  enter  into  such  engagements.  The 
contract  is  not  unreasonable  upon  either  construction ;  whether  it  is, 
that  Mr.  Colman  shall  not  write  for  any  other  theatre  without  the  li- 
cense of  the  proprietors  of  the  Haymarket  Theatre ;  or  whether  it 
gives  to  those  proprietors  merely  a  right  of  pre-emption.  If  Mr.  Gar- 
rick  was  now  living,  would  it  be  unreasonable,  that  he  should  contract 
with  Mr.  Colman  to  perform  only  at  the  Haymarket  Theatre,  and  Mr. 
Colman  with  him  to  write  for  that  theatre  alone?  Why  should  they 
not  thus  engage  for  the  talents  of  each  other?  The  ground  might  be 
supposed,  that  nothing  could  be  made  of  the  theatre  without  exhibiting 
the  talents  of  such  a  man;  and  in  this  instance  that  he  may  get  more 
to  himself  and  the  other  proprietors  by  this  contract  than  he  could  by 
hard  bargains  at  other  theatres. 

I  cannot  therefore  see  any  thing  unreasonable  in  this :  on  the  con- 
trary, it  is  a  contract,  which  all  parties  may  consider  as  affording  the 
most  eligible,  if  not  the  only,  means  of  making  this  Theatre  profitable 
to  them  all,  as  proprietors,  authors,  or  in  any  other  character,  which 
they  are  by  the  contract  to  hold.00 


KEMBLE  v.  KEAN. 

(In  Chancery  before  Sir  Lancelot  Shadwell,  1829.     6  Sim.  333.) 

In  February  1828  an  Agreement  in  writing  to  the  following  effect, 
was  made  between  the  Plaintiffs,  who  were  the  Proprietors  of  Covent- 
garden  Theatre,  and  the  Defendant,  a  celebrated  Actor :  that  the  De- 
fendant should  act  at  the  Theatre  for  24  Nights,  at  a  Salary  of  £50 
for  each  Night :  that  the  Engagement  should  commence  on  the  1st  Oc- 
tober, and  conclude  before  Christmas  then  next :  that  the  Defendant 
should  give  the  preference,  to  the  Plaintiffs,  in  the  renewal  of  an  En- 
gagement, and  should  not  perform  at  any  other  Theatre  in  London 
during  the  period  of  his  Engagement. 

The  Defendant,  accordingly,  acted  16  Nights;  but  was  unable  to 
complete  his  Engagement  before  Christmas  1828,  in  consequence  of  an 
accident  that  happened  to  the  Gas-works  in  the  Theatre.  An  Agree- 
so  As  to  the  jurisdiction  upon  this  subject,  considered  as  a  partnership,  see 
Waters  v.  Taylor  (1808)  15  Yes.  10;  Ex  parte  Ford  (1802)  7  Yes.  617;  Ex 
parte  O'Reily  (1700)  1  Yes.  Jr.  112.— Rep. 

In  Scott  v.  Rayment  (1868)  L.  R.  7  Eq.  Cas.  114,  at  115,  Sir  G.  M.  Giffard 
lays  down  the  rule  thus:  "In  the  first  place,  I  do  not  hesitate  to  say,  that  as 
a  general  rule  the  court  will  not  decree  specific  performance  of  an  agreement 
to  perform  and  carry  on  a  partnership.  There  may  be  exceptions,  but  very 
limited  exceptions,  to  that  rule,  such,  for  instance,  as  the  court  going  the 
length  of  decreeing  the  execution  of  a  deed." 


228  SPECIFIC   PERFORMANCE  OF   CONTRACTS  (Cll.  2 

ment  was  then  made  between  the  Parties,  for  a  new  Engagement  to 
commence  after  Christmas  1828,  for  12  Nights  performance,  (instead 
of  the  eight  that  remained  under  the  first  Engagement)  upon  the  same 
terms  as  before.  The  Defendant,  accordingly,  acted  on  the  Nights  of 
the  5th  and  8th  of  January  1829,  and  was  to  have  acted  again  on  the 
12th,  but,  on  that  Night,  he  was  unable  to  appear  before  the  Public. 
Shortly  Afterwards,  the  Defendant  having  expressed  a  wish  to  suspend 
his  performance  in  London  and  retire  into  the  Country  to  recruit  his 
Health  and  study  some  new  Parts,  the  Plaintiff  Kemble  informed  him, 
by  Letter  dated  the  21st  January  1829,  that  the  Plaintiffs  acceded  to 
his  Wish,  it  being  understood  that  he  would  be  ready,  on  the  com- 
mencement of  the  Season  1830-31,  to  return,  when  required,  to  his 
Engagement,  of  which  10  Nights  remained  uncompleted,  and  that,  in 
the  meantime,  he  was  not  to  act  in  London.  The  Defendant  wrote  an 
Answer  to  this  Letter,  on  the  22d  of  January,  stating  that  he  accepted 
the  Proposals  made  by  the  Plaintiffs. 

In  November  1830,  the  Defendant  returned  to  London,  and,  shortly 
afterwards,  entered  into  an  Engagement  to  act  at  Drury-lane  Theatre ; 
upon  which  the  Bill  in  this  cause  was  filed,  praying  that  the  Defendant 
might  be  decreed  specifically  to  perform  his  Agreement  with  the  Plain- 
tiffs, contained  in  the  Letter  of  the  21st  of  January  1829,  and  that,  in 
the  meantime,  he  might  be  restrained  from  acting  at  Drury-lane  The- 
atre, or  at  any  other  Place  in  London. 

On  the  28th  of  November,  Lord  Lyndhurst,  C,  granted  an  Injunc- 
tion, ex  parte,  restraining  the  Defendant  from  acting  at  Drury-lane  or 
any  other  Place  in  London,  until  he  should  have  acted  10  Nights  at 
Covent-garden,  with  Liberty  to  the  Defendant  to  move  to  dissolve  the 
Injunction  before  The  Vice-Chancellor. 

The  Motion  to  dissolve  was  now  made  by  I\Ir.  Knight  and  Mr. 
Wright,  and  opposed  by  Mr.  Pemberton. 

The,  Vice-Chancellor.  The  Agreement  in  question  is  such  an 
one  as  this  Court  cannot  perform. 

In  the  case  of  a  mere  Contract  between  two  persons  who  are  both 
carrying  on  the  same  trade,  that  one  shall  not  carry  on  his  trade  within 
a  limited  distance  in  which  the  Party  contracted  with  intends  to  carry 
on  his  trade,  the  whole  Agreement  is  of  so  genuine  a  kind,  that  the 
Court  would  enforce  the  Performance  of  the  Agreement  by  restrain- 
ing the  Party,  by  Injunction,  from  breaking  the  Agreement  so  made. 

In  the  Case  where  the  Parties  are  Partners,  and  one  of  the  Partners 
contracts  that  he  shall  exert  himself  for  the  benefit  of  the  Partnership, 
though  the  Court,  it  is  true,  cannot  compel  a  Specific  Performance  of 
that  part  of  the  Agreement,  yet,  there  being  a  Partnership  subsisting, 
the  Court  will  restrain  that  Party  (if  he  has  covenanted  that  he  will 
not  carry  on  the  same  trade  with  other  Persons)  from  breaking  that 
part  of  the  Agreement.    That  is  in  case  of  a  Partnership.  . 

In  the  Case  of  Morris  v.  Colman,  18  Ves.  437,  the  Bill  was  filed  by 
Morris  against  Colman,  for  the  purpose  of  having  a  question  upon  the 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         229 

Articles  of  Partnership,  determined,  and  for  restraining  Colman  from 
doing  many  acts  which  he  was  disposed  to  do ;  and  I  think,  in  that 
case  (for  I  was  Counsel  for  Colman  from  the  beginning  to  the  end), 
that  Colman  always  stood  on  the  defensive.  The  only  question  was 
whether  Colman  should  be  at  liberty  to  do  certain  acts  which  he  in- 
sisted he  was  at  liberty  to  do,  and  Morris  contended  he  was  not.  Xow 
I  apprehend  that  what  Lord  Eldon  says,  in  giving  his  Judgment  upon 
that  point,  must  be  taken  with  reference  to  the  subject  that  was  before 
him:  and  I  perfectly  well  recollect  the  time  when  the  Injunction  was 
granted  to  restrain  Air.  Colman,  but  I  am  not  quite  sure  it  is  exactly 
in  the  way  in  which  the  Report  represents ;  but  Colman  insisted,  gen- 
erally, that  he  had  a  right  to  write  Dramatic  Pieces  for  other  Theatres ; 
and  then  there  was  an  Injunction  granted  to  restrain  the  Representa- 
tion of  one  of  the  Pieces  which  he  had  written,  and  which  was  in- 
tended to  be  represented,  I  think,  at  Covent-garden  Theatre.  In  the 
Argument  it  was  said  that  the  particular  Provision  which  is  stated  in 
the  Case,  was  a  Provision  restraining  Colman  from  writing  Dramatic 
Pieces  for  any  other  Theatre ;  and.  in  the  Argument,  it  was  said,  by 
the  Counsel  for  the  Plaintiff,  that  that  Provision  was  no  more  against 
public  policy  than  a  Stipulation  that  Air.  Garrick  should  not  perform 
at  any  other  Theatre  than  that  at  which  he  was  engaged,  would  have 
been.  Xow,  with  reference  to  what  was  said,  by  Counsel,  upon  argu- 
ing the  Case  of  a  Partnership,  Lord  Eldon  says : 

"If  Mr.  Garrick  was  now  living,  would  it  be  unreasonable  that  he  should 
contract  with  Mr.  Colman  to  perform  only  at  the  Haymarket  Theatre,  and 
Mr.  Colman  with  him  to  write  for  that  Theatre  alone.  Why  should  they  not 
thus  engage  for  the  talents  of  each  other?" 

That  mode  of  putting  the  question  appears  to  me  to  show  that  Lord 
Eldon  is  speaking  of  a  Case  where  the  Parties  are  in  Partnership  to- 
gether;  because  it  would  be  a  strange  thing  that  one  should  contract 
to  perform  only  at  the  Haymarket  Theatre,  and  the  other,  to  write  for 
that  Theatre  alone,  except  in  the  Case  of  a  Partnership,  where  both 
Parties  would  be  exerting  themselves  for  their  mutual  benefit ;  be- 
cause, if  they  were  not  in  Partnership,  the  effect  of  such  an  Agreement 
might  be  that  neither  might  exert  his  talents  at  all.  In  this  Case,  how- 
ever, there  is  no  Partnership  whatever  between  the  Proprietors  of  Co- 
vent-garden Theatre  and  Mr.  Kean ;  but  the  Contract  is  nothing  more 
than  this,  that  Air.  Kean  shall,  for  a  given  Remuneration,  act  a  certain 
number  of  Xights  at  Covent-garden  Theatre,  with  a  Proviso  that,  in 
the  meantime  he  shall  not  act  at  any  other  Theatre ;  and  it  is  quite 
clear  that  this  Bill  is  filed  for  the  purpose  of  having  the  Performance 
of  an  Agreement  with  regard  to  his  Contract  to  act. 

[His  Honor  here  stated  the  substance  of  the  Bill,  and  then  pro- 
ceeded:] So  that  it  was  an  Agreement  to  act  at  Covent-garden  Thea- 
tre, a  certain  number  of  Xights  in  the  Season  1830-31,  and  that,  in 
the  meantime,  the  Defendant  should  not  act  in  London :  and  the  Bill 
is  filed  for  the  purpose  of  enforcing  the  performance  of  that  Agree- 


230  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

merit,  which  mainly  consists  in  the  fact  of  his  acting;  and  it  appears 
to  me,  that  it  is  utterly  impossible  that  this  Court  can  execute  such  an 
Agreement. 

In  the  first  place,  independently  of  the  difficulty  of  compelling  a 
man  to  act,  there  is  no  time  stated ;  and  it  is  not  stated  in  what  Char- 
acters he  shall  act ;  and  the  thing  is,  altogether,  so>  loose  that  it  is  per- 
fectly impossible  for  the  Court  to  determine  upon  what  scheme  of 
things  Mr.  Kean  shall  perform  his  Agreement.  There  can  be  no  pro- 
spective declaration  or  direction  of  the  Court,  as  to  the  performance 
of  the  Agreement;  and,  supposing  Mr.  Kean  should  resist,  how  is 
such  an  Agreement  to  be  performed  by  the  Court?  Sequestration  is 
out  of  the  question ;  and  can  it  be  said  that  a  man  can  be  compelled 
to  perform  an  Agreement  to  act  at  a  Theatre  by  this  Court  sending 
him  to  the  Fleet  for  refusing  to  act  at  all?  There  is  no  method  of  ar- 
riving, at  that  which  is  the  substance  of  the  Contract  between  the  par- 
ties, by  means  of  any  process  which  this  Court  is  enabled  to  issue ; 
and  therefore  (unless  there  is  some  positive  authority  to  the  contrary) 
my  opinion  is  that,  where  the  Agreement  is  mainly  and  substantially 
of  an  active  nature,  and  is  so  undetermined  that  it  is  impossible  to  have 
performance  of  it  in  this  Court,  and  it  is  only  guarded  by  a  negative 
Provision,  this  Court  will  leave  the  parties,  altogether,  to  a  Court  of 
Law,  and  will  not  give  partial  relief  by  enforcing  only  a  negative  stip- 
ulation. I  think,  for  the  reasons  which  I  have  stated,  that  what  Lord 
Eldon  has  said  in  the  case  of  Morris  v.  Colman  bears  upon  this  Case. 

In  Clark  v.  Price,  2  J.  Wilson's  C.  C.  157,  (in  which,  also,  I  was  of 
Counsel,)  there  was  a  positive  stipulation  by  Price,  that  he  would  write 
Reports  for  Clarke  the  Bookseller.  Lord  Eldon  says,  in  his  Judgment 
upon  that  Case : 

"The  Case  of  Morris  v.  Colman  is  essentially  different  from  the  present. 
In  that  Case,  Morris,  Colman  and  other  Persons  were  engaged  in  a  Partner- 
ship in  the  Haymarket  Theatre,  which  was  to  have  continuance  for  a  very 
long  period,  as  long  indeed  as  the  Theatre  should  exist.  Colman  had  entered 
into  an  Agreement  which  I  was  very  unwilling  to  enforce,  not  that  he  would 
write  for  the  Haymarket  Theatre,  hut  that  he  would  not  write  for  any  other 
Theatre.  It  appeared  to  me  that  the  Court  could  enforce  that  Agreement  by 
restraining  him  from  writing  for  any  other  Theatre.  The  Court  could  not 
compel  him  to  write  for  the  Haymarket  Theatre;  but  it  did  the  only  thing 
in  its  power,  it  induced  him,  indirectly,  to  do  one  thing  by  prohibiting  him 
from  doing  another.  There  was  an  express  Covenant  on  his  part,  contained 
in  the  Articles  of  Partnership.  But  the  terms  of  the  prayer  of  this  Bill  do 
not  solve  the  difficulty ;  for,  if  this  Contract  is  one  which  the  Court  will  not 
carry  into  execution,  the  Court  cannot,  indirectly,  enforce  it  by  restraining 
Mr.  Price  from  doing  some  other  act." 

His  Lordship  then  proceeds  to  observe  upon  the  express  terms  of 
the  Contract,  and  says  that  he  will  not,  in  that  case,  interfere  to  en- 
force an  implied,  negative  stipulation;  for  that  is  the  utmost  that  can 
be  made  of  his  Lordship's  observations  in  that  Case. 

For  the  reasons  which  I  have  stated,  I  am  of  opinion  that,  if  this 
Cause  were  now  being  heard,  and  the  Agreement  were  admitted  to  be 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         231 

such  as  it  appears  to  be,  this  Court  could  not  make  any  Decree,  but 
must  dismiss  the  Bill. 

I  should  be  extremely  unwilling  to  have  it  thought  that  I  am  setting 
my  judgment  in  opposition  to  any  express  opinion  of  The  Lord  Chan- 
cellor's. I  have  always  thought  it  to  be  the  duty  of  a  Judge  of  this 
Court,  knowing  the  opinion  upon  any  point  expressed  by  The  Lord 
Chancellor,  to  follow  it,  as  the  immediate  consequence  of  not  following 
it,  would  be  an  appeal  to  him.  It  does  not  however  appear  that  the 
attention  of  The  Lord  Chancellor  was  particularly  called  to  this  point. 
The  application  was  an  application  ex  parte ;  and,  therefore,  I  may, 
without  impropriety,  say  that  my  opinion  is  that  this  Injunction  ought 
to  be  dissolved. 


BARNUM  v.  RANDALL. 
(Chancery  Court  of  New  York,  1S44.    2  West.  Law  J.  96.) 

In  July  last,  a  bill  was  filed  by  Mr.  Barnum,  of  the  American  Mu- 
seum, for  an  injunction  to  restrain  Randall,  the  Giant,  and  his  wife, 
from  exhibiting,  except  for  the  benefit  of  Mr.  Barnum,  &c.  The  in- 
junction was  granted.  There  was  a  writ  of  ne  exeat  (prohibiting  Ran- 
dall from  leaving  the  city)  also  granted,  but  which  was  subsequently 
discharged.  Randall  and  his  wife  have  since  been  to  Philadelphia. 
Motion  was  made  yesterday  by  Mr.  Price,  Counsel  for  Randall,  that 
the  injunction  be  dissolved.  Mr.  P.  cited  the  case  of  Hamblin  v.  Din- 
neford,  and  the  cases  there  cited,  to  show  that  a  contract  for  mere 
personal  service  cannot  be  enforced  in  this  way ;  that  there  was  a  rem- 
edy at  law.  Mr.  P.  also  cited  the  case  of  Revivonello,  2  Edwards' 
Chancery  Reports,  which  was  a  breach  of  contract  for  not  singing  at 
the  Italian  Opera  House.  Mr.  P.  contended  that  the  injunction  should 
be  dissolved.  The  motion  was  opposed  by  Mr.  Niles,  solicitor  of  the 
complainant,  who  contended  that  there  was  no  analogy  between  the 
cases — the  one  being  for  personal  services,  and  the  other  a  mere  exhi- 
bition, the  same  as  exhibiting  a  piece  of  statuary  or  a  picture.  Mr.  Niles 
also  moved  for  an  attachment  against  Randall  for  violating  the  injunc- 
tion by  exhibiting  at  Philadelphia,  and  also  against  his  solicitor,  Mr. 
Watson,  for  drawing  up  the  contract  between  Randall  and  third  par- 
ties, by  which  he  was  enabled  to  exhibit,  &c. 

The,  Vice  Chancellor,  in  his  decision,  remarked  that  under  the 
decision  of  Hamblin  v.  Dinneford,  he  should  dissolve  the  injunction — 
that  contracts  for  mere  personal  services  afford  a  remedy  at  law,  and 
cannot  be  enforced  by  injunction.  As  to  the  application  for  attach- 
ment against  Randall  and  the  solicitor  for  violation  of  the  injunction, 
he  would  take  the  papers  and  make  up  his  mind. 


232  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Ch.  2 

BUTLER  v.  GALLETTI. 

(Superior  Court  of  New  York,  1861.     21  How.  Prae.  165.) 

The  plaintiff  is  proprietor  of  a  music  hall  in  Broadway  and  the  de- 
fendant is  a  danseuse.  The  defendant  was  engaged  by  the  plaintiff  in 
her  vocation,  at  $50  per  week,  but  some  misunderstanding  occurring 
between  the  parties,  she  transferred  her  services  to  the  Melodeon. 
Plaintiff  moves  for  an  injunction. 

Hoffman,  Justice.  The  complaint  sets  forth  the  following  agree- 
ment : 

"R.  W.  Butler,  of  the  city  and  county  of  New  York,  of  the  first  part,  and 
Annetta  Galletti,  of  the  same  city  and  county,  of  the  second  part,  witnesseth 
that  the  said  Annetta  Galletti,  of  the  second  part,  agrees  to  dance  at  the  Broad- 
way Music  Hall,  or  American  Music  Hall,  or  such  place  or  places  as  the 
said  party  of  the  first  part  may  require,  for  the  term  of  six  months,  com- 
mencing on  the  8th  day  of  September,  1861,  at  the  weekly  salary  of  fifty  dol- 
lars per  week,  payable  on  the  usual  salary  days,  accustomed  to  the  establish- 
ment wherein  performing.  The  said  party  of  the  second  part  agrees  to  ex- 
ercise her  utmost  abilities  for  the  promotion  of  the  exhibition  wherein  she 
may  perform  for  the  above  specified  term,  and  will  conform  to  all  the  rules 
and  regulations  of  said  establishment. 

"Given  under  my  hand  and  seal  this  third  day  of  June,  1861. 

"Annetta   Galletti. 

"R.  W.  Butler. 

"Jno.  Sunsford." 

It  then  alleges  that  the  defendant,  with  the  design  and  intent  to 
avoid  the  said  contract  on  her  part,  some  time  during  last  week  en- 
tered into  an  agreement  with  one  Lea,  a  proprietor  or  manager  of  the 
"Melodeon,"  a  place  of  public  amusement  in  Broadway,  in  said  city, 
to  appear  and  render  her  services  as  such  dancer  at  said  "Melodeon," 
and  is  advertised  to  dance  there  this  evening. 

Affidavits  have  been  used  by  the  defendant,  and  answering  affidavits 
on  the  part  of  the  plaintiff,  upon  the  motion.  They  bear  so  slightly 
upon  the  questions,  that  I  do  not  deem  it  necessary  to  comment  upon 
them.  The  case  depends  upon  the  agreement  merely.  It  is  simply  an 
engagement  to  dance  at  the  plaintiff's  theatre,  or  where  he  shall  pre- 
scribe.    There  are  no  negative  or  restrictive  clauses. 

The  authorities  were  examined  in  Fredricks  v.  Mayer,  13  How.  566, 
and  in  14  N.  Y.  Super.  Ct.  227.  I  am  unwilling  to  hold  and  do  not 
think  I  am  bound  by  the  cases  to  hold,  that  where  there  are  clear  and 
absolute  negative  stipulations  on  the  part  of  the  party,  upon  a  subject 
involving  in  part  the  exercise  of  intellectual  qualities,  and  a  special 
case  of  the  impossibility  or  great  difficulty  of  measuring  damages  is 
presented,  that  the  jurisdiction  to  forbid  the  violation  of  such  cove- 
nants does  not  exist.  But  the  present  case  is  far  from  being  one  of 
such  character,  and  falls  within  the  authorities  in  our  own  state,  in 
which  an  injunction  has  been  refused. 

Motion  for  injunction  denied,  and  temporary  injunction  vacated, 
without  costs. 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  233 

LUMLEY  v.  WAGNER. 

(In  Chancery  before  Lord  St.  Leonards,  1852.    1  De  Gex,  M.  &  G.  604.) 

The  bill  in  this  suit  was  filed  on  the  22d  April,  1852,  by  Benjamin 
Lumley,  the  lessee  of  her  Majesty's  Theatre,  against  Johanna  Wagner, 
Albert  Wagner,  her  father,  and  Frederick  Gye,  the  lessee  of  Covent 
Garden  Theatre:  it  stated  that  in  November,  1851,  Joseph  Bacher,  as 
the  agent  of  the  defendants  Albert  Wagner  and  Johanna  Wagner, 
came  to  and  concluded  at  Berlin  an  agreement  in  writing  in  the  French 
language,  bearing  date  the  9th  November,  1851,  and  which  agreement, 
being  translated  into  English,  was  as  follows : 

"The  undersigned  Mr.  Benjamin  Lumley,  possessor  of  her  Majesty's  Theatre 
at  London,  and  of  the  Italian  Opera  at  Paris,  of  the  one  part,  and  Mademoi- 
selle Johanna  Wagner,  canta trice  of  the  Court  of  his  Majesty  the  King  of 
Prussia,  with  the  consent  of  her  father,  Mr.  A.  Wagner,  residing  at  Berlin, 
of  the  other  part,  have  concerted  and  concluded  the  following  contract.  First, 
Mademoiselle  Johanna  Wagner  binds  herself  to  sing  three  months  at  the 
theatre  of  Mr.  Lumley,  her  Majesty's,  at  London,  to  date  from  the  1st  of 
April,  1852  (the  time  necessary  for  the  journey  comprised  therein).  *  *  * 
Fifth.  Mademoiselle  Johanna  Wagner  binds  herself  to  sing  twice  a  week  dur- 
ing the  run  of  the  three  months :  however,  if  she  herself  was  hindered  from 
singing  twice  in  any  week  whatever,  she  will  have  the  right  to  give  at  a  later 
period  the  omitted  representation.  Sixth,  If  Mademoiselle  Wagner,  fulfilling 
the  wishes  of  the  direction,  consent  to  sing  more  than  twice  a  week  in  the 
course  of  three  months,  this  last  will  give  to  Mademoiselle  Wagner  £50  sterling 
for  each  representation  extra.  Seventh,  Mr.  Lumley  engages  to  pay  Made- 
moiselle Wagner  a  salary  of  £400  sterling  per  month,  and  payment  will  take 
place  in  such  manner  that  she  will  receive  £100  sterling  each  week.     *     *     *  " 

The  bill  then  stated,  that  in  November,  1851,  Joseph  Bacher  met  the 
plaintiff  in  Paris,  when  the  plaintiff  objected  to  the  agreement  as  not 
containing  an  usual  and  necessary  clause,  preventing  the  defendant 
Johanna  Wagner  from  exercising  her  professional  abilities  in  England 
without  the  consent  of  the  plaintiff,  whereupon  Joseph  Bacher,  as  the 
agent  of  the  defendants  Johanna  Wagner  and  Albert  Wagner,  and 
being  fully  authorized  by  them  for  the  purpose,  added  an  article  in 
writing  in  the  French  language  to  the  agreement,  and  which,  being 
translated  into  English,  was  as  follows : 

"Mademoiselle  Wagner  engages  herself  not  to  use  her  talents  at  any  other 
theatre,  nor  in  any  concert  or  reunion,  public  or  private,  without  the  writ- 
ten authorization  of  Mr.  Lumley.  Dr.  Joseph  Bacher, 

"For  Mademoiselle  Johanna  Wagner, 
and  Authorized  by  Her." 

The  bill  then  stated  that  the  defendants  J.  and  A.  Wagner  subse- 
quently made  another  engagement  with  the  defendant  F.  Gye,  by  which 
it  was  agreed  that  the  defendant  J.  Wagner  should,  for  a  larger  sum 
than  that  stipulated  by  the  agreement  with  the  plaintiff,  sing  at  the 
Royal  Italian  Opera,  Covent  Garden,  and  abandon  the  agreement  with 
the  plaintiff.  The  bill  then  stated  that  the  defendant  F.  Gye  had  full 
knowledge  of  the  previous  agreement  with  the  plaintiff,  and  that  the 
plaintiff  had  received  a  protest  from  the  defendants  J.  and  A.  Wag- 


234  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

ner,  repudiating  the  agreement  on  the  allegation  that  the  plaintiff  had 
failed  to  fulfil  the  pecuniary  portion  of  the  agreement. 

The  bill  prayed  that  the  defendants  Johanna  Wagner  and  Albert 
Wagner  might  be  restrained  from  violating  or  committing  any  breach 
of  the  last  article  of  the  agreement ;  that  the  defendant  Johanna  Wag- 
ner might  be  restrained  from  singing  and  performing,  or  singing  at 
the  Royal  Italian  Opera,  Covent  Garden,  or  at  any  other  theatre  or 
place  without  the  sanction  or  permission  in  writing  of  the  plaintiff  dur- 
ing the  existence  of  the  agreement  with  the  plaintiff ;  and  that  the 
defendant  Albert  Wagner  might  be  restrained  from  permitting  or 
sanctioning  the  defendant  Johanna  Wagner  singing  and  performing, 
or  singing  as  aforesaid ;  that  the  defendant  Frederick  Gye  might  be 
restrained  from  accepting  the  professional  services  of  the  defendant 
Johanna  Wagner  as  a  singer  and  performer,  or  singer  at  the  said  Roy- 
al Italian  Opera,  Covent  Garden,  or  at  any  other  theatre  or  place,  and 
from  permitting  her  to  sing  and  perform  or  to  sing  at  the  Royal 
Italian  Opera,  Covent  Garden,  during  the  existence  of  the  agreement 
with  the  plaintiff,  without  the  permission  or  sanction  of  the  plain- 
tiff.    *     *     * 

The  plaintiff  having  obtained  an  injunction  from  the  Vice-Chancel- 
lor Sir  James-Parker  on  the  9th  May,  1852,  the  defendants  now  moved, 
by  way  of  appeal  before  the  Lord  Chancellor,  to  discharge  his  Honor's 
order. 

We  [defendants]  contend  that  the  agreement  is  a  purely  personal 
contract,  for  the  infraction  of  which  damages  are  a  complete  and  am- 
ple remedy :  the  agreement  is  in  fact  nothing  more  than  a  contract  of 
hiring  and  service,  and  whatever  the  relation  between  the  employer 
and  employed  may  be,  whether  master  and  servant,  or  principal  and 
agent,  or  manager  and  actor,  this  Court  will,  in  all  such  cases,  abstain 
from  interfering,  either  directly  or  indirectly.  Kemble  v.  Kean,  6 
Sim.  333;  Kimberley  v.  Jennings,  6  Sim.  340;  Stocker  v.  Brockel- 
bank,  3  Mac.  &  G.  250. 

[The  Lord  Chancellor.  In  the  case  of  Stocker  v.  Brockelbank, 
there  was  no  negative  covenant.]  G1     *     *     * 

In  Morris  v.  Colman,  18  Ves.  437,  the  injunction  was  granted  upon 
the  ground  of  partnership,  as  shown  by  Lord  Eldon  in  the  case  of 
Clarke  v.  Price,  2  Wils.  157;  and,  applying  the  language  of  his  Lord- 
ship in  that  case  to  the  present,  we  say  that  if  the  agreement  is  one 
which  the  Court  will  not  carry  into  execution  (and  this  must  be  ad- 
mitted) the  Court  cannot  indirectly  enforce  it. 

[The,  Lord  Chancellor  observed  that  in  the  case  of  Blakemore 
v.  The  Glamorganshire  Canal  Navigation,  1  M.  &  K.  154,  Lord  Eldon 
had  got  over  his  scruples;  for  he  there  granted  an  injunction,  the  ef- 
fect of  which  was  indirectly  to  compel  the  company  to  restore  certain 
works  to  the  state  in  which  they  originally  stood.    His  Lordship  added 

si  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         235 

that  he  had  always  felt  some  difficulty  in  acquiescing  in  the  propriety 
of  that  decision.]      *     *     * 

"Wherever  there  is  a  clear  legal  remedy,  as  exists  in  the  pres- 
ent instance,  this  Court  will  decline  to  interfere  in  cases  arising 
out  of  the  doctrine  of  specific  performance.  Collins  v.  Plumb,  16  Ves. 
454. 

[The;  Lord  Chancellor.  This  Court  interferes  by  injunction  in 
the  case  of  articled  clerks,  surgeons'  apprentices,  &c,  who  have  cove- 
nanted, after  they  leave  their  Masters  not  to  practise  within  certain 
limits,  although  no  question  of  specific  performance  is  involved.]      *      * 

The,  Lord  Chancellor.  The  question  which  I  have  to  decide  in 
the  present  case  arises  out  of  a  very  simple  contract,  the  effect  of  which 
is,  that  the  defendant  Johanna  Wagner  should  sing  at  her  Majesty's 
Theatre  for  a  certain  number  of  nights,  and  that  she  should  not  sing 
elsewhere  (for  that  is  the  true  construction)  during  that  period.  As 
I  understand  the  points  taken  by  the  defendants'  counsel  in  support  of 
this  appeal,  they  in  effect  come  to  this ;  namely,  that  a  Court  of  Equity 
ought  not  to  grant  an  injunction  except  in  cases  connected  with  spe- 
cific performance,  or  where  the  injunction  being  to  compel  a  party  to 
forbear  from  committing  an  act  (and  not  to  perform  an  act),  that  in- 
junction will  complete  the  whole  of  the  agreement  remaining  unexe- 
cuted. 

I  have  then  to  consider  how  the  question  stands  on  principle  and  on 
authority,  and  in  so  doing  I  shall  observe  upon  some  of  the  cases  which 
have  been  referred  to  and  commented  upon  by  the  defendants  in  sup- 
port of  their  contention.  The  first  was  that  of  Martin  v.  Nutkin,  2  P- 
W.  266,  in  which  the  Court  issued  an  injunction  restraining  an  act 
from  being  done  where  it  clearly  could  not  have  granted  any  specific 
performance :  but  then  it  was  said  that  that  case  fell  within  one  of  the 
exceptions  which  the  defendants  admit  are  proper  cases  for  the  inter- 
ference of  the  Court,  because  there  the  ringing  of  the  bells,  sought  to 
be  restrained,  had  been  agreed  to  be  suspended  by  the  defendant  in 
consideration  of  the  erection  by  the  plaintiffs  of  a  cupola  and  clock,  the 
agreement  being  in  effect  the  price  stipulated  for  the  defendant's  relin- 
quishing bell-ringing  at  stated  periods ;  the  defendant  having  accepted 
the  benefit,  but  rejected  the  corresponding  obligation,  Lord  Maccles- 
field first  granted  the  injunction  which  the  Lords  Commissioners,  at 
the  hearing  of  the  cause,  continued  for  the  lives  of  the  plaintiffs.  That 
case  therefore,  however  it  may  be  explained  as  one  of  the  exceptional 
cases,  is  nevertheless  a  clear  authority  showing  that  this  Court  has 
granted  an  injunction  prohibiting  the  commission  of  an  act  in  respect 
of  which  the  Court  could  never  have  interfered  by  way  of  specific  per- 
formance.    *     *     * 

The  agreement  to  sing  for  the  plaintiff  during  three  months  at  his 
theatre,  and  during  that  time  not  to  sing  for  anybody  else,  is  not  a  cor- 
relative contract,  it  is  in  effect  one  contract ;  and  though  beyond  all 
doubt  this  Court  could  not  interfere  to  enforce  the  specific  perform- 


236  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Cll.  2 

ance  of  the  whole  of  this  contract,  yet  in  all  sound  construction,  and 
according  to  the  true  spirit  of  the  agreement,  the  engagement  to  per- 
form for  three  months  at  one  theatre  must  necessarily  exclude  the 
right  to  perform  at  the  same  time  at  another  theatre.  It  was  clearly 
intended  that  J.  Wagner  was  to  exert  her  vocal  abilities  to  the  utmost 
to  aid  the  theatre  to  which  she  agreed  to  attach  herself.  I  am  of  opin- 
ion, that  if  she  had  attempted,  even  in  the  absence  of  any  negative 
stipulation  to  perform  at  another  theatre,  she  would  have  broken  the 
spirit  and  true  meaning  of  the  contract  as  much  as  she  would  now  do 
with  reference  to  the  contract  into  which  she  has  actually  entered. 

Wherever  this  Court  has  not  proper  jurisdiction  to  enforce  specific 
performance,  it  operates  to  bind  men's  consciences,  as  far  as  they  can 
be  bound,  to  a  true  and  literal  performance  of  their  agreements ;  and 
it  will  not  suffer  them  to  depart  from  their  contracts  at  their  pleasure, 
leaving  the  party  with  whom  they  have  contracted  to  the  mere  chance 
of  any  damages  which  a  jury  may  give.     *     *     * 

It  was  objected  that  the  operation  of  the  injunction  in  the  present 
case  was  mischievous,  excluding  the  defendant  J.  Wagner  from  per- 
forming at  any  other  theatre  while  this  Court  had  no  power  to  compel 
her  to  perform  at  her  Majesty's  Theatre.  It  is  true,  that  I  have  not 
the  means  of  compelling  her  to  sing,  but  she  has  no  cause  of  com- 
plaint, if  I  compel  her  to  abstain  from  the  commission  of  an  act  which 
she  has  bound  herself  not  to  do,  and  thus  possibly  cause  her  to  fulfill 
her  engagement.  The  jurisdiction  which  I  now  exercise  is  wholly 
within  the  power  of  the  Court,  and  being  of  opinion  that  it  is  a  prop- 
er case  for  interfering,  I  shall  leave  nothing  unsatisfied  by  the  judg- 
ment I  pronounce.  The  effect  too  of  the  injunction,  in  restraining  J. 
Wagner  from  singing  elsewhere  may,  in  the  event  of  an  action  being 
brought  against  her  by  the  plaintiff,  prevent  any  such  amount  of  vin- 
dictive damages  being  given  against  her  as  a  jury  might  probably  be 
inclined  to  give  if  she  had  carried  her  talents  and  exercised  them  at 
the  rival  theatre:  the  injunction  may  also,  as  I  have  said,  tend  to  the 
fulfillment  of  her  engagement:  though,  in  continuing  the  injunction, 
I  disclaim  doing  indirectly  what  I  cannot  do  directly. 

Referring  again  to  the  authorities,  I  am  well  aware  that  they  have 
not  been  uniform,  and  that  there  undoubtedly  has  been  a  difference  of 
decision  on  the  question  now  revived  before  me ;  but.  after  the  best 
consideration  which  I  have  been  enabled  to  give  to  the  subject,  the 
conclusion  at  which  I  have  arrived  is,  I  conceive,  supported  by  the 
greatest  weight  of  authority.  The  earliest  case  most  directly  bearing 
on  the  point  is  that  of  Morris  v.  Colman,  18  Yes.  437 :  there  Mr.  Col- 
man  was  a  part  proprietor  with  Mr.  Morris  of  the  Haymarket  Thea- 
tre, and  they  were  partners  in  that  concern,  and  by  the  deed  of  part- 
nership Mr.  Colman  agreed  that  he  would  not  exercise  his  dramatic 
abilities  for  any  other  theatre  than  the  Haymarket ;  he  did  not,  how- 
ever, covenant  that  he  would  write  for  the  Haymarket,  but  it  was 
merely  a  negative  covenant  that  he  would  not  write  for  any  other  the- 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         237 

atre  than  the  Haymarket.  Lord  Eldon  granted  an  injunction  against 
Mr.  Colman  writing  for  any  other  theatre  than  the  Haymarket ;  and 
the  ground  on  which  Lord  Eldon  assumed  that  jurisdiction  was  the 
subject  of  some  discussion  at  the  bar.  It  was  truly  said  for  the  de- 
fendants that  that  was  a  case  of  partnership ;  and  it  was  said,  more- 
over, that  Lord  (Tottenham  was  mistaken  in  the  case  of  Dietrichsen 
v.  Cabburn,  2  Phil.  52,  when  he  said  that  Lord  Eldon  had  not  decided 
Morris  v.  Colman  on  the  ground  of  there  being  a  partnership.  I  agree 
that  the  observations  which  fell  from  Lord  Eldon  in  the  subsequent 
case  of  Clarke  v.  Price,  2  Wils.  157,  show  that  he  did  mainly  decide  it 
on  the  ground  of  partnership ;  but  he  did  not  decide  it  exclusively  on 
that  ground.  In  the  argument  of  Morris  v.  Colman,  18  Yes.  437,  Sir 
Samuel  Romilly  suggested  a  case  almost  identical  with  the  present :  he 
contended  that  the  clause  restraining  Mr.  Colman  from  writing  for 
any  other  theatre  was  no  more  against  public  policy  than  a  stipulation 
that  Mr.  Garrick  should  not  perform  at  any  other  theatre  than  that 
at  which  he  was  engaged  would  have  been.  Lord  Eldon,  adverting  in 
his  judgment  to  the  case  put  at  the  bar,  said: 

"If  Mr.  Garrick  was  now  living,  would  it  be  unreasonable  that  he  should 
contract  with  Mr.  Colman  to  perform  only  at  the  Haymarket  Theatre,  and 
Mr.  Colman  with  him  to  write  for  the  theatre  alone?  Why  should  they  not 
thus  engage  for  the  talents  of  each  other?" 

He  gives  the  clearest  enunciation  of  his  opinion,  that  that  would  be 
an  agreement  which  this  Court  would  enforce  by  way  of  injunction. 

The  late  Vice-Chancellor  Shadwell,  of  whom  I  always  wish  to  be 
understood  to  speak  with  the  greatest  respect,  decided  in  a  different 
way,  in  the  cases  of  Kemble  v.  Kean,  6  Sim.  333,  and  Kimberley  v. 
Jennings,  6  Sim.  340,  on  which  I  shall  presently  make  a  few  observa- 
tions. In  the  former  case,  he  observed  that  Lord  Eldon  must  be  un- 
derstood, in  the  case  of  Morris  v.  Colman,  18  Ves.  437,  to  have  spoken 
according  to  the  subject-matter  before  him,  and  must  there  be  consid- 
ered to  be  addressing  himself  to  a  case  in  which  Colman  and  Garrick 
would  both  have  had  a  partnership  interest  in  the  theatre.  I  must, 
however,  entirely  dissent  from  that  interpretation.  Lord  Eldon's 
words  are  perfectly  plain ;  they  want  no  comment  upon  them ;  they 
speak  for  themselves.  He  was  alluding  to  a  case  in  which  Garrick,  as 
a  performer,  would  have  had  nothing  to  do  with  the  theatre  beyond 
the  implied  engagement  that  he  would  not  perform  anywhere  else ; 
and  I  have  come  to  a  very  clear  conclusion  that  Lord  Eldon  would 
have  granted  the  injunction  in  that  case,  although  there  had  been  no 
partnership. 

The  authority  of  Clarke  v.  Price,  2  Wils.  157,  was  much  pressed 
upon  me  by  the  learned  counsel  for  the  defendants ;  but  that  is  a  case 
which  does  not  properly  belong  to  their  argument,  because  there  was 
no  negative  stipulation,  and  I  quite  admit  that  this  Court  cannot  en- 
force the  performance  of  such  an  affirmative  stipulation  as  is  to  be 
found  in  that  case ;   there  the  defendant  having  agreed  to  take  notes  of 


238  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

cases  in  the  Court  of  Exchequer,  and  compose  reports  for  the  plain- 
tiff, and  having  failed  to  do  so,  the  plaintiff,  Mr.  Clarke,  filed  a  bill  for 
an  injunction,  and  Lord  Eldon,  when  refusing  the  injunction,  in  effect 
said,  I  cannot  compel  Mr.  Price  to  sit  in  the  Court  of  Exchequer  and 
take  notes  and  compose  reports;  and  the  whole  of  his  judgment  shows 
that  he  proceeded  (and  so  it  has  been  considered  in  later  cases)  on  the 
ground  that  there  was  no  covenant,  on  the  part  of  the  defendant,  that 
he  would  not  compose  reports  for  any  other  person.  The  expressions 
in  the  judgment  are:  "I  cannot,  as  in  the  other  case"  [referring  to 
Morris  v.  Colman,  18  Yes.  437,  "say  that  I  will  induce  him  to  write 
for  the  plaintiff  by  preventing  him  from  writing  for  any  other  per- 
son;"  and  then  come  these  important  words:  "for  that  is  not  the  na- 
ture of  the  agreement."  Lord  Eldon  therefore  was  of  opinion,  upon 
the  construction  of  that  agreement,  that  it  would  be  against  its  mean- 
ing to  affix  to  it  a  negative  quality  and  import  a  covenant  into  it  by  im- 
plication, and  he  therefore,  very  properly  as  I  conceive,  refused  that 
injunction  ;  that  case,  therefore,  in  no  respect  touches  the  question 
now  before  me,  and  I  may  at  once  declare,  that  if  I  had  only  to  deal 
with  the  affirmative  covenant  of  the  defendant  J.  Wagner  that  she 
would  perform  at  her  Majesty's  Theatre,  I  should  not  have  granted 
any  injunction. 

Thus  far,  I  think,  the  authorities  are  very  strong  against  the  defend- 
ants' contention ;  but  the  case  of  Kemble  v.  Kean,  6  Sim.  333,  to  which 
.1  have  already  alluded,  is  the  first  case  which  has  in  point  of  fact  intro- 
duced all  the  difficulties  on  this  part  of  the  law.  There  Mr.  Kean  en- 
tered into  an  agreement  precisely  similar  to  the  present :  he  agreed 
that  he  would  perform  for  Mr.  Kemble  at  Drury  Lane,  and  that  he 
would  not  perform  anywhere  else  during  the  time  that  he  had  stipu- 
lated to  perform  for  Mr.  Kemble.  Mr.  Kean  broke  his  engagement, 
a  bill  was  filed,  and  the  Vice-Chancellor  Shadwell  was  of  opinion  that 
he  could  not  grant  an  injunction  to  restrain  Mr.  Kean  from  perform- 
ing elsewhere,  which  he  was  either  about  to  do  or  actually  doing,  be- 
cause the  Court  could  not  enforce  the  performance  of  the  affirmative 
covenant  that  he  would  perform  at  Drury  Lane  for  Mr.  Kemble.  Be- 
ing pressed  by  that  passage  which  I  have  read  from  in  the  Lord  Chan- 
cellor's judgment  in  Morris  v.  Colman,  18  Ves.  437,  he  put  that  para- 
phrase or  commentary  upon  it  which  I  have  referred  to;  that  is,  he 
says :  "Lord  Eldon  is  speaking  of  a  case  where  the  parties  are  in  part- 
nership together."  I  have  come  to  a  different  conclusion ;  and  I  am 
bound  to  say  that,  in  my  apprehension,  the  case  of  Kemble  v.  Kean 
was  wrongly  decided  and  cannot  be  maintained.     *     *     * 

From  a  careful  examination  of  all  these  authorities  I  am  of  opinion 
that  the  principles  and  rules  deducible  from  them  are  in  direct  con- 
travention of  those  principles  and  rules  which  were  so  elaborately 
pressed  upon  me  during  the  argument ;  and  I  wish  it  to  be  distinctly 
understood  that  I  entertain  no  doubt  whatever  that  the  point  of  law 
has  been  properly  decided  in  the  Court  below.     It  was  nevertheless, 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        239 

and  with  some  reason,  said,  that  although  the  point  of  law  should  be 
decided  in  the  plaintiff's  favour,  still  he  might  be  excluded  from  hav- 
ing the  benefit  of  it  on  the  merits  of  the  case. 

His  Lordship  here  entered  into  a  minute  examination  of  the  state- 
ments in  the  answers  and  affidavits  as  to  the  unauthorized  addition  of 
the  restrictive  clause,  and  as  to  the  non-fulfillment  by  the  plaintiff  of 
his  portion  of  the  agreement.  In  reference  to  those  points  he  observed 
that,  whether  the  clause  was  originally  added  with  or  without  author- 
ity, the  evidence  showed  a  clear  acquiescence  on  the  part  of  the  de- 
fendants to  its  remaining  in  the  agreement ;  that  the  operation  of  the 
agreement  had  been  in  the  first  instance  postponed  to  suit  the  conven- 
ience of  the  defendants ;  and  that  as  to  the  payment  of  the  £300,  al- 
though the  plaintiff  could  not  have  come  into  a  Court  of  Equity  to  en- 
force the  contract  without  having  tendered  the  amount  stipulated  to  be 
paid,  yet  it  was  distinctly  proved  that  it  had  in  fact  been  paid  to  the 
common  agent  of  both  parties  for  the  purpose  of  being  handed  to  the 
defendants.  His  Lordship  concluded  by  saying  that,  looking  at  the 
merits  and  circumstances  of  the  case,  as  well  as  at  the  point  of  law 
raised,  he  must  refuse  this  motion  with  costs.     *     *     * 


MUTUAL  RESERVE  FUND  LIFE  ASS'N  v.  NEW  YORK  LIFE 
INS.  CO.  and  HARVEY. 

(Court  of  Appeal,  1S96.     75  Law  T.  R.  52S.) 

Appeal  from  the  Queen's  Bench  Division. 

The  plaintiffs  in  this  action  were  the  Mutual  Reserve  Fund  Life  As- 
sociation, which  are  an  American  association  duly  established  accord- 
ing to  American  law,  the  head  office  of  which  is  situate  at  New  York. 
The  plaintiffs  have  a  branch  office  in  Great  Britain,  situate  in  the  City 
of  London,  where  they  carry  on  business  as  an  insurance  company. 

The  defendant  Alfred  Robert  Harvey  was  an  insurance  agent,  car- 
rying on  business  at  Liverpool. 

The  New  York  Life  Insurance  Company  is  an  American  company 
having  a  branch  office  in  London. 

By  an  agreement  in  writing,  dated  the  16th  June  1894,  the  defend- 
ant Harvey  was  appointed  supervisor  of  the  plaintiff  association  for 
the  purpose  of  procuring,  effecting,  and  completing  satisfactory  ap- 
plications for  membership  in  the  plaintiff  association,  and  for  the  pur- 
pose of  collecting  the  first  payment  on  the  applications  so  effected,  and 
also  for  the  purpose  of  appointing  competent  and  acceptable  agents  in 
any  unoccupied  territory  in  England,  Scotland,  Ireland,  Wales,  or  the 
Isle  of  Man. 

By  the  agreement  the  defendant  Harvey  agreed  to  "act  exclusively 
for''  the  plaintiff  association,  in  so  far  as  to  tender  to  them  all  risks  ob- 
tained by  him  or  under  his  control ;  to  thoroughly  and  efficiently  occupy 


240  SPECIFIC   PERFORMANCE  OF   CONTRACTS  (Ch.  2 

the  territory  specified  in  the  agreement,  by  the  appointment  of  com- 
petent and  satisfactory  agents,  and  to  faithfully  discharge  all  the  du- 
ties of  his  appointment  as  such  supervisor ;  to  devote  his  time  and 
best  energies  to  the  service  of  the  plaintiff  association,  and  efficiently 
occupy  and  work  the  territory  assigned  to  him,  otherwise  the  agree- 
ment, so  far  as  it  related  to  future  new  business,  was  to  be  void  and 
of  no  effect ;  and  to  guard  the  interests  of  the  plaintiff  association,  and 
encourage  members  in  the  payment  of  their  premium  calls. 

Upon  the  condition  that  the  terms  and  provisions  of  the  agreement 
were  complied  with  by  the  defendant  Harvey,  the  contract  was  to  con- 
tinue in  force  for  the  period  of  five  years  from  the  date  thereof,  un- 
less the  said  defendant  failed  to  obtain  a  volume  of  business  satisfac- 
tory to  the  president  or  executive  committee  at  the  home  office  of  the 
plaintiff  association  in  New  York. 

,  On  the  20th  June  1896,  the  defendant  Harvey  entered  into  an  agree- 
ment with  the  defendant  company  whereby  he  was  appointed  agency 
director  of  that  company  for  the  Kingdom  of  Great  Britain  and  Ire- 
land, for  the  purpose  of  canvassing  for  applications  for  assurance  on 
the  lives  of  individuals  to  that  company  and  of  organizing  agencies  for 
that  company  in  Great  Britain  and  Ireland. 

The  plaintiff  association  thereupon  commenced  this  action  against 
the  defendant  Harvey,  and  the  defendant  company,  alleging  by  their 
statement  of  claim  that  subsequent  to  the  date  of  the  agreement,  and 
before  the  expiration  of  the  period  of  five  years  referred  to  therein, 
the  defendant  company  well  knowing  that  the  defendant  Harvey  was 
in  the  service  and  employment  of  the  plaintiff  association  under  the 
agreement,  and  in  order  to  secure  to  the  defendant  company  the  busi- 
ness connection  of  the  plaintiff  association,  and  in  order  to  damage 
and  injure  the  plaintiff  association  in  their  business,  wrongfully 
enticed  and  procured  the  defendant  Harvey,  unlawfully  and  with- 
out the  consent  and  against  the  will  of  the  plaintiff  association,  to  de- 
part from  the  service  of  the  plaintiff  association,  and  to  enter  the  de- 
fendant company's  service,  and  to  break  his  aforesaid  agreement  with 
the  plaintiff  association  in  the  following  particulars :  (a)  By  entering 
the  service  and  employment  of  the  defendant  company  before  the  ex- 
piration of  the  said  period  of  five  years ;  (b)  by  wholly  repudiating 
the  agreement  and  refusing  to  be  bound  thereby ;  (c)  by  neglecting  to 
perform  the  agreement  or  any  part  thereof ;  (d)  by  not  tendering  to 
the  plaintiff  association  all  risks  obtained  by  him  or  under  his  control, 
and  by  tendering  the  same  to  the  defendant  company;  (e)  by  endeav- 
ouring to  induce  the  agents  of  the  plaintiff  association  to  depart  from 
their  service,  and  to  enter  the  employment  of  the  defendant  company ; 
and  (f)  by  endeavouring  to  alienate,  and  alienating  from  the  plaintiff 
association,  their  policy-holders  and  intending  policy-holders. 

The  plaintiff  association  accordingly  claimed  (a)  a  declaration  that 
they  were  exclusively  entitled  to  the  services  of  the  defendant  Harvey 
for  a  period  of  five  years  from  the  16th  June,  1894,  in  accordance  with 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  241 

the  provisions  of  the  agreement;  (b)  an  injunction  to  restrain  the  de- 
fendant company,  until  after  the  expiration  of  the  said  period  of  five 
years,  from  retaining  the  services  of,  or  employing  or  continuing  to 
employ  the  defendant  Harvey  as  supervisor  or  as  director  of  agents, 
or  in  any  capacity  whatsoever  not  in  accordance  with  the  provisions  of 
the  agreement;  (c)  an  injunction  to  restrain  the  defendant  Harvey, 
until  after  the  expiration  of  the  said  period  of  five  years,  from  acting, 
or  continuing  to  act  for,  or  being  employed  by,  the  defendant  com- 
pany, or  any  other  person  or  body  corporate,  in  the  capacity  of  super- 
visor or  director  of  agents,  clerk,  agent,  servant,  or  in  any  capacity 
whatsoever  not  in  accordance  with  the  provisions  of  the  agreement, 
and  from  alienating  or  seeking  to  alienate  from  the  plaintiff  associa- 
tion their  policy-holders  or  intending  policy-holders,  and  from  tender- 
ing to  any  person  or  persons  other  than  the  plaintiff  association,  any 
insurance  risk  or  risks  obtained  by  him,  his  servants  or  agents,  or 
under  his  control ;  and  (d)  an  inquiry  as  to  what  policies  had  been  is- 
sued by  the  defendant  company  since  the  16th  June  1894,  in  respect 
of  risks  obtained  by  the  defendant  Harvey,  his  servants  or  agents,  or 
under  his  control. 

The  plaintiff  association  claimed  also  against  each  defendant  £5000 
damages  for  the  wrongful  acts  complained  of. 

Subsequently  the  plaintiff  association  took  out  a  summons  for  an 
interlocutory  injunction.  The  master  refused  the  application,  and  his 
refusal  was  affirmed  by  Pollock,  B.,  sitting  at  chambers  on  the  12th 
Aug.  1896. 

The  plaintiff  association  now  appealed. 

Lindley,  L.  J.G2  This  case  is,  like  many  others,  rather  near  the 
line.  It  must  turn  on  the  true  construction  of  the  contract  of  the 
16th  June  1894,  and  the  true  application,  when  that  contract  is  prop- 
erly construed,  of  the  principles  on  which  the  court  is  in  the  habit  of 
acting  in  such  cases  as  the  present.  As  regards  those  principles,  I 
do  not  think  that  I  need  do  more  than  refer  to  the  case  which  has 
been  cited,  of  The  Whitwood  Chemical  Company  v.  Hardman  (64  L. 
T.  Rep.  716;  [1891]  2  Ch.  416),  because  the  principles,  so  far  as  I  am 
acquainted  with  them,  will  be  found  most  fully  explained  there.  I 
quite  agree  that,  although  there  may  not  be  a  covenant  which  is  ab- 
solutely and  clearly  negative  in  terms,  still,  if  you  can  extract  from 
a  contract  of  this  kind  a  negative  covenant  which  is  sufficiently  clear 
and  definite  to  enable  you — as  I  used  the  expression  before — to  put 
your  finger  upon  it,  and  state  exactly  what  a  man  is  not  to  do,  that  is 
as  good  as  a  covenant  absolutely  and  clearly  negative  in  terms.  The 
difficulty  I  have  here  is  in  coming  to  the  conclusion  that  the  implied 
negative  covenant  is  sufficiently  definite  to  warrant  the  court  in  grant- 
ing an  injunction  as  asked.     My  impression  is  that  it  is  not.     I  think 

62  Parts  of  both  opinions  are  omitted. 
Boke  Eq.— 16 


242  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

that  the  plaintiffs  have  taken  a  much  wider  view  of  their  rights  than 
the  contract  justifies.  Now,  I  say  nothing  at  all  about  the  release  of 
the  contract  or  the  cancellation  of  it,  or  the  substance  of  it.  Let  me 
deal  with  it  on  the  assumption  that  it  is  a  subsisting  contract  between 
the  plaintiffs  and  Mr.  Harvey.  One  thing  the  contract  does  not  con- 
template, and  it  is  all  important.  It  certainly  does  not  contemplate 
that  Mr.  Harvey  is  to  do  no  business  of  any  kind  except  performing 
the  duties  of  his  agency  for  the  plaintiffs.  He  is  at  liberty  to  do  any- 
thing he  likes  that  is  consistent  with  that,  and  when  we  come  to  look 
at  the  supposed  negative  covenant,  or  the  clause  that  imports  a  negative 
covenant,  we  shall  find  that  it  is  very  carefully  and  very  narrowly  re- 
stricted.    *     *     * 

Then  we  come  to  a  clause,  and  the  only  clause  which  can  be  said 
to  import  a  negative  covenant.  The  supervisor,  Mr.  Harvey,  agrees 
to  "act  exclusively  for"  the  plaintiffs  in  so  far  as  to  tender  to  them 
all  risks  obtained  by  him  or  under  his  control.     *     *     * 

Bearing  in  mind  that  Mr.  Harvey  is  bound  to  do  the  best  he  can 
under  that  clause  for  the  plaintiffs,  what  does  it  mean  ?  Does  it  mean 
that  he  is  to  do  more  than  to  send  to  the  plaintiffs  such  life  assurance 
risks  as  he  can  procure  for  them  ?     *     *     * 

The  plaintiffs  have  put  a  construction  on  the  terms  of  the  contract 
far  wider  than  they  are  justified  in  doing  when  you  come  to<  work  the 
matter  out,  bearing  in  mind  that  you  have  not  got  any  clear  definite 
negative  covenant,  nor  anything  to  show  what  is  the  exact  limitation  of 
the  negative  covenant.  Here  the  contract  appears  to  me  to  be  of  suffi- 
cient vagueness  to  bring  this  case  within  the  principle  of  the  authority, 
to  which  I  have  already  referred,  of  The  Whitwood  Chemical  Com- 
pany v.  Hardman  (ubi  sup.),  and  not  of  Lumley  v.  Wagner  (19  L.  T. 
Rep.  O.  S'.  264,  1  De  G.,  M.  &  G.  604).  As  I  have  pointed  out,  and  1  re- 
peat it,  I  do  not  think  that  it  is,  in  accordance  with  the  view  taken 
in  this  class  of  case,  desirable  to  extend  the  principle  established  there- 
by. I  look  upon  Lumley  v.  Wagner  (ubi  sup.)  and  the  whole  of  the 
cases  of  that  class  as  rather  anomalous.  I  should  be  bound  by  them, 
and  of  course  follow  them,  where  I  have  to  decide  cases  of  a  similar 
kind.  But  before  an  injunction. can  be  granted,  in  order  to  enforce  a 
written  contract  of  personal  service — because  this  is  a  contract  of  per- 
sonal service — there  must  be  a  clear  and  definite  negative  covenant ; 
or,  if  one  is  to  be  implied,  which  is  quite  possible,  it  must  be  so  definite 
that  the  court  can  see  exactly  the  limit  of  the  injunction  that  it  is  to 
grant.  I  think  that  this  contract  is  far  too  hazy,  far  too  indefinite,  to  do 
anything  of  the  kind.  Therefore  it  appears  to  me  that  the  appeal 
ought  to  be  dismissed,  and  dismissed  with  costs. 

Smith,  L.  J.    I  agree.     *     *     * 

Now,  as  I  have  before  observed,  the  authority  has  been  cited  in 
this  court  of  The  Whitwood  Chemical  Company  v.  Hardman  (ubi 
sup.),  in  which  it  was  held — and  I  have  no  doubt  rightly  held — that 
where  there  is  a  contract  for  a  man  to  give  his  whole  time  to  another, 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         243 

there  is  no  negative  implied  covenant  there  that  he  will  not  act  for  an- 
other. Where  a  person  has  contracted  to  act  exclusively  for  another, 
how  can  this  court  logically  say,  if  the  case  of  The  Whitwood  Chemical 
Company  v.  Hardman  (ubi  sup.)  stands,  which  I  apprehend  is  good  law, 
that  there  is  a  negative  covenant  ?  I  cannot  myself  bring  my  mind  to 
a  point  so  fine  as  that,  and  I  have  expressed  my  opinion  on  what  I 
think  is  the  true  construction  of  this  contract.  But  I  declare  that, 
if  I  had  been  sitting  at  chambers  I  should  have  done  exactly  what 
apparently  Pollock,  B.,  did — that  is,  say  that  I  did  not  find  any  nega- 
tive covenant  in  this  case,  or  any  such  implied  covenant,  not  to  do  that 
which  the  defendant  is  asked  to  be  restrained  from  doing.  This 
case  comes,  in  my  opinion,  within  The  Whitwood  Chemical  Company 
v.  Hardman  (ubi  sup.),  which  is  a  binding  authority  upon  us.  For 
these  reasons  I  think  that  this  appeal  ought  to  be  dismissed,  and  with 
costs. 

Appeal  dismissed.03 

63  in  Whitwood  Chemical  Co.  v.  Hardman,  [1891]  2  Chan.  416,  at  42G,  where 
the  defendant  had  agreed  to  give  the  whole  of  his  time  to  the  plaintiffs  as 
manager  of  its  business,  the  Court  of  Appeal  refused  to  grant  an  injunction, 
and  declined  to  imply  an  enjoinable  negative  clause  not  to  serve  as  director 
in  another  company.  In  reversing  Kekewich,  J.,  of  the  court  below,  Lindley, 
L.  J.,  said:  "The  first  point  to  observe  is,  that  there  is  no  negative  covenant 
at  all,  in  terms,  contained  in  the  agreement  on  which  the  plaintiffs  are  suing — 
that  is  to  say,  the  parties  have  not  expressly  stipulated  that  the  defendant 
shall  not  do  any  particular  thing.  The  agreement  is  wholly  an  affirmative 
agreement,  and  the  substantial  part  of  it  is  that  the  defendant  has  agreed  to 
give  'the  whole  of  his  time'  to  the  plaintiff  company.  That  is  important  in 
this  respect,  that  it  enables  us  to  see  more  clearly  than  we  otherwise  might 
what  the  parties  had  in  their  contemplation.  If  there  had  been  a  negative 
clause  in  this  agreement,  such  as  there  was  in  Luinley  v.  Wagner  (1S52)  1  De 
G.,  M.  &  G.  604,  and  in  some  of  the  other  cases,  we  should  have  been  relieved 
from  the  difficulty  of  speculating  what  they  had  been  thinking  about.  We 
should  have  seen  that  they  had  had  their  attention  drawn  to  certain  specific- 
points,  and  that  they  had  come  to  an  agreement  upon  those  specific  points. 
In  this  case,  we  are  left  more  or  less  in  the  dark  about  that,  because,  as  I 
have  said,  there  is  nothing  that  shows  that  anything  definite  was  in  the 
minds  of  these  parties  beyond  this,  that  the  defendant  was  to  give  the  whole 
of  his  time  to  the  plaintiffs'  business.  Now  every  agreement  to  do  a  par- 
ticular thing  in  one  sense  involves  a  negative.  It  involves  the  negative  of 
doing  that  which  is  inconsistent  with  the  thing  you  are  to  do.  If  I  agree  with 
a  man  to  be  at  a  certain  place  at  a  certain  time,  I  impliedly  agree  that  I 
will  not  be  anywhere  else  at  the  same  time,  and  so  on  ad  infinitum;  but  it 
does  not  at  all  follow  that,  because  a  person  has  agreed  to  do  a  particular 
thing,  he  is,  therefore  to  be  restrained  from  doing  everything  else  which  is 
inconsistent  with  it.  The  court  has  never  gone  that  length,  and  I  do  not  sup- 
pose that  it  ever  will.  We  are  dealing  here  with  a  contract  of  a  particular 
class.  It  is  a  contract  involving  the  performance  of  a  personal  service,  and, 
as  a  rule,  the  court  does  not  decree  specific  performance  of  such  contracts. 
That  is  a  general  rule.  There  has  been  engrafted  upon  that  rule  an  excep- 
tion, which  is  explained  more  or  less  definitely  in  Lumley  v.  Wagner  (1852) 
1  De  G.,  M.  &  G.  604, — that  is  to  say,  where  a  person  has  engaged  not  to 
serve  any  other  master,  or  not  to  perform  at  any  other  place,  the  court  can 
lay  hold  of  that,  and  restrain  him  from  so  doing;  and  there  are  observations, 
in  which  I  concur,  made  by  Lord  Selborne  in  the  Wolverhampton  and  Walsall 
Railway  Company  v.  London  and  North  Western  Railway  Company  (1873) 
Law  Rep.  16  Eq.  433,  to  the  effect  that  the  principle  dees  not  depend  upon 
whether  you  have  an  actual  negative  clause,  if  you  can  say  that  the  parties 


244  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

EHRMAN  v.  BARTHOLOMEW. 

(Chancery  Division.     [1898]  1  Ch.  Div.  671.) 

Motion. 

In  August,  1897,  the  defendant  entered  the  employ  of  the  plaintiffs, 
a  firm  of  wine  merchants,  as  a  traveller  at  a  salary,  under  the  terms 
and  conditions  of  an  agreement  which,  so  far  as  material,  provided, 
that  the  employment  should  continue  for  a  term  of  ten  years  from 
August  30,  1897,  and  be  terminable  by  the  plaintiffs  after  the  first  year 
by  three  months'  notice  in  writing.  Clause  3  of  the  agreement  was  as 
follows : 

"The  traveller  shall  diligently  and  continuously  employ  himself  as  the 
traveller  of  the  firm  for  the  purpose  of  selling  the  firm's  goods,  and  shall  use 
his  best  endeavours  to  obtain  new  customers  for  the  firm,  and  to  extend  busi- 
ness, and  shall  devote  the  whole  of  his  time  during  the  usual  business  bours 
in  tbe  transaction  of  the  business  of  the  firm,  and  shall  not  in  any  manner 
directly  or  indirectly  engage  or  employ  bimself  in  any  other  business,  or 
transact  any  business  with  or  for  any  person  or  persons  other  than  the  firm 
during  the  continuance  of  this  agreement." 

The  agreement  also  provided  (clause  13)  that  after  the  termination 
of  the  employment  by  any  means,  the  defendant  should  not,  either  on 
his  sole  account  or  jointly  with  any  other  person,  directly  or  indirectly 
supply  any  of  the  then  or  past  customers  of  the  firm  with  wines,  liq- 
ueurs or  spirits,  or  solicit  for  orders  any  such  customers ;  and  should 
not  be  employed  in  any  capacity  whatsoever,  or  be  concerned,  engaged 
or  employed  in  any  business  of  a  wine  or  spirit  merchant  in  which  any 
former  partner  of  the  firm  was  engaged ;  and  in  case  of  any  breach  of 
this  provision,  then  the  defendant  was  to  pay  the  firm  £1000  as  liqui- 
dated damages. 

In  March,  1898,  the  defendant  left  the  plaintiffs'  employment  and 
entered  the  service  of  another  firm  of  wine  merchants.  The  defend- 
ant wrote  resigning  his  place  with  the  plaintiffs ;  but  they  declined  to 
accept  his  resignation,  and  commenced  the  present  action,  by  which 
they  claimed  an  injunction  to  restrain  the  defendant  from  "in  any 
manner  directly  or  indirectly  engaging  or  employing  himself  in  any 
business  other  than  that  of  the  plaintiffs'  firm,  and  from  transacting 
any  business  with  or  for  any  person  or  persons  other  than  the  plain- 
were  contracting  in  the  sense  that  one  should  not  do  this,  or  the  other — some 
specific  thing  upon  which  you  can  put  your  finger.  But  there  is  this  to  he 
considered.  What  air  we  to  say  in  this  particular  case?  What  injunction 
can  be  granted  in  this  particular  case  which  will  not  be,  in  substance  and 
effect,  a  decree  for  specific  performance  of  this  agreement'?  It  appears  to 
me  the  difficulty  of  tbe  plaintiffs  is  this,  that  they  cannot  suggest  anything 
which,  when  examined,  does  not  amount  to  this,  that  the  man  must  either 
be  idle,  or  specifically  perform  the  agreement  into  which  he  has  entered.  Now 
there,  it  appears  to  me,  the  case  goes  beyond  Luinley  v.  Wagner,  and  every  case 
except  Montague  v.  Flockton  (1873)  Law  Rep.  16  Eq.  189.  The  principle  is 
that  tlie  court  does  not  decree  specific  performance  of  contracts  for  personal 
service,  and  the  question  is,  whether  there  is  anything  in  this  case  which 
takes  it  out  of  that  principle.  I  cannot  see  that  there  is.  Reliance  was  placed 
on  Montague  v.  Flockton,  in  which  also  there  was  no  negative  clause." 


Sec.  1)  CONTRACTS   SUBJECT   TO   SPECIFIC   PERFORMANCE  245 

tiffs'  firm,  and  in  particular  from  acting  as  a  traveller  for  Messrs.  Mar- 
zell  &  Co.,  and  from  soliciting  orders  for  and  on  behalf  of  the  said 
Messrs.  Marzell  &  Co.  during  the  term  of  ten  years  from  August  30, 
1897." 

The  plaintiffs  now  moved  for  an  interim  injunction  in  the  terms  of 
their  claim. 

April  26.  Romer,  J.  In  my  opinion  the  injunction  asked  for  by 
the  notice  of  motion  ought  not  to  be  granted.  The  application  is  based 
on  clause  3  of  the  agreement  between  the  parties,  which  contains  a 
negative  stipulation,  and  so  far  distinguishes  this  case  from  that  of 
Whitwood  Chemical  Co.  v.  Hardman,   [1891]  2  Ch.  416. 

In  the  first  place,  having  regard  to  clause  13,  I  doubt  whether  clause 
3  was  intended  to  apply  to  the  state  of  things  now  existing,  when  the 
defendant  is  no  longer  acting  as  a  servant  of  the  plaintiffs,  and  can- 
not be  compelled  so  to  act,  though  his  refusal  to  do  so  is  in  breach 
of  his  contract  to  act  for  the  ten  years  mentioned  in  the  agreement. 
But  if  I  assume  that  clause  3  was  intended  to  apply  to  the  existing  cir- 
cumstances, then  the  serious  question  arises  whether  the  Court  ought 
to  enforce  such  a  negative  stipulation  as  is  there  contained.  That 
clause  would  in  terms  prevent  the  defendant,  at  any  rate  during  the 
usual  business  hours,  from  engaging  or  employing  himself  in  any  busi- 
ness other  than  that  of  the  plaintiffs,  and  from  transacting  any  business 
with  or  for  any  person  or  persons  other  than  the  plaintiffs ;  and  this 
for  a  period  of  ten  years  from  August  30,  1897,  or  for  so  much  of  that 
period  as  the  plaintiffs  choose.  And  it  is  clear  that  in  this  clause  the 
word  "business"  cannot  be  held  limited  by  the  context  to  a  wine  mer- 
chant's business  or  in  any  similar  way.  So  that  the  Court,  while  un- 
able to  order  the  defendant  to  work  for  the  plaintiffs,  is  asked  in- 
directly to  make  him  do  so  by  otherwise  compelling  him  to  abstain 
wholly  from  business,  at  any  rate  during  all  usual  business  hours.  In 
my  opinion  such  a  stipulation  is  unreasonable  and  ought  not  to  be  en- 
forced by  the  Court.  As  the  present  Master  of  the  Rolls  stated  in 
Whitwood  Chemical  Co.  v.  Hardman,  [1891]  2  Ch.  416,  cases  where 
negative  stipulations  in  contracts  of  service  are  enforced  by  the  Court 
ought  not  to  be  extended,  and  are  to  be  regarded  as  anomalies  which 
it  would  be  very  dangerous  to  extend.  To  enforce  such  a  general  nega- 
tive stipulation  as  I  find  here  would  be  in  my  opinion  a  dangerous 
extension,  for  here  the  stipulation  extends  to  business  of  any  kind, 
while  the  negative  stipulations  enforced  in  the  prior  cases,  such  as 
Lumley  v.  Wagner,  5  De  G.  &  Sm.  485,  1  D.,  M.  &  G.  604,  were  con- 
fined to  special  services.  For  these  reasons  I  refuse  the  motion,  but 
looking  at  the  conduct  of  the  defendant,  I  do  so  without  costs.  Of 
course  by  this  order  the  plaintiffs  will  in  nowise  be  prevented  from  en- 
forcing clause  13  of  the  agreement  should  they  think  fit  to  do  so. 


246  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 


METROPOLITAN  ELECTRIC.  SUPPLY  CO.,  Limited,  v. 

GIXDER. 

(Chancery  Division.     [1901]  2  Ch.  799.) 

The  plaintiffs  were  a  company  who  supplied  electricity  in  a  large 
district  in  London,  and  this  was  a  motion  by  them  to  restrain  the 
defendant  from  taking  the  electric  energy  required  for  his  licensed 
public-house,  known  as  the  Red  Lion,  No.  72,  High  Holborn,  from  any 
person,  firm,  or  company  other  than  the  plaintiffs,  in  breach  of  an  al- 
leged agreement. 

On  November  16,  1898,  the  defendant  had  signed  what  was  called 
a  contract,  but  in  point  of  fact  was  a  statutory  form  of  request  to  the 
plaintiffs,  as  follows : 

"I  the  undersigned  request  you  to  supply  electric  energy  as  specified  be- 
low, and  I  agree  to  take  all  such  electric  energy  subject  to  such  of  the  clauses 
of  the  Electric  Lighting  Acts  and  the  company's  provisional  orders  as  relate 
to  the  supply  of  electricity  for  the  parish  in  which  the  premises  to  be  sup- 
plied are  situate,  and  also  subject  to  the  following  terms  and  conditions,  viz.: 
(1.)  the  consumer  agrees  to  take  the  whole  of  the  electric  energy  required  for 
the  premises  mentioned  below  from  the  company  for  a  period  of  not  less  than 
five  years;  (2.)  the  charge  for  electric  energy  to  be  4%d.  per  Board  of  Trade 
unit.'7 

Then  followed  provisions  for  registering  the  supply  by  meter,  power 

of  lamps,  repairs,  &c,  but  there  was  no  covenant  by  the  company  to 

supply  energy,  nor  by  the  defendant  to  take  any.    The  final  clause  was 

as  follows : 

"In  the  event  of  the  company's  standard  rate  of  charges  being  reduced  be- 
low the  price  herein  quoted  during  the  continuance  of  this  agreement  the  con- 
sumer is  to  have  the  benefit  of  such  reduced  rate." 

Similar  forms  of  request  had  been  signed  by  other  persons  for  dif- 
ferent terms  of  years,  and  in  one  case  at  the  rate  of  4d.  per  unit. 

In  February,  1901,  the  defendant  gave  notice  to  the  plaintiffs  to  dis- 
connect his  premises  from  their  system,  and  made  arrangements  to  get 
a  supply  from  a  rival  company,  on  the  ground,  as  he  alleged,  that  the 
energy  supplied  by  the  plaintiffs  was  insufficient. 

The  plaintiffs  thereupon  commenced  this  action  against  the  defend- 
ant, and  moved  for  an  interim  injunction. 

The  motion  was  not  heard  out,  but  the  hearing  of  the  action  was  ac- 
celerated and  the  case  was  heard  with  witnesses  upon  the  issues  raised 
in  the  affidavits. 

Buckley,  J.64  *  *  *  held  on  the  evidence  that  the  energy  sup- 
plied by  the  plaintiffs  was  reasonably  such  as  the  defendant  was  enti- 
tled to  receive,  and  continued: — One  of  the  first  defences  which  is 
raised  is  this:  it  is  said  that  the  language  of  the  contract  is  affirmative 
and  not  negative,  and  that  the  Court  is  asked  to  grant  an  injunction 
upon  the  footing  that  there  is  a  negative  covenant,  when  in  point  of 

o*  Part  of  the  opinion  is  omitted. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         247 

fact  there  is  none.  Now,  in  dealing  with  that  contention  it  appears  to 
me  that  my  first  duty  is  to  construe  the  contract,  and  that,  for  the  pur- 
pose of  arriving  at  the  true  construction  of  the  contract,  I  must  disre- 
gard what  would  be  the  legal  consequences  of  my  construing  it  in  the 
one  way  or  the  other  way.  I  must  first  find  out  what  it  means ;  and 
when  I  have  found  out  what  it  means,  then  I  must  apply  proper  legal 
principles  to  the  contract  as  construed.  There  is  a  passage  in  the  judg- 
ment of  Lord  Selborne  in  Wolverhampton  and  Walsall  Ry.  Co.  v. 
London  and  North  Western  Ry.  Co.,  L.  R.  16  Eq.  433,  440,  which  I 
desire  to  read  on  this  part  of  the  case.  Referring  to  Lumley  v.  Wag- 
ner, 1  D.  M.  &  G.  604,  Lord  Selborne  said : 

"With  regard  to  the  case  of  Lumley  v.  Wagner,  to  which  reference  was 
made,  really  when  it  comes  to  be  examined  it  is  not  a  case  which  tends  in 
any  way  to  limit  the  ordinary  jurisdiction  of  this  Court  to  do  justice  between 
parties  by  way  of  injunction.  It  was  sought  in  that  case  to  enlarge  the  juris- 
diction on  a  highly  artificial  and  technical  ground,  and  to  extend  it  to  an 
ordinary  case  of  hiring  and  service,  which  is  not  properly  a  case  of  specific 
performance:  the  technical  distinction  being  made,  that  if  you  find  the  word 
'not'  in  an  agreement — 'I  will  not  do  a  thing' — as  well  as  the  words  'I  will,' 
even  although  the  negative  term  might  have  been  implied  from  the  positive, 
yet  the  Court,  refusing  to  act  on  an  implication  of  the  negative,  will  act  on 
the  expression  of  it.  I  can  only  say  that  I  should  think  it  was  the  safer  and 
the  better  rule,  if  it  should  eventually  be  adopted  by  this  Court,  to  look  in 
all  such  cases  to  the  substance  and  not  to  the  form.  If  the  substance  of  the 
agreement  is  such  that  it  would  be  violated  by  doing  the  thing  sought  to  be 
prevented,  then  the  question  will  arise  whether  this  is  the  Court  to  come  to 
for  a  remedy.  If  it  is,  I  cannot  think  that  ought  to  depend  on  the  use  of  a 
negative  rather  than  an  affirmative  form  of  expression." 

The  cases  since  that,  I  think,  have  gone  to  show  that  that  which 
Lord  Selborne  says  would  be  the  true  principle  if  it  should  eventually 
be  adopted  by  this  Court,  has  really  now  been  adopted  by  this  Court. 
The  language  here  is  that  the  consumer  agrees  to  take  the  whole  of 
the  electric  energy  required  for  his  premises  from  A.  The  company 
was  bound  to  supply  under  the  statute  if  asked.  The  consumer  asks. 
The  result  is  that  he  thereupon  had  a  right  as  against  the  plaintiffs  to 
be  supplied.  The  only  question  for  bargain  then  was  the  price,  which 
was  fixed  at  41/^d.  They  were  contracting,  not  affirmatively  for  the 
supply  of  something,  but  negatively  that  the  defendant  would  not  take 
from  somebody  else.  There  is  no  affirmative  contract  here  to  take 
anything  at  all.  Ginder  does  not  agree  that  he  will  take  any  energy 
from  the  plaintiffs.  He  says  he  will  take  the  whole  of  the  electric  en- 
ergy required.  It  is  competent  to  him  to  burn  gas  if  he  likes,  and  re- 
quire no  energy.  The  only  thing  he  was  contracting  to  do  was  that 
if  he  took  electric  energy  he  would  take  it  from  the  plaintiffs.  It  seems 
to  me  the  whole  essence  of  that  contract  is  that  which  is  not  expressed 
in  words,  I  agree,  but  which  by  implication  is  really  the  only  thing 
existing,  a  contract  that  he  will  not  take  from  somebody  else.  He 
agrees  to  take  the  whole  from  A.,  which  necessarily  implies  that  he 
will  not  take  from  B.  As  matter  of  construction,  therefore,  not  by 
express  words  but  by  necessary  implication,  I  think  there  is  here  an 
agreement  not  to  take  from  others.     In  that  state  of  things,  how  do 


248  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Ch.  2 

the  authorities  stand?  In  the  first  place,  it  is  said  that  in  the  recent 
case  of  Whitwood  Chemical  Co.  v.  Hardman,  [1891]  2  Ch.  416,  the 
language  was  that  A.  would  give  the  whole  of  his  time  to  the  com- 
pany's business,  which  implied  that  he  would  not  give  any  to  anybody 
else.  I  agree  that  is  exactly  similar  to  this  in  the  sense  that  here  it  is 
an  agreement  that  he  will  take  the  whole  of  his  required  supply,  and 
in  Whitwood  Chemical  Co.  v.  Hardman  it  was  that  he  would  give  the 
whole  of  his  time.  But  when  I  read  the  judgments  in  that  case  it  ap- 
pears to  me  thaf  the  Lords  Justices  founded  themselves  entirely  on 
this — that  what  they  were  dealing  with  was  a  contract  for  personal 
service,  which  of  course  this  Court  will  not  in  general  specifically  per- 
form. What  they  pointed  out  was  that  the  parties  were  not  thinking 
of  contracting  there  about  excluding  the  manager  from  acting  for  an- 
other :  that  was  not  in  their  contemplation.  What  was  in  their  con- 
templation was  that  they  should  enjoy  his  whole  time — that  he  should 
give  them  his  service  without  reservation,  but  they  did  not  contemplate 
the  negative  stipulation  that  he  should  not  serve  others.  It  being  a 
contract  of  personal  service,  it  is  quite  plain,  I  think,  that  the  Court 
of  Appeal  were  not  prepared  to  extend  the  doctrine  of  Lumley  v. 
Wagner,  1  D.,  M.  &  G.  604,  as  to  contracts  of  personal  service  beyond 
the  case  where  there  exists,  as  there  did  in  Lumley  v.  Wagner,  express 
negative  words.  But,  on  the  other  hand,  there  is  Catt  v.  Tourle,  L.  R- 
4  Ch.  654,  a  case  equally  on  all  fours  with  the  present  as  regards  the 
expression,  but  not  a  case  of  personal  service.  There  the  words  were 
that  the  plaintiff  should  have  the  exclusive  right  of  supplying  all  ale, 
and  he  asked  for  an  injunction  to  restrain  a  person  from  supplying  the 
ale  himself  or  obtaining  it  from  another  person ;  and  succeeded  in  get- 
ting it.     *     *     * 

The  contract  really  is  a  contract,  the  whole  of  which  is  in  substance 
the  negative  part  of  it,  that  he  will  take  the  whole  from  them,  involv- 
ing that  he  will  not  take  any  from  anybody  else.  I  therefore  think  that 
the  fact  that  the  contract  is  affirmative  in  form  and  not  negative  in 
form  is  no  ground  for  refusing  an  injunction.     *     *     * 

I  fail  to  find  in  the  facts  of  this  case  that  there  has  been  any  undue 
preference.  Mr.  Page,  who  is  the  person  principally  representing  the 
plaintiffs  in  making  these  contracts,  told  me,  as  I  should  expect,  that 
he  takes  the  circumstances  of  each  case  into  consideration,  and  the 
price  which  has  to  be  charged  is  fixed  accordingly. 

It  seems  to  me  that  this  is  a  contract  which  it  was  competent  for  the 
plaintiffs  to  make,  and  that  they  are  entitled  to  succeed  in  the  action. 

I  must,  therefore,  grant  an  injunction  to  restrain  the  defendant,  dur- 
ing the  residue  of  the  term  of  five  years  which  is  mentioned  in  the  con- 
tract of  November  16,  1898,  from  taking  the  electric  energy  required 
for  his  premises  from  any  person  other  than  the  plaintiffs ;  but  I  think 
I  must  reserve  liberty  to  the  defendant  to  apply,  by  which  I  mean  this 
— that  if  at  any  time  the  plaintiffs  are  not  prepared  to  supply  the  en- 
ergy which  he  wants,  or  if  they  supply  an  energy  which  is  not  an  effi- 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        249 

cient  supply  such  as  they  are  bound  to  give  by  the  Act  of  Parliament, 
then  I  think  he  ought  to  be  at  liberty  to  apply  to  be  relieved  from  the 
operation  of  the  injunction. 


KIRCHNER  &  CO.  v.  GRUBAN. 
(Chancery  Division.     [1909]  1  Ch.  413.) 

Adjourned  summons  and  motion. 

By  an  agreement  dated  June  30,  1905,  and  made  between  the  plain- 
tiffs Kirchner  &  Co.,  of  Leipzig,  and  the  defendant  Gruban,  a  German 
subject,  the  defendant  was  engaged  as  representative  of  the  plaintiff 
firm  for  the  United  Kingdom,  with  domicil  in  London,  for  the  sale  of 
the  goods  manufactured  and  sold  by  the  plaintiffs  at  a  remuneration 
consisting  of  a  fixed  salary  and  certain  commissions  on  sales. 

The  following  material  clauses  of  the  agreement  are  taken  from  a 
translation  of  the  German  original  supplied  by  the  plaintiffs : 

"6.  Mr.  Gruban  agrees  to  devote  all  his  activity  and  industry  exclusively 
to  the  sale  of  the  machines  and  other  articles  of  the  firm  Kirchner  &  Co., 
Leipzig,  not  to  make  gains  by  another  business  of  any  kind,  not  to  divulge 
any  business  matters  to  any  one  and  to  follow  exactly  and  conscientiously  all 
instructions  and  directions  of  the  firm  Kirchner  &  Co.,  Leipzig.     *     *     * 

"7.  Mr.  Gruban  agrees  under  a  penalty  of  twenty  thousand  marks  to  re- 
main in  his  position  and  not  to  give  notice  before  July  1,  1910  (three  months). 
A  penalty  of  twenty  thousand  marks  comes  into  force  if  Mr.  Gruban  by  neg- 
lect of  duty  or  other  permanent  abuse  of  his  position  of  trust  shows  himself 
unworthy  to  remain  in  his  position  so  that  according  to  the  German  Commer- 
cial Code  dismissal  is  justified.  Should  such  an  event  take  place  Kirchner 
&  Co.  secure  themselves  in  the  first  place  by  the  security  paid  by  Mr.  Gruban 
and  further  by  the  commissions  due  or  falling  due  later.  Kirchner  &  Co. 
agree  not  to  give  notice  to  Mr.  Gruban  before  the  1st  day  of  July  1910  (three 
months)  provided  that  Mr.  Gruban  does  not  give  cause  for  lawful  dismissal." 

"12a.  The  contracting  parties  submit  themselves  in  all  cases  of  dispute  to 
the  exclusive  jurisdiction  of  the  Royal  Landgericht  or  of  the  Amtsgericht  at 
Leipzig,  and  the  German  law  shall  exclusively  hold  good.     *     *     *  " 

According  to  the  defendant,  the  more  correct  and  literal  translation 
of  the  last  sentence  was,  and  in  fact  it  is,  "and  to  the  exclusive  appli- 
cability of  the  German  law."  The  original  German  sentence  ran  "und 
der  ausschliesslichen  Anwendbarkeit  des  deutschen  Rechtes." 

The  agreement  contained  no  restriction  against  the  defendant  enter- 
ing the  employment  of  any  rival  firm  after  the  termination  of  his  con- 
tract with  the  plaintiffs. 

From  the  date  of  the  agreement  the  defendant  acted  as  agent  for  the 
plaintiff  firm,  but  by  the  end  of  1907  he  became  desirous  of  determin- 
ing his  engagement  with  the  plaintiffs,  on  the  ground  of  certain  alleged 
complaints  against  them.  He  gave  three  months'  notice  to  the  plain- 
tiffs of  his  intention  to  determine  the  agreement,  and  on  May  1,  1908, 
after  the  expiration  of  the  notice,  he  left  their  employment  and  entered 
into  the  employ  of  a  rival  English  firm  with  whom  in  the  month  of 
February,  1908,  he  had  entered  into  a  conditional  agreement  for  em- 


250  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

ployment  of  a  similar  nature  in  the  event  of  the  determination  of  his 
employment  with  the  plaintiffs. 

On  June  9,  1908,  the  plaintiffs  issued  a  writ  for  an  injunction  to  re- 
strain the  defendant  from  engaging  in  any  other  business  than  that  of 
the  plaintiffs  until  after  July  1,  1910;  an  injunction  to  restrain  him 
from  divulging  to  any  one  any  matters  relating  to  the  plaintiffs'  busi- 
ness ;  and  account  of  commissions ;  damages,  incidental  relief,  and 
costs. 

On  June  18  the  defendant  entered  a  conditional  appearance  to  the 
writ,  and  on  June  20  issued  a  summons  asking  that  the  writ  of  sum- 
mons and  service  thereof  might  be  set  aside,  or  in  the  alternative  that 
all  proceedings  in  this  action  might  be  stayed  "on  the  ground  that  it 
was  agreed  between  the  parties  that  for  any  dispute  at  law  the  parties 
agreed  to  submit  to  the  exclusive  competency  of  the  Royal  Provincial 
Court,  respectively  the  county  court  at  Leipzig  and  to  the  exclusive 
applicability  of  the  German  law,"  and  for  costs. 

On  August  28  the  plaintiffs  served  a  notice  of  motion  for  an  injunc- 
tion restraining  the  defendant  from  engaging  in  any  business  other 
than  that  of  the  plaintiffs  until  after  July  1,  1910,  or  alternatively  un- 
til after  the  matters  in  dispute  between  the  plaintiffs  and  the  defendant 
had  been  submitted  to  the  jurisdiction  of  the  Royal  Courts  of  Saxony 
holden  at  Leipzig  and  a  final  order  made  in  respect  of  such  matters  as 
provided  by  the  agreement;  and  also  an  injunction  to  restrain  the  de- 
fendant from  divulging  to  any  one  any  matters  relating  to  the  plain- 
tiffs' business  until  after  July  1,  1910,  or,  alternatively,  until  after  such 
final  order  had  been  made  as  aforesaid. 

The  plaintiffs  filed  evidence  alleging  that  the  defendant  had  divulged 
certain  matters  relating  to  their  business  and  had  solicited  their  cus- 
tomers. 

There  was  evidence  also  to  the  effect  that  the  decision  of  the  Leipzig 
Court  mentioned  in  clause  12a  would  not  necessarily  be  final,  but  that 
an  appeal  from  it  would  lie  to  another  Court. 

The  summons  and  motion  now  both  came  on  to  be  heard  together. 

EvE,  J.,65  stated  the  facts  as  above  set  out  and  continued:  *  *  * 
It  is  admitted,  or  conceded,  I  think  I  may  say,  by  counsel  for  the  plain- 
tiffs that  if  this  were  a  mere  affirmative  agreement  by  the  defendant 
to  serve  the  plaintiffs  until  July  1,  1910,  and  he  had  refused  to  con- 
tinue that  service,  the  Court  would  not,  according  to  the  well-settled 
practice,  interfere  by  an  injunction  to  compel  him  to  render  his  serv- 
ices to  the  plaintiffs  down  to  the  date  at  which  in  the  ordinary  course 
the  engagement  of  service  would  come  to  an  end.  But  it  is  urged  here 
that  it  is  not  merely  an  affirmative  covenant,  but  that  there  is  in  this 
document  a  negative  stipulation  which  the  Court,  according  to  the 
practice,  can  enforce  by  restraining  the  defendant  in  the  terms  of  the 
covenant.     The  negative  stipulation  is  to  be  found  in  clause  7  of  the 

6  5  Parts  of  the  opinion  are  omitted.  A  part  of  what  is  here  omitted  is 
printed  at  page  1059,  infra. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         251 

agreement.  "Mr.  Gruban" — that  is  the  defendant — "agrees  under  a 
penalty  of  20,000  marks  to  remain  in  his  position  and  not  to  give  no- 
tice before  July  1,  1910." 

Now  it  is  said  that  what  he  has  done  is  a  breach  of  his  agreement 
not  to  terminate  the  service  before  July  1,  1910,  and  if  the  matter 
were  entirely  free  from  authority  that  would  be  an  argument  to  which 
J  think  I  should  have  had  to  give  very  much  more  weight  than  I  am 
able  to  do  in  the  present  state  of  the  authorities.  The  question  as  to 
the  practice  of  the  Court  to  enforce  affirmative  covenants  of  this  sort 
was  dealt  with  and  finally  disposed  of,  at  any  rate  for  the  present,  by 
the  case  of  Whitwood  Chemical  Co.  v.  Hardman,  [1891]  2  Ch.  416, 
and  at  a  later  date  the  principle  upon  which  that  and  similar  cases  had 
been  determined  came  up  for  consideration  before  the  late  Kekewich, 
J.,  in  the  case  to  which  I  am  about  to  refer,  the  case  of  Davis  v.  Fore- 
man, [1894]  3  Ch.  654,  655,  657.  There  the  form  of  the  agreement 
between  the  employer  and  the  employed  was  this : 

''The  employer  hereby  agrees  with  the  manager  that  he  will  uot,  except  in 
the  case  of  misconduct  or  a  breach  of  this  agreement,  require  the  manager 
to  leave  his  employ  and  determine  this  agreement  during  such  period  that  he 
shall  draw  from  the  said  business  £15  each  and  every  month." 

There  was  an  agreement  in  the  negative  by  the  employer  that  so 
long  as  a  certain  state  of  things  continued  to  exist  he  would  not  give 
notice  to  the  employee  determining  the  engagement.  Kekewich,  J., 
having  heard  all  that  was  to  be  said  on  behalf  of  the  plaintiff,  who  in 
that  case  was  the  employee  seeking  to  restrain  the  employer  from  act- 
ing upon  the  notice,  gave  his  judgment,  in  which  he  arrives  at  this 
conclusion,  that  though  in  form  the  stipulation  or  agreement  is  nega- 
tive in  substance,  it  is  really  affirmative  and  positive,  that  an  agree- 
ment not  to  give  notice  to  determine  his  employment  is  for  all  prac- 
tical purposes  an  agreement  to  continue  the  employment,  and  having 
come  to  that  conclusion  he  says : 

"Having  regard  to  the  principle  expounded  by  the  Court  of  Appeal  in  Whit- 
wood Chemical  Co.  v.  Hardman,  [1S91]  2  Ch.  416,  and  recognized  again  in  the 
case  of  Ryan  v.  Mutual  Tontine  Westminster  Chambers  Association,  [1893] 
1  Ch.  116,  which  is  not  directly  in  point,  what  ought  I  to  do  here,  in  dealing 
with  a  covenant  or  stipulation  which,  as  I  have  said,  though  negative  in  form 
is  positive  in  substance'/  There  is  a  clause  in  the  agreement  that  the  em- 
ployer will  not,  except  in  the  case  of  misconduct  or  a  breach  of  the  agree- 
ment, require  the  manager  to  leave  his  employ — in  other  words,  give  him  no- 
tice to  quit.  That  is,  to  my  mind,  distinctly  equivalent  to  a  stipulation  by  the 
employer  that  he  will  retain  the  manager  in  his  employ.  It  is  only  the  form 
that  is  negative.  If  the  Court  comes  to  the  conclusion  that  that  is  really  the 
substance  of  the  agreement  (which,  being  an  agreement  of  service,  cannot  be 
specifically  enforced),  is  it  right,  having  regard  to  the  line  the  authorities 
have  taken,  to  say  that  merely  because  the  agreement  is  negative  in  form 
an  injunction  ought  to  be  granted?  To  my  mind  I  should  be  going  distinctly 
against  the  last  decision  in  the  Court  of  Appeal  if  I  were  to  apply  the  doc- 
trine of  Lumley  v.  Wagner  [1852]  1  D.,  M.  &  G.  604,  which  is  not  to  be  ex- 
tended, to  a  case  of  this  character." 

It  seems  to  me  that  every  word  of  that  judgment  is  applicable  to 
the  present  case,  and  that  I  should  be  disregarding  an  authority  which 
is  certainly  binding  upon  me  if  I  were  to  hold  that  merely  because  Mr. 


252  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

Gruban  has  entered  into  a  contract  not  to  terminate  the  engagement 
before  July  1,  1910,  I  could  grant  an  injunction  the  effect  of  which 
would  be  as  against  him  to  order  specific  performance  of  an  agree- 
ment to  continue  to  serve  the  plaintiffs  down  to  July  1,  1910.  So  that 
on  the  first  part  of  the  motion  I  hold  that,  apart  from  all  other  consid- 
erations, the  plaintiffs  would  not  be  entitled  to  the  order  for  which 
they  ask.     *     *     * C6 


MEASURES  BROS.,  Limited,  v.  MEASURES'. 
(Court  of  Appeal.     [1910J  2  Ch.  24S.) 

Appeal  from  a  decision  of  Joyce,  J.     *     *     * 

Defendant  in  1903  entered  into  agreement  with  plaintiff  company, 
of  which  he  was  a  director,  to  serve  as  manager  and  director  for  seven 
years  at  a  yearly  salary  of  £1000  and  percentage  of  profits,  and  agreed 
that  so  long  as  he  held  office  and  for  seven  years  after  ceasing  to  hold 
office  he  would  not  be  interested  in,  or  carry  on,  as  manager  or  other- 
wise, any  business  that  would  compete  with  plaintiff  company.  In  1909 
a  receiver  was  appointed  to  wind  up  the  business,  who  gave  notice  to 
the  defendant  to  leave,  and  declined  to  pay  him  further  salary.  De- 
fendant then  entered  into  business  as  engineer  and  iron  founder,  for 
himself,  in  competition  with  the  plaintiff  company.  The  receiver,  under 
direction  of  the  Court,  brought  this  action  for  an  injunction.67 

Joyce,  J.,  held  that  the  winding-up  order  operated  as  a  wrongful 
dismissal  of  the  defendant,  and  that,  applying  the  principle  of  General 
Billposting  Co.  v.  Atkinson,  [1909]  A.  C.  118,  he  was  no  longer  bound 
by  his  covenant. 

May  11.  Cozens-Hardy,  M.  R.  The  question  in  this  appeal  is 
whether  an  injunction  ought  to  be  granted  to  restrain  the  defendant 
from  breaking  a  negative  covenant  contained  in  an  agreement  of  July 
14,  1903.  [Having  stated  the  facts  and  documents  as  above,  his  Lord- 
ship continued :] 

I  do  not  think  it  necessary  to  consider  whether  the  mutual  obliga- 
tions contained  in  the  agreement  of  July,  1903,  are  strictly  interde- 
pendent, although  my  impression  is  that  they  are  so.  I  prefer  to  base 
my  judgment  upon  the  ground  that  the  plaintiffs,  who  are  seeking 
equitable  relief  by  way  of  injunction,  cannot  obtain  such  relief  unless 
they  allege  and  prove  that  they  have  performed  their  part  of  the  bar- 
gain hitherto  and  are  ready  and  able  also  to  perform  their  part  in  the 
future.  The  consideration  which  the  defendant  was  to  receive  for 
his  covenant  from  the  company  was  (1)  the  position  of  a  director  of 
the  company ;  (2)  the  salary  of  £1000  a  year ;  and  (3)  a  contingent  share 
of  the  profits.     The  plaintiffs  have  not  given,   and  cannot  in   future 

ee  The  court  made  an  order  on  the  summons  staying  the  action. 
6  7  The  statement  of  facts  is  abbreviated  and  parts  of  the  opinions  of  Buck- 
ley and  Kennedy,  L.  JJ.,  are  omitted. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE         253 

give,  the  defendant  this  consideration.  The  contract  on  their  part  has 
been  broken.  It  is  not  necessary  that  the  breach  should  be  wilful  in 
the  sense  of  being  intentional.  It  suffices  that  by  an  act  brought  about 
by  the  company's  own  default,  namely,  the  omission  to  pay  debts  in- 
curred by  the  company,  the  contract  has  been  broken.  As  Joyce,  J., 
said,  the  plaintiffs  are  not  entitled  against  this  defendant  to  specific  per- 
formance— because  that  is  what  it  amounts  to — of  clause  5  of  the  spe- 
cial agreement  without  performing,  and  they  cannot  perform,  the 
clauses  which  that  agreement  contains  in  favour  of  the  defendant.  In 
my  opinion  it  would  be  inequitable  if  the  plaintiffs  could  have  that  re- 
lief. If  authority  is  wanted  for  this  proposition  I  would  refer  to 
Peto  v.  Brighton,  Uckfield,  and  Tunbridge  Wells  Ry.  Co.,  1  H.  &  M. 
468,  483,  and  Telegraph  Despatch  and  Intelligence  Co.  v.  McLean,  L. 
R.  8  Ch.  658.  In  my  opinion  this  appeal  fails  and  must  be  dismissed 
with  costs. 

Buckley,  L.  J.  *  *  *  What  has  happened  is  that  the  plain- 
tiffs did  not  by  affirmative  action  on  their  part  determine  the  employ- 
ment either  rightly  or  wrongly,  but  that  by  the  operation  of  a  winding- 
up  order  made  on  October  13,  1909,  the  office  itself  came  to  an  end. 
*     *     * 

He  has  ceased  to  hold  his  office,  and  the  contract  upon  its  true  con- 
struction, I  think,  is  that  when  he  ceases  to  hold  his  office,  whether  under 
clause  4  by  the  operation  of  some  event  mentioned  in  article  102  by 
vacation  of  his  office  or  in  any  other  way,  not  being  a  wrongful  dismis- 
sal, which  brings  General  Billposting  Co.  v.  Atkinson,  [1909]  A.  C. 
118,  into  play,  he  shall  be  bound  by  the  restrictive  covenant.  If  I 
am  right  in  holding  that  clauses  1  and  5  are  not  interdependent  con- 
tracts, that  the  performance  of  clause  1  is  not  a  condition  precedent  to 
the  continuance  of  the  restriction  in  clause  5,  it  results  that  in  the 
events  which  have  happened  Clause  5  remains  binding  upon  the  defend- 
ant. For  these  reasons  I  think  that  the  plaintiff  company  are  entitled 
to  an  injunction. 

Kennedy,  L.  J.  *  *  *  In  my  opinion  the  appeal  should  be  dis- 
missed with  costs. 


McCAULL  v.  BRAHAM. 

(Circuit  Court  of  the  United  States,  S.  D.  New  York,  1S83.     16  Fed.  37.) 

Brown,  District  Judge.  This  action  was  brought  in  the  state  court 
to  restrain  the  defendant,  Helen  Braham,  otherwise  known  as  Lilian 
Russell,  from  violating  her  agreement  with  the  plaintiff  by  singing 
during  the  current  season  in  any  other  employment  than  at  the  plain- 
tiff's theater,  which  the  complaint  alleges  she  is  about  to  do.  A  pre- 
liminary injunction  having  been  obtained  at  the  time  of  the  commence- 
ment of  the  action,  the  cause  was  removed  by  the  plaintiff  to  this  court 
before  answer ;  and  the  defendant  now  moves  upon  affidavits  to  dis- 


254  SPECIFIC  PERFORMANCE  OF   CONTRACTS  (Ch.  2 

solve  the  injunction.  By  the  agreement  in  writing  between  the  par- 
ties, the  defendant  agreed  to  sing  in  comic  opera  in  the  employment 
of  the  plaintiff  whenever  required  during  the  season  of  1882  to  1883, 
commencing  on  or  about  September  1,  1882,  at  a  stipulated  weekly 
salary.     By  article  1  the  agreement  provides  that : 

"The  artist  is  engaged  exclusively  for  Mr.  John  McCaull,  and  during  the 
continuance  of  this  engagement  will  not  perform,  sing,  dance,  or  otherwise 
exercise  her  talent  in  theater,  concert  halls,  churches,  or  elsewhere,  either 
gratuitously  or  for  her  remuneration  or  advantage,  or  for  that  of  any  other 
person  or  other  theater  or  establishment  (although  not  thereby  prevented 
from  fulfilling  her  engagement  with  Mr.  McCaull)  without  having  first  ob- 
tained permission  in  writing  of  Mr.  McCaull;  and  for  each  and  every  breach 
of  this  rule  the  artist  shall  forfeit  one  week's  salary,  or  her  engagement,  at 
the  option  of  Mr.  McCaull ;  but  such  forfeiture  of  one  week's  salary  shall 
not  be  held  to  debar  Mr.  McCaull  from  enforcing  the  fulfillment  of  this  con- 
tract in  such  a  manner  as  he  may  think  fit." 

By  article  3  it  is  provided  that : 

"No  salaries  will  be  paid  for  any  night  or  days  on  which  the  artist  may 
not  be  able  to  perform  through  illness  or  other  unavoidable  cause ;  and  the 
artist  absenting  herself,  except  from  illness  or  other  unavoidable  cause,  will 
forfeit  one  week's  salary,  or  her  engagement,  at  the  option  of  Mr.  McCaull, 
and  will  also  be  held  liable  for  any  loss  that  may  be  sustained  by  Mr.  Mc- 
Caull owing  to  such  absence.  Illness,  to  be  accepted  as  an  excuse,  must  be 
attested  by  a  medical  certificate,  which  must  be  delivered  to  Mr.  McCaull  or 
his  representative  as  early  as  possible,  and  before  the  commencement  of  the 
performance.  Should  such  absence  exceed  two  weeks,  the  engagement  may 
be  canceled  at  the  option  of  Mr.  McCaull." 

The  defendant  entered  upon  the  performance  of  her  engagement 
at  the  Bijou  Opera  House  in  this  city  in  September,  1882,  with  great 
success,  which  was  continued  until  prevented  from  further  performance 
by  protracted  illness.  Having  partially  recovered,  she  attempted  to 
renew  her  appearances,  but  after  three  nights'  performances,  in  De- 
cember, she  suffered  a  relapse  from  which  she  did  not  recover  until 
about  the  middle  of  February,  1883. 

By  the  written  contract  the  plaintiff  was  to  furnish  all  costumes. 
This  was  modified,  prior  to  September,  by  an  oral  agreement  by  which 
the  plaintiff  was  to  pay  a  larger  salary  and  the  defendant  to  furnish 
her  own  costumes.  Both  parties  agree  as  to  the  modification  of  the 
contract  to  this  extent.  The  defendant  contends  that  in  addition  to  the 
above  the  oral  contract  was  further  modified  by  the  plaintiff  agreeing 
to  pay  her  weekly  salary  as  at  first  fixed  during  the  continuance  of  any 
illness;  that  the  sum  of  about  $350,  paid  to  her  by  the  plaintiff  during 
her  illness,  was  paid  in  pursuance  of  this  modification  of  the  contract ; 
and  that  since  the  middle  of  December  the  plaintiff  has  refused  to  con- 
tinue such  payment  during  that  part  of  her  illness,  in  violation  of  the 
agreement  as  modified. 

The  plaintiff  denies  that  the  modification  of  the  contract  included 
any  agreement  to  pay  her  during  illness,  and  asserts  that  the  moneys 
actually  paid  her  while  ill  were  merely  advances  on  account  of  future 
salary  to  be  earned,  and  so  expressly  stated  at  the  time.  Each  party 
sustains  its  respective  claims  in  this  respect  by  several  witnesses.    They 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        255 

leave  this  branch  of  the  subject  in  so  much  doubt  that  I  feel  obliged 
to  reject  it  from  consideration,  without  prejudice  to  either  in  regard 
to  their  mutual  claims  in  respect  to  it,  since  neither  party  made  it  a 
ground  of  terminating  the  contract. 

Up  to  the  time  this  action  was  commenced  the  defendant  had  given 
no  notice  to  the  plaintiff  terminating  the  agreement;  nor  had  the 
plaintiff,  as  he  might  have  done  according  to  the  express  provision  of 
the  agreement,  notified  the  defendant  that  it  was  canceled,  owing  to 
her  absence  beyond  two  weeks.  I  must,  therefore,  hold  the  agreement 
as  still  in  force.  Contracts  for  the  services  of  artists  or  authors  of 
special  merit  are  personal  and  peculiar;  and  when  they  contain  nega- 
tive covenants  which  are  essential  parts  of  the  agreement,  as  in  this 
case,  that  the  artists  will  not  perform  elsewhere,  and  the  damages,  in 
case  of  violation,  are  incapable  of  definite  measurement,  they  are  such 
as  ought  to  be  observed  in  good  faith  and  specifically  enforced  in 
equity.  That  violation  of  such  covenants  will  be  restrained  by  in- 
junction, is  now  the  settled  law  of  England.  Lumley  v.  Wagner,  1 
De  G.,  M.  &  G.  604;  Montague  v.  Flockton,  L.  R.  16  Eq.  189,  199. 

The  subject  was  exhaustively  considered  by  Freedman,  J.,  in  the 
case  of  Daly  v.  Smith,  49  How.  Prac.  (N.  Y.)  150,  in  whose  conclusions, 
in  accordance  with  the  English  cases  above  cited,  I  fully  concur.  In 
the  present  case  it  is,  however,  urged  that  the  remedy  by  injunction 
should  not  be  allowed,  on  the  ground  that  the  plaintiff's  damages  have 
been  liquidated  by  the  first  article  of  the  contract  above  quoted ;  name- 
ly, that  "for  each  and  every  breach  of  this  rule  the  artist  shall  forfeit 
one  week's  salary ;"  and  the  cases  of  Barnes  v.  McAllister,  18  How. 
Prac.  (N.  Y.)  534;  Nessle  v.  Reese,  29  How.  Prac.  (N.  Y.)  382;  Mott 
v.  Mott,  11  Barb.  (N.  Y.)  127,  134;  and  Trenor  v.  Jackson,  46  How. 
Prac.  (N.  Y.)  3S9,  are  cited  in  support  of  this  view. 

There  is  no  doubt  of  the  general  principle  that  where  the  damages 
for  the  violation  of  a  covenant  are  either  liquidated  by  the  agreement, 
or  may  be  easily  and  definitely  ascertained,  the  parties  will  be  left  to 
their  remedy  at  law.  But  it  is  clear  that  in  cases  of  contract  like  the 
present,  the  damages  are  not  capable  of  being  definitely  ascertained  or 
measured;  and  in  the  cases  first  above  cited,  injunctions  were  for  that 
reason  allowed.  The  only  question  in  this  case,  therefore,  which  dis- 
tinguishes the  present  agreement  from  those,  is  whether  the  provision 
for  the  forfeiture  of  a  week's  wages  for  every  violation  of  article  1  is 
such  a  liquidation  of  the  damages  as  bars  the  remedy  by  injunction. 
In  Barnes  v.  McAllister  and  in  Nessle  v.  Reese  and  Mott  v.  Mott, 
supra,  there  was  a  covenant  to  pay  a  specific  sum  for  failure  to  observe 
the  covenant  in  these  cases ;  and  these  sums  were  held  by  the  court  to 
be  strictly  liquidated  damages. 

Where  the  provision  of  the  contract  is  in  the  nature  of  a  penalty, 
and  not  liquidated  damages,  it  is  well  settled  that  such  a  provision  will 
not  prevent  the  remedy  by  injunction  to  enforce  the  covenant  specifical- 
ly; and  the  provision  will  be  construed  as  a  penalty,  and  not  as  liqui- 


256  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

dated  damages,  where  its  plain  object  is  to  secure  a  performance  of 
the  covenant,  and  not  intended  as  the  price  or  equivalent  to  be  paid  for 
a  non-observance  of  it.  Howard  v.  Hopkyns,  2  Atk.  371 ;  Bird  v. 
Lake,  1  Hem.  &  M.  Ill ;  Fox  v.  Scard,  33  Beav.  327;  Sloman  v.  Wal- 
ter, 1  Brown,  C.  C.  418;  Jones  v.  Heavens,  4  Ch.  Div.  636. 

Whether  the  language  of  the  contract  is  to  be  construed  as  a  pen- 
alty or  as  liquidated  damages  is  to  be  determined  from  its  language 
and  its  presumed  intent  to  be  gathered  from  the  circumstances  of  the 
parties  and  the  nature  of  the  agreement. 

"A  penalty,"  says  Lord  Loughborough,  in  Hardy  v.  Martin,  1  Cox,  Ch.  26, 
"is  never  considered  in  this  court  as  the  price  of  doing  a  thing  which  a  man 
has  expressly  agreed  not  to  do ;  but  if  the  real  meaning  and  intent  of  the 
contract  is  that  a  man  should  have  the  power,  if  he  chooses,  to  do  a  particu- 
lar act  upon  the  payment  of  a  certain  specified  sum,  the  power  to  do  the  act 
upon  the  payment  of  the  sum  agreed  on  is  part  of  the  express  contract  be- 
tween the  parties."  Vincent  v.  King,  13  How.  Prac.  (N.  Y.)  234-23S;  Kerr, 
Inj.  409. 

In  Coles  v.  Sims,  5  De  Gex,  M.  &  G.  1,  Lord  Justice  Turner  says, 
upon  this  point : 

"The  question  in  such  cases,  as  I  conceive,  is,  whether  the  clause  is  in- 
serted by  way  of  penalty  or  whether  it  amounts  to  a  stipulation  for  liberty 
to  do  a  certain  act  on  the  payment  of  a  certain  sum." 

That  the  clause  providing  for  the  forfeiture  of  one  week's  salary 
for  each  violation  of  this  contract  was  in  the  nature  of  a  penalty,  and 
designed  solely  to  secure  the  observance  of  article  1,  is  manifest  both 
from  the  general  nature  of  the  employment  and  the  requirements  of 
a  manager  of  opera,  as  well  as  the  express  language  of  this  article; 
because  (1)  the  stipulation  is  not  for  the  payment  of  a  certain  sum 
as  liquidated  damages,  but  only  for  the  forfeiture  of  a  week's  salary ; 
(2)  it  gives  an  option  to  the  plaintiff,  instead  of  such  forfeiture,  to  an- 
nul the  engagement ;  (3)  it  declares  that  such  forfeiture  shall  not  disbar 
the  plaintiff  from  enforcing  the  fulfillment  of  this  contract  in  such  a 
manner  as  he  shall  think  fit,  i.  e.,  by  any  available  legal  or  equitable 
remedy.  As  the  remedy  by  injunction  is  one  of  the  remedies  available, 
this  language  is  equivalent  to  an  express  declaration  that  the  provision 
for  the  forfeiture  of  a  week's  salary  for  each  violation  shall  not  affect 
his  right  to  a  remedy  by  injunction.  This  last  stipulation  would  not, 
indeed,  influence  the  court,  provided  it  was  clear  that  the  damages  were 
intended  to  be  liquidated  at  a  specific  sum,  for  which  the  defendant 
was  to  have  the  option  of  singing  at  any  other  theater.  But  these  sev- 
eral clauses  taken  together  show  conclusively  that  no  such  thing  was 
intended,  and  that  the  sole  object  was  to  secure  the  specific  observance 
of  the  contract  that  the  defendant  should  not  sing  elsewhere;  and  the 
plaintiff  is  therefore  entitled  to  restrain  the  violation  of  it.  As  the 
season  will  close  on  May  15th  and  the  contract  then  terminate,  there 
are  certain  equitable  conditions  which  should  be  observed,  and  which  it 
is  competent  for  the  court,  in  continuing  the  injunction,  to  impose. 
Russell  v.  Farley,  105  U.  S.  433,  438,  26  L.  Ed.  1060. 


Sec.  1)     CONTRACTS  SUBJECT  TO  SPECIFIC  PERFORMANCE        257 

The  injunction  of  this  court  must  not  be  used  directly  or  indirectly 
to  enforce  the  collection  by  the  plaintiff  of  his  alleged  but  disputed 
claim  for  previous  advances,  through  the  non-payment  of  salary  here- 
after earned,  at  least  until  his  right  is  legally  adjudicated.  (2)  Con- 
sidering the  short  period  remaining,  the  defendant  must  not  be  sent  to 
California,  where  by  the  contract  she  might  have  been  taken  without 
salary  en  route  going  and  returning;  nor,  having  respect  to  her  pre- 
carious health,  should  she  be  sent  to  any  very  distant  point ;  (3)  the 
plaintiff  should  furnish  satisfactory  security  for  the  prompt  payment 
weekly  for  the  defendant's  services  at  the  rate  of  $150  per  week,  the 
contract  price,  from  the  time  the  defendant  gives  notice  in  writing  of 
her  readiness  to  sing  under  the  contract,  so  long  as  she  shall  continue  in 
readiness  to  perform  her  duties. 

In  case  of  failure  to  pay  any  future  salary  earned,  the  defendant 
may  apply,  on  two  days'  notice,  to  the  plaintiff's  attorneys  for  the 
dissolution  of  this  injunction. 

An  order  may  be  entered  continuing  the  injunction  subject  to  the 
above  provisions  and  conditions.68 

68  For  a  review  of  the  development  of  the  doctrine  of  injunction  relative 
to  negative  covenants,  see  the  valuable  note  of  Benjamin  Vaughan  Abbott  in 
16  Fed.  42.  See,  also,  Iron  Age  Publishing  Co.  v.  Western  Union  Telegraph 
Co.  (1887)  83  Ala.  49S,  3  South.  449,  3  Am.  St.  Rep.  758,  in  which  is  found  the 
following  clear  statement  of  the  principles  discussed  in  the  principal  case: 
"A  further  question  of  great  importance  arises  under  the  issue  made  by  the 
eighth  assignment  of  demurrer.  Is  the  contract  in  question  one  which,  in  its 
nature,  is  practically  to  be  enforced  by  a  court  of  equity,  so,  to  do  substantial 
justice  to  both  of  the  contracting  parties,— the  Iron  Age  Publishing  Company 
and  the  New  York  Associated  Press, — admitting,  for  the  sake  of  argument, 
the  jurisdiction  by  the  court  of  the  subject-matter  and  the  parties,  it  is  in- 
sisted for  the  appellees  that  the  contract,  being  one  for  the  performance  of 
personal  services  by  the  Associated  Press,  involving  the  exercise  of  special 
skill,  judgment,  and  discretion,  and  which  are  continuous  in  their  nature, 
running  through  an  indefinite  period  of  time,  the  enforcement  by  specific  per- 
formance is  impracticable,  and  jurisdiction  must  be  declined.  It  is  unques- 
tionable that  the  courts  of  equity  will  not  interfere  to  affirmatively  compel 
specific  executions  in  cases  of  this  kind,  because  this  is  impracticable;  the 
only  power  of  the  court  being  at  most  to  punish  the  defendant  by  fine  and 
imprisonment  for  refusing  to  obey  its  mandates,  (Clark's  Case,  1  Blackf. 
[Intl.]  122,  12  Am.  Dec.  213,  and  note,  217;  Marble  Co.  v.  Ripley,  10  Wall. 
339,  19  L.  Ed.  955 ;  Pom.  Cont.  §  310 ;)  and  in  many  cases  the  courts  have 
refused  to  interfere,  by  injunction  or  otherwise,  to  prevent  the  breach  of  such 
contracts,  although  the  remedy  by  damages  at  law  was  not  adequate.  This 
was  put  on  the  ground  that  if  the  court  was  unable  to  enforce  the  affirmative 
part  of  a  contract,  it  would  refuse  to  restrain  the  violation  of  the  negative 
part  of  it.  The  subject  has  been  elaborately  discussed,  both  in  England  and 
in  this  country,  chiefly  in  cases  where  injunctions  have  been  sought  to  prevent 
the  breach  of  agreement  made  by  operatic  singers  and  theatrical  performers 
to  sing  or  perform  exclusively  for  one  employer  during  a  given  period  of  time. 
In  the  earlier  cases  in  England,  commencing  with  that  leading  case  of  Kem- 
ble  v.  Kean,  6  Sim.  333,  it  was  held  that  for  the  breach  of  such  contract,  ex- 
cept in  certain  cases  of  partnership,  the  complaining  parties  must  seek  their 
remedy  at  law,  and  that  chancery  would  decline  to  interfere  by  injunctive 
relief.  The  authority  of  this  case  and  others  following  it  has,  however,  been 
entirely  overthrown,  and  in  the  case  of  Lumley  v.  Wagner,  1  De  Gex,  M.  &  (',. 
604,  13  Eng.  Law  &  Eq.  252,  the  contrary  doctrine  was  established,  and  has 

Boke  Eq.— 17 


258  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Cll.  2 


SECTION  2.— EQUITABLE  VIEW  OF  THE  CONTRACT  COM- 
PARED WITH  THE  LEGAL  VIEW 

I.  Consideration 


TUMLINSON'S  ADM'R  v.  YORK'S  ADM'R. 

(Supreme  Court  of  Texas,  1858.     20  Tex.  694.) 

Appeal  from  De  Witt.    Tried  below  before  the  Hon.  Fielding  Jones. 

Petition  of  John  York's  administrator,  filed  in  the  county  court  on 
the  9th  of  December,  1854,  alleging  the  execution  of  a  bond  for  title 
to  land,  by  John  Tumlinson,  in  his  lifetime,  which  bond  was  filed  as 
part  of  the  petition ;    the  death  of  Tumlinson ;    administration  on  his 

since  been  firmly  adhered  to  by  the  English  courts.  In  that  case,  the  defend- 
ant agreed  to  sing  at  plaintiff's  theater,  upon  certain  terms,  and  for  a  stipu- 
lated time,  and  during  such  period  to  sing  nowhere  else.  She  made  an  en- 
gagement during  this  time  to  sing  at  a  rival  theater,  and  refused  to  perform 
her  contract  with  the  plaintiff.  Although  unable  to  enforce  the  contract  spe- 
cifically, the  court  did  not  hesitate  to  interfere  by  injunction  to  prevent  the 
violation  of  the  negative  stipulation  by  which  the  defendant  bound  herself 
not  to  sing  anywhere  else  than  at  the  plaintiff's  theater.  This  case  expressly 
overruled  Kemble  v.  Kean  and  other  decisions  following  it.  The  principle 
was  soon  extended,  and  like  relief  granted  in  cases  where  the  negative  promise 
was  not  expressed,  but  implied  from  the  contract  of  the  parties.  Anson,  Cont. 
(3d  Amer.  Ed.  1887,)  413,  and  note  1;  3  Pom.  Eq.  Jur.  §  1345;  Pom.  Cont. 
§§  24,  25,  310,  311.  The  American  courts  have  generally  been  disposed  to 
follow  the  rule  declared  in  Kemble  v.  Kean,  and  as  said  by  Mr.  Pomeroy,  they 
exhibited  a  strange  disinclination  to  adopt  the  modern  English  rule  declared 
in  Lumley  v.  Wagner,  enforcing  the  specific  performance  of  such  contracts 
negatively  by  means  of  injunction  restraining  their  violation.  The  American 
cases  are  divided,  however,  on  this  subject,  with  a  numerical  weight  of  au- 
thority, perhaps,  against  the  later  English  rule ;  but,  as  we  apprehend,  with 
a  disposition  recently  to  fall  into  line  with  the  more  reasonable  doctrine  of 
Lumley  v.  Wagner.  We  leave  this  important  question  open,  however,  as  we 
shall  decide  the  case  upon  another  point,  conceding,  for  the  purposes  of  this 
case,  the  right  and  propriety  of  exercising  such  jurisdiction  at  the  instance  of 
complainant.  Injunctions  of  this  character,  especially  under  the  American 
rulings,  are  granted  with  great  caution  by  the  courts.  We  cite  the  following 
authorities  on  the  subject,  all  of  which  we  have  examined,  with  many  more: 
Machine  Co.  v.  Embroiderv  Co.,  Holmes,  253,  Fed.  Gas.  No.  12,904  (1873) ; 
Hayes  v.  Willio,  11  Abb.  Prac.  N.  S.  (N.  Y.)  167;  Telegraph  Co.  v.  Railway 
Co.  (C.  C.  1880)  1  McCrary,  558,  3  Fed.  423;  Daly  v.  Smith,  49  How.  Prac. 
(N.  Y.)  150 ;  Fredricks  v.  Mayer,  13  How.  Prac.  (N.  Y.)  506 ;  Clark's  Case,  12 
Am.  Dec.  213,  note,  217;  Casey  v.  Holmes,  10  Ala.  770;  Hamblin  v.  Dinne- 
ford,  2  Edw.  Ch.  (N.  Y.)  529;  Sanquirico  v.  Benedetti,  1  Barb.  (N.  Y.)  315; 
Butler  v.  Galletti,  21  How.  Prac.  (N.  Y.)  465;  De  Pol  v.  Sohlke,  30  N.  Y. 
Super.  Ct.  280;  De  Rivafinoli  v.  Corsetti,  4  Paige  (N.  Y.)  270,  25  Am.  Dec. 
532;  Ford  v.  Jermon,  6  Phila.  (Pa.)  6;  Railroad  Co.  v.  Railroad  Co.,  13 
Ohio  St.  544 ;  3  Pom.  Eq.  Jur.  §§  1343,  1344 ;  Pom.  Cont.  §§  24,  25,  310,  311 ; 
Anson,  Cont.  413;  Hahn  v.  Concordia  Soc,  42  Md.  400;  Wat.  Spec.  Perf.  § 
117,  and  notes;  Caswell  v.  Gibbs,  33  Mich.  331;  Kerr,  Inj.  503;  High,  Inj.  §§ 
485,  4S0 ;    Manufacturing  Co.  v.  Stock- Yard  Co.,  23  N.  J.  Eq.  101." 


Sec.  2)  EQUITABLE   AND   LEGAL  VIEW  OF   CONTRACT  259 

estate  in  that  county;  that  said  title  had  never  been  made;  prayer 
for  specific  performance.    Said  bond  was  as  follows : 

The  State  of  Texas,  County  of  De  Witt. 

Know  all  men  by  these  presents  that  I,  John  Tumlinson,  of  said  county,  am 
held  and  firmly  bound  unto  John  York,  of  said  county,  in  the  sum  of  five 
hundred  dollars,  good  and  lawful  money  of  the  United  States ;  and  for  the 
faithful  payment  of  which  I,  the  said  John  Tumlinson,  bind  myself,  and  each 
of  my  heirs,  executors,  and  administrators,  jointly  and  severally,  firmly  by 
these  presents,  unto  the  aforesaid  John  York  and  his  heirs  and  assigns.  Given 
under  my  hand  and  seal,  this  fourth  day  of  January,  in  the  year  eighteen 
hundred  and  forty-seven.  The  condition  of  the  above  obligation  is  such,  that 
whereas  the  above  bound  has  sold  unto  the  said  John  York  the  undivided  one- 
half  of  the  headright  one-fourth  of  the  league  of  land   granted  to  

Harris,  statute,  lying,  and  being  in  the  county  of  Grimes,  and  bounded  on  the 
south  by  the  tract  of  land  which  Mr.  Roann  now  lives  on ;  now,  therefore,  if 
the  above  bound  shall  make,  or  cause  to  be  made,  a  good  and  perfect  title  to 
the  above  described  land  and  premises,  in  fee  simple,  to  the  aforesaid  John 
York,  his  heirs  or  assigns,  within  the  term  of  twelve  months,  the  above  obliga- 
tion shall  be  null  and  void,  otherwise  be  and  remain  in  full  force  and  effect 
in  law.  It  is  expressly  understood,  that  the  above  bond  is  given  in  place  of 
one  of  the  same  character,  for  the  same  land,  to  James  Cox,  and  transferred 
to  the  said  York,  which  is  alleged  to  be  lost  or  mislaid;  and  the  compliance 
of  the  above  bond  shall  make  void  the  one  reputed  to  be  lost.  Given  under 
my  hand  and  seal  the  date  above  written. 

Tumlinson's  administrator  demurred,  and  for  special  ground  show- 
ed, that  it  did  not  appear  from  the  petition,  that  the  title  to  the  land 
was  in  the  defendant's  intestate  at  the  time  of  his  decease ;  and  for 
answer  that  the  cause  of  action  was  stale,  and  barred  by  limitation. 
Demurrer  to  petition  overruled,  and  the  matter  being  submitted  to 
the  court,  judgment  for  defendant.  Plaintiff  appealed  to  the  district 
court,  where  the  case  was  submitted  to  the  court  upon  the  same  plead- 
ings, and  after  hearing  the  evidence,  and  argument  of  counsel,  judg- 
ment for  plaintiff.    No  statement  of  facts. 

Hemphill,  C.  J.  This  was  a  suit  for  specific  performance  of  a 
bond  for  title  to  land.  It  was  commenced  in  the  county  court,  where 
the  prayer  for  performance  was  refused.  On  appeal  to  the  district 
court,  this  judgment  was  reversed,  and  the  cause  has  been  brought  by 
appeal  to  this  court.  We  are  of  opinion  that  there  was  error  in  the 
judgment  of  the  district  court.  The  bond  does  not  recite  any  consid- 
eration. There  is  no  allegation  in  the  petition,  that  a  valuable  consid- 
eration was  paid  by  the  vendee,  and  although  there  is  no  statement  of 
facts,  and  we  cannot  ascertain  from  the  record  what  facts  were  in 
proof,  yet  there  being  no  allegation  of  the  essential  fact  of  valuable 
consideration,  we  cannot  presume  that,  in  violation  of  the  rules  of  evi- 
dence, such  fact  was  established  by  proof.  The  averments  and  proof 
must  correspond ;  and  this  being  the  rule,  we  must  presume  there  was 
no  evidence  of  valuable  consideration. 

It  is  a  well  established  rule,  that  specific  performance  of  an  agree- 
ment to  convey  land  will  not  be  enforced,  unless  founded  on  a  valua- 
ble consideration.  Where  the  receipt  of  such  consideration  is  ex- 
pressed in  the  agreement,  or  bond,  its  existence  would  be  prima  facie 
presumed ;    but  where  not  so  expressed,  or  admitted  by  the  vendor  in 


260  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

the  pleadings,  it  must  be  established  by  proof ;  and  being  a  material 
fact,  it  must  be  averred,  that  the  proof  may  be  admitted.  Boze  v.  Da- 
vis, 14  Tex.  331 ;  Short  v.  Price,  17  Tex.  397.  In  the  latter  case,  ref- 
erence was  had  to  art.  '710  of  the  Digest,  and  it  was  held  inapplicable 
to  cases  where  the  plaintiff  must  show  a  valuable  consideration  as  pre- 
requisite to  the  decree,  and  where,  on  principles  of  equity  jurispru- 
dence, the  seal  imparts  no  efficacy  to  the  instrument  on  which  the  suit 
is  brought ;  that  the  only  effect  of  the  article  would,  in  such  cases,  be, 
that  where  a  valuable  consideration  is  expressed  in  the  instrument,  it 
could  not  be  impeached  by  the  defendant,  unless  under  oath ;  whereas 
on  general  principles  of  equity,  this  would  not  be  required. 

The  first  error  in  this  case  was  the  overruling,  by  the  county  court, 
of  the  demurrer  to  the  petition.  This  should  have  been  sustained  by 
that  court,  and  its  judgment  on  the  demurrer  should  have  been  re- 
versed by  the  district  court.  The  question  as  to  the  statute  of  limita- 
tions need  not  be  considered,  as  on  a  new  trial  there  may,  on  proper 
pleading,  be  proof  of  valuable  consideration ;  and  if  so  the  point  of 
limitation,  under  the  facts,  would  not  arise.  We  are  of  opinion  that 
there  was  error  in  the  judgment  of  the  court  below,  and  that  the  same 
be  reversed  and  the  cause  remanded  for  a  new  trial. 

Reversed  and  remanded.69 


BUFORD'S  HEIRS  v.  McKEE. 

(Court  of  Appeals  of  Kentucky,  1S33.    31  Ky.  [1  Dana]  107.) 

Nicholas,  J.70  The  heirs  of  Henry  P.  Buford  filed  their  bill 
against  the  devisee  of  Henry  Paulding,  to  obtain  specific  performance 
of  an  alleged  covenant  from  Paulding,  for  the  conveyance,  at  his 
death,  of  a  tract  of  land  to  Buford.  The  defendants  deny  that  the 
covenant  was  executed  by  Paulding,  or,  if  genuine,  that  it  was  given 
for  any  valuable  consideration. 

We  shall  waive  a  decision  of  the  question,  whether  the  covenant 
was  executed  by  Paulding,  inasmuch  as  we  are  clearly  of  opinion,  that 
if  it  was  signed  by  him,  it  was  merely  intended  as  a  gift  to  his  nephew, 
Henry  P.  Buford,  and  that  Paulding  received  no  valuable  considera- 
tion therefor;  and  consequently,  that  we  are  bound  to  affirm  the  de- 
cree dismissing  the  bill. 

ea  "It  is  urged  on  behalf  of  the  defendant,  that  the  agreement  was  volun- 
tary, and  such  as  this  court  will  not  decree  to  be  specifically  performed.  Of 
the  general  doctrine  of  the  court  on  this  subject  there  is  no  doubt  whatever. 
This  court  will  not  perform  a  voluntary  agreement,  or,  what  is  more,  a  vol- 
untary covenant  under  seal.  Want  of  consideration  is  a  sufficient  reason  for 
refusing  the  assistance  of  the  court."  Houghton  v.  Lees  (1S54)  1  Jur.  (N.  S.) 
8G2,  at  863. 

In  the  case  of  Penn  v.  Lord  Baltimore  (1750)  1  Vesey,  Sr.,  Lord  Eldon  states 
the  rule:    "The  court  never  decrees  specifically  without  a  consideration." 

70  Part  of  the  opinion  is  omitted. 


Sec.  2)  EQUITABLE   AND   LEGAL   VIEW   OF   CONTRACT  261 

In  exercising  the  discretion,  which  the  chancellor  retains  to  himself, 
over  applications  for  the  specific  performance  of  contracts,  it  has  al- 
ways been  deemed  an  essential  prerequisite,  that  the  contract  he  is 
called  upon  thus  to  enforce,  should  be  based  upon,  either  a  valuable,  or 
what  is  termed  a  meritorious  consideration.  The  moral  obligation  to 
provide  for  a  wife  or  a  child,  constitutes  such  a  meritorious  consider- 
ation as  will  induce  a  specific  performance  of  an  agreement  in  their 
favor,  and  some  of  the  cases  have  declared,  that  grand-children  come 
within  the  rule;  but  we  have  been  able  to  find  no  authoritative  case 
where  a  voluntary  agreement  has  been  specifically  enforced  in  favor 
of  a  collateral  relation,  such  as  a  nephew,  unless  there  was  some  other 
controlling  circumstance  besides  the  mere  affinity.  The  cases  where 
relief  has  been  extended  in  favor  of  collaterals,  either  expressly  rec- 
ognize the  doctrine,  that  some  additional  circumstance  is  necessary  to 
call  forth  the  interposition  of  the  chancellor  in  their  behalf,  or  by  the 
stress  laid  upon  such  additional  and  controlling  circumstance,  indicate 
clearly  that  such  is  the  rule  of  the  court.  See  Xewland  on  Contracts, 
71  to  77,  and  cases  there  cited. 

The  whole  foundation  of  the  principle  which  turns  mere  gratuitous 
engagements  and  voluntary  promises  of  bounty  and  munificence,  into 
contracts  of  obligatory  efficacy,  is  of  such  doubtful  equity,  that  we  feel 
no  disposition  to  carry  it  farther  than  it  has  already  gone. 

The  idea,  which  seems  to  have  had  some  countenance  from  a  few 
old  cases,  that  an  agreement  in  writing  would  be  specifically  enforced, 
merely  because  it  was  solemnized  by  the  signature  and  seal  of  the 
party,  has  been  long  exploded.     *     *     * 

Decree  affirmed,  with  costs. 


II.  Title  in  Land  Contracts 

ROAKE  v.  KIDD. 
(In  Chancery  before  Lord  Loughborough,  1S0O.     5  Yes.  646.) 

The  bill  was  filed  for  specific  performance  of  an  agreement  for  the 
sale  of  an  estate  to  the  defendant.  Exceptions  were  taken,  founded 
upon  objections  to  the  title,  involving  several  very  doubtful  questions 
upon  the  point,  whether  the  limitations  after  the  estate  for  life  of  the 
plaintiff  were  contingent  remainders  or  executory  devises :  the  plain- 
tiff contending,  that  they  were  contingent  remainders ;  and  resting  his 
title  upon  the  destruction  of  those  estates ;  there  being  no  estate  in 
trustees  to  support  the  contingent  remainders. 

Air.  Lloyd  and  Mr.  Alexander  for  the  defendant  insisted,  that  a 
purchaser  could  not  be  compelled  to  take  so  doubtful  a  title. 

Mr.  Richards  and  Mr.  Wear  for  the  plaintiff  observing,  that  this 
was  a  legal  question,  desired,  that  a  case  might  be  directed;  as  in 
Cheveley's  case,  lately. 


282  specific  performance  of  contracts  (Ch.  2 

Lord  Chancellor.  In  that  case  the  party  was  not  adverse.  If  in 
this  case  the  purchaser  was  willing  to  have  the  opinion  of  a  Court  of 
Law,  I  would  very  willingly  send  it  to  law :  but  I  do  not  know  how 
to  compel  a  purchaser  to  take  a  title  he  must  go  to  law  for  immedi- 
ately. I  do  not  much  like  a  tenant  for  life  destroying  contingent  re- 
mainders, taking  advantage  of  the  want  of  trustees  in  the  will,  and 
then  coming  to  this  Court  to  give  a  sanction  to  that  title.  Has  a  case 
ever  occurred,  in  which  this  Court  has  established  such  a  title,  and 
forced  a  purchaser  to  take  it?  71 

The  exceptions  were  allowed. 

The  Lord  Chancellor  observed,  that  it  had  been  intended  to 
bring  a  bill  into  Parliament  to  prevent  the  necessity  of  trustees  to  pre- 
serve contingent  remainders ;  but  that  intention  never  was  carried  into 
effect. 

7i  In  Scott  v.  Alvarez,  [1S95]  2  Ch.  603,  612,  Lindley,  L.  J.,  said:  "It.  ap- 
pears that  a  small  leasehold  property  was  put  up  for  sale  and  was  described 
in  attractive  form  as  'a  small  safe  investment  arising  from  a  certain  dwelling 
house,'  and  so  on,  'held  for  a  term  of  99  years  from  the  25th  of  March,  1S65 
(70%  years  unexpired),  at  a  moderate  ground-rent  of  £5  per  annum' ;  and 
the  unfortunate  defendant  has  bought  this  for  a  sum  of  over  £300,  and,  in- 
stead of  finding  he  has  bought  'a  small  safe  investment,'  he  is  embarked  in 
two  lawsuits  and  two  appeals,  and  is  threatened  with  more.  *  *  *  The 
extraordinary  remedy  by  specific  performance  is  always  more  or  less  open  to 
discretion ;  and  I  am  not  aware  of  any  case  in  which,  unless  the  condition 
has  been  extremely  clear,  a  court  of  equity  has  ever  forced  a  purchaser  to 
take  a  title  which  is  shewn  to  be  bad,  and  which  will  expose  the  purchaser  to 
an  immediate  lawsuit,  against  which  he  will  have  no  defence.  That  is  what 
we  are  asked  to  do  under  the  stringency  of  this  condition.  Mr.  Farwell  re- 
ferred us  to  several  cases,  and  among  them  to  Hume  v.  Bentley  (1S52)  5 
De  G.  &  Sm.  520;  Duke  v.  Barnett  (1846)  2  Coll.  337,  and  Cattell  v.  Corrall 
(1839)  3  T.  &  C.  Ex.  413 ;  but,  on  looking  at  them,  I  am  not  satisfied  that 
in  any  one  the  court  thought  the  title  which  it  did  force  the  purchaser  to  take 
would  be  a  bad  title  in  the  sense  in  which  this  title  is  bad.  When  you  say  a 
title  is  bad,  the  expression  is  ambiguous,  and  must  be  contrasted  with  what 
is  called  a  good  title.  I  understand  a  good  title  to  be  one  which  an  un- 
willing purchaser  can  be  compelled  to  take.  Contrasted  with  that,  any  title 
which  an  unwilling  purchaser  cannot  be  forced  to  take  is  a  bad  one.  But 
there  are  bad  titles  and  bad  titles ;  bad  titles  which  are  good  holding  titles, 
although  they  may  be  open  to  objections  which  are  not  serious,  are  bad  titles 
in  a  conveyancer's  point  of  view,  but  good  in  a  business  man's  point  of  view ; 
and  I  do  not  know  of  any  case  in  which  a  court  of  equity  has  decreed  specific 
performance  of  and  compelled  the  purchaser  to  pay  his  money  for  nothing 
at  all  when  he  shews  the  court  that  the  title  he  is  asked  to  have  forced  on 
him  is  bad  in  that  sense,  that  he  can  be  turned  out  of  possession  tomorrow. 
I  do  not  say  that  a  condition  might  not  be  so  clear  and  explicit  as  to  remove 
the  difficulty ;  but  I  am  not  aware  of  any  case  of  the  kind ;  and,  so  far  as 
those  cases  referred  to  by  Mr.  Farwell  are  concerned,  I  am  convinced  they  are 
cases  in  which  the  title  was  bad  in  a  technical  conveyancing  point  of  view, 
but  not  in  a  business  point  of  view,  and  did  not  expose  the  purchaser  to  im- 
mediate eviction,  as  it  does  here.  When,  therefore,  we  are  asked  to  decree 
specific  performance  of  this  contract,  we  are  asked  to  do  that  which  the  court 
dues  lint  do  as  a  matter  of  course,  but  the  court  considers  whether  it  is  just 
to  adopt  such  a  course.  In  a  case  like  this,  it  appears  to  me  the  true  rule  is 
to  leave  the  parties  to  their  legal  remedies.  If  they  have  a  contract  let  their 
legal  rights  prevail.  There  are  remedies  open  which  we  are  all  familiar  with ; 
but  the  vendor  must  not  come  and  invoke  the  extraordinary  jurisdiction  of  a 
court  of  equity  to  do  what  would  be  a  manifest  injustice." 


Sec.  2)  EQUITABLE   AND  LEGAL  VIEW  OF   CONTRACT  263 


DOWNEY  v.  SEIB. 

(Supreme  Court  of  New  York,  Appellate  Division,  Second  Department,  1905. 
102  App.  Div.  317,  92  N.  Y.   Supp.  431.) 

Submission  of  controversy  on  agreed  facts  by  Margaret  F.  Downey 
against  George  Dan  Seib. 

Argued  before  Bartlett,  Jenks,  Hooker,  Rich,  and  Miller,  JJ. 

Rich,  J.  It  appears  that  John  Scott,  the  father  of  the  plaintiff,  and 
then  owner  of  real  estate  in  Brooklyn,  conveyed  the  same  to  the  plain- 
tiff for  the  term  of  her  natural  life,  the  deed  running  to  her  as  party  of 
the  second  part,  and  to  his  sons  John,  James,  and  William  as  parties 
of  the  third  part,  as  follows : 

"To  and  for  her  and  their  sole  use,  benefit  and  behoof  for  and  during  and 
until  the  full  end  and  term  of  her  natural  life.  And  from  and  after  the 
death  of  tbe  said  Margaret,  the  said  John  and  Ann  the  said  parties  hereto 
of  the  first  part,  do  hereby  grant  and  convey  all  the  aforesaid  Tract,  Piece 
or  Parcel  of  Land,  and  the  aforesaid  tenements,  hereditaments  and  appur- 
tenances, rents,  issues  and  profits,  and  all  the  remainder  of  tbe  estate,  right, 
title,  interest,  dower,  right  of  dower,  property,  possession,  claim  and  demand 
whatsoever,  as  well  in  law  as  in  Equity,  of  the  said  parties  hereto  of  the  first 
part,  in  and  to  the  said  Tract,  Piece  or  Parcel  of  Land,  with  the  appurtenan- 
ces, which  remained  in  them,  the  said  parties  of  the  first  part,  or  either  of 
them,  after  the  granting  of  the  aforesaid  estate  for  life  unto  the  child  or 
children  lawfully  begotten  of  tbe  said  party  of  the  second  part  who  may  be 
living  at  the  time  of  her  death  and  the  issue,  if  any,  of  such  of  her  children 
lawfully  begotten,  as  may  then  be  dead  in  such  shares  that  each  such  child 
of  the  said  party  of  the  second  part  hereto,  living  at  the  time  of  her  death 
shall  take  one  equal  share  and  the  child,  children  or  issue  (if  any)  of  each 
such  child  of  the  said  party  of  the  second  part  as  may  at  that  time  be  dead 
shall  take,  if  but  one  solely  and  if  more  than  one  collectively,  one  like  equal 
share.  To  have  and  to  hold  tbe  said  Tract,  Piece  or  Parcel  of  Land  and  the 
aforesaid  tenements,  hereditaments  and  appurtenances,  rents,  issues  and  prof- 
its and  all  the  aforesaid  remainder  unto  the  aforesaid  Children  and  Issue  of 
the  said  Margaret  in  the  manner  and  shares  aforesaid  and  to  their  heirs  and 
assigns  to  their  sole  use  benefit  and  behoof  from  the  day  of  the  death  of  the 
said  Margaret  thenceforth  forever.  But  and  if  it  shall  so  happen  that  the 
said  Margaret  shall  depart  this  life  without  leaving  her  surviving  at  the  time 
of  her  death  any  lawful  child  or  children  nor  any  lawful  child,  children  or 
issue  of  any  such  child  deceased,  then  and  in  that  case  from  and  after  the 
death  of  the  said  Margaret,  We,  the  said  John  Scott  and  Ann  his  wife,  the 
parties  of  the  first  part  hereto,  do  hereby  grant  and  convey  unto  the  said 
John,  James  and  William,  the  parties  of  the  third  part  hereto  or  to  the  sur- 
vivors or  survivor  of  them  living  at  tbe  time  of  the  death  of  the  said  Mar- 
garet and  the  lawful  children  and  issue,  if  any,  of  such  of  said  three  sons  as 
may  then  be  dead,  in  such  shares  that  each  of  the  said  three  sons  of  the  said 
John  Scott,  living  at  the  time  of  the  death  of  tbe  said  Margaret,  shall  take 
one  equal  share  and  the  child,  children  or  issue  (if  any)  of  each  of  said  three 
sons  who  may  then  be  dead  shall  take,  if  one  solely  if  more  than  one  col- 
lectively, one  like  equal  share,  tbe  same  as  the  parent  or  ancestor  would  have 
taken  if  then  living." 

Subsequently,  and  on  or  about  the  20th  day  of  October,  1892,  John 
Scott,  Jr.,  James  Scott,  and  William  Scott,  parties  of  the  third  part  in 
the  deed  above  referred  to,  executed  and  delivered  to  the  plaintiff  a 
conveyance  purporting  to  convey  to  her  the  said  premises  in  fee. 
John  Scott,  the  original  grantor,  died  November  5,  1902,  and  an  ac- 
tion   was    thereafter    brought    by    this    plaintiff    against   John    Scott, 


264  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

individually  and  as  executor  of  the  last  will  and  testament  of  John 
Scott,  deceased,  James  Scott,  William  Scott,  and  Ann  Scott,  widow  of 
John  Scott,  for  the  purpose  of  having  the  original  deed  reformed  so 
that  it  should  transfer  and  convey  the  title  to  the  premises  therein  de- 
scribed to  the  plaintiff  in  fee  simple  absolute,  and  such  proceedings 
were  had  in  said  action  that  on  the  2d  day  of  November,  1903,  a  de- 
cree was  entered  therein  adjudging  and  decreeing  a  reformation  of 
said  instrument  so  that  it  should  purport  to  transfer  and  convey  the 
premises  to  plaintiff  in  fee  simple. 

William  Scott  died,  never  having  married;  John  and  James  both 
married",  and  their  respective  wives  are  living.  John  Scott,  Jr.,  has  two 
children,  and  James  one,  while  the  plaintiff  has  no  issue.  Her  husband, 
Peter  F.  Downey,  is  now  living.  On  the  29th  day  of  February,  1904, 
plaintiff,  being  in  possession  of  the  premises,  claiming  to  own  and  hold 
the  same  under  said  deeds,  entered  into  an  agreement  with  the  defend- 
ant to  convey  the  absolute  fee  of  said  premises  free  and  clear  from  all 
incumbrances,  except  certain  restrictions  about  which  no  question  is 
raised  here;  in  consideration  of  which  the  defendant  agreed  to  pay 
$9,000,  $200  of  which  was  paid  upon  the  execution  of  the  contract,  and 
$8,800  to  be  paid  on  the  delivery  of  a  deed  of  the  premises,  March  26, 
1904.  On  that  day  the  plaintiff  was  ready  and  willing  to  comply  with 
the  terms  of  the  contract,  and  deliver  to  the  defendant  a  full  covenant 
and  warranty  deed  of  the  premises.  The  defendant,  however,  refused 
to  accept  the  deed  and  pay  the  consideration  agreed  upon,  on  the 
ground,  as  claimed,  of  plaintiff's  inability  to  give  a  valid  title.  Plain- 
tiff now  demands  judgment  that  defendant  perform  said  agreement. 

A  vendee  is  entitled  to  a  marketable  title.  A  title  open  to  a  reason- 
able doubt  is  not  a  marketable  title.  To  entitle  a  vendor  to  specific 
performance,  he  must  be  able  to  tender  such  a  title  as  will  enable  the 
vendee  to  hold  his  land  free  from  probable  claim  by  another,  and  such 
that,  if  he  wishes  to  sell,  will  be  reasonably  free  from  any  doubt  which 
would  interfere  with  or  affect  its  market  value.  If  it  may  be  fairly 
questioned,  specific  performance  will  be  refused.  Shriver  v.  Shriver, 
86  N.  Y.  575,  584;  Fleming  v.  Burnham,  100  N.  Y.  1,  2  N.  E.  905; 
Vought  v.  Williams,  120  N.  Y.  253,  257,  24  N.  E.  195,  8  L.  R.  A.  591, 
17  Am.  St.  Rep.  634 ;  McPherson  v.  Schade,  149  N.  Y.  16,  21,  43  N.  E. 
527;  Abbott  v.  James,  111  N.  Y.  673,  19  N.  E.  434;  Moore  v.  Appleby, 
108  N.  Y.  237,  15  N.  E.  377;  Kilpatrick  v.  Barron,  125  N.  Y.  751,  26 
N.  E.  925  ;  Heller  v.  Cohen,  154  N.  Y.  299,  48  N.  E.  527.  A  marketable 
title  was  not  taken  by  plaintiff  under  the  deeds  mentioned,  and  the 
question  is  now  presented  whether,  in  consequence  of  the  judgment, 
plaintiff  had  such  a  title  on  March  26,  1904. 

It  is  quite  likely,  in  view  of  the  opinions  of  physicians  and  surgeons, 
that  plaintiff  will  never  become  a  mother,  and  yet  they  may  be  mistaken. 
The  rights  of  possible  children  of  plaintiff  were  not  protected,  and  no 
party  to  the  action  represented  the  unborn  children  of  the  plaintiff  or 
the  living  children  of  the  defendants  (in  that  action) — John  Scott,  Jr., 


Sec.  2)  EQUITABLE   AND   LEGAL   VIEW   OF   CONTRACT  265 

and  James  Scott.  John  and  James  had  conveyed  their  interest  in  the 
premises  to  the  plaintiff,  and  no  party  to  that  action  had  any  interest  in 
the  result,  save  only  the  plaintiff,  and  her  interest  was  adverse  to  the 
children  living,  as  well  as  those  unborn.  The  rights  of  children  un- 
born were  wholly  unprotected  and  uncared  for  in  the  action  for  ref- 
ormation. It  follows,  therefore,  that  the  unborn  children  of  the  plain- 
tiff, as  well  as  the  living  children  of  John  and  James,  were  not  con- 
cluded by  the  judgment  reforming  the  deed,  and  that  the  title  tendered 
to  the  defendant  was  not  marketable,  or  at  least,  that  there  is  such  a 
reasonable  doubt  as  to  the  title  which  the  defendant  would  take  under 
the  conveyance  tendered  that  the  burden  of  defending  it  ought  not  to 
be  imposed  upon  him.  The  defendant  is  therefore  entitled  to  judgment 
relieving  him  from  his  purchase  and  contract,  and  that  he  recover  of 
the  plaintiff  $200,  the  amount  paid  upon  the  contract  at  the  time  of 
its  execution,  together  with  $75,  the  amount  stipulated  as  being  the 
reasonable  expenses  incurred  in  investigating  the  title,  with  the  costs  of 
this  action. 

Let  judgment  be  entered  accordingly.    All  concur;   Hooker,  J.,  not 
voting. 


WETMORE  v.  BRUCE. 

(Court  of  Appeals  of  New  York,  Second  Division,  1890.    118  N.  Y.  319, 

23  N.  E.  303.) 

Appeal  from  superior  court  of  New  York  city,  general  term. 

Parker,  J.72  This  action  was  brought  to  compel  the  defendant  to 
specifically  perform  an  agreement  made  by  her  to  purchase  the  house 
and  lot  No.  19  Washington  square  north,  in  the  city  of  New  York. 
The  defendant  in  her  answer,  among  other  objections  to  the  title,  aver- 
red that  the  former  owners  of  the  land  in  the  block  in  which  the  house 
and  lot  are  situated  had  mutually  covenanted  and  agreed  that  12  feet 
of  the  front  of  the  lot  in  question,  and  of  the  other  lots  in  the  block, 
should  not  at  any  time  be  built  upon,  but  should  be  forever  left  open 
for  court-yards ;  that  such  agreement  was  in  full  force,  and  constituted 
a  restriction  and  incumbrance  which  depreciated  the  value  of  the  prop- 
erty. The  defendant,  by  way  of  counter-claim,  alleged  that  she  had 
sustained  damages,  because  of  the  inability  of  plaintiff  to  give  a  title 
free  and  clear  of  all  incumbrances,  consisting  of  the  percentage  paid 
on  account  of  the  purchase  price,  the  auctioneer's  fees,  and  the  ex- 
penses paid  for  examining  the  title.  The  plaintiff  in  his  reply  admitted 
the  making  of  the  agreement  set  forth  in  the  answer,  but  denied  that 
it  amounted  to  an  incumbrance  or  restriction,  in  the  proper  meaning 
of  the  words,  or  that  it  impaired  the  value  of  the  premises. 

It  is  entirely  competent  for  adjoining  owners  of  land,  by  grant,  to 
impose  mutual  and  corresponding  restrictions  upon  the  lands  belong- 

72  Part  of  the  opinion  is  omitted. 


266  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Ch.  2 

ing  to  each,  for  the  purpose  of  securing  uniformity  in  the  position  of 
buildings.  The  covenants  being  mutual,  and  imposing  such  restriction 
in  perpetuity,  are,  in  effect,  reciprocal  easements,  the  right  to  the  en- 
joyment of  which  passes  as  appurtenant  to  the  premises.  Observances 
of  such  a  covenant  will  be  enforced  by  a  court  of  equity.  Lattimer  v. 
Livermore,  72  N.  Y.  174;  Trustees  v.  Lynch,  70  N.  Y.  440,  26  Am. 
Rep.  615;  Insurance  Co.  v.  Insurance  Co.,  87  N.  Y.  400;  Perkins  v. 
Coddington,  4  Rob.  (N.  Y.)  647.  The  title,  then,  which  the  plaintiff 
tendered,  was  not  free  and  clear  from  all  incumbrance ;  for  certainly 
a  covenant,  valid  and  enforceable  in  equity,  which  so  limits  and  re- 
stricts the  use  of  12  feet  in  depth  along  the  entire  front  of  a  city  lot 
as  to  prevent  building  thereon,  is  an  incumbrance. 

Upon  the  trial  the  plaintiff,  by  evidence  tending  to  show  that  the  ex- 
istence of  the  agreement  did  not  depreciate  but  rather  enhanced  the 
value  of  the  premises,  sought  to  bring  the  case  within  the  decision  of 
this  court  in  Riggs  v.  Pursell,  66  N.  Y.  193.  In  that  case  the  purchaser 
at  a  judicial  sale  refused  to  take  title.     The  court  said: 

"While  the  agreement  requires  that  a  court-yard  shall  be  left  in  front  of 
this  lot,  for  the  benefit  of  the  other  lots  on  the  street,  it  also  requires  that  a 
court-yard  shall  be  left  in  front  of  all  the  other  lots  for  the  benefit  of  this, 
oiul  all  the  houses  on  the  street  have  been  built  in  conformity  to  this  agree- 
ment. While  this  agreement  may  in  one  sense  be  regarded  as  an  incumbrance 
upon  this  lot,  it  cannot  be  assumed,  without  proof,  that  it  injuriously  affects 
its  value  to  any  extent  whatever;"  and  it  was  held  to  be  an  immaterial  de- 
fect 

But  in  the  case  before  us  the  trial  court  found  that  the  restriction 
and  incumbrance  created  by  the  covenant  and  agreement  did  in  fact 
damage  the  property,  and  injure  its  salability  and  marketability.  The 
general  term  having  affirmed  the  finding,  it  cannot  be  reviewed  here,  as 
there  is  some  evidence  to  support  it.  As  the  case  is  now  present- 
ed, therefore,  Riggs  v.  Pursell  cannot  be  invoked  in  aid  of  the  ap- 
pellant, and  it  is  unnecessary  to  consider  whether  the  doctrine  of 
that  case  would  be  applicable  to  a  private  sale,  where  the  vendor 
contracts  to  give  a  good  title  in  fee-simple,  free  and  clear  of  all  in- 
cumbrances. It  follows  that  the  refusal  of  the  court  to  decree  specific 
performance  must  be  sustained.     *     *     * 

The  judgment  should  be  affirmed.  All  concur,  except  Haight,  J., 
not  voting. 


Sec.  2)  EQUITABLE   AND   LEGAL  VIEW  OF   CONTRACT  2G7 


III.  Certainty 

GRIFFIN  v.  COLEMAN. 
(In  Chancery  before  Vice-Chancellor  Bacon,  1S73.     28  L.  T.  R.  [N.  S.]  493.) 

At  the  date  of  the  agreement  hereinafter  stated  the  defendant  was 
entitled  to  certain  freehold  and  copyhold  lands  situate  at  Barrington, 
in  the  county  of  Cambridge,  the  copyhold  lands  being  held  of  the  man- 
ors of  Haslerton  Chatteris  and  Lancaster,  in  Barrington. 

On  the  11th  April  1863  the  plaintiff  and  defendants  entered  into  an 
agreement  which  recited  that  the  lords  of  the  said  manors  had  granted 
to  the  defendant  license  to  dig  and  carry  away  minerals  known  by  the 
name  of  coprolites  out  of  certain  copyhold  lands  held  of  the  said  man- 
ors, or  one  of  them  in  Middle-field,  in  Barrington ;  and  in  the  said 
agreement  described,  subject  to  the  payment  to  the  said  lords,  of  the 
sum  of  £30  per  acre  for  every  acre  of  the  said  lands  so  dug,  and  to  the 
conditions  and  abatement  therein  mentioned.  The  agreement  also  con- 
tained the  following  clauses : 

The  said  Luke  Griffin  shall  pay  to  the  said  John  Coleman  for  the 
right  to  work  and  use  the  said  lands  hereinbefore  described  in  manner 
following  (that  is  to  say)  the  sum  of  £110  on  the  execution  of  these 
presents  as  for  one  acre  of  the  said  lands  and  immediately  after  such 
and  every  subsequent  entire  acre,  except  the  last  acre  of  the  said  lands, 
shall  have  been  worked  as  hereinafter  mentioned,  or  the  said  Luke 
Griffin  shall  have  declined  to  work  or  to  continue  to  work  the  same,  the 
further  sum  of  £110,  and  upon  receiving  any  such  sums  of  money  from 
the  said  Luke  Griffin,  the  said  John  Coleman  shall  immediately  pay 
over  the  sum  of  £30  to  the  said  lords.  But,  nevertheless,  the  said  Luke 
Griffin  shall  be  at  liberty  to  decline  to  work  any  part  of  the  said  lands, 
where  the  coprolites  do  not  lie  within  a  depth  of  twelve  feet  from  the 
surface  of  the  earth. 

If  coprolites  be  found  in  any  land  of  the  said  John  Coleman,  situate 
at  Barrington,  other  than  the  lands  hereinbefore  mentioned,  the  said 
Luke  Griffin  shall  be  at  liberty  to  enter  upon  such  land  for  the  pur- 
pose of  obtaining  such  coprolites  on  the  same  terms  as  regards  price, 
and  with  similar  stipulations  and  conditions  as  are  contained  in  these 
presents,  and  the  said  John  Coleman  and  Luke  Griffin  will  execute  a 
proper  agreement  before  such  entry  takes  place,  provided  always  that 
the  said  John  Coleman  can  obtain  all  such  consents  and  authorities  as 
would  be  required  to  authorize  him  in  this  behalf. 

On  the  26th  October  1871,  the  plaintiff  filed  a  bill  stating  that  he  had 
become  desirous  of  digging  under  the  agreement,  another  field  of  the 
defendant's,  called  "The  Moor,"  which  was  also  held  of  the  same  man- 
ors, and  as  to  which  the  defendant  had  obtained,  or  could  obtain,  the 
consent  of  the  lords  of  the  manor  to  the  coprolites  being  removed  there- 
from ;  but  that  the  defendant  refused  to  allow  him  to  enter  thereupon. 


268  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

The  bill  prayed  specific  performance  of  the  agreement  of  the  11th 
April,  1863. 

It  appeared  that  the  lords  of  the  manor  had  granted  the  requisite 
consent  to  the  defendant,  but  at  an  increased  royalty  of  £35  per  acre  in 
place  of  the  £30  formerly  paid  by  him. 

A  question  arose  on  the  hearing  as  to  the  effect  of  the  second  clause 
of  the  agreement  as  above  set  out,  the  plaintiff  claiming  to>  be  entitled 
under  his  agreement  to  dig  the  "moor,"  on  paying  the  defendant  the 
former  rent  of  £110  per  acre,  notwithstanding  the  increase  of  £5  per 
acre  in  the  royalty  payable  by  the  defendant  to  the  lords  of  the  manor. 

The  defendant's  view  of  the  contract  was  that  he  was  entitled  to  re- 
ceive a  clear  profit  rent  of  £80  per  acre,  and  that  the  increased  royalty 
ought  to  be  borne  by  the  plaintiff.  The  defendant  by  his  affidavit 
swore  with  reference  to  the  contract : 

"I  say  that  no  question  as  to  the  payment  of  an  increased  royalty  was  ever 
raised,  nor  did  I  ever  contemplate  such  a  case." 

The;  Vice-Chancellor  was  of  opinion  that  the  bill  could  not  be 
sustained.  The  agreement  in  the  first  instance  clearly  was  that  the 
plaintiff  should  pay  a  beneficial  rent  of  £80  per  acre  to  the  defendant, 
and,  as  to  the  lands  in  respect  of  which  a  license  should  be  subse- 
quently obtained  by  the  defendant  from  the  lords  of  the  manor,  the 
rent  to  be  paid  was  to  depend  upon  that  license.  As  a  matter  of  con- 
struction he  did  not  entertain  the  slightest  doubt;  but  it  was  enough 
that  the  evidence  satisfied  him  that  the  intention  of  the  defendant  on 
the  execution  of  the  contract  was  not  according  to  the  plaintiff's  view. 
There  was  no  concord  between  the  parties.  Specific  performance 
would  not  be  granted,  and  the  bill  must  be  dismissed  with  costs.73 


EATON  et  al.  v.  WILKINS    et  al. 
(Supreme  Court  of  California,  1912.    163  Cal.  742,  127  Pac.  71.) 

Department  2.  Appeal  from  Superior  Court,  San  Joaquin  Coun- 
ty;    J.  A.  Plummer,  Judge. 

Action  by  M.  D.  Eaton  and  another  against  W.  H.  Wilkins  and  oth- 
ers.   From  a  judgment  for  defendants,  plaintiffs  appeal. 

Mrlvin,  J.74  *  *  *  The  first  contention  of  respondents  in  de- 
fense of  the  court's  ruling  sustaining  the  demurrer  is  that  the  contract 
is  too  indefinite  to  be  specifically  enforced.     We  think  this  position 

"3  Justice  Story,  sitting  in  circuit,  said  in  Kendall  v.  Almv  (183.1)  14  Fed. 
Cas.  300,  301,  No.  7,G90:  "If  the  bill  is  to  be  treated  as  founded  upon  a  parol 
contract  of  assignment,  the  evidence  of  what  that  contract  was,  in  terms  or 
in  purport,  is  so  loose,  indeterminate,  and  unsatisfactory,  that  it  would  be  im- 
possible to  act  upon  it  with  any  approximation  to  certainty.  *  *  *  There 
is  no  just  ground  to  call  upon  a  court  of  equity  to  enforce  a  specific  perform- 
ance of  a  contract  where  its  terms  are  not  clear,  definite,  and  positive." 

t<  Pa  its  of  the  opinion  are  omitted. 


Sec.  2)  EQUITABLE   AND   LEGAL   VIEW   OF   CONTRACT  2G9 

must  be  sustained.  We  have  in  mind  the  liberal  rule  with  reference  to 
indefinite  descriptions  capable  of  being  made  certain;  but  here  the 
description  of  the  real  property  as  "our  land  of  1,060  acres,"  in  a  con- 
tract dated  "Wilkins  Ranch,  September  22,  1909,"  is  not  sufficient. 
There  is  an  allegation,  as  we  have  shown,  that  Wilkins  intended  by  this 
vague  description  to  designate  the  land  in  San  Joaquin  county,  which 
is  particularly  described  in  the  complaint ;  but  that  averment  is  of  a 
bald  conclusion,  and  is  by  no  means  sufficient.  Marriner  v.  Dennison, 
78  Cal.  210,  20  Pac.  386.  There  is  no  pleading  of  extrinsic  facts  which 
would  support  this  conclusion,  as,  for  instance,  that  the  tract  of  land 
which  plaintiffs  desired  to  secure  by  this  action  was  known  as  "Wilkins 
Ranch,"  or  was  the  only  realty  containing  1,060  acres  possessed  by 
Wilkins.  From  the  contract  itself,  it  is  impossible  to  determine  wheth- 
er or  not  the  land  is  situated  within  the  state  of  California.  The  de- 
scription of  the  land  to  be  conveyed  is  one  of  the  most  essential  parts 
of  an  agreement  to  sell.  Such  a  contract  must  be  in  writing,  subscribed 
by  the  party  to  be  charged,  and  must  contain  such  description  of  the 
land,  either  in  terms  or  by  reference,  that  the  property  may  be  identi- 
fied without  resort  to  parol  evidence.  Craig  v.  Zelian,  137  Cal.  105,  69 
Pac.  853. 

The  contract  here  pleaded  is  one  which,  in  and  of  itself,  gives  no 
clue  to  the  property  involved,  and  the  complaint  states  no  facts  which 
would  clarify  the  obscure  references  therein  contained.  The  circum- 
stance that  in  the  agreement  Wilkins  promises  to  furnish,  and  did  sub- 
sequently furnish,  abstracts  of  title  does  not  help  the  matter.  The  de- 
scription in  the  contract  must  be  sufficient  to  bind  interested  parties, 
and  cannot  be  made  to  depend  for  its  very  existence  upon  the  subse- 
quent action  of  one  of  them.  The  demurrer  was  therefore  properly 
sustained  because  of  the  failure  of  the  complaint  to  set  forth  a  definite 
and  enforceable  contract  as  a  basis  for  the  action.     *     *     *  T5 

The  judgment  is  affirmed. 

We  concur:    Henshaw,  J.;    Lorigan,  J. 

7  5  in  Lonergan  v.  Daily  et  al.  (1914)  266  111.  1S9,  107  N.  E.  460,  the  court 
says:  "The  rule  is  well  settled  in  this  state  that  a  parol  contract  for  the 
o  mveyance  of  real  estate  will  not  be  specifically  enforced  in  a  court  of  equity 
unless  it  appears  to  be  certain,  definite,  and  unequivocal  in  its  terms ;  that, 
to  take  it  out  of  the  statute  of  frauds  on  account  of  part  performance,  all 
acts  performed  thereunder  must  be  clear  and  definite  and  referable  exclusively 
to  the  contract ;  that  the  proof  upon  which  the  conveyance  is  asked  must  be 
established  so  convincingly  as  to  leave  'no  reasonable  doubt  in  the  mind  of 
the  court.'  Langston  v.  Bates  (1877)  84  111.  524,  25  Am.  Rep.  466 ;  Seitman  v. 
Seitman  (1903)  204  111.  504,  68  N.  E.  461;  Casstevens  v.  Casstevens  (1907)  227 
111.  547,  81  X.  E.  709,  118  Am.  St.  Rep.  291 ;  Vail  v.  Rynearson  (1911)  249  111. 
501,  94  N.  E.  942;  Patterson  v.  Patterson  (1911)  251  111.  153,  95  N.  E.  1051. 
Mere  declarations  of  the  promisor  or  donor  do  not  constitute  such  clear  and 
unequivocal  testimony.  Worth  v.  Worth  (1877)  84  111.  442;  Geer  v.  Goudv 
(1898)  174  111.  514,  51  N.  E.  623." 

In  Clayton  v.  Newberry  (1912)  138  Ga.  735,  76  S.  E.  63,  a  written  con- 
tract described  land  as  '"part  of  lot  No.  200  in  the  sixth  district  and  second 
section  of  said  county,  containing  15  acres,  more  or  less."  The  county  was 
elsewhere  named.     In  an  action  for  specific  performance,  the  superior  court 


270  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 


SECTION  3.— EQUITABLE  INTERESTS  AND  BURDENS  OF 
VENDOR  AND  PURCHASER  AND  THEIR  REPRESEN- 
TATIVES ARISING  FROM  THE  CONTRACT— SO- 
CALLED  CONVERSION 


BADEN  &  Al'  Creditores  PHILLIPPI  nuper  Com'  PEMBROKE, 
Plaintiffs;  Comitiss.  PEMBROKE,  Dom'  TEFFERIES,  & 
Domina  CHARLOTTE  Ux'-ejus'  fil'  &  litres  dicti  PHILLIPPI 
Com'  PEMBROKE,  Defendants. 

(In  Chancery  before  the  Lord  Commissioners,  1690.    2  Yern.  213.) 

Phillip,  late  Earl  of  Pembroke,  after  charging  his  estate  with  an  an- 
nuity of  one  thousand  five  hundred  pounds  per  annum  to  the  Countess 
of  Pembroke,  in  November,  1682,  demised  the  manor  of  Patney  in 
Wilts,  for  one  thousand  years,  to  one  Clerke,  as  a  collateral  security 
for  his  enjoyment  of  the  manor  of  East  Overton,  which  he  had  bought 
of  the  late  Earl. 

And  June  18,  1683,  by  articles  under  hand  and  seal,  did  covenant  for 
him  and  his  heirs  for  five  thousand  two  hundred  pounds,  to  convey 
to  Pinseint  and  his  heirs,  the  manor  of  Patney,  and  Pinseint  cove- 
nanted in  a  week  after  the  conveyance  made,  to  pay  the  live  thousand 
two  hundred  pounds.  Pinseint  pays  part  of  the  purchase-money  to 
pay  off  an  old  statute  and  other  incumbrances,  and  before  any  convey- 
ance made,  the  Earl  dies,  greatly  indebted  by  bond  and  otherwise. 

Upon  the  first  hearing  of  this  cause  by  the  Lord  Chancellor  Jeffer- 
ies  on  July  11,  1688,  assisted  by  the  Master  of  the  Rolls,  Mr.  Justice 
Lutwich  and  Baron  Powell,  it  was  decreed  that  the  term  for  ninety- 
nine  years  raised  for  securing  the  one  thousand  five  hundred  pounds 
per  ann.  to  the  Countess  for  life,  was  raised  only  for  a  particular  pur- 
pose, and  that  being  done,  then  to  attend  the  inheritance,  and  go  to  the 
heir,  and  not  to  be  taken  as  a  term  in  gross,  to  be  assets  to  answer 
debts  by  simple  contract ;    and  that  Pinseint  being  willing  to  go  off, 

gave  a  judgment  for  plaintiff,  which  was  reversed  without  written  opinion 
on  appeal. 

In  Zeringue  v.  Texas  &  P.  R.  Co.  (United  States  Circuit  Court,  E.  D. 
Louisiana,  1888)  34  Fed.  239,  at  243,  Pardee,  J.,  for  the  court  said:  "It  re- 
mains, then,  that  the  only  stipulation  in  the  said  deed  and  compromise  judg- 
ment that  the  vendee  or  his  assigns  should  perform  any  act  or  thing  remain- 
ing unperformed,  is  the  stipulation  that  they  'shall  build  and  keep  in  repair 
such  bridges  as  may  be  necessary  over  the  lands  herein  acquired.'  This  stipu- 
lation is  too  indefinite  to  be  the  subject  of  a  bill  and  decree  for  specific  per- 
formance, for  there  is  no  sufficiently  defined  agreement  to  enforce.  The 
bridges  to  be  built  and  kept  in  repair,  as  to  size,  capacity,  construction,  and 
place  are  all  to  be  determined  by  necessity,  and  the  necessity  of  one  time  may 
not  be  the  necessity  of  another.  For  the  text-book  law  on  this  subject  see 
Pom.  Spec.  Perf.  §§  5,  (3.  There  seems  to  be  no  case  here  for  a  specific  per- 
formance." 


Sec.  3)  EQUITABLE    INTERESTS   OF   PARTIES  271 

he  should  be  repaid,  and  his  purchase  discharged,  and  reserved  the 
consideration  of  the  other  points  for  further  debate. 

Now  upon  debate  before  the  Lords  Commissioners,  they  were  of 
opinion  that  the  mortgaged  terms  derived  out  of  the  Earl's  inherit- 
ance, were  assets,  and  liable  to  bond-debts  only,  and  not  to  debts  by 
simple  contract ;  and  decreed  Pinseint's  purchase  should  go  on,  and 
the  heir  convey,  and  the  purchase  money  be  paid  to  the  executors. 


BEST  v.  STAMFORD. 

(In  Chancery,  1706.    1  Salk.  154.) 

Feme  sole  seised  in  fee,  upon  her  marriage  with  A.,  makes  a  lease, 
to  trustees  for  100  years,  in  trust  for  the  husband  for  his  life,  remain- 
der to  herself  for  life,  remainder  to  the  issue  of  that  marriage,  remain- 
der to  the  wife,  her  executors  and  administrators ;  husband  dies  with- 
out issue ;  she  marries  a  second  husband,  and  dies :  Whether  this 
term  should  be  attendant  upon  the  inheritance,  or  should  go  to  the  hus- 
band as  a  term  in  gross,  was  the  question. 

Et  Per  Cur.  It  is  a  term  attendant,  because  the  trust  for  which  it 
was  created  is  at  an  end,  the  first  husband  being  dead  without  issue: 
As  where  a  term  is  created  to  raise  portions,  and  the  portions  are 
paid ;  or  a  termor  purchases  the  inheritance  in  trust,  the  term  shall  be 
attendant.  And  as  for  the  second  husband,  it  cannot  be  intended  that 
he  was  then  thought  of. 

"Aioney  articled  to  be  laid  out  in  land,  shall  be  taken  as  land,  in  eq- 
uity ;  for  this  Court  is  to  enforce  the  execution  of  agreements,  and 
therefore  looks  upon  land  agreed  to  be  sold,  as  money,  and  money 
agreed  to  be  laid  out  in  land,  to  be  in  fact  a  real  estate,  which  shall 
descend  to  the  heir:  Sed  quaere,  If  money  be  articled  to  be  laid  out 
in  land,  in  a  marriage  settlement,  upon  failure  of  issue,  and  there  is  no 
issue,  but  debts  by  simple  contract ;  whether  this  money  shall  be  taken 
as  land,  and  thereby  defeat  creditors?" 


FLETCHER  v.  ASHBURNER. 

(In  Chancery,  1779.     1  Bro.  C.  C.  497.) 

John  Fletcher,  by  his  will,  devised  his  burgage  houses  and  free 
rents,  in  Kendall,  and  all  his  personal  estate  to  trustees  and  the  sur- 
vivor, and  the  heirs,  executors,  and  administrators  of  such  survivor, 
in  trust  to  sell  so  much  as  should  be  sufficient  to  pay  his  debts,  and 
then  to  permit  his  wife  Agnes  to  enjoy  the  residue  during  her  life,  if 
she  so  long  continued  his  chaste  widow ;  and  after  her  decease,  to  sell 
and  dispose  thereof,  and  the  money  arising  thereby,  after  deducting 


272  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Ch.  2 

charges,  and  half  a  guinea  each  to  the  trustees  for  their  trouble,  to 
pay  to,  and  between  his  son  William  and  daughter  Mary,  share  and 
share  alike,  provided  that  if  his  wife  should  happen  to  marry  again, 
the  trustees  should,  immediately  after  the  marriage,  sell  all  the  estate 
and  effects  given  to  her  for  her  life,  and,  after  such  deductions  as 
aforesaid,  should  pay  the  remainder  of  the  money  to  and  amongst  his 
wife,  his  son  William,  and  daughter  Mary,  share  and  share  alike, 
equally ;  and  in  case  either  his  son  William,  or  his  daughter  Mary 
should  die  before  his  or  their  legacy  should  become  due,  that  the  share 
or  legacy  of  him  or  her  so  dying  should  go  to  the  survivor  of  them : 
The  testator  died  leaving  Agnes  his  widow,  William  his  only  son  and 
heir  at  law,  and  Mary  his  daughter ;  Agnes,  by  the  custom  of  burgage 
tenure,  was  entitled  to  hold  the  burgage  houses  in  Kendall  during  her 
chaste  viduity,  against  the  disposition  of  her  husband  by  will ;  Mary 
attained  twenty-one,  but  died  unmarried  in  the  life  of  her  mother  and 
brother.  William  was  twenty-one  at  the  death  of  the  testator,  and  died 
without  issue  in  the  life  of  his  mother ;  the  mother  died  the  widow  of 
the  testator :  upon  her  death  a  bill  was  filed  by  the  heir  at  law  of  Wil- 
liam and  John  the  testator,  against  the  trustees  and  the  personal  rep- 
resentatives of  the  testator  and  of  the  widow,  to  have  a  conveyance  of 
the  real  estates  devised  by  the  will,  to  the  plaintiff,  the  heir  at  law. 
The  representative  of  the  widow,  who  was  the  sole  next  of  kin  of  Wil- 
liam the  son,  by  answer,  claimed  the  property  as  personal ;  alleging 
that  by  the  direction  to  the  trustees  to  sell  the  real  estates,  they  become 
as  personal  property,  and  as  such,  were  to  go  to  the  personal  represen- 
tative of  William  the  son,  who  survied  his  sister. 

In  June,  his  Honor  [Sir  Thomas  Sewell,  M.  R.]  7G  gave  his  opin: 
ion ;  he  observed  that  nothing  was  better  established  than  this  princi- 
ple, that  money  directed  to  be  employed  in  the  purchase  of  land,  and 
land  directed  to  be  sold  and  turned  into  money,  are  to  be  considered 
as  that  species  of  property  into  which  they  are  directed  to  be  con- 
verted; and  this  in  whatever  manner  the  direction  is  given:  whether 
by  will,  by  way  of  contract,  marriage  articles,  settlement,  or  otherwise, 
and  whether  the  money  is  actually  deposited  or  only  covenanted  to  be 
paid,  whether  the  land  is  actually  conveyed  or  only  agreed  to  be  con- 
veyed. The  owner  of  the  fund  or  the  contracting  parties  may  make 
land  money,  or  money  land.  The  cases  established  this  rule  univer- 
sally. If  any  difficulty  has  arisen,  it  has  arisen  from  special  circum- 
stances. In  the  case  of  Sweetapple  v.  Bindon,  2  Vern.  536,  it  was  de- 
termined that  a  husband  was  entitled  to  money  to  be  laid  out  in  land 
as  tenant  by  the  courtesy,  and  although  it  is  held  that  a  wife  is  not 
entitled  to  dower  in  a  similar  case,  yet  it  is  allowed  that  it  is  so  held 
because  cases  have  been  determined,  and  not  from  any  principle.  The 
cases  of  land  to  be  turned  into  money  are  fewer  than  those  of  money 
to  be  employed  in  the  purchase  of  land.    The  principal  cases  have  been 

"c  Tart  of  the  opinion  is  omitted. 


Sec.  3)  EQUITABLE   INTERESTS   OF   PARTIES  273 

where  real  estates  have  been  directed  to  be  sold,  and  some  part  of  the 
disposition  has  failed,  so  that  something  has  resulted  to  the  heir  at  law, 
as  in  case  of  Emblyn  v.  Freeman,  Pre.  in  Cha.  541 ;  and  Cruse  v.  Bar- 
ley and  Banson,  3  P.  Wms.  20.  These  are  all  cases  where  a  devise  has 
failed,  and  the  thing  devised  has  not  accrued  to  the  representative  or 
devisee,  but  to  the  heir  at  law  of  the  testator.  The  case  of  Durour 
v.  Motteux,  1  Ves.  320,  is  a  strong  case  to  the  point  now  before  the 
Court ;  and  if  any  thing  could  strengthen  the  general  rule,  the  circum- 
stances of  the  present  case  would  do  so.  The  testator  has  blended  the 
real  and  personal  estate  together,  and  disposed  of  them,  without  dis- 
tinction, for  the  benefit  of  his  wife  and  children.  Both  real  and  per- 
sonal estate  are  made  one  fund.  In  the  case  of  Durour  v.  Motteux, 
Lord  Hardwicke  made  this  a  principal  ground  for  considering  the 
whole  fund  as  personal  estate.  In  the  present  case,  it  might  be  un- 
certain, till  the  death  of  the  widow,  whether  the  estates  must  not  De 
absolutely  sold:  both  the  children,  indeed,  died  before  her;  but  she 
might  have  married  before  the  death  of  one  or  both.  The  interests  of 
both  the  children  were  vested,  subject,  as  to  one  of  them,  to  be  de- 
feated in  case  either  of  them  died  before  the  mother.  There  could  be 
no  election  to  take  the  fund  as  land  or  money ;  for  where  an  estate  is 
directed  to  be  sold,  and  the  money  divided  amongst  several  persons, 
none  has  a  right  to  say  that  any  part  shall  not  be  sold ;  the  question 
therefore  is  merely  between  the  real  and  personal  representatives  of 
the  son,  whether  the  personal  representative  shall  take  the  fund  as 
personal  property,  according  to  the  will,  or  the  heir  at  law  shall  take 
it,  as  if  no  will  had  been  made.  The  case  of  Flanagan  v.  Flanagan 
[1  Bro.  c.  c.  513]  is  a  strong  authority  that  it  shall  be  taken  as  per- 
sonal estate,  according  to  the  will.  In  that  case  the  testatrix,  Sarah 
Wooley,  by  will,  dated  28th  March,  1749,  gave  and  devised  all  her  real 
and  personal  estates  to  Francis  Plumtree,  in  trust,  in  the  first  place, 
out  of  her  personal  estate,  as  far  as  it  would  extend,  and,  in  the  next 
place,  by  sale  of  her  real  estate,  or  a  sufficient  part  thereof,  to  raise 
so  much  money  as  should  be  sufficient  to  pay  her  debts  and  legacies ; 
and  after  payment  thereof,  in  trust  to  convey  the  residue  of  the  real 
estate,  which  should  remain  unsold,  and  pay  the  produce  of  such  part 
as  should  be  sold,  and  all  other  the  residue  of  her  real  estates,  between 
her  father  James  Flanagan,  and  her  brother  James  Flanagan,  their 
heirs,  executors,  and  administrators,  equally.  A  bill  was  brought,  by 
the  creditors,  for  sale  of  the  real  estate,  to  supply  the  deficiency  of  the 
personal  estate  for  payment  of  debts ;  and  a  decree  was  made  for  a 
sale ;  and  if  any  of  the  money  to  arise  by  the  sale  should  remain  after 
payment  of  the  debts  and  legacies,  it  was  directed  to  be  paid  to  James 
Flanagan  the  father,  and  James  Flanagan  the  son,  equally ;  and  if  any 
estate  should  remain  unsold,  the  trustees  were  directed  to  convey  it 
to  them  and  their  heirs  equally :  after  the  decree,  James  Flanagan  the 
son  died,  leaving  a  daughter,  and  a  son  born  after  his  death;  part  of 
Boke  Eq—  18 


274  SPECIFIC   PERFORMANCE   OF   CONTRACTS'  (Ch.  2 

the  estate  was  sold,  and  afterwards  James  Flanagan  the  grandfather 
died,  leaving  his  grandson  his  heir,  and  his  grandson  and  grand-daugh- 
ter his  sole  next  of  kin :  after  the  death  of  the  grandfather,  a  further 
part  of  the  estate  was  sold,  under  an  apprehension  that  the  produce  of 
the  first  sale  was  insufficient  to  pay  the  debts  and  legacies :  it  appeared, 
however,  that  the  produce  of  the  first  sale  was  sufficient.  A  bill  was, 
afterwards,  brought  by  the  son  of  James  Flanagan  the  son,  claiming  a 
moiety  of  the  surplus,  as  the  real  estate  of  James  Flanagan  his  grand- 
father, to  whom  he  was  become  heir  against  the  personal  representa- 
tive of  his  grandfather,  and  against  the  daughter  of  James  Flanagan 
the  son,  who  claimed  a  moiety  as  one  of  the  next  of  kin  of  her  grand- 
father. It  was  objected,  that  the  second  sale,  after  the  death  of  the 
grandfather,  was  improper.  The  Court  determined,  that  the  second 
sale,  actually  made  under  the  decree  of  the  Court,  before  the  Master, 
could  not  be  considered  as  improperly  made :  that  there  was  no  fraud, 
no  practice,  and  that  the  money  ought  to  go  to  the  personal  represen- 
tative of  the  grandfather.  *  *  *  There  was  another  case  about 
the  same  time,  which  is  in  1  Ves.  174,  Cunningham  v.  Moody,  where, 
by  marriage  articles,  £500  was  agreed  to  be  laid  out  in  purchase  of 
lands,  to  be  settled  to  the  use  of  the  husband  for  life,  with  remainder 
to  trustees  to  preserve  contingent  remainders,  with  remainder  to  the 
wife  for  life,  with  remainder  to  the  children  of  the  marriage,  as  the 
husband  and  wife  should  appoint;  and  in  default  of  a  joint  appoint- 
ment, as  the  survivor  should  appoint ;  and  in  default  of  any  appoint- 
ment to  the  children,  to  be  equally  divided  among  them,  if  more  than 
one,  as  tenants  in  common,  in  tail  general,  with  cross  remainders ;  and 
if  but  one,  to  that  child  in  tail  general,  and  no  appointment  was  made. 
The  father  and  mother  being  dead,  and  the  daughter  being  married, 
the  trustees  paid  the  £500  to  her  and  her  husband,  and  they  received 
it  as  money,  and  executed  a  release.  The  daughter  had  a  child,  which 
died,  and  she  afterwards  died  without  issue.  A  daughter  of  the  settlor 
by  a  second  marriage  filed  a  bill  against  the  husband,  representative  of 
his  wife,  the  daughter  by  the  first  marriage,  for  the  £500  considering 
it  as  land ;  and  it  was  observed  that  she  was  entitled  to  the  money, 
but  that  the  husband  of  her  deceased  sister  was  entitled  to  the  interest, 
during  his  life,  as  tenant  by  the  curtesy.  In  the  present  case,  William 
Fletcher,  the  son,  had  the  whole  beneficial  title  vested  in  him  as  money, 
subject  to  his  mother's  interest  for  life  or  widowhood.  She  was  his 
sole  next  of  kin,  and  her  personal  representatives  are  now  entitled  to 
the  estate  as  money;  the  bill  must  therefore  be  dismissed  without 
costs.77 

"  'The  effect  of  a  contract  for  purchase  is  very  different  at  law  and  in 
equity.  At  law  the  estate  remains  the  estate  of  the  vendor;  and  the  money 
that  of  the  vendee.  It  is  not  so  here.  The  estate  from  the  sealing  of  the  con- 
tract is  the  real  property  of  the  vendee.  It  descends  to  his  heirs.  It  is  devisa- 
ble by  his  will ;  and  the  question,  whose  it  is,  is  not  to  be  discussed  merely 
between  the  vendor  and  vendee;  but  may  be  to  be  discussed  between  the  rep- 
resentatives of  the  vendee.     Therefore  I  do  not  take  a  full  view  of  the  sub- 


Sec.  3)  EQUITABLE   INTERESTS   OF   PARTIES  275 

LECHMERE  v.  EARL  OF  CARLISLE. 

(In  Chancery,  1733.     3  P.  Wins.  211,  24  E.  R.  1033.) 

The  bill  was  brought  by  the  nephew  and  heir  of  the  late  Lord  Lech- 
mere,  to  compel  a  specific  performance  of  marriage  articles. 

Upon  the  marriage  of  Nicholas,  late  Lord  Lechmere,  with  the  Lady 
Elizabeth  Howard,  one  of  the  daughters  of  the  defendant  the  Earl  of 
Carlisle,  articles  were  entered  into,  dated  30th  of  April,  1719,  whereby, 
reciting  the  said  intended  marriage,  the  Earl  of  Carlisle  covenanted  to 
pay  the  Lord  Lechmere  £6000  as  the  portion  of  his  said  daughter,  and 
the  Lord  Lechmere  covenanted  for  himself  and  his  heirs,  with  certain 
trustees,  within  a  year  after  his  marriage,  to  lay  out  the  said  £6000 
and  £24,000  of  his  own  money,  in  the  purchase  of  freehold  lands  and 
tenants  in  fee  simple,  in  possession  in  the  south  part  of  Great  Britain, 
with  the  consent  of  the  Earl  of  Carlisle  and  the  Lord  Morpeth,  their 
executors  and  administrators ;  the  lands  when  purchased  to  be  settled 
to  the  use  of  the  Lord  Lechmere  for  life  sans  waste,  remainder  to  trus- 
tees and  their  heirs  during  his  life  to  support  contingent  remainders, 
and  after  the  Lord  Lechmere's  death,  in  trust  to  pay  £800  per  annum, 
clear  of  all  charges,  (except  parliamentary  taxes)  to  the  defendant  the 
Lady  Elizabeth  Howard,  his  then  intended  wife,  for  her  jointure,  and 
after  the  determination  of  these  respective  estates,  remainder  to  the 
first,  &c.  son  of  the  marriage  in  tail  male,  remainder  to  trustees  for  500 
years,  to  raise  portions  for  daughters  of  the  marriage,  remainder  to 
the  Lord  Lechmere  in  fee.  The  500  years  term,  to  be  void  if  no  daugh- 
ter, and  until  the  purchase  made,  the  interest  to  be  paid  to  the  several 
parties  that  would  have  been  entitled  to  the  rents  and  profits  of  the 
land  when  purchased,  at  the  rate  of  £5  per  cent. 

The  marriage  took  effect,  and  the  Lord  Carlisle  paid  £4000  part  of 
the  portion  to  the  Lord  Lechmere,  and  gave  his  bond  for  the  remain- 
ing £2000  which  had  also  been  since  paid  to  the  defendant  the  Lady 
Lechmere. 

The  Lord  Lechmere  was  seised  of  some  lands  in  fee  at  the  time  of 
the  marriage  of  about  £300  per  annum,  and  after  his  marriage  pur- 
chased some  estates  in  fee  of  about  £500  per  annum,  and  some  estates 
for  lives,  and  other  reversionary  estates  in  fee,  expectant  on  lives,  and 
contracted  for  the  purchase  of  some  estates  in  fee  in  possession,  and 
on  the  18th  of  June,  1727,  died  intestate,  without  issue,  and  without 
having  made  a  settlement  of  any  estate.  None  of  the  purhases  or 
contracts  were  made  by  the  Lord  Lechmere  with  the  consent  of  the 
trustees.    Air.  Lechmere,  his  Lordship's  nephew  and  heir,  brought  this 

ject  upon  the  question  of  time,  unless  that  is  taken  into  consideration;  and 
many  very  nice  and  difficult  cases  may  be  put,  in  which  the  question  to  he  dis- 
cussed hetween  the  representatives,  [would  be]  founded  upon  the  conduct  be- 
tween the  vendor  and  vendee.  It  is  obvious,  that  a  due  consideration  of  the 
value  of  the  objections  will  embrace  that  consideration  also.''  Lord  Eldon,  in 
Seton  v.  Slade  (1802)  7  Yes.  *265,  274. 


276  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

bill  to  have  a  specific  performance  of  the  articles,  and  the  £30,000  laid 
out  as  therein  is  agreed,  and  to  have  interest  at  the  rate  of  £5  per  cent, 
in  the  mean  time.     *     *     * 

Upon  this  case  Sir  Joseph  Jekyll,  Master  of  the  Rolls,78  after  de- 
liberation, thus  delivered  his  opinion : 

The  question  upon  these  articles  is,  whether  the  heir  at  law  be  enti- 
tled to  have  this  £30,000  taken  out  of  the  personal  estate  and  invested, 
pursuant  to  the  articles ;  or,  in  other  words,  whether  the  same  be  to 
be  taken  as  land?    And  I  hold  that  it  must,  for  these  reasons : 

First.  For  that  the  Lord  Lechmere  was  compellable  in  equity  to  lay 
out  this  £30,000  and  to  settle  it  agreeably  to  the  articles.     *     *     * 

So  that  upon  the  whole  matter ;  I  decree  that  this  £30,000  thus 
agreed  to  be  laid  out  in  land,  shall  be  taken  as  land ;  that  the  land  per- 
mitted to  descend  to  the  heir  shall  not  be  deemed  to  be  in,  or  towards, 
satisfaction  of  the  debt:  consequently  that  the  administratrix  must 
invest  this  £30,000  in  a  purchase,  and  settle  it  pursuant  to  the  articles. 
But  though  these  have  provided  that  £5  per  cent,  shall  be  paid  until 
a  purchase  made ;  yet  it  appearing  to  me  that  the  money  has  been 
placed  in  the  government  funds,  which  have  yielded  but  £4  per  cent. 
I  think  I  may  with  reason  and  equity  moderate  the  interest,  and  reduce 
it  to  £4  per  cent,  in  regard  the  administratrix  has  made  no  more  of  it. 

Xote:  On  an  appeal  to  the  Lord  Talbot,  Paschae,  1735,  after  long 
debate,  his  Honour's  decree  was  so  far  affirmed,  as  that  the  £30,000 
articled  to  be  laid  out  in  land,  was  by  his  Lordship  held  to  be  as  land ; 
who  moreover  agreed,  that  no  difference  had  ever  been  made,  between 
the  cases  where  the  money  was  deposited  in  the  hands  of  a  third  per- 
son to  be  laid  out,  and  where  it  was  resting  in  the  hands  of  the  cove- 
nantor :  but  with  respect  to  the  freehold  lands  purchased  in  fee  sim- 
ple, in  possession,  after  the  covenant,  though  with  but  part  of  the  £30,- 
000  and  left  to  descend,  these  were  by  the  Lord  Chancellor  ordered  to 
go  as  a  satisfaction  pro  tanto ;  for  that  it  could  not  be  intended  the 
Lord  Lechmere  was  obliged  to  lay  out  all  the  money  together;  nay, 
it  might  be  doubtful,  whether  one  entire  purchase  could  be  met  with 
for  just  that  sum;  and  though  his  Lordship  had  covenanted  to  lay  out 
the  £30,000  in  land,  yet  he  had  not  covenanted  to  lay  it  out  in  one  pur- 
chase, or  at  one  time :  but  if  it  was  invested  at  several  times,  it  would 
satisfy  the  covenant,  as  much  as  if  laid  out  all  together.    ' 

T8  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Sec.  3)  EQUITABLE   INTERESTS   OF   PARTIES 


277 


STAMPER  v.  MILLER. 

(In  Chancery  before  Lord  Hardwicke,  1744.     3  Atk.  212,  26  E.  R.  923.) 

A  question  in  this  cause  arose  upon  a  settlement  made  upon  a  mar- 
riage, in  which  there  was  a  proviso,  that  one  thousand  pounds  therein 
mentioned  shall  and  may  be  applied  and  laid  out  by  the  trustees  in  the 
purchase  of  lands  and  hereditaments,  freehold  or  copyhold. 

It  has  been  insisted  by  the  plaintiff,  the  heir  at  law  of  the  covenan- 
tor in  the  settlement,  that  the  thousand  pounds  was  at  all  events  to  be 
laid  out  in  land ;  and  though  the  trustees  have  not  done  it,  yet,  that  it 
is  to  be  considered  in  this  court  as  land,  and  consequently  he  is  in- 
titled  to  an  account  from  the  trustees'  representatives. 

Lord  Chancellor.  Where  there  is  a  power  to  lay  out  money  in 
land  under  some  particular  circumstances,  but  the  original  intention 
was  that  it  should  be  considered  as  money,  if  it  is  not  actually  vested 
in  land,  it  shall  not  be  considered  as  land,  and  go  to  the  heir. 

The  first  clause  under  the  deed  is  a  clear  trust  of  money,  and  a 
complete  direction  of  the  intents  and  purposes  for  which  it  was  created. 

All  the  words  in  the  deed,  while  it  is  to  continue  money,  are  positive 
and  imperative. 

But  the  proviso  relating  to  the  laying  it  out  in  land  is  only  the  afore- 
said £1000  shall  or  may  be  applied,  &c. 

It  is  different  from  the  trusts  of  the  money,  for  there  is  no  cove- 
nant upon  the  trustees  to  do  it,  but  begins  with  the  principal  sum  of 
one  thousand  pounds :  and  though  shall  or  may  in  acts  of  parliament 
have  been  construed  absolutely,  yet  this  case  differs  greatly  from  that. 

All  the  three  trustees  are  dead,  and  it  is  not  possible  to  be  done  now. 

The  words  shall  or  may  were  only  inserted  to  leave  the  election  to 
the  trustees,  whether  they  would,  for  securing  the  £1000  let  it  continue 
as  it  was  already  in  mortgages  or  bonds,  or  call  it  in  from  these  securi- 
ties, and  lay  it  out  in  land. 

The  heir  at  law  is  not  at  all  in  the  consideration  of  the  settlement,  and 
therefore  appears  to  me  to  be  an  extreme  clear  case  against  the  plain- 
tiff, that  the  thousand  pounds  settled  by  deed  is  to  be  considered  as 
money. 

His  Lordship  dismissed  the  plaintiff's  bill,  but  without  costs. 


CHAMPION  et  al.  v.  BROWN  and  BROWN. 

(Court  of  Chancery  of  New  York,  before  James  Kent,  Chancellor,  1S22. 
6  Johns.  Ch.  398,  10  Am.  Dec.  343.) 

The  bill  was  filed,  December  10,  1821,  by  Henry  Champion,  and  Wil- 
liam L.  Storrs,  and  the  administrators  and  heirs  of  John  Paddock, 
deceased,  against  the  defendants,  John  B.  and  Jacob  B.,  for  the  specific 
performance  of  a  contract,  made  the  29th  of  August,  1816,  by  which 
Henry  C.  and  Lemuel  Storrs,  agreed  to  sell  and  convey  to  J.  P.  952 


27S  SFECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

acres  of  land,  &c,  for  the  sum  of  8000  dollars ;  500  dollars  to  be  paid 
in  cash,  and  the  residue  in  six  equal  annual  instalments,  with  interest 
annually.  J.  P.  died  intestate  November  16,  1816,  and  his  administra- 
tors and  heirs,  being  unable  to  perform  the  contract,  for  want  of  per- 
sonal assets,  on  the  1st  of  June,  1818,  entered  into  an  agreement  with 
the  defendants,  by  which  the  defendants  covenanted  and  agreed,  "that 
they  would  take  up  and  cancel"  the  contract  made  between  C.  &  S.  and 
Paddock,  &c,  by  the  first  day  of  August  then  next ;  or,  in  case  Cham- 
pion, the  survivor,  of  Storrs,  should  refuse  to  give  up  and  cancel  the 
said  contract,  then  the  defendants  covenanted  to  indemnify,  and  save 
harmless,  the  administrators  of  P.,  &c,  from  all  damages,  costs, 
charges,  and  expenses,  which  they  might  sustain,  or  be  put  to,  on  ac- 
count of  the  claims,  covenants,  and  agreements,  in  the  said  agreement 
contained,  &c.  The  administrators  of  P.  covenanted,  in  their  individu- 
al capacities,  to  pay  to  the  defendants  all  moneys  owing  to  them  from 
J.  P.  deceased,  stating  how  the  payments  were  to  be  made;  and  they 
were  to'  allow,  as  part  payment,  the  500  dollars  paid  by  P.  to  C.  &  S., 
and  endorsed  on  the  contract ;  "and,  also,  the  amount  of  the  improve- 
ments, appraised  by  Loomis  and  Lord."  At  the  time  of  this  agreement, 
the  administrators  of  P.  assigned  the  contract  between  him  and  C.  & 
S.  to  the  defendants. 

L.  Storrs  died  intestate,  and,  in  the  distribution  and  settlement  of 
the  estate,  all  his  interest  in  the  contract  became  vested  in  the  plain- 
tiff, William  L.  Storrs.  Soon  after  the  agreement  between  the  de- 
fendants and  the  administrators  of  P.,  the  former  entered  and  took 
possession  of  the  land,  and  have  since  continued  in  possession,  exercis- 
ing ownership,  receiving  rents,  cutting  timber,  &c.  But  they  have  made 
no  payments,  nor  taken  up  the  contract  between  P.  and  C.  &  S.,  but 
the  representatives  of  P.  still  remain  liable  to'  be  sued  upon  it.  The 
bill  proyed  for  a  discovery,  and  that  the  defendants  may  be  decreed 
specifically  to  perform  the  contract  between  C.  &  S.  and  P.,  according 
to  the  true  intent  of  the  agreement  between  the  defendants  and  P., 
and  for  their  indemnity,  the  heirs  offering  to  ratify  and  confirm  the 
conveyance  of  the  land  to'  the  defendants,  in  fee,  &c,  and  for  general 
relief. 

The  defendants  demurred  to  the  bill,  as  to  a  discovery,  and  as  to 
the  specific  performance  prayed,  on  the  following  grounds :  Because,  it 
does  not  appear  that  there  is,  or  has  been,  any  privity  between  the  plain- 
tiffs, or  either  of  them,  and  the  defendants,  or  between  the  defendants 
and  Champion,  and  L,.  Storrs ;  and  because,  it  does  not  appear  that  the 
administrator  of  P.  had  any  power  to  sell  or  assign  the  contract,  or 
the  land  described  in  it  and  because,  the  plaintiffs  have  not  shown  such 
a  case  as  will  entitle  them  to  relief  in  this  Court,  &c,  and  because,  it 
does  not  appear  that  the  administrators  of  P.  have  or  claim  any  inter- 
est in  the  contract  or  the  land  ;  nor  that  they  have  been,  or  can  be,  dam- 
nified by  reason  of  the  contract  not  being  cancelled ;  and,  as  regards 


Sec.  3)  EQUITABLE   INTERESTS   OF   PARTIES  271) 

the  heirs  of  P.,  because,  the  plaintiffs  have  not  shown  a  case  entitling 
them  to  relief  in  this  Court,  as  against  those  defendants,  &c. 

The  Chancellor. 79  (1)  The  first  and  leading  question  is,  whether 
the  bill  can  be  sustained  by  Champion  and  Storrs,  as  vendors,  against 
the  defendants,  claiming  by  purchase  under  the  vendee. 

The  title  in  law  never  passed  out  of  the  vendors,  though  in  equity, 
by  virtue  of  the  agreement  to  sell,  the  estate  was  in  the  vendee,  and 
was  in  him  transmissable  by  descent,  and  devisable  by  will.     *     *     * 

I  do  not  perceive  the  authority  under  which  the  administrators  as- 
signed the  contract  of  P.,  and  it  may  be  doubted  whether  the  defend- 
ants were  entitled  to  fulfill  the  original  contract,  and  could  compel  a 
deed  from  C.  and  S.  without  the  valid  assent  of  the  heirs  of  P.,  to 
whom  the  benefit  of  his  contract  belonged.  In  equity,  the  land  con- 
tracted for  descended  to  them  as  real  estate,  and  they  were  entitled 
to  call  upon  the  administrators  to  discharge  the  contract  out  of  the 
proceeds  of  the  personal  estate,  (if  any  there  were,)  so  as  to  enable 
the  heirs  to  demand  and  receive  a  deed.  But,  admitting  the  contract 
to  have  been  duly  assigned,  the  vendors  could  not  have  compelled  the 
defendants  to  have  paid  the  money.  In  this  sense,  they  could  not  have 
exacted  from  them  a  specific  performance  of  the  contract  of  P.     But 

1  think  they  were  entitled,  by  virtue  of  their  lien,  to  call  upon  the  de- 
fendants, as  assignees  of  the  contract  of  the  vendee,  to  pay  up  the  pur- 
chase money,  or  surrender  up  the  land,  or  to  have  it  sold  for  the  bene- 
fit of  the  vendors,  and  perhaps  to  account  for  the  intermediate  rents 
and  profits,  and  the  waste  committed.  The  remedy,  by  the  vendor, 
against  the  assignee,  may  be  said  to  be  in  rem  rather  than  in  personam. 
This  is  the  case  when  the  suit  is  by  the  vendee  against  a  purchaser  from 
the  vendor. 

It  is  well  settled,  that  if  A.  enters  into  a  contract  to  sell  land  to  B., 
and  afterwards  refuses  to  perform  his  contract,  and  sells  the  land  to 
C,  for  a  valuable  consideration,  B.  may,  by  bill,  compel  the  purchaser 
to  convey  to  him,  provided  he  be  chargeable  with  notice,  at  the  time  of 
his  purchase,  of  B.'s  equitable  title  under  the  agreement.  (Lord  Mac- 
clesfield, in  Atcherly  v.  Vernon,  10  Mod.  518.     Winged  v.  Lofebury, 

2  Eq.  Cas.  Ab.  32,  pi.  43.  Taylor  v.  Stibbert,  2  Ves.  jun.  437.  Daniels 
v.  Davison,  16  Ves.  249.  17  Ves.  433  S.  C.)  The  rule  that  affects  the 
purchaser  is  just  as  plain  as  that  which  would  entitle  the  vendee  to  a 
specific  performance  against  the  vendor.  If  he  be  a  purchaser,  with 
notice,  he  is  liable  to  the  same  equity,  stands  in  his  place,  and  is  bound 
to  do  that,  which  the  person  he  represents  would  be  bound  to  do  by  the 
decree.  The  purchaser  from  the  vendor  takes  the  estate  subject  to  the 
charge,  and  so,  I  apprehend,  does  a  purchaser  from  the  vendee,  and  he 

'is  equally  responsible  in  respect  to  the  estate.  The  vendor  cannot  make 
him  personally  liable  for  the  purchase  money,  but  the  estate  is  liable, 
and  if  he  be  a  purchaser  with  notice,  it  is  the  same  thing  whether  the 
estate  had  or  had  not  been  actually  conveyed  by  the  vendor.     *     *     * 

7»  Parts  of  the  opinion  are  omitted. 


280  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Ch.  2 

I  shall,  accordingly,  declare,  that  upon  the  face  of  the  bill,  the  plain- 
tiffs, C.  and  S.,  have  a  lien  upon  the  lands  for  the  purchase  money, 
and  are  entitled  to  call  on  the  defendants,  as  assignees  of  P.,  to  pay  it, 
or  that  the  lands,  with  the  intermediate  rents  and  profits  thereof,  in 
their  hands,  be  made  responsible  for  the  same ;  and  that  the  plaintiffs, 
who  are  administrators,  are,  upon  the  facts  stated  in  the  bill,  entitled 
to  a  specific  performance  of  the  covenants  on  the  part  of  the  defendant, 
and  to  an  assessment  of  damages  for  breach  thereof ;  and  that  the 
plaintiffs,  who  are  infants,  have  an  interest  in  the  lands  as  heirs  of  P., 
and  are  necessary  parties  for  the  purpose  of  having  their  interest  dis- 
posed of,  under  the  direction  of  the  Court,  as  equity  and  their  benefit 
shall  dictate.  It  is,  thereupon,  ordered,  that  the  demurrer  be  over- 
ruled, and  the  question  of  costs  thereon  reserved,  and  the  defendants 
answer  the  bill  in  six  weeks.    Order  accordingly. 


COLES  et  al.  v.  FEENEY  et  al. 

(Court  of  Chancery  of  New  Jersey,  1S94.    52  N.  J.  Eq.  493,  29  Atl.  172.) 

Heard  on  bill  and  answer. 

The  bill  is  brought  for  the  specific  performance  of  a  contract  for  the 
sale  of  land  by  the  testatrix  to  the  defendant  Feeney  on  the  26th  of 
December,  1891,  by  which  the  testatrix,  in  consideration  of  $3,000, 
agreed  to  convey  to  the  defendant  Feeney  a  tract  of  land  in  Jersey 
City,  of  which  she  was  the  owner,  the  conveyance  to  be  completed  on 
the  26th  of  January,  1892.  The  contract  was  signed  by  each  of  the 
parties.  Three  days  after  the  date  of  this  agreement,  Mrs.  Coles  died 
testate  of  a  will,  by  the  first  item  of  which  she  devised  "so  much  of  my 
real  estate  situate  in  Jersey  City,  in  the  state  of  New  Jersey,  derived 
by  me  from  my  son  William  F.  Coles,  lately  deceased,  as  at  my  de- 
cease shall  remain  unsold,  and  shall  not  then  be  improved  by  dwelling 
houses  or  other  buildings."  This  devise  covers  the  land  covered  by 
the  contract.  She  then  made  divers  other  bequests  of  money,  and  de- 
vises of  land  other  than  that  in  Jersey  City.  The  eighth  item  provided 
that : 

"In  so  far  as  may  be  needful  or  expedient  for  payment  of  the  foregoing 
pecuniary  legacies,  my  executors  are  authorized  to  use  the  proceeds  of  any 
real  estate  of  which  I  may  die  seised,  excepting  such  as  is  specifically  devised 
under  the  provisions  of  the  first,  sixth,  seventh,  and  eleventh  items  of  my 
will." 

By  the  twelfth  item  she  disposes  of  the  residue  of  her  property  to 

certain  persons  therein  named.     By  the  thirteenth  item  she  appointed 

her  executors,  and  used  this  language : 

"And  I  authorize  my  said  executors,  or  such  of  them  as  shall  qualify  and 
act.  and  the  survivor  and  survivors  of  them,  in  their  discretion,  and  as  soon 
as  by  them  deemed  or  found  to  be  necessary  or  advisable  for  payment  of  lega- 
<  Les,  for  division  or  distribution,  or  for  other  purposes  of  this,  my  will,  to  sell 
and  convey  at  public  or  private  sale  any  and  all  real  estate  of  which  I  may 


Sec.  3)  EQUITABLE   INTERESTS   OF   PARTIES  281 

die  seised  other  than  such  as  is  specifically  devised  by  the  first,  sixth,  seventh, 
and  eleventh  items  of  this,  my  will." 

The  bill  alleges  that  shortly  after  the  will  was  proven  the  executors 
tendered  a  deed  to  Mr.  Feeney  for  the  tract  of  land  in  question,  and 
demanded  payment  of  the  purchase  money,  and  that  he  declined  not  on 
the  ground  that  the  deed  was  not  tendered  at  the  time  fixed  by  the  con- 
tract, but  because  the  executors  were  unable  to  give  a  perfect  title.  The 
defendant  Feeney  answers,  and  bases  his  refusal  to  complete  the  pur- 
chase solely  on  the  ground  of  the  inability  of  the  executors  to  make  a 
complete  title  in  the  absence  of  the  devisees  of  the  lot  in  question,  who, 
being  numerous,  were  not  made  parties. 

PiTney,  V.  C.  (after  stating  the  facts).  I  do  not  think  the  rights 
of  the  parties  turn  upon  the  question,  so  much  discussed  in  the  briefs, 
whether  or  not  the  land  in  question  "remained  unsold"  at  the  decease 
of  the  testatrix,  and,  because  sold,  was  not  devised  by  her  under  the 
first  item  of  her  will,  or  whether  she  "died  seised''  of  it  in  such  sense 
as  to  bring  it  within  the  scope  of  the  power  of  sale  contained  in  the 
thirteenth  item.  If  this  contract  of  sale  was  a  valid  contract,  its  ef- 
fect was  to  work  a  conversion  of  the  land  from  real  to  personal  prop- 
erty. This  it  was  in  the  power  of  the  testatrix  to  do,  notwithstanding 
her  will,  which  was  made  before  the  date  of  the  contract.  Such  con- 
version, if  made,  had  the  effect  of  taking  the  land  out  from  under  the 
operation  of  the  first  clause  of  her  will,  and  giving  the  proceeds  of  it  to 
her  residuary  legatees  and  devisees  as  a  part  of  her  personal  estate; 
and,  in  the  absence  of  any  power  of  sale,  it  seems  to  me  entirely  clear 
that  the  executors  would  have  the  right,  and  it  would  be  their  duty, 
to  take  proper  proceedings  to  perfect  the  conversion  by  compelling  the 
transfer  of  the  legal  title  to  the  purchaser,  and  obtaining  from  him 
the  purchase  money.    Miller  v.  Miller,  25  N.  J.  Eq.  354. 

In  contemplation  of  equity  the  title  to  the  property  vested  in  the  pur- 
chaser as  soon  as  the  contract  was  executed  and  delivered,  subject, 
however,  to  a  lien  in  favor  of  Mrs.  Coles  for  the  unpaid  purchase 
money;  and  that  lien  is  capable  of  being  enforced  by  her  executors 
against  the  specific  devisees  of  the  particular  land,  even  in  the  absence 
of  any  power  of  sale,  by  compelling  them  to  convey  to  the  purchaser 
and  compelling  the  purchaser  to  pay  to  the  executors  the  purchase 
money.  This  right  of  the  personal  representatives  depends  entirely  up- 
on the  validity  of  the  contract;  and,  in  order  to  enforce  such  right, 
they  must  establish  its  validity  as  against  either  the  heir  at  law  or 
devisee,  as  the  case  mav  be.  Story,  Eq.  PI.  177a;  Fry,  Spec.  Perf. 
(2d  Ed.)  §  115;  Id.  (3d  Ed.)  §  190;  Calv.  Parties,  293;  Barb.  Parties, 
397,  399;  Roberts  v.  Marchant,  1  Hare,  547,  1  Phil.  Ch.  371. 

Again,  if  the  contention  of  the  executors  be  correct,  that  the  effect 
of  the  contract  was  to  take  the  land  out  from  within  the  scope  of  the 
power  of  sale  given  them  by  the  thirteenth  clause  of  the  will,  still  that 
effect  depends  upon  the  establishment  of  the  existence  and  validity  of 
the  contract  against  the  specific  devisees  of  the  contract.     So  that,  in 


282  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

any  view  to  be  taken,  the  executors'  power  depends  upon  the  establish- 
ment of  that  contract  as  against  the  devisees  under  the  first  clause  of 
the  will,  and  they  are  not  parties  to  the  bill.  This  view  of  the  case 
shows  that  the  bill  is  defective  in  not  making-  parties  the  several  dev- 
isees under  the  first  clause  of  the  will.  If  they  had  been  made  par- 
ties, I  should  say  the  executors  were  entitled  to  relief.  But  it  is  mani- 
festly unjust,  and  not  in  accordance  with  equity,  to  ask  the  purchaser  to 
take  a  title  the  validity  of  which  depends  upon  a  nice  question  of  con- 
struction, when  it  is  within  the  power  of  the  executors  to  eliminate 
all  question  and  room  for  debate  by  making  the  specific  devisees  par- 
ties. The  case  may  stand  over,  to  enable  the  executors  to  bring  in 
those  devisees,  if  they  shall  be  so  advised ;  otherwise  I  will  advise 
that  the  bill  be  dismissed. 


POTTER  v.  POTTER. 

(In  Chancery,  1750.    1  Ves.  Sr.  437,  27  E.  K.  1128.) 

The  plaintiffs  were  Thomas  Potter,  second  son  and  devisee  in  the 
will  of  the  late  Archbishop  of  Canterbury,  and  the  other  younger  chil- 
dren and  grandchildren  of  the  testator ;  the  defendants  were  John  Pot- 
ter, eldest  son  and  heir,  the  executors,  some  annuitants,  under  the  will, 
and  Isaac  Hughes,  with  whom  the  testator  had  contracted  for  the  pur- 
chase of  a  large  real  estate:  on  the  circumstances  attending  which 
treaty  carried  on  in  the  testator's  life,  and  on  his  will  and  codicils,  the 
questions  arose.     *     *     * 

The  testator,  seised  in  fee  of  some  manors  and  Lordships,  and 
possessed  of  a  large  personal  estate,  12  August  1745,  duly  made 
his  last  will  in  presence  of  three  witnesses;  devising,  subject  to 
an  annuity,  his  three  manors  of  A.,  B.  and  C.  and  all  his  messuages, 
lands,  tenements,  and  hereditaments,  in  the  county  of  Bedford  or  else- 
where in  any  part  of  England  to  the  use  of  Thomas  Potter  for  life 
without  impeachment  of  waste,  remainder  to  trustees  to  preserve  con- 
tingent remainders,  remainder  to  his  first  and  every  other  son  in  tail- 
male:  remainder  in  same  manner  to  his  eldest  son  John  Potter,  &c, 
remainder  to  the  daughters  of  the  testator  and  grand-daughter  as 
tenants  in  common,  not  as  joint-tenants,  then  some  specific  and  pecuni- 
ary legacies :  and  all  the  rest  and  residue  in  trust,  that  so  much  of  the 
personal  estate  as  at  the  time  of  his  decease  should  not  be  placed  out 
in  any  public  fund,  should  be  invested  in  South  Sea  or  other  public 
funds ;  and,  as  soon  as  a  convenient  purchase  could  be  had,  all  the 
stock  should  be  disposed  of  therein,  and  settled  in  the  same  way. 

By  a  codicil  on  the  back  of  the  will  he  afterward  gave  additional 
legacies  and  annuities  charged  and  payable  in  the  same  manner  as  the 
annuity  in  the  will,  and  ratifying  and  confirming  the  will,  dated  10th 
April  1747,  and  attested  by  three  witnesses  in  these  words, 


Sec.  3)  EQUITABLE   INTERESTS   OF   PARTIES  283 

"This  will  with  the  several  additions  and  alterations  above  was  signed, 
sealed,  and  republished,  by  the  testator  as  his  last  will  and  testament  in  pres- 
ence of  us  the  subscribing  witnesses."     *     *     * 

Sir  John  Strang^,  Master  of  the  Rolls,50  having  taken  time  to 
consider,  now  gave  his  decree :  The  question  arises  on  the  general 
words  after  enumeration  of  the  particular  estates,  on  which  it  seems 
to  be  admitted  (and  if  not,  I  should  have  no  doubt)  that  they  wall  carry- 
any  other  estate,  he  could  be  intituled  to  in  law  or  equity  at  the  time 
of  the  devise ;  for  which,  if  it  was  necessary  to  cite  authorities,  there  is 
2  Ver.  679 ;  P.  C  320 ;  Eq.  Ab.  211;  which  leads  to  the  main  question  be- 
tween the  devisees  and  heir  at  law  as  to  the  contract.  The  vendor 
submits  to  the  carrying  it  into  execution ;  and  both  parties  contend  for 
it,  but  with  different  views.  (Vide  1  Atk.  572;  2  Wins.  631.)  On  the 
best  consideration,  I  am  of  opinion,  that  this  estate,  so  contracted  for 
in  life  of  testator,  must  be  considered  in  equity  as  his  estate,  and  well 
devised  to  the  uses  in  the  will  and  codicils.  As  to  the  argument  for 
defendant  from  being  heir  at  law,  &c,  it  is  plain,  that  testator  intended 
to  die  testate  as  to  every  part  of  his  estate  real  and  personal,  and  con- 
tinued in  that  mind.  What  was  his  reason  for  so  dealing  with  his  son 
and  heir  this  court  has  nothing  to  do  with.  Here  is  a  clear  intent  and 
express  words ;  and  it  is  not  pretended,  that  testator  had  any  other 
lands,  to  which  these  general  words  could  be  applied,  having  particular- 
ised those  estates  of  which  he  was  seised.  His  not  mentioning  these 
lands  may  be  accounted  for :  by  the  will  he  had  disposed  of  all  he 
had;  what  would  be  at  his  death,  was  uncertain;  and  therefore  he  used 
general  words,  that  if  completed  it  might  pass  by  the  will ;  and  inserted 
the  clause  to  lay  it  out  in  land,  if  not  done  before.  To  consider  the 
instruments :  though  there  is  no  occasion  to  rest  this  on  the  will  itself, 
yet  I  strongly  incline  to  think,  that  even  were  the  codicils  out  of  the 
case,  the  will  itself  would  pass  the  estate.  One  circumstance  indeed 
is  wanting,  the  reducing  this  agreement  into  writing,  according  to  the 
statute  of  frauds;  which  if  done  in  June  1744,  no  doubt  but  this  es- 
tate must  be  considered  as  his  in  equity  from  that  time.  But  though 
an  agreement  is  not  reduced  into  writing  and  signed  by  the  party, 
yet  it  is  well  known,  that  if  confessed,  or  in  part  carried  into  execution, 
it  wall  be  binding  on  the  parties,  and  carried  into  further  execution 
as  such  in  equity  (1  Ves.  Sen.  297);  and  here  is  the  fullest  admission 
thereof.  It  must  therefore  be  decreed  according  to  the  case  in  Eq. 
Ab.  19,  and  the  constant  doctrine  in  this  court :  it  will  be  the  same, 
where  vendor  comes  for  specific  performance,  and  the  agreement  admit- 
ted. No  doubt,  but  on  such  admission  it  will  be  considered  as  an 
agreement  from  the  time  of  transaction;  so  that  on  a  bill  by  either 
party,  the  court  must  have  decreed  execution,  the  estate  as  testa- 
tor's from  June,  1744,  and  the  money  the  vendor's.  As  to  any  partial 
execution  before  the  will,  it  is  so  far  carried  into  execution,  as  to 
supply  the  want  of  writing  on  that  head.     Plaintiff  was  agent  to  his 

80  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


284  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Cll.  2 

father,  who  approved  of  the  agreement :  it  would  be  such  a  carry- 
ing into  execution  on  their  parts  as  would  have  intitled  vendor  to  have 
gone  on  with  the  purchase :  but  if  that  was  doubtful,  it  is  admitted  for 
defendant,  that  the  time  of  giving  the  note,  when  Huxley  agreed  to 
join  with  vendor  in  making  a  title  was  the  effectual  time  from  whence 
it  was  his  estate  in  equity.  *  *  *  This  last  codicil  was  therefore 
a  republication,  and  passed  the  estate  under  the  general  words  of  the 
will,  if  it  had  not  passed  before,  as  I  think  it  had ;  and  all  three  in- 
struments must  be  taken  together,  and  make  but  one  will.     *     *     * 


BUCKMASTER  v.  HARROP. 
.     (In  Chancery  before  Sir  William  Grant,  1S02.    7  Ves.  341.) 

On  the  23d  of  July,  1800,  certain  estates  were  sold  in  four  lots  by 
distinct  particulars ;  and  two  agents  for  Peter  Davenport  Finney  were 
declared  the  best  bidders,  at  several  sums,  amounting  in  the  whole  to 
£3119  and  they  immediately  after  the  sale  declared,  that  they  purchased 
for  Finney ;  and  Finney  offered  to  pay  the  deposits,  10  per  cent,  and 
the  auction  duty,  to  Strethill  Wright,  the  auctioneer ;  who  was  also  the 
vendor :  but  he  declined  receiving  either ;  alleging,  that  it  was  then 
late  at  night ;  and  he  had  to  go  eight  miles :  but  he  told  Finney,  he 
would  lay  down  the  money,  and  would  settle  the  same  with  him  some 
other  time;  which  Finney  agreed  to;  and  accordingly  Wright  paid  the 
auction  duty,  amounting  to  £77  19s.  6d.  By  the  conditions  of  sale  the 
purchaser  was  to  have  possession  of  Lot  3  immediately,  and  of  the 
other  lots  at  Michaelmas  next ;  paying  the  remainder  of  his  purchase- 
money  upon  the  execution  of  the  conveyance  on  or  before  the  29th  of 
September.  Finney  soon  afterwards  gave  the  amount  of  the  auction 
duty  to  his  attorneys,  to  be  paid  to  Wright;  directing  them  to  take 
a  proper  receipt.  He  also  sold  the  crops  of  hay,  grass,  and  oats,  then 
growing  on  the  premises,  comprised  in  Lot  3,  for  £50  to  a  person,  who 
afterwards  took  possession  of  the  premises  in  that  lot.  Finney  died, 
before  the  £50  or  any  rent  became  due.  An  abstract  of  the  title  was 
sent  to  the  attorneys  of  Finney  about  the  15th  of  September;  who  ap- 
proved the  title ;  but  before  any  conveyance,  on  the  22d  of  September, 
Finney  died. 

The  bill  was  filed  by  the  heirs  at  law  of  Finney  against  the  executors, 
the  residuary  legatee,  and  Wright ;  praying  a  specific  performance  of 
the  contract ;  and  that  the  purchase  money  may  be  paid  out  of  the  per- 
sonal estate. 

The  answers  admitted  the  agreement.  The  vendor  submitted  to 
perform  the  contract;  and  the  executor  did  not  object:  but  the  residu- 
ary legatee  resisted  the  performance.  Wright  demanded  the  money  he 
had  paid  from  the  executor ;  but  never  received  it. 


Sec.  3)  EQUITABLE   INTERESTS   OF   PARTIES  285 

The;  Master  of  the,  Rolls.81  The  object  of  this  bill,  filed  by  the 
coheirs  of  the  purchaser,  is  to  have  the  contract  carried  into  execution. 
The  vendor  submits  to  perform  the  contract.  The  executors  do  not  ob- 
ject to  it.  But  the  residuary  legatee  contends,  that  there  is  no  con- 
tract this  Court  ought  to  execute;  neither  a  contract  in  writing,  nor 
part-performed.  It  is  insisted  by  the  plaintiff,  that  the  residuary  lega- 
tee has  no  right  to  object  to  the  performance  of  a  contract,  to  which 
the  testator  himself  had  no  objection.  I  am  of  opinion  the  Court  cannot 
speculate  upon  what  the  deceased  would  or  would  not  have  done :  but 
the  inquiry  must  be,  whether  at  his  death  a  contract  existed  by  which 
he  was  bound,  and  which  he  could  be  compelled  to  perform.  That 
alone  can  give  the  heir  a  right  to  call  for  the  personal  estate  to  be  ap- 
plied, or  to  the  personal  representative  a  right  to  call  upon  the  heir. 
Whether  the  executor  would  or  would  not  perform  it,  is  of  no  moment. 
A  mere  executor  has  no  right  to  give  away  the  personal  estate  from 
the  residuary  legatee ;  who  in  this  case  is  before  the  Court ;  and  under- 
takes to  show,  the  plaintiff  has  no  right  to  call  for  a  performance  of  the 
contract. 

The  principle,  upon  which  the  Court  acts  for  or  against  the  heir,  is 
stated  (1  Ves.  220)  in  The  Attorney-General  v.  Day,  and  Lacon  v.  Mer- 
tins,  3  Atk.  1.  The  question  must  be  the  same,  whether  a  purchase  or 
a  sale  is  insisted  on.  Was  the  ancestor  himself  bound?  Was  there 
such  an  agreement  as  converts  the  real  estate  into  personal,  or  the  per- 
sonal estate  into  real?  I  am  of  opinion,  every  objection  may  be  taken 
upon  either,  which  it  would  have  been  competent  to  the  deceased  to 
take,  if  he  had  resisted  the  execution  in  his  life.  The  plaintiffs  say, 
if  it  is  necessary,  and,  I  am  of  opinion,  it  is,  they  can  show,  there  was 
such  an  agreement.     *     *     * 

The  plaintiffs  then  contend,  that  the  agreement  is  part-performed 
as  to  all  the  lots ;  and,  if  not  as  to  all,  as  to  Lot  No.  3.  I  am  of  opin- 
ion, this  is  no  part-performance.     *     *     * 

The  existence  of  the  agreement  may  be  put  out  of  all  doubt  by  the 
acts :  but  the  objection  upon  the  Statute,  that  the  agreement  is  not  in 
writing,  remains  where  it  did.  The  Court  does  not  profess  to  execute 
a  parol  agreement,  merely,  because  it  is  satisfactorily  proved.  In 
Whaley  v.  Bagenal,  6  Bro.  P.  C.  45,  which  being  before  the  House  of 
Lords  must  supersede  the  authority  of  every  other  case,  various  acts 
had  been  done,  which  implied,  that  the  party  had  sold  the  estate,  and 
did  not  consider  himself  any  longer  the  owner  of  it.  The  question 
still  remained,  whether  that  agreement  should  be  carried  into  execu- 
tion ;  and  it  was  held,  that  the  acts  done  by  the  defendant  did  not  entitle 
the  plaintiff  to  have  it  specifically  performed. 

Upon  the  whole  the  plaintiffs  are  not  entitled  to  this  relief.  The 
bill  therefore  must  be  dismissed,  but  without  costs.  The  vendor  must 
have  his  costs  from  the  plaintiffs. 

si  Parts  of  the  opinion  are  omitted. 


280  SPECIFIC   PERFORMANCE   OP   CONTRACTS  (Ch.  2 

LAWES  v.  BENNETT. 

(In  Chancery,  1785.    1  Cox,  167,  29  E.  R.  1111.) 

Thomas  Witterwronge,  seized  in  fee  of  a  farm  called  Bently,  by 
indenture,  dated  2d  October  1758,  demised  the  said  farm  to  John  St. 
Leger  Douglas,  Esquire,  his  executors,  administrators  and  assigns,  for 
seven  years,  under  the  yearly  rent  of  £106.  14s.  6d.,  and  upon  the  back 
of  the  said  indenture  was  indorsed  a  memorandum  or  agreement  signed 
by  Witterwronge  and  Douglas,  bearing  even  date  with  the  said  inden- 
ture, whereby  it  was  agreed  by  and  between  the  said  Witterwronge 
and  Douglas,  that  in  case  Douglas  should  at  any  time  after  the  29th 
of  September  1761,  and  before  the  29th  of  September  1765,  be  desir- 
ous of  absolutely  purchasing  the  fee  simple  and  inheritance  of  the  said 
premises,  mentioned  in  the  said  indenture,  for  the  sum  of  £3000,  to  be 
paid  by  him  to  the  said  Witterwronge  at  the  execution  of  the  convey- 
ance thereof,  and  of  such  his  mind  and  intention  should  give  notice  in 
writing  to  the  said  Witterwronge  before  the  29th  September  1765,  then 
Witterwronge  agreed  to  sell  to  Douglas  the  fee  simple  and  inheritance 
of  the  said  premises  for  the  said  sum  of  £3000,  and  to  execute  proper 
conveyances  thereof. 

Thomas  Witterwronge,  by  his  will  dated  1st  September  1761,  de- 
vised all  his  real  estates  of  which  he  was  seized  or  entitled  to,  unto  his 
cousin  John  Bennett,  and  he  thereby  gave  and  bequeathed  his  per- 
sonal estate  to  the  said  John  Bennett,  and  to  the  plaintiff  Mary,  sister 
of  the  said  John  Bennett  (after  payment  of  his  debts  and  legacies)  to 
be  divided  equally  share  and  share  alike,  and  appointed  John  Bennett 
and  plaintiff  Alary  joint  executors. 

Testator  died  in  June  1763,  and  on  11th  February  1764,  John  Ben- 
nett settled  an  account  with  plaintiff  Mary,  of  all  the  testator's  per- 
sonal estate,  and  paid  her  £324.  6s.  3d.,  as  her  moiety  thereof,  and  the 
account  was  signed  and  allowed  by  both  of  them. 

By  deed  poll,  dated  2d  March  1762,  made  between  the  said  John  St. 
Leger  Douglas  of  the  one  part,  and  William  Waller  Esquire  of  the 
other  part,  after  reciting  the  said  lease  of  1758,  and  the  memorandum 
or  agreement  thereon  indorsed,  the  said  John  St.  Leger  Douglas,  for 
the  consideration  therein  mentioned,  assigned  the  said  premises  and 
all  his  interest  therein,  and  all  benefit  and  advantage  which  should  or 
might  arise  from  the  said  agreement  to  the  said  William  Waller,  his 
executors,  administrators,  or  assigns,  for  all  the  residue  of  the  term 
then  to  come  therein. 

On  the  2d  February,  1765,  William  Waller  called  upon  John  Ben- 
nett to  perform  the  contract  entered  into  by  the  testator  for  sale  of 
'.he  premises  for  £3000,  which  Bennett  complied  with,  and  accordingly 
by  indentures  of  lease  and  release,  dated  1st  and  2d  February  1765, 
in  pursuance  and  performance  of  the  said  agreement,  so  indorsed  upon 
the  said  indenture  of  1758,  and  in  consideration  of  £3000,  the  said  John 


Sec.  3)  EQUITABLE   INTERESTS   OF   PARTIES  287 

Bennett  did  bargain,  sell,  &c.,  the  said  premises  to  the  said  William 
Waller,  his  heirs  and  assigns  for  ever. 

In  1779  John  Bennett  died,  leaving  defendant  his  widow  and  exec- 
utrix ;  and  the  present  bill  was  filed  by  Thomas  Lawes  and  Mary  his 
wife  (sister  of  the  said  John  Bennett),  stating,  that  they  had  not  until 
lately  discovered  the  sale  of  the  estate  to  Waller,  and  claiming  one 
moiety  of  the  purchase  money  received  by  Bennett,  as  being  part  of  the 
personal  estate  of  the  testator  Witterwronge,  and  which  he  had  de- 
vised equally  to  Bennett  and  plaintiff  Mary.  And  this  was  the  single 
question  in  the  cause,  whether  the  premises  being  part  of  the  testator's 
real  estate  at  the  time  of  his  death,  but  sold  afterwards  under  the  cir- 
cumstances aforesaid,  the  purchase  money  should  be  considered  as 
part  of  the  real  or  personal  estate  of  the  testator. 

Master  of  the,  Roles  [Sir  Lloyd  Kenyon].  Although  this  case 
may  be  new  in  species  yet  the  principles  upon  which  it  seems  to  me  to 
depend  are  perfectly  clear,  and  are  so  well  established  in  this  court, 
that  if  I  am  wrong  it  must  be  by  misapplication  of  those  principles. 
No  stress  can  be  laid  upon  the  will  of  Witterwronge,  for  that  is  ex- 
pressed in  very  general  terms.  He  had  two  species  of  property,  one 
of  which  gives  to  Bennett,  the  other  to  Bennett  and  his  sister.  Then 
which  kind  of  property  is  the  present?  It  is  very  clear  that  if  a  man 
seized  of  a  real  estate  contract  to  sell  it,  and  die  before  the  contract 
is  carried  into  execution,  it  is  personal  property  of  him.  Then  the 
only  possible  difficulty  in  this  case  is,  that  it  is  left  to  the  election  of 
Douglas  whether  it  shall  be  real  or  personal.  It  seems  to  me  to  make 
no  distinction  at  all.  Suppose  a  man  should  bargain  for  the  sale  of 
timber,  provided  the  buyer  should  give  part  of  the  personal  estate,  al- 
though it  depends  upon  the  buyer  whether  he  gives  security  or  not  (as 
to  what  has  been  said  about  Douglas's  being  able  to  release  his  power 
of  election,  I  think  a  court  of  equity  would  relieve  against  that,  if  it 
appeared  to  be'  done  collusively  to  oust  the  legatee  of  his  personal  es- 
tate) ;  when  the  party  who  has  the  power  of  making  the  election  has 
elected,  the  whole  is  to  be  referred  back  to  the  original  agreement,  and 
the  only  difference  is,  that  the  real  estate  is  converted  into  personal  at 
a  future  period.  The  case  of  Bowes  v.  Lord  Shrewsbury  (5  Bro.  Part 
Ca.  269)  shows  the  nature  of  the  property  may  be  altered  otherwise 
than  by  the  act  of  the  original  owner,  although  that  was  altered  by  the 
act  of  the  legislature  and  not  of  any  third  person ;  but  it  shows  gener- 
ally that  there  is  no  impossibility  in  the  nature  of  the  thing.  As  to  the 
length  of  time,  I  think  I  can  take  no  notice  of  it  in  this  case  for  here 
there  is  no  pretence  to  presume  the  demand  satisfied.  On  the  con- 
trary, it  has  been  withholden  for  another  reason.  I  must  therefore  de- 
clare this  £3000  to  be  part  of  the  personal  estate  of  the  testator,  and 
that  the  plaintiffs  are  entitled  to  one  moiety  thereof,  and  the  Master 
must  inquire  whether  the  plaintiff  Thomas  has  made  any,  and  what 
settlement  on  the  plaintiff  Mary,  &c.    And  as  to  interest,  as  it  appears 


288  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

that  Bennett  laid  out  this  money  in  the  funds,  and  consequently  has 
made  interest  of  it;  he  must  be  answerable  for  interest,  from  1st  Feb- 
ruary, at  4  per  cent. 

No  costs  on  either  side. 


EDWARDS  v.  WEST. 
(Chancery  Division,  1876.    7  Ch.  Div.  858.) 

By  an  indenture  dated  September  29,  1870,  the  defendant  demised 
to  the  plaintiffs  a  paper-mill  and  cottages  on  a  lease  for  twenty-one 
years ;  the  defendant  to  insure  at  his  own  expense  the  buildings  de- 
mised for  £14,000.  The  plaintiffs  had  the  option  of  purchase,  if  exer- 
cised within  five  years ;  this  time  was  extended  by  mutual  agreement 
to  September  29,  1876.  On  May  6,  1876,  a  fire  occurred  at  the  mills, 
and  the  defendant  received  nearly  £12,000  insurance  money. 

On  September  28,  1876,  plaintiffs  gave  defendant  notice  they  in- 
tended to  purchase  the  property,  and  to  claim  the  insurance  money  un- 
der the  purchase. 

The  defendant  refused  to  sell  upon  those  terms,  and  the  plaintiffs 
brought  this  action. 

The  action  came  on  for  trial,  and  his  Lordship  decided  that  the  op- 
tion to  purchase  continued,  though  the  term  had  been  ended  by  the 
fire  (by  virtue  of  a  clause  in  the  lease),  but  that  the  plaintiffs  had  no 
right  to  the  insurance  money. 

Fry,  J.S2  *  *  *  There  are  therefore  four  dates  material  to  con- 
sider ;  first,  that  of  the  contract  creating  the  option ;  secondly,  that 
of  the  injury  to  the  premises;  thirdly,  that  for  the  exercise  of  the  op- 
tion ;  and  fourthly,  that  for  the  completion  of  the  purchase  according 
to  that  option. 

Now  the  point  which  I  am  about  to  decide  arises  from  the  payment 
of  a  sum  of  between  £11,000  and  £12,000  by  the  insurance  offices  to 
the  defendant  consequent  upon  the  injury  to  the  property  by  fire  on 
the  6th  of  May,  1876.  The  plaintiffs  contend  that  that  money  so  re- 
ceived by  the  defendant  was  received  by  him  as  part-payment  of  the 
£14,000,  which  the  plaintiffs,  under  the  option,  were  bound  to  pay; 
and  that  contention  has  been  supported  by  three  methods  of  argument. 

In  the  first  place,  it  has  been  said  that  by  the  law  of  England  the 
exercise  of  the  option  causes  it  to  relate  back  to  the  time  of  the  cre- 
ation of  the  option  in  such  a  manner  as  to  render  the  property  for  this 
purpose  property  of  the  purchaser  as  from  the  date  of  the  contract 
which  gave  the  option ;  so  that  here,  although  the  option  was  given 
by  a  contract  made  in  April,  and  not  exercised  till  the  28th  of  Septem- 
ber, yet  that  when  it  was  so  exercised  on  the  28th  of  September,  it 
operated  retrospectively,  and  made  the  property  the  property  of  the 

82  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  3)  EQUITABLE   INTERESTS   OF   PARTIES  289 

purchaser  as  from  the  month  of  April  preceding,  and  consequently 
made  the  vendor  trustee  of  the  fruits  of  the  property  for  the  purchas- 
er. Now  it  appears  to  me  that  such  a  conclusion  would  be  highly  in- 
convenient, because  it  would  place  a  person  under  the  obligations 
which  rest  upon  a  trustee,  or  make  him  free  from  them,  by  reference 
to  an  act  which  was  not  performed  until  a  future  day ;  and  the  retro- 
spective conversion  of  a  person  into  a  trustee  of  property  is  a  result 
eminently  inconvenient.  In  the  next  place,  the  argument  appears  to 
me  to  be  opposed  to  the  general  course  of  authority  and  principle. 
According  to  the  view  which  I  conceive  to  be  true,  the  conversion  of 
property,  which  means  the  treating  it  as  belonging  to  somebody  else 
before  it  has  been  actually  transferred  to  that  other  person,  results 
from  a  contract  which  can  be  specifically  enforced;  so  that  where 
there  is  no  specific  performance  of  contract  possible,  there  is  no  con- 
version. It  flows  in  effect  from  the  principle  of  equity  which  consid- 
ers that  done  which  ought  to  be  done,  and  which  the  court  can  compel 
to  be  done,  and  it  extends  so  far  back  as  those  circumstances  exist, 
and  no  farther.  In  other  words,  where  there  is  a  contract  capable  of 
being  specifically  enforced  as  from  the  date  of  that  contract,  and  nei- 
ther earlier  nor  later,  the  property  comprised  in  the  contract  is  deemed 
to  belong  to  the  purchaser,  and  the  money  to  be  paid  is  deemed  to  be- 
long to  the  vendor,  because  those  two  things  ought  to  be  done ;  but 
here  there  is  no  obligation  to  do  them  at  any  earlier  date  than  that  of 
the  contract  constituted  by  the  exercise  of  the  option.  The  conversion 
can  not,  according  to  the  principle,  relate  back  to  an  earlier  date  than 
the  contract  which  gives  rise  to  it.  I  refer  to  the  case  of  Haynes  v. 
Haynes,  1  Dr.  &  Sm.  426,  as  an  authority  for  that  general  principle, 
and  it  appears  to  be  important. 

Upon  that  general  principle,  then,  I  should  hold  that  the  argument 
is  untenable.  But,  then,  I  am  told  that  the  case  is  covered  by  author- 
ity, and  for  that  purpose  my  attention  is  very  properly  drawn  to  the 
cases  which  begin  with  Lawes  v.  Bennett,  1  Cox,  167,  and  which  show 
that  where  there  is  a  contract  giving  an  option  to  purchase  real  estate, 
and  the  option  is  not  exercised  till  after  the  death  of  the  person  who 
created  the  option,  nevertheless  the  produce  of  the  sale  goes  as  part 
of  his  personal  estate,  and  not  as  part  of  his  real  estate.  Now,  wheth- 
er Lawes  v.  Bennett  is  or  is  not  consistent  with  the  general  principle 
upon  which  conversion  has  been  held  to  exist,  it  is  not  for  me  to  say. 
It  is  enough  for  me  to  say  that  the  case  has  been  followed  in  numerous 
other  cases,  though  it  has  been  observed  upon  by  more  than  one  judge 
as  somewhat  difficult  of  explanation.  I  think  that  the  language  of 
Lord  Eldon  in  Townley  v.  Bedwell,  14  Ves.  591,  and  of  Vice-Chancel- 
lor Kindersley  in  Collingwood  v.  Rew,  3  Jur.  (N.  S.)  785,  shows  that 
they  were  not  satisfied  that  that  case  was  consistent  with  the  general 
principles  which  were  applicable  to  cases  of  conversion ;  and  there- 
fore, although  I  should  implicitly  follow  Lawes  v.  Bennett  in  a  case 
Boke  Eq—  19 


290  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

between  the  real  and  personal  representatives  of  the  person  who 
granted  the  option,  I  do  not  think  that  I  am  at  liberty  to  extend  it  so 
as  to  imply  that  there  is  conversion  from  the  date  of  the  contract  giv- 
ing the  option  as  between  the  vendor  and  the  purchaser  who  claim 
under  it.  It  is  to  be  borne  in  mind  that  no  authority  can  be  produced 
which  has  extended  the  doctrine  of  Lawes  v.  Bennett  in  the  slightest 
degree  beyond  what  was  decided  in  that  case.  The  principle,  whatever 
it  be,  has  never  been  applied  except  as  between  the  real  and  the  per- 
sonal representatives  of  the  original  creator  of  the  option,  and  I  for 
one  shall  not  extend  it,  because  I  think  that  it  is  limited  by  the  general 
principle  to  which  I  have  adverted.  Therefore,  upon  that  ground,  I 
hold  that  there  is  no  conversion  of  the  estate  from  an  earlier  date  than 
the  28th  of  September,  when  the  notice  was  given.  The  fire  having 
taken  place,  and  the  insurance  money  having  been  received  at  an  ear- 
lier date,  the  intended  purchaser  has  no  right,  upon  the  general  prin- 
ciples of  conversion,  to  assert  a  title  to  that  money.     *     *     *  83 


COOPER  v.  JARMAN. 

(In  Chancery,  1866.    L.  H.  3  Eq.  Cas.  98.) 

This  was  the  further  consideration  of  a  suit  for  the  administration 
of  the  estate  of  John  Boykett  Jarman,  who  died  intestate  on  the  23rd 
of  February,  1864.  On  the  1st  of  April  following,  letters  of  admin- 
istration of  his  estate  and  effects  were  granted  to  Joseph  Charles  Jar- 
man  and  Ann  Elizabeth  Jarman,  two  of  his  children.  Joseph  Charles 
Jarman  was  also  his  heir-at-law. 

On  the  12th  of  October,  1863,  the  intestate  had  entered  into  a  con- 
tract with  Messrs.  James  and  Robert  Lawrence,  for  the  erection,  by 
them,  of  a  house  on  a  piece  of  freehold  land  belonging  to  him.  The 
house  was  in  course  of  erection,  but  not  finished,  at  the  time  of  his 
death ;  it  had  since  been  finished,  and  Joseph  Charles  Jarman  had  paid 
£799.  19s.  out  of  the  personal  estate  of  the  intestate  to  Messrs.  Law- 
rence for  the  completion  of  the  contract  by  them.  The  question  now 
raised  was,  whether  the  payment  of  this  sum  ought  to  be  allowed  to 
Joseph  Charles  Jarman,  as  the  legal  personal  representative  of  the  in- 
testate. 

Dec.  4.  Lord  Romilly,  M.  R.,  after  stating  the  facts,  continued : 
The  next  of  kin  contend  that  this  sum  ought  not  to  be  allowed,  and 
that  the  heir-at-law  must  personally  bear  the  expense  of  completing 
the  house.  The  ground  on  which  this  is  insisted  on  by  the  next  of  kin 
is,  that  the  contract  was  of  such  a  character  that  the  specific  perform- 
ance of  it  could  not  have  been  enforced  against  the  intestate  if  he  had 
thought  fit  to  resist  it,  and  that  if  he  had  done  so,  and  had  in  the  mid- 
dle stopped  the  further  building  of  the  house,  the  only  remedy  which 

83  The  bill  was  dismissed. 


Sec.  3)  EQUITABLE   INTERESTS   OF   PARTIES  291 

Messrs.  Lawrence  could  have  had  against  him  would  have  been  by  an 
action  for  damages  sustained  by  them  by  the  breach  of  contract  by  the 
intestate.  There  can  not,  however,  be  any  question  but  that  the  ad- 
ministrator would  have  been  liable,  in  an  action  brought  by  the  Messrs. 
Lawrence,  if  he  had  refused  to  allow  them  to  complete  the  contract. 
The  case  of  Wentworth  v.  Cock,  10  Ad.  &  E.  42,  is  distinct  on  this 
point ;  where,  in  an  action  against  an  executor  for  refusing  to  receive 
slate  ordered  by  the  testator,  the  Court  of  Queen's  Bench  held  that 
the  action  would  lie,  and  that  the  legal  personal  representative  must 
receive  and  pay  for  goods  ordered  by  the  testator.  Of  course  it  would 
be  the  same  in  the  case  of  an  intestate.  I  think  it  can  not  be  good  law 
that  an  administrator  is  bound  to  do  an  injury  and  inflict  damages 
upon  a  person  with  whom  the  intestate  had  entered  into  a  contract, 
and  to  prevent  that  person  from  completing  his  contract  because,  by 
so  doing,  he  would  increase  the  personal  estate  of  the  intestate.  There 
is,  as  it  appears  to  me,  a  wide  distinction  between  a  case  of  this  de- 
scription and  the  case  of  a  contract  for  the  purchase  of  a  piece  of  land. 
In  that  case  the  personal  estate  of  the  intestate,  or  testator,  is  bound 
to  pay  the  purchase-money,  provided  a  good  title  can  be  made ;  but  if 
a  good  title  can  not  be  made,  then  there  is  no  contract,  and  no  action 
would  lie  against  the  representatives  of  the  intestate,  because  the  con- 
tract, in  the  absence  of  any  express  stipulation,  necessarily  is  inferred 
to  have  been  to  buy  land  with  a  good  title ;  and  if  the  deceased  person 
had  contracted  to  buy  land  with  any  particular  title,  in  a  manner  to 
bind  him,  this  contract  would  bind  the  personal  estate  in  the  hands  of 
the  next  of  kin.  But  I  have  seen  no  case,  and  I  am  unable  to  believe 
that  any  case  can  be  found,  where  a  legal  personal  representative  has 
been  made  answerable  for  performing  a  contract  entered  into  by  the 
deceased  person,  and  at  the  time  of  his  death  intended  to  be  performed 
by  him,  merely  because,  according  to  the  peculiar  rules  of  equity  re- 
lating to  the  doctrine  of  specific  performance,  such  a  contract  could 
not  have  been  enforced  by  a  suit  in  equity  against  the  deceased  person, 
or  against  his  representative.  Here,  unquestionably,  the  intestate  had 
bound  himself,  as  far  as  possible,  during  his  lifetime.  The  house  had 
been  begun ;  the  building  was  in  progress  when  he  died.  If  the  Messrs. 
Lawrence  had,  therefore,  refused  to  go  on  with  the  building,  an  ac- 
tion would  have  lain  against  them  at  the  suit  of  the  administrator ;  and 
it  can  not,  in  my  opinion,  be  law,  that  the  next  of  kin  should  be  enti- 
tled to  call  upon  the  heir-at-law  to  resist  the  Messrs.  Lawrence,  and 
hinder  them  from  coming  on  the  land,  and  prevent  them  from  com- 
pleting the  contract  because,  in  the  opinion  of  the  next  of  kin,  the  dam- 
age sustained  by  the  contractor  would  possibly  be  less  than  the  amount 
to  be  paid  for  the  fulfilment  of  the  contract.  Besides  which,  if  I  am 
so  to  hold,  no  rule  could  be  adopted  which  would  be  certain.  The  ad- 
ministrator could  not  safely  pay  the  amount  of  damages  claimed  by 
the  contractor  for  the  loss  sustained  by  the  breach  of  the  contract.  If 
he  did,  the  next  of  kin  might  successfully  say  that  he  paid  more  than 


292  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

a  jury  would  have  allowed;  and  if  he  resisted,  and  went  to  trial  at 
law,  and  thereupon  the  amount  of  damages  found  by  the  jury,  togeth- 
er with  the  costs  of  the  suit,  should  exceed  the  amount  to  be  paid  for 
the  completion  of  the  contract,  could  the  legal  personal  representative 
be  allowed  to  deduct  this  in  taking  the  accounts?  I  apprehend  clearly 
not.  The  administrator  has,  in  my  opinion,  a  clear  duty  to  perform. 
The  moral  duty  is  distinct.  It  is  to  perform  the  contract  entered  into 
by  his  intestate.  The  legal  duty,  in  this  instance,  as  I  believe  it  is  in 
all  cases  where  it  is  fully  understood  and  examined,  is  identical  with 
the  moral  duty.  I  am,  therefore,  of  opinion  that  this  sum  has  been 
properly  allowed  in  the  accounts  of  the  administrator. 


CURRE  v.  BOWYER. 

(In  Chancery  before  Sir  John  Leach,  Vice  Chancellor,  1S18.    5  Beav.  6, 

49  E.  R.  478.) 

This  case  was  thus  stated  by  Mr.  Tinney,  who  had  been  counsel  in 
the  cause :  A  party  entered  into  a  contract  for  the  sale  of  a  real  es- 
tate, and  afterwards  died  before  it  had  been  completed.  After  the 
lapse  of  many  years,  the  purchaser  filed  a  bill  for  specific  performance. 
This  was  resisted  on  the  ground  that  the  contract  had  been  improvi- 
dent, and  had  been  obtained  at  an  undervalue,  and  by  undue  influence. 

Sir  John  Leach,  however,  held  that  the  contract  was  binding  at 
the  death  of  the  vendor,  but  that  by  the  lapse  of  time,  and  by  his  laches, 
the  purchaser  had  lost  his  right  to  have  a  specific  performance,  and 
that  the  estate  belonged  to  the  next  of  kin,  and  not  to  the  heir  at  law. 

The  testatrix  entered  into  a  contract,  by  which  she  agreed  to  alien- 
ate her  whole  interest  in  the  estate;  but  she  did  not,  in  any  of  the  ways 
pointed  out  by  the  Act,  revoke  the  will  and  codicils ;  and  because  she 
has  not  done  so,  the  argument  is,  that  the  purchase-money,  as  repre- 
senting the  estate,  passed  by  the  devise ;  but  revocation,  in  the  manner 
directed  by  the  Act,  is  not  the  only  mode  in  which  a  will  may  be  ren- 
dered inoperative. 

If  she  had  conveyed  the  estate,  and  thereby  completed  the  alienation, 
the  will  would  have  had  no  operation  upon  it,  or  upon  the  purchase- 
money  ;  and  it  was  necessarily  admitted,  that  the  will  could  not,  by  the 
devise  of  the  land,  have  any  operation  upon  that  part  of  the  purchase- 
money,  which  was  actually  paid  to  the  testatrix  in  her  lifetime. 

The  question,  whether  the  devisees  can  have  any  interest  in  that  part 
of  the  purchase-money  which  was  unpaid,  depends  on  the  rights  and 
interests  of  the  testatrix  at  the  time  of  her  death.  She  had  contracted 
to  sell  her  beneficial  interest.  In  equity  she  had  alienated  the  land, 
and  instead  of  her  beneficial  interest  in  the  land,  she  had  acquired  a 
title  to  the  purchase-money.  What  was  really  hers  in  right  and  equity 
was,  not  the  land  but  the  money,  of  which  alone  she  had  a  right  to 


Sec.  3)  EQUITABLE   INTERESTS   OP   PARTIES  293 

dispose;  and  though  she  had  a  Hen  upon  the  land  and  might  ha\e  re- 
fused to  convey  till  the  money  was  paid,  yet  that  lien  was  a  mere 
security,  in  or  to  which  she  had  no  right  or  interest,  except  for  the  pur- 
pose of  enabling  her  to  obtain  the  payment  of  the  money.  The  benefi- 
cial interest  in  the  land  which  she  had  devised  was  not  at  her  disposi- 
tion ;  but  was,  by  her  act,  wholly  vested  in  another,  at  the  time  of  her 
death ;  and  the  case  is  clearly  distinguishable  from  cases,  in  which  tes- 
tators, notwithstanding  conveyances  made  after  the  dates  of  their 
wills,  have  retained  estates  or  interests  in  the  property  which  remain 
subject  to  their  disposition. 

Being  of  opinion,  that  by  the  contract,  the  testatrix  must,  in  this 
Court,  be  deemed  to  have  alienated  the  whole  of  her  beneficial  interest 
in  the  estate :  that  at  the  time  of  her  death,  she  had  no  beneficial  inter- 
est in  the  land  at  her  disposition,  and  that  the  will  only  passes  that 
which  was  at  her  disposition,  I  am  of  opinion,  that  the  devises  of  the 
land  have  no  interest  in  the  purchase-money,  and  that  the  prayer  of 
this  petition  must  be  granted. 


WHITTAKER  v.  WHITTAKER. 

(In  Chancery  before  Sir  Richard  Pepper  Arden,  1792.    4  Bro.  C.  C.  31.) 

William  Whittaklr,  Esq.,  by  will  dated  5th  January,  1782,  after 
giving  several  specific  and  pecuniary  legacies,  gave  to  John  Marlar  and 
others,  their  heirs  and  assigns,  certain  premises  situate  at  Sowerby,  near 
Halifax,  at  New-Church,  Lancashire,  and  at  Totteridge,  to  the  use  of 
(the  plaintiff)  his  nephew,  Abraham  Whittaker,  for  life,  sans  waste, 
remainder  to.  trustees  to  preserve  contingent  remainders,  with  divers 
remainders  over — and  then  (inter  alia)  reciting,  that  he  had  contracted 
with  Robert  Mackreth,  Esq.,  for  the  purchase  of  an  estate  in  the  coun- 
ty of  York,  theretofore  the  estate  of  Sir  George  Metham,  for  f/950; 
he  gave  to  the  trustees  all  the  residue  of  his  goods,  chattels,  estates, 
&c,  upon  trusts,  thereinafter  expressed;  one  of  which  trusts  was,  "to 
collect  and  get  in  the  same,  and  dispose  of  a  sufficient  part  thereof,  and 
therewith,  in  the  first  place,  to  pay  the  remainder  of  the  purchase- 
money  to  said  Robert  Mackreth,  Esq. ;  and  to  complete  the  contract 
with  him  in  all  respects  whatever,  and  thereupon  to  take  from  said 
Robert  Mackreth,  or  his  heirs,  and  from  all  other  necessary  parties, 
a  conveyance  of  said  estate  so  contracted  to  be  purchased  of  said 
Robert  Mackreth,  in  such  manner  as  counsel  should  direct,  so  as  that 
the  same  estate  might  be  legally  conveyed  to  said  trustees,  their  heirs 
and  assigns,  to  such  uses  and  estates,  in  favor  of  his  said  nephew, 
Abraham  Whittaker,  and  with  such  remainders  over,  and  subject  to 
such  and  the  like  provisos,  conditions,  and  limitations  as  were  therein- 
before mentioned,  with  respect  to  his  said  estates  at  Sowerby,  New- 
Church,  and  Totteridee,  aforesaid." 


294  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Ch.  2 

In  the  same  month  of  January,  1782,  and  before  the  contract  was 
completed,  and  the  remainder  of  the  purchase-money  paid  (£1192 
having  been  paid  as  a  deposit),  the  testator  died.     *     *     * 

The  executors  not  being  able  to  collect  assets  to  carry  the  contract 
into  execution,  Mackreth,  in  Easter  term,  1785,  filed  his  bill  against  the 
executors  of  the  testator,  praying  that  the  contract  might  be  deliver- 
ed up  to  him  to  be  cancelled,  on  his  paying  £1192.  10s.  the  deposit;  and 
upon  the  hearing  of  that  cause  10th  July,  1786,  it  was  referred  to  the 
Master,  to  compute  interest  on  that  sum,  and  that  upon  payment  of 
that  sum  (with  interest,  deducting  the  costs),  the  agreement  should  be 
cancelled ;  which  decree  was  afterwards  carried  into  execution. 

In  Hilary  term,  1790,  the  present  supplemental  bill  was  filed,  by  the 
plaintiff,  Abraham  Whittaker,  stating  the  above  case,  and  praying  that 
directions  might  be  given  for  raising  the  said  sum  of  £7950,  and  that  the 
same  might  be  laid  out  in  lands,  in  the  name  of  trustees,  in  trust,  for 
such  uses,  in  favor  of  the  plaintiff,  and  with  such  remainders  over,  as 
in  the  will  are  limited ;  or  if  the  Court  should  be  of  opinion,  that  the 
same  should  be  considered  as  part  of  the  residue  of  the  testator's  per- 
sonal estate,  then  that  the  executors  might  be  decreed  to  pay  to  the 
plaintiff  one  moiety,  according  to  the  said  will,  &c. 

The  cause  came  on  at  the  Rolls,  during  the  Sittings  after  Trinity 
term,  when  it  was  argued  for  the  plaintiff,  by  Mr.  Lloyd,  and  Mr.  Hol- 
list,  that  under  the  circumstances,  and  in  the  events  which  had 
happened,  the  money  which  was  to  have  been  paid  for  the  lands  con- 
tracted for,  ought  to  be  now  laid  out  in  the  purchase  of  other  lands, 
to  be  settled  to  the  same  uses.  On  the  part  of  the  defendants,  it  was 
contended,  by  Mr.  Mitford  and  Mr.  Sutton,  that  the  money  should 
sink  into  the  residue  of  the  testator's  personal  estate,  but  his  Honor  in 
giving  judgment  went  so  fully  into  the  argument,  and  the  cases  cited, 
that  it  is  unnecessary  to  premise  a  statement  of  either. 

This  day  his  Honor  gave  judgment. 

Master  of  the  Roles.84  This  is  a  bill  praying  to  have  £7950  laid 
out  in  the  purchase  of  other  lands,  and  settled  to  the  same  uses,  to 
which  the  lands  contracted  to  be  purchased  were  to  be  settled,  and  it 
arises  on  this  clause  in  the  testator's  will  (stating  the  clause,  as  above 
stated). 

The  testator  has,  by  his  will,  devised  these  premises  to  Abraham 
Whittaker,  in  strict  settlement ;  and  has  ordered  another  estate  to  be 
purchased  and  settled  to  the  same  uses. 

At  the  death  of  the  testator,  his  contract  with  Mackreth,  for  the  pur- 
chase of  the  estate,  was  incomplete,  part  of  the  purchase-money  had 
been  paid;  there  was  no  objection  on  the  part  of  the  vendor  to  com- 
pleting the  purchase,  there  was  no  want  of  title;  but  the  testator's  af- 
fairs were  complicated,  his  will  was  not  found  for  some  time  after  his 
death,  and   the  vendor  filed  his  bill  against  the  executors,  either  to 

8*  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Sec.  3)  EQUITABLE   INTERESTS   OF   PARTIES  295 

fulfill  the  contract  or  to  abandon  it.  The  testator  died  in  1782.  In 
January,  1786,  the  cause  came  on — the  executors  declined  completing 
the  contract.  The  then  Master  of  the  Rolls  [Sir  L,.  Kenyon]  decreed 
the  contract  to  be  at  an  end,  and  on  payment  of  the  deposit  the  con- 
tract was  rescinded.  In  1789,  it  appeared  there  were  assets  to  enable 
the  executors  to  pay  the  money. 

The  question  is,  whether  under  these  circumstances  the  devisees  of 
the  land  contracted  to  be  purchased,  are  entitled  to  have  the  money 
laid  out  in  the  purchase  of  other  lands,  to  be  settled  to  the  same  uses? 

And  I  am  clearly  of  opinion  they  are  so  entitled.     *     *     * 

I  am  of  opinion,  wherever  a  legatee  or  devisee  is  disappointed  by 
events  after  the  death  of  testator,  he  is  entitled  to  compensation.  Sup- 
pose the  estate  had  been  conveyed,  and  he  had  been  evicted,  or,  suppose 
there  had  turned  out  to  be  a  bad  title,  could  the  devisee  lose  the  money 
that  came  from  the  purchase  ?  Suppose  the  estate  had  been  conveyed 
to  the  testator,  and  had  passed  by  his  will  to  the  devisee,  and  then  the 
devisee  was  evicted,  could  not  he  recover  the  purchase-money  ? 

Here  the  testator  was  bound  to  complete  the  purchase,  Mackreth 
could  have  compelled  him  so  to  do.  There  was  nothing  to  prevent  the 
devisee  from  taking ;  but  because  the  executors  could  not,  or  would  not 
act,  is  he  to  be  disappointed? 

Therefore,  I  am  of  opinion  the  devisee  is  entitled  to  have  the  money 
laid  out  in  lands,  to  be  settled  according  to  the  uses  in  the  will. 


HAUGHWOUT  and  POMEROY  v.  MURPHY. 
(Court  of  Errors  and  Appeals  of  New  Jersey,  1871.    22  N.  J.  Eq.  531.) 

One  Amidee  Boisaubin,  on  the  24th  day  of  September,  1863,  entered 
into  a  contract  in  writing,  with  Haughwout,  one  of  the  complainants, 
to  sell  to  him  a  tract  of  land  situate  in  the  county  of  Morris,  called 
the  Spencer  woods,  containing  twenty-two  acres,  for  $200  per  acre, 
and  giving  to  Haughwout  until  the  1st  day  of  March,  1864,  to  accept  the 
proposition.  In  the  latter  part  of  February,  1864,  Haughwout  gave 
Boisaubin  notice  of  his  acceptance  of  the  proposition.  Boisaubin  having 
refused  to  make  conveyance  of  the  property,  Haughwout,  on  the  31st 
of  August,  1865,  filed  a  bill  against  Boisaubin  to  obtain  specific  per- 
formance of  the  contract,  and  on  the  1st  day  of  September,  1865,  filed 
in  the  clerk's  office  of  the  county  of  Morris  a  notice  of  the  pendency  of 
the  said  suit,  in  compliance  with  the  statute. 

To  the  bill  filed  in  that  case  Boisaubin  filed  his  answer,  and  the 
cause  coming  on  for  hearing  in  the  Court  of  Chancery  on  the  pleadings 
and  proofs,  a  decree  was  made  on  the  27th  of  March,  1867,  in  favor 
of  Haughwout,  that  Boisaubin  make  conveyance  to  the  complainant 
according  to  the  terms  of  the  said  contract.  Houghwout  v.  Boisaubin, 
18  N.  J.  Eq.  315. 


296  specific  performance  of  contracts  (Ch.  2 

On  the  10th  day  of  August,  1867,  Boisaubin,  in  fulfillment  of  the 
said  decree,  conveyed  to  Haughvvout  the  entire  tract  called  Spencer 
woods ;  and  on  the  14th  of  October,  1867,  Haughwout  conveyed  the 
equal  undivided  one-half  part  of  said  tract  to  Pomeroy,  the  other  com- 
plainant. 

On  the  7th  of  August,  1865,  Boisaubin  conveyed  to  Murphy,  the 
defendant  in  this  suit,  three  lots,  which  were  parts  of  the  Spencer 
woods,  by  a  deed  bearing  date  on  that  day,  which  was  executed  on  the 
7th  or  8th  of  August,  but  not  recorded  until  the  5th  day  of  October, 
1865.  The  consideration  of  the  conveyance  from  Boisaubin  to  Mur- 
phy was  $600,  of  which  $400  were  paid  on  the  delivery  of  the  deed, 
and  the  balance  of  $200  secured  by  a  mortgage  payable  on  the  7th 
of  August,  1866;  which  mortgage  was  acknowledged  on  the  19th  of 
August,  1865,  and  recorded  on  the  15th  of  May,  1866. 

Depue,  J.S5  The  bill  of  complainant  filed  in  this  cause,  after  setting 
out  the  proceedings  in  the  suit  in  chancery  between  Haughwout  and 
Boisaubin,  charges  that  the  deed  of  conveyance  from  Boisaubin  to 
Murphy,  though  bearing  date  on  the  7th  of  August,  1865,  was  not  actu- 
ally delivered  until  the  5th  day  of  October  of  that  year,  and  after  the 
filing  of  the  bill  of  complaint  by  Haughwout  against  Boisaubin,  and 
after  the  filing  of  notice  of  the  pendency  of  that  suit  in  the  clerk's  of- 
fice of  the  county  of  Morris.  It  further  charges  that  the  said  Murphy 
had  actual  knowledge  of  the  contract  of  purchase  made  by  Haughwout 
with  Boisaubin,  and  of  the  intention  of  Haughwout  to  commence  suit 
for  specific  performance,  long  before  the  delivery  of  his  deed  and  the 
payment  of  any  part  of  the  consideration  money  therefor ;  and  that  the 
defendant  accepted  the  said  conveyance,  and  paid  the  purchase  money 
therefor,  with  actual  knowledge  of  the  existence  of  the  complainants' 
contract,  and  of  the  pendency  of  the  suit  for  the  specific  performance 
thereof. 

The  prayer  of  the  bill  is  that  the  title  of  the  complainants  to  the 
said  three  lots  may  be  ratified  and  established,  and  declared  to  be  good 
and  valid  as  against  the  claim  of  title  made  to  the  same  by  said  Mur- 
phy, and  be  declared  paramount  thereto ;  and  that  the  claim  of  title  to 
the  said  lots  by  the  said  Murphy,  under  his  deed  of  conveyance  from 
Boisaubin,  be  declared  invalid  and  of  no  effect  against  the  title  of  the 
complainants,  and  that  the  defendant  may  be  directed  to  release  and 
convey  to  the  complainants ;  and  that  the  complainants  may  have  such 
other  and  further  relief,  &c.     *     *     * 

The  bill  is  to  be  taken  to  have  been  filed  for  the  execution  of  the 
trust  arising  from  the  prior  contract  between  Haughwout  and  Boisau- 
bin for  the  purpose  of  the  lands,  by  the  conveyance  to  the  complainant, 
by  Murphy,  of  the  legal  title  which  he  acquired  by  his  deed.  In  this 
aspect  of  the  case,  the  bill  is  a  bill  for  specific  performance. 

In  equity,  upon  an  agreement  for  the  sale  of  lands,  the  contract  is 

as  Part  of  the  opinion  is  omitted. 


Sec.  3)  EQUITABLE   INTERESTS   OF  PARTIES  297 

regarded,  for  most  purposes,  as  if  specifically  executed.  The  purchaser 
becomes  the  equitable  owner  of  the  lands,  and  the  vendor  of  the  pur- 
chase money.  After  the  contract,  the  vendor  is  the  trustee  of  the  legal 
estate  for  the  vendee.  Crawford  v.  Bertholf,  1  N.  J.  Eq.  460;  Hoag- 
land  v.  Latourette,  2  N.  J.  Eq.  254;  Huffman  v.  Hummer,  17  N.  J.  Eq. 
264;  King  v.  Ruckman,  21  N.  J.  Eq.  599.  Before  the  contract  is  exe- 
cuted by  conveyance,  the  lands  are  devisable  by  the  vendee,  and  de- 
scendible to  his  heirs  as  real  estate;  and  the  personal  representatives  of 
the  vendor  are  entitled  to  the  purchase  money.  1  Story's  Eq.  §  789; 
2  Ibid.  §  1213.  If  the  vendor  should  again  sell  the  estate  of  which,  by 
reason  of  the  first  contract,  he  is  only  seized  in  trust,  he  will  be  con- 
sidered as  selling  it  for  the  benefit  of  the  person  for  whom,  by  the  first 
contract,  he  became  trustee,  and  therefore  liable  to  account.  2  Spence's 
Eq.  Jur.  310.  Or  the  second  purchaser,  if  he  have  notice  at  the  time  of 
the  purchase  of  the  previous  contract,  will  be  compelled  to  convey  the 
property  to  the  first  purchaser.  Hoagland  v.  Latourette,  2  N.  J.  Eq. 
254;  Downing  v.  Risley,  15  N.  J.  Eq.  94.  A  purchaser  from  a  trus- 
tee, with  notice  of  the  trust,  stands  in  the  place  of  his  vendor,  and  is  as 
much  a  trustee  as  he  was.  1  Eq.  Cas.  Abr.  384;  Story  v.  Lord  Wind- 
sor, 2  Atk.  631.  The  cestui  que  trust  may  follow  the  trust  property 
in  the  hands  of  the  purchaser,  or  may  resort  to  the  purchase  money  as 
a  substituted  fund.  Murray  v.  Ballou,  1  Johns.  Ch.  (N.  Y.)  566,  581. 
It  is  upon  the  principle  of  the  transmission  by  the  contract  of  an  actual 
equitable  estate,  and  the  impressing  of  a  trust  upon  the  legal  estate 
for  the  benefit  of  the  vendee,  that  the  doctrine  of  the  specific  perform- 
ance of  contracts  for  the  sale  and  conveyance  of  lands  mainly  depends. 

The  defendant  insists  that  he  holds  the  lands  discharged  of  any  trust 
in  favor  of  Haughwout  or  the  complainants,  by  reason  of  his  being 
a  bona  fide  purchaser  for  a  valuable  consideration  without  notice. 

The  proof  is,  that  at  the  time  of  the  delivery  of  the  deed,  $400  of 
the  consideration  money  was  paid,  and  the  balance  secured  by  mort- 
gage. Conceding  that  the  $400  was  actually  paid  before  Murphy  had 
notice  of  Haughwout's  claim,  the  defence  of  a  bona  fide  purchase  is 
not  supported.  Before  the  mortgage  became  due,  Murphy  had  actual 
notice  of  the  existence  and  nature  of  Haughwout's  claim. 

The  defence  of  a  bona  fide  purchase  may  be  made  by  plea,  in  bar  of 
discovery  and  relief,  or  by  answer,  in  bar  of  relief  only.  If  made 
by  plea,  the  payment  of  the  whole  of  the  consideration  money  must  be 
averred.  An  averment  that  part  was  paid  and  the  balance  secured  by 
mortgage,  will  not  be  sufficient.  Wood  v.  Mann,  1  Sumn.  506,  Fed. 
Cas.  No.  17,951.  Proof  of  the  payment  of  the  whole  purchase  money 
is  essential  to  the  defence,  whether  it  be  made  by  plea  or  answer.  Jew- 
ett  v.  Palmer,  7  Johns.  Ch.  (N.  Y.)  65,  11  Am.  Dec.  401;  Malony  v. 
Kernan,  2  Drury  &  Warren,  31 ;  Losey  v.  Simpson,  11  N.  J.  Eq.  246. 
Notice  before  actual  payment  of  all  the  purchase  money,  although  it 
be  secured  and  the  conveyance  executed,  or  before  the  execution  of 
the  conveyance,  notwithstanding  the  money  is  paid,  is  equivalent  to 


298  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

notice  before  the  contract.  2  Sug.  V.  &  P.  533  (1037) ;  Hill  on  Trus- 
tees, 165.  If  the  defendant  has  paid  part  only,  he  will  be  protected  pro 
tanto  only.     1  Story's  Eq.  §  64c ;  Story's  Eq.  PI.  §  604a. 

What  the  measure  of  relief  shall  be  in  cases  where  the  deed  has  been 
executed  and  delivered  and  part  of  the  purchase  money  paid  before 
notice  of  the  previous  contract  to  sell  to  another,  was  elaborately  dis- 
cussed by  the  counsel  of  the  appellants.  The  Chancellor  held  upon 
the  authority  of  Flagg  v.  Mann,  2  Sumn.  487,  Fed.  Cas.  No.  4,847, 
that  a  contract  of  purchase,  executed  by  delivery  of  the  deed  and  pay- 
ment of  part  of  the  purchase  money  without  notice  of  the  previous 
contract,  gave  the  purchaser  a  right  to  hold  the  land,  and  that  the 
equity  of  the  person  with  whom  the  previous  contract  was  made,  was 
merely  to  have  the  unpaid  purchase  money. 

The  law  of  the  English  courts  is,  that  until  the  defence  of  a  bona 
fide  purchaser  is  perfected  by  the  delivery  of  the  deed  of  conveyance, 
and  the  payment  of  the  entire  consideration  money  such  purchaser  is 
without  any  protection  as  against  the  estate  of  the  equitable  owner 
under  a  prior  contract,  even  though  he  contracted  to  purchase,  and 
accepted  his  deed  and  paid  part  of  the  purchase  money  in  good  faith ; 
his  only  remedy  being  against  his  vendor  to  recover  back  what  he  has 
paid  on  a  consideration  which  has  failed.  In  some  of  the  American 
courts  this  doctrine  has  been  qualified  to  the  extent  of  enforcing  spe- 
cific performance  of  the  prior  contract,  on  condition  that  the  purchaser 
shall  be  indemnified  for  the  purchase  money  paid,  and  also  for  perma- 
nent improvements  put  upon  the  property  before  notice,  on  the  princi- 
ple that  he  who  asks  equity  must  do  equity.  The  cases  are  collected 
in  2  Lead.  Cas.  in  Eq.  1 ;  notes  to  Basset  v.  Nosworthy. 

The  doctrine  of  the  English  courts  is  necessary  to  give  effect  to  the 
principle  that  in  equity,  immediately  on  the  contract  to  purchase,  an 
equitable  estate  arises  in  the  vendee,  the  legal  estate  remaining  in  the 
vendor  for  his  benefit.  Qualified  by  the  obligation  to  make  compen- 
sation to  any  subsequent  bona  fide  purchaser,  who  has  paid  part  only 
of  the  consideration  money,  for  all  disbursements  made  before  notice, 
the  rule  is  every  way  consonant  with  correct  principles.  Such  indemni- 
ty is  protection  pro  tanto. 

But  whatever  the  nature  of  the  relief  may  be  in  cases  where  the 
naked  question  of  the  acceptance  of  a  deed  and  payment  of  part  of 
the  consideration  before  notice  is  presented,  the  relief  indicated  by 
the  Chancellor  is  the  only  relief  the  complainants  are  entitled  to  under 
the  circumstances  of  this  case.  The  rule  of  law  which  deprives  a  sub- 
sequent purchaser  who  has  contracted  for  and  accepted  a  conveyance, 
and  paid  part  of  the  purchase  money  in  good  faith,  of  the  fruits  of  his 
purchase  without  indemnity,  is  exceedingly  harsh,  and  often  oppres- 
sive in  its  application.  Mitigated  by  the  obligation  to  make  indemnity 
for  payments  and  expenditures  before  actual  notice,  its  operation  is 
nevertheless  frequently  inequitable.  A  party  who  asks  the  enforce- 
ment of  a  rule  of  this  nature  against  another  who  is  innocent  of  actual 


Sec.  3)  EQUITABLE   INTERESTS   OF   PARTIES  299 

fraud,  must  seek  his  remedy  promptly.  He  may  lose  his  right  to 
specific  relief  against  the  lands  by  laches,  and  be  remitted  to  the  un- 
paid purchase  money  as  the  only  relief  which  will  be  equitable.  In 
cases  where  the  prayer  is  for  the  specific  performance  of  a  contract 
between  the  immediate  parties  to  the  suit,  delay  in  filing  the  bill  is 
often  of  itself  a  bar  to  relief.    Merritt  v.  Brown,  21  N.  J.  Eq.  401. 

The  agreement  between  Haughwout  and  Boisaubin  was  made  on  the 
24th  of  September,  1863.  In  February,  1864,  Haughwout  gave  Bois- 
aubin notice  of  his  election  to  take  the  property  under  the  agreement. 
After  this  notice  was  given,  Boisaubin  laid  the  property  out  in  lots  and 
publicly  offered  them  for  sale.  Murphy's  deed  for  the  three  lots  of 
which  he  became  the  purchaser,  was  executed  and  delivered  in  August, 
1865.  The  bill  in  the  suit  of  Haughwout  v.  Boisaubin,  was  filed  the 
last  day  in  the  same  month.  The  solicitor  who  appeared  for  Haugh- 
wout in  that  suit,  had  notice  of  the  existence  of  Murphy's  deed  within 
a  few  days  after  his  bill  was  filed.  Boisaubin,  in  his  answer,  which 
was  filed  on  the  3d  of  November,  1865,  specifically  sets  out  the  fact  of 
the  conveyance  to  Murphy  and  the  circumstances  connected  therewith. 
Murphy  was  himself  examined  as  a  witness  on  the  5th  of  April,  1866, 
and  testified  in  relation  to  the  conveyance  to  him.  Haughwout  must 
be  charged  with  notice  as  early  as  April,  1866,  that  Murphy  intended 
to  assert  his  right  to  the  land.  The  bill  in  this  case  was  not  filed  until 
the  4th  of  April,  1868.  After  this  long  delay  it  would  be  inequitable 
to  enforce  specific  performance  against  the  defendant.  The  fact  that 
there  were  delays  in  the  prosecution  of  that  suit  to  final  decree,  which 
were  unavoidable,  ought  not  to  prejudice  Murphy.  He  should  have 
been  made  a  party  to  that  suit. 

Besides  that,  the  bond  and  mortgage  which  were  given  by  Murphy  to 
Boisaubin  for  the  unpaid  purchase  money,  were  assigned  by  Boisaubin 
to  one  Geoffrey,  on  the  16th  of  April,  1866,  and  by  Geoffrey  further 
assigned  to  William  Davidson,  on  the  2d  of  July  of  the  same  year,  and 
notice  of  such  assignment  given  to  Murphy  by  the  solicitor  of  David- 
son. The  money  due  on  the  mortgage  was  paid  at  its  maturity  by 
Murphy  to  Davidson's  solicitor.  That  Davidson,  in  the  transaction, 
was  acting  for  Haughwout,  and  that  the  money  wherewith  this  assign- 
ment was  procured  was  paid  by  Haughwout  and  that  the  proceeds 
when  collected  were  realized  by  him,  are  indisputable. 

That  the  assignment  was  made  by  Geoffrey  to  Davidson,  as  collateral 
security,  will  not  affect  the  case.  When  Murphy  received  notice  of 
the  prior  equitable  title  of  Haughwout,  he  was  entitled  to  have  the 
security  he  had  given  for  the  unpaid  purchase  money  surrendered. 
Tourville  v.  Naish,  3  P.  Wms.  307.  The  subsequent  assignments  were 
taken  and  the  money  received,  with  full  notice  of  all  the  circumstances. 
The  money  received  on  the  mortgage,  Haughwout  still  retains.  It  is 
no  answer  to  say  that  in  decreeing  specific  performance  Murphy  may 
have  the  money  refunded  to  him.  Haughwout  might  have  insisted 
upon  having  the  land  itself,  or  at  his  option,  pursued  the  proceeds  of 


300  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

the  sale.  He  cannot  have  both.  By  accepting  a  security  given  for 
the  purchase  money,  he  is  deemed  to  have  affirmed  the  sale  so  far  as 
respects  the  purchaser.  Murray  v.  Lylburn,  2  John.  Ch.  (N.  Y.)  441 ; 
2  Story's  Eq.,  §  1262;  Scott  v.  Gamble,  9  N.  J.  Eq.  218. 

The  complainants  are  not  entitled  to  relief.  The  decree  of  the  Chan- 
cellor is  affirmed,  with  costs. 

The  whole  court  concurred.88 


BENSON  v.  BENSON. 

(In  Chancery  lief  ore  Sir  John  Trevor.  Master  of  the  Rolls,  1710. 
1  P.  Wins.  129,  24  E.  R.  324.) 

Two  thousand  pounds  (whereof  £1500  were  the  wife's  portion,  and 
£500  the  husband's  money),  were  agreed,  by  articles  before  marriage, 
to  be  invested  in  a  purchase  of  lands,  to  be  settled  upon  husband  and 
wife  for  their  lives,  remainder  to  the  heirs  of  the  body  of  the  wife 
by  the  husband,  remainder  to  the  heirs  of  the  husband. 

The  husband  receives  the  whole  £2000  the  wife  dies  leaving  son  and 
three  daughters ;  after  which  the  husband  dying  intestate,  the  eldest 
daughter  takes  out  administration  to  the  father. 

The  son  brings  a  bill  against  his  sister  (the  administratrix)  to  have 
the  money  paid  to  him,  electing  that  it  should  not  be  laid  out  in  land, 
and  settled  as  had  been  agreed  by  the  articles. 

How  cont' :  This  may  be  a  prejudice  to  the  sisters,  who  if  the  lands 
were  to  be  settled,  and  afterwards  the  son  should  die  without  issue, 
and  without  levying  a  fine,  would  be  entitled  to  them  under  the  con- 
tingency ;  and  there  can  be  no  reason  to  deprive  the  sisters  of  any  con- 
tingency; and  this  bill,  tho'  said  to  be  brought  to  execute  a  trust,  does, 
at  the  same  time,  seek  to  break  it. 

Cur'.  A  fine  cannot  be  levied  of  money  agreed  to  be  laid  out  in  a 
purchase  of  land  to  be  settled  in  tail ;  but  a  decree  can  bind  such  mon- 
ey equally  as  a  fine  alone  could  have  bound  the  land  in  this  case,  if 
bought  and  settled ;  and  in  regard  the  plaintiff  the  son  would  have  the 
ertire  interest  in  the  lands  when  purchased  and  settled,  and  the  abso- 
lute power  over  them,  and  that  a  court  of  equity  will  not  decree  a 
vain  thing : 

Viz.  Decree  a  purchase  and  settlement  to  be  made,  which  the  son, 
the  next  moment,  by  a  fine,  only,  may  cut  off;  therefore  since  the  son 
elects  to  have  the  £2000  let  him  take  it,  and  let  the  administratrix  be 
indemnified.  BT     *     *     * 

«o  In  Kimsey  v.  Posey  (1912)  148  Ky.  54,  145  S.  W.  1121,  at  1122,  the 
court  said:  "Neither  was  the  chancellor  in  error  in  giving  to  each  vendee  the 
rents  for  1911  of  the  property  he  acquired  under  the  contract.  The  contract 
being  enforced,  the  title  to  the  respective  tracts  vested  in  the  respective  ven- 
dees as  of  January  1.  1911,  the  time  originally  contemplated  by  the  contract 
for  its  performance.  From  thai  date,  Posey  and  Reichert  were  the  owners  of 
the  250  acres,  and  as  such  were  entitled  to  the  rents  thereof,  and  liable  for 
the  charges  against  it,  including  taxes." 

sT  Part  of  the  opinion  is  omitted. 


Sec.  3)  EQUITABLE    INTERESTS   OP   PARTIES  301 

STATE  ex  rel.  DILLMAN  v.  WEIDE  et  al. 
(Supreme  Court  of  South  Dakota,  1912.    29  S.  D.  109,  135  N.  W.  G98.) 

Appeal  from  Circuit  Court,  Grant  County;   C.  X.  Seward,  Judge. 

Action  by  the  State,  on  the  relation  of  J.  A.  Dillman,  to  prohibit  B. 
Weide  and  others,  trustees  of  town  of  Revillo,  from  submitting  the 
question  of  granting  permits  for  the  sale  of  intoxicating  liquors  to 
the  voters  at  the  general  election.  From  an  order  granting  a  peremp- 
tory writ  prohibiting  further  proceedings,  entered  upon  the  sustaining 
of  a  demurrer  to  the  defendants'  answer,  defendants  appeal. 

Smith,  J.8S  Appeal  from  the  circuit  court  of  Grant  county.  A  pe- 
tition was  filed  in  the  office  of  the  clerk  of  the  incorporated  town  of 
Revillo,  purporting  to  be  signed  by  28  qualified  voters,  requesting  the 
submission  at  the  next  general  municipal  election  of  the  question  of 
granting  permits  for  the  sale  of  intoxicating  liquors  within  the  mu- 
nicipality for  the  then  ensuing  year.  This  proceeding  was  instituted 
to  prohibit  the  trustees  and  clerk  from  submitting  said  question  to  the 
voters  as  demanded  in  the  petition,  and  alleging  that  said  officers  were 
without  jurisdiction  for  the  reason  that  the  petition  was  not  signed  by 
25  legal  freeholder  voters  of  the  town,  and  that  seven  of  the  persons 
who  signed  said  petition  were  not  freeholders  and  therefore  not  qual- 
ified to  sign  said  petition.  An  alternative  writ  of  prohibition  was  is- 
sued, to  which  defendants  made  return  and  answer,  admitting  that 
3  of  the  persons  who  had  signed  the  petition  were  not  freeholders,  but 
denying  the  allegations  of  plaintiff  as  to  the  other  4  persons  named,  and 
alleging  that  the  petition  was  signed  by  25  legal  freeholder  voters. 

It  is  further  alleged  in  the  answer  that  24  of  the  signers  of  said  peti- 
tion were  owners  of  the  absolute  fee  to  lands  within  said  town,  and 
that  one  Hans  Helgeson  was  a  legal  freeholder  voter,  and  had  a  legal 
freehold  estate  and  interest  in  lot  5,  block  3,  of  said  town  by  virtue  of  a 
contract  of  sale  thereof,  entered  into  between  said  Hans  Helgeson 
and  one  Chloe  Dillman  on  the  26th  day  of  October,  1910,  whereby  the 
said  Chloe  Dillman,  in  consideration  of  the  sum  of  $80,  agreed  to  con- 
vey by  warranty  deed  the  fee-simple  title  to  said  lot  to  said  Hans  Helge- 
son on  the  1st  day  of  November,  1911,  and  that  Helgeson  under  and 
by  virtue  of  said  contract  had  paid  $40  of  the  consideration  for  said 
lot,  and  had  made  all  payments  and  done  all  things  required  under  and 
by  virtue  of  said  contract,  and  had  been  put  in  quiet  and  peaceable  pos- 
session thereof  since  the  date  of  said  contract,  had  paid  all  taxes 
and  assessments  thereon  since  said  contract  was  made,  was  holding  the 
same  in  good  faith,  and  was  financially  able  to  pay,  and  would  pay, 
the  balance  of  the  purchase  price  for  said  lot  and  secure  a  warranty 
deed  therefor  on  the  1st  of  November,  1911 ;  that  the  said  Chloe  Dili- 
man  at  the  time  said  contract  was  made  was  the  owner  in  fee  of  said 
lot ;   that  said  contract  was  acknowledged  so  as  to  entitle  it  to  record, 

88  Parts  of  the  opinions  of  Smith,  Whiting,  and  Corson,  J.T.,  are  omitted. 


302  SPECIFIC  PERFORMANCE   OF   CONTRACTS  •         (Ch.  2 

and  on  the  1st  day  of  November,  1910,  was  duly  recorded  in  the 
register  of  deeds  office  of  said  county. 

To  this  answer  plaintiff  demurred  on  the  ground  that  it  did  not  state 
a  defense.  An  order  was  made  by  the  trial  court  sustaining  the  de- 
murrer upon  the  specific  ground  that  Helgeson  was  not  a  legal  free- 
holder voter. 

Defendants  elected  to  stand  upon  the  answer,  and  appeal  from  a 
judgment  granting  a  peremptory  writ  prohibiting  further  proceedings 
on  the  submission  at  said  election  of  the  question  of  selling  intoxicating 
liquors.  The  sole  question  presented  is  whether  Helgeson  was  a  legal 
freeholder  voter,  and  qualified  to  sign  the  petition.  It  is  conceded 
that,  if  Helgeson  was  not  a  freeholder,  the  village  trustees  had  no  ju- 
risdiction in  the  premises,  and  were  not  authorized  to  submit  the  ques- 
tion to  a  vote. 

Section  1,  c.  166,  of  the  Session  Laws  of  1903,  provides  as  follows: 

"At  the  annual  municipal  election  held  in  any  township,  town  or  city  in 
this  state  for  general  municipal  purposes,  the  question  of  granting  permits  to 
sell  intoxicating  liquors  within  the  corporate  limits  of  such  township,  town 
or  city  shall  lie  submitted  to  the  legal  voters  thereof  upon  petition  signed  by 
twenty-five  (25)  legal  freeholder  voters  of  such  township,  town  or  city,  to  be 
filed  with  the  clerk  or  auditor  of  such  township,  town  or  city  thirty  days  be- 
fore election,  which  petition  shall  state  that  a  vote  is  desired  upon  such  ques- 
tion." 

It  is  conceded  that  Helgeson  was  a  qualified  legal  voter  of  the  vil- 
lage of  Revillo,  but  respondent's  contention  is  that  upon  the  facts 
above  set  forth  he  was  not  a  freeholder.  If  the  contract  above  re- 
ferred to  vested  in  Helgeson  a  freehold  estate,  he  was  qualified  as  a 
signer  of  the  petition.     *     *     * 

Respondent's  argument  appears  to  ignore  the  fact  that  an  "equita- 
ble estate"  in  real  property  is  as  truly  an  inheritable  estate  as  is  a  legal 
estate  or  an  estate  held  in  fee  simple  absolute,  and  that  the  true  test 
as  to  whether  the  estate  is  inheritable  and  hence  a  freehold  does  not 
depend  upon  the  class  of  persons  who  may  inherit,  but  upon  the  ques- 
tion whether  the  estate  itself  is  capable  of  passing  by  inheritance.  That 
a  life  estate  whether  for  the  life  of  the  owner  or  of  another  person  may 
pass  by  inheritance  to  the  heirs  of  the  grantee  of  the  holder  of  the 
life  estate  is  so  well  settled  that  a  citation  of  authorities  is  unneces- 
sary.    *     *     * 

We  reach  the  conclusion,  therefore,  in  accordance  with  the  prac- 
tically unanimous  decisions  of  all  the  courts  of  highest  authority,  that 
under  this  contract  Helgeson,  the  vendee  in  possession,  became  vested 
with  the  entire  equitable  estate  in  the  real  property  which  is  the  sub- 
ject of  the  contract,  and  that  the  vendor  only  held  and  retained  the 
legal  title  to  the  same  as  security  for  the  payment  of  the  unpaid  por- 
tion of  the  purchase  price. 

The  only  question  remaining  is  whether  the  equitable  estate  thus 
vested  in  Helgeson  under  the  contract  is  an  inheritable  estate  or  in- 
terest in  real  property.     If  inheritable,  it  is  a  freehold  estate  under  the 


Sec.  3)  EQUITABLE   INTERESTS   OF   PARTIES  303 

express  language  of  section  245  of  the  Civil  Code,  and  Helgeson  is  a 
freeholder  and  competent  signer  of  the  petition.  The  doctrine  that 
the  equitable  estate  vested  in  the  vendee  is  inheritable  as  real  property 
is  so  well  settled  that  an  extended  discussion  or  citation  of  authori- 
ties is  unnecessary.  It  is  likewise  immaterial  under  the  authorities 
whether  an  equitable  estate  be  created  by  contract  or  by  operation  of 
law.    Its  inheritable  quality  remains.     *     *     * 

It  is  conceded  on  this  appeal  that  Helgeson  was  put  in  possession 
upon  the  execution  of  the  contract  of  sale,  has  remained  in  possession 
ever  since,  has  made  improvements  and  paid  taxes,  and  is  able  and  will- 
ing, and  intends  to  fulfill  all  the  conditions  of  the  contract  and  to  pay 
the  remaining  portion  of  the  purchase  price  when  due,  and  obtain  a 
deed  from  the  vendor.  His  entire  good  faith  in  the  purchase  of  the 
property  or  in  the  signing  of  the  petition  is  not  questioned  on  this 
appeal.  We  are  clearly  of  opinion  he  became  vested  under  the  contract 
with  a  present  inheritable  freehold  estate  in  the  purchased  property, 
and  that  he  was  a  freehold  voter  qualified  to  sign  the  petition. 

The  order  of  the  trial  court  sustaining  the  demurrer  is  reversed,  and 
the  cause  remanded  for  further  proceedings  according  to  law. 

Whiting,  J.  (dissenting).  *  *  *  I  had  supposed  all  would 
agree  that  there  was  not  within  this  state  a  thing — real,  personal,  or 
mixed — the  subject  of  property  in  and  to  which  there  was  not  at  all 
times  vested  somewhere  a  title  known  as  "legal,"  carrying  with  it  an 
interest  in  such  property  known  as  the  "legal  estate."  *  *  *  My 
colleague  seems  to  be  of  the  view  that  there  may  exist  what  is  known 
as  an  "equitable  estate"  of  such  magnitude  and  importance  that  it,  for 
the  time  at  least,  absolutely  wipes  out  of  existence  the  so-called  legal 
estate.  To  such  proposition  I  must  dissent,  as  I  believe  it  to  have  no 
support  in  reason,  and  surely  none  in  authority.     *     *     * 

My  colleague  discussed,  to  considerable  extent,  the  rule  of  equitable 
conversion,  and  I  fully  agree  with  what  he  says  in  relation  thereto, 
except  as  to  its  bearing  upon  the  question  before  us.  With  this  part 
of  his  opinion  I  am  unable  to  agree,  as  it  seems  to  me  the  question 
of  equitable  conversion  has  absolutely  no  bearing  thereon.  The  neces- 
sary result  of  the  majority  opinion  herein  is  to  render  the  vendee  un- 
der a  purely  executory  contract  a  competent  signer  of  one  of  these 
petitions,  though,  under  our  statute,  his  contract  is  not  a  conveyance 
and  is  not  protected  by  our  recording  acts.  Applying  it  to  case  at 
bar,  it  would  result  in  holding  Helgeson  a  qualified  signer  if  his  con- 
tract had  been  purely  executory  in  all  its  terms  and  no  possession  given 
thereunder.  I  cannot  subscribe  to  any  holding  that  must  bring  such  a 
•  result,  where  there  is  nothing  in  the  wording  of  the  statute  to  warrant 
it.  Let  us  recognize  the  legal  estate  as  the  one  which  qualifies  its 
holder  to  do  whatever  the  statute  may  empower  the  holder  of  an  es- 
tate to  do,  and  not  resort  to  the  doctrine  of  equitable  conversion  in 
order  to  qualify  a  party  to  perform  an  act  pertaining  to  citizenship. 
*     *     *     It  is  for  this  court  merelv  to  determine  whether  the  Legisla- 


304  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Q^  o 

ture  intended  the  owner  of  the  legal  estate  to  be  the  signer  of  a  pe- 
tition or  the  owner  of  the  equitable  estate.  *  *  *  It  would  seem 
that  there  is  no  escape  from  the  conclusion  that  the  person  who  holds 
or  is  fully  entitled  to  be  vested  with  the  legal  freehold  estate  is  the 
proper  signer  of  a  petition,  and  that  nothing  short  thereof  is  sufficient 
to  qualify  him  as  such  signer.     *     *     * 

Corson,  J.  (dissenting).  *  *  *  In  my  judgment,  there  is  no 
ambiguity  in  the  section  of  the  law  above  quoted,  and  the  only  proper 
construction  to  be  given  to  it  is  that  the  "legal  freeholder  voters"  are 
such  as  have  the  legal  title  to  freehold  property,  and  does  not  include 
equitable  freeholders. 

In  my  opinion,  therefore,  the  order  of  the  circuit  court  sustaining 
the  demurrer  to  the  return  should  be  affirmed. S9 


PERKINS  v.  LYONS  et  al. 
(Supreme  Court  of  Washington,  1912.    68  Wash.  49S,  123  Pae.  793.) 

Department  2.  Appeal  from  Superior  Court,  Walla  Walla  County ; 
Thos.  H.  Brents,  Judge. 

Action  by  P.  C.  Perkins  against  Matt  Lyons  and  others.  From  a 
judgment  for  defendants,  plaintiff  appeals. 

Per  Curiam.  The  respondent  Lyons  owned  certain  farm  lands  sit- 
uated in  Columbia  county,  in  this  state,  and  the  respondents  Todd 
and  De  Ruwe  owned  certain  lands  situated  in  Waitsburg,  in  Walla 
Walla  county.  In  August,  1910.  the  respective  parties  had  their  lands 
listed  for  sale  with  a  real  estate  firm  doing  business  at  Waitsburg. 
This  firm  induced  the  parties  to  execute  an  agreement  in  writing  for 
an  exchange  of  the  properties ;  the  owners  of  the  Waitsburg  prop- 
erty agreeing  therein  to  pay  the  owner  of  the  Columbia  county  proper- 
ty as  boot  money  the  sum  of  $12,000  on  or  before  10  years  from  the 

S9  In  Weidenbaum  et  al.  v.  Raphael  et  al.  (N.  J.  Ch.  1914)  90  Atl.  6S4,  the 
court  said:  "The  general  rule  is  that  heirs  of  a  vendee  are  entitled  to  spe- 
cific performance,  and  to  have  the  administrator  pay  the  purchase  price  out 
of  the  personal  estate.  Fry,  Sp.  Perf.  (4th  Ed.)  §§  211,  217.  The  married 
woman  as  vendee  can  be  compelled  to  perform  specifically  (though  not  as 
vendor),  and  as  to  her  the  remedy  is  therefore  mutual,  as  between  her  heirs 
and  the  vendor.  Moore  v.  Baker  (1903)  65  N.  J.  Eq.  104,  55  Atl.  106.  The 
fact  that  the  heirs  of  the  vendee  are  infants  does  not  of  itself  prevent  the 
specific  performance  of  the  contract  in  their  favor  as  vendees,  if  either  they 
or  some  one  in  their  behalf  are  able  to  carry  out  the  conditions  of  the  con- 
tract on  the  purchaser's  part.  It  is  not  a  case  of  disability  of  the  infants  in 
the  making  of  a  contract  of  sale  which  could  not  be  enforced  because  of  such 
disability.  But  the  vendee's  right  to  specific  performance  is  dependent  on  the 
fulfillment  of  the  conditions  to  be  performed  on  his  part,  and  the  assignee  of 
a  vendee,  even  when  under  no  disability,  is  not  permitted  to  substitute  his 
personal  Liability  on  the  unperformed  conditions  against  the  consent  of  the 
vendor.  26  A.  &  E.  Ency.  (2d  Ed.)  126:  Pom.  Sp.  Perf.  §  320.  Where  the  as- 
signees of  the  vendee  are  trustees,  and  the  execution  of  the  contract  requires 
covenants,  specific  performance  in  their  favor  cannot  be  compelled,  unless 
they  personally  enter  into  the  covenants.     Id.  §§  331,  332." 


Sec.  3)  EQUITABLE   INTERESTS   OF   PARTIES  305 

date  of  the  sale  with  interest  at  6  per  cent,  per  annum,  the  payment 
to  be  secured  by  mortgage  on  the  Columbia  county  lands.  Subsequent- 
ly abstracts  of  the  lands  were  made  out  and  examined,  and  deeds  to 
the  respective  properties  were  executed  and  left  with  an  attorney. 
After  the  execution  of  the  first-named  agreement,  the  respondent 
Lyons  entered  into  an  agreement  with  F.  S.  Boyles,  a  member  of  the 
firm  of  the  brokers  with  whom  the  properties  were  listed  for  sale,  by 
the  terms  of  which  the  respondents  agreed  to  convey  the  Waitsburg 
land  to  Boyles.  Boyles  subsequently  assigned  the  contract  to  the  ap- 
pellant Perkins.  Subsequently  the  parties  to  the  original  contract  mu- 
tually agreed  to  rescind  it,  whereupon  the  appellant  brought  the  pres- 
ent action  to  enforce  a  specific  performance  in  so  far  as  it  is  necessary 
in  order  for  him  to  obtain  the  benefit  of  the  contract  between  Lyons 
and  Boyles  of  which  he  is  the  assignee.  The  trial  court  made  no  for- 
mal findings,  but  in  the  judgment  entered  it  is  recited  that  the  several 
contracts  are  fraudulent  and  inoperative  and  should  be  delivered  up 
for  cancellation. 

In  this  court  the  appellant  makes  the  point  that  fraud  was  never  an 
issue  in  the  cause,  not  having  been  alleged  in  any  of  the  several  an- 
swers filed  by  the  respondents,  but  whether  this  is  true  or  not  we  have 
not  been  able  to  verify,  as  the  answer  of  the  Todds  has  not  been  in- 
cluded in  the  transcript. 

The  record,  however,  shows  that  fraud  was  an  issue  at  the  trial. 
The  respondents  Todd  and  De  Ruwe  offered  evidence  which  was  ad- 
mitted without  objection  and  which  tended  to  show  that  they  had 
been  induced  to  sign  the  first  contract  of  sale  through  misrepresenta- 
tion and  false  statements  made  to  them  by  the  representative  of  the 
agency  having  the  properties  for  sale,  and,  inasmuch  as  the  parties 
and  the  trial  court  treated  the  evidence  as  within  the  issues,  this  court 
will  do  so  also,  treating  the  pleadings  as  amended  to  correspond  there- 
with. 

On  the  questions  of  fact  presented,  we  think  the  evidence  supports 
the  conclusion  of  the  trial  judge.  De  Ruwe  and  the  Todds  owned 
unequal  interests  in  the  Waitsburg  land,  and  the  Todds  were  unwilling 
to  make  the  exchange  if  they  had  to  take  a  greater  interest  in  the  Co- 
lumbia county  lands  than  one-fifth  thereof,  while  De  Ruwe  insisted 
that  they  should  take  a  half  interest  therein.  Boyles  procured  their  sig- 
nature to  the  contract  by  treating  with  them  apart  from  each  other 
and  representing  to  the  one  that  the  other  had  agreed  to  his  terms. 
When  the  parties  consulted  together  and  discovered  the  true  condition, 
they  repudiated  the  contract.  This,  it  seems  to  us,  is  such  a  fraud  as 
would  prevent  Boyles  from  enforcing  a  specific  performance  of  the 
contract  or  recovering  damages  in  lieu  of  such  specific  performance, 
and,  as  Boyles  cannot  recover,  his  assignee,  who  has  no  better  right, 
likewise  cannot  recover. 

The  judgment  appealed  from  is  right  and  will  stand  affirmed. 
Boke  Eq.— 20 


306  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 


SECTION  4.— EQUITABLE  INTERESTS  AND  BURDENS  OF 
THIRD  PERSONS  UNDER  THE  CONTRACT 


FRAZIER  v.  BROADNAX. 
(Court  of  Appeals  of  Kentucky,  1822.    12  Ky.  [2  Litt.l  249.) 

The  Court.  At  the  January  term,  1802,  of  the  Logan  county  court, 
there  was  granted  to  Robert  Bryan  a  certificate  for  two  hundred  acres 
of  land,  containing  therein  a  location  describing  the  land  as  lying  in 
Logan  county,  on  Red  river,  beginning  at  a  hickory  in  the  barrens ; 
thence  running  westward,  southward,  eastward  and  northward,  so  as 
to  include  the  complement  and  improvement,  according  to  law.  A  sur- 
vey was  afterwards,  in  April,  1805,  executed  upon  this  certificate,  in 
the  name  of  Bryan ;  and  the  certificate  of  survey  afterwards,  on  the 
4th  of  January,  1808,  assigned  by  Bryan  to  Isaac  Reynolds.  Prior, 
however,  to  the  assignment  of  the  certificate  of  survey,  and  on  the 
19th  of  March,  1807,  Bryan  assigned  to  Reynolds  the  certificate  ob- 
tained from  the  county  court  of  Logan. 

On  the  22d  of  October,  1807,  Reynolds  for  a  valuable  consideration 
sold  the  land  described  in  the  survey  made  under  the  certificate,  to 
William  Kirkland,  and  gave  to  Kirkland  an  obligation  for  a  general 
warranty  deed,  to  be  made  so  soon  as  the  patent  could  be  obtained 
from  the  commonwealth,  Kirkland  paying  the  state  price. 

After  this,  Kirkland  sold  the  land  to  two  of  the  Campbells ;  but,  the 
price  being  unpaid,  he  consented  that  John  Campbell,  one  of  those  to 
whom  he  had  sold,  and  who'  is  alleged  to  have  become  the  proprietor 
of  the  interest  of  the  other,  might  sell  the  land,  and  that,  upon  receiv- 
ing the  consideration  for  which  he  had  sold  to  the  Campbells,  he  would 
assign  Reynolds'  obligation.  Campbell  accordingly  contracted  with 
Samuel  Caldwell  and  George  McWhorter  for  the  sale  of  the  land,  at 
the  price  of  $800;  about  $307  thereof  Caldwell  and  McWhorter  were 
to  pay  Kirkland ;  being  the  amount  of  the  consideration  due  Kirkland 
for  the  land,  from  the  Campbells ;  and  the  balance  to  be  paid,  and 
was,  in  fact,  paid  Campbell.  This  contract  between  Campbell,  Cald- 
well and  McWhorter,  seems  to  have  been  made  early  in  the  spring, 
1811,  and,  on  the  25th  of  March  in  that  year,  Caldwell  and  McWhor- 
ter executed  two  notes  for  the  payment  of  the  consideration  due  Kirk- 
land, one  of  which  was  for  $107  and  the  other  for  $200;  and  Kirk- 
land, on  the  same  day,  executed,  under  his  hand  and  seal,  an  instru- 
ment of  writing,  though  inartificially  expressed,  in  substance  nothing 
more  than  an  obligation  binding  him  to  assign  to  Caldwell  and  Mc- 
Whorter the  obligation  of  Reynolds  for  a  title  to  the  land,  whenever 
the  $307,  which  they  had  undertaken  to  pay,  should  be  discharged. 
The  note  for  $107  was  afterwards  discharged,  in  a  horse  paid  by  Cald- 


Sec.  4)  EQUITABLE   INTERESTS   OF  THIRD   PERSONS  307 

well  to  Kirkland ;  but  the  other  note  still  remains  unpaid ;  and,  ow- 
ing to  the  insolvency  of  both  Caldwell  and  McYYhorter,  Kirkland  has 
been  unable  to  coerce  payment  thereof  by  the  most  vigilant  prosecution 
of  a  suit  against  them  on  the  note. 

Subsequent  to  this  Caldwell  purchased  from  McYYhorter  his  inter- 
est in  the  land ;  and  after  Caldwell  had  become  insolvent  and  taken 
the  oath  administered  to  that  class  of  debtors,  he,  on  the  10th  of 
March,  1814,  assigned  to  Frazier,  for  a  valuable  consideration,  the  ob- 
ligation which  had  been  given  by  Kirkland  to  him  and  McYYhorter. 

Kirkland,  after  having  prosecuted  his  suit  on  the  $200  note,  finding 
that  he  was  unable  to  coerce  payment  from  Caldwell  and  McWhorter, 
determined  to  sell  the  land  for  which  he  held  Reynolds'  obligation ; 
and,  on  the  11th  of  May,  1814,  actually  sold  and  assigned  the  obliga- 
tion of  Reynolds  to  Henry  P.  Broadnax,  for  the  sum  of  $248,  at  the 
same  time  making  known  to  Broadnax  the  circumstances  in  relation 
to  the  obligation  which  he  had  previously  given  to  Caldwell  and 
McYYhorter.  At  the  time  of  making  the  purchase  from  Kirkland, 
Broadnax  appears,  however,  to  have  held  two  other  claims  to  part  of 
the  land,  under  patents  which  had  previously  issued  from  the  common- 
wealth ;  and  he  alleges  that  he  was  induced  to  make  the  purchase  from 
Kirkland,  to  avoid  litigation,  although  he  insists  that  the  claims  which 
he  then  held  are  of  paramount  validity  to  that  purchased  of  Kirkland. 
Subsequent  to  this,  Broadnax  proceeded  to  pay  $35.75,  the  amount 
which  remained  unpaid  of  the  state  price,  and  obtained  a  patent  in 
his  own  name  for  the  land  purchased  of  Kirkland. 

2.  The  foregoing  are  the  prominent  facts  presented  in  the  record, 
and  upon  which  the  present  contest  must  be  decided ;  and  the  question 
presented  for  the  consideration  of  this  court  is,  whether  or  not  the 
circuit  court  was  correct  in  dismissing  the  bill  of  Frazier,  asserting 
claim  to  the  land  through  the  assignment  of  Kirkland's  obligation  to 
Caldwell  and  McWhorter  and  offering  to  pay  the  amount  of  the  prin- 
cipal, interest  and  costs  of  the  judgment  recovered  by  Kirkland  against 
Caldwell  and  McWhorter,  and  the  amount  paid  by  Broadnax  to  the 
state  on  obtaining  the  patent,  and  praying  that  Broadnax  may  be  com- 
pelled to  convey  the  land  by  a  deed  with  general  warranty,  and  for 
general  relief. 

In  the  consideration  of  this  case,  it  must  be  conceded  that  Broad- 
nax, in  consequence  of  his  purchase  from  Kirkland,  cannot  assume  a 
more  favorable  attitude  than  Kirkland  would,  were  the  legal  title  in 
him,  and  the  suit  had  been  brought  by  Frazier  to  compel  him  to  sur- 
render it;  for,  having  purchased  from  Kirkland,  with  a  knowledge 
of  the  obligation  which  Kirkland  had  previously  given  to  Caldwell  and 
McWhorter,  Broadnax  must  be  considered  as  holding  the  title  subject 
to  any  equity  which  that  obligation  may  have  imposed  on  Kirkland. 
It  is,  also,  equally  clear  that  Frazier  cannot  have  acquired  any  addi- 
tional equity  to  that  which  Caldwell  and  McWhorter  derived  from  the 
obligation  of  Kirkland  by  his  subsequent  purchase  of  Kirkland's  obli- 


308  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

gation.  By  that  purchase,  Frazier  has  become  the  assignee  of  Kirk- 
land's  obligation  to  Caldwell  and  McWhorter;  but  he  was  not  induced 
by  any  act  of  Kirkland  to  make  the  purchase ;  and  holding  the  obliga- 
tion merely  in  the  character  of  an  assignee,  in  seeking  a  specific  execu- 
tion of  that  obligation,  his  claim  must  be  subject  to  any  defence  which 
might  have  been  urged  against  it  in  the  hands  of  Caldwell  and  Mc- 
Whorter. 

3.  Throwing  out  of  view,  therefore,  any  peculiar  merit  which  either 
Broadnax  or  Frazier  can  have  derived  under  their  respective  purchas- 
es, the  present  contest  must  mainly  turn  on  the  question,  whether  or 
not  under  the  circumstances  displayed  in  evidence,  Caldwell  and  Mc- 
Whorter, before  the  sale  to  Frazier,  would  have  been  entitled  to  the 
aid  of  a  court  of  equity,  to  enforce,  specifically,  the  execution  of  the 
stipulations  contained  in  the  obligation  given  to  them  by  Kirkland. 
And  if  any  thing  like  promptness  and  good  faith  is  required  in  the 
fulfilment  of  stipulations  entered  into  by  a  complainant  seeking  the  aid 
of  a  court  of  equity,  we  apprehend  they  would  not;  for  they  have  not 
only  failed  to  discharge  the  amount  which  they  undertook  to  pay  Kirk- 
land, upon  his  executing  the  obligation  to  them,  but  they  have  evinced 
a  most  inflexible  and  stubborn  backwardness  in  payment,  by  baffling 
all  the  energies  of  the  process  of  law  sued  out  by  Kirkland  for  the 
purpose  of  enforcing  payment.  They  have,  it  is  true,  paid  Campbell 
the  balance  of  the  purchase  money  above  that  which  was  to  be  paid 
Kirkland,  and  have  paid  Kirkland  $107,  part  of  $300  which  was  stip- 
ulated to  be  paid  him ;  but,  as  the  amount  paid  Campbell  formed  no 
part  of  the  consideration  for  which  the  land  was  sold  by  Kirkland  that 
payment  can  have  produced  no  obligation  on  Kirkland  to  convey ;  and 
the  amount  paid  Kirkland  not  being  more  than  a  little  above  one  third 
of  the  consideration  for  which  he  sold  the  land,  should  not,  after  such 
a  backwardness  in  paying  the  residue,  induce  the  court  to  enforce  a 
specific  execution  of  the  contract.  It  is  not  enough,  that  a  complain- 
ant has  performed  part  of  the  stipulations  on  his  part,  to  entitle  him 
to  the  assistance  of  a  court  of  equity.  Justice  demands  an  entire  ful- 
filment of  the  contract ;  and  that  rule  which  requires  of  complainants 
the  exercise  of  good  faith  in  performing  their  undertakings,  forbids 
the  aid  of  the  court  in  their  favor,  where,  as  in  this  case,  after  there 
has  been  a  partial  performance  of  their  stipulations,  they  have  evinced 
a  marked  design  not  to  perform  the  residue.  In  fact,  there  are  other 
circumstances  displayed  in  this  cause,  which  mark  the  peculiar  propri- 
ety of  leaving  the  complainant  to  his  remedy  at  law.  At  the  time 
Kirkland  gave  his  obligation  to  Caldwell  and  McWhorter,  there  ap- 
pears to  have  been  an  adverse  claim  conflicting  with  that  owned  by 
Kirkland,  and  neither  of  the  claims  was  then  patented ;  and,  from  any 
thing  apparent  in  the  record,  neither  could  succeed  against  the  elder 
patent  of  the  other.  It  was  important,  therefore,  to  the  validity  of 
Kirkland's  claim,  that  a  patent  should  be  obtained  with  all  practicable 
dispatch.     By  the  terms  of  Reynolds'  obligation,  the  state  price  was  to 


SeC.  4)  EQUITABLE   INTERESTS   OF   THIRD   PERSONS  309 

be  paid  by  Kirkland ;  and  after  Caldwell  and  McWhorter  made  their 
purchase  the  duty  devolved  on  them,  of  making  that  payment.  A  de- 
lay of  that  payment  was,  therefore,  imminently  calculated,  not  only  to 
place  in  hazard  the  claim  sold  by  Kirkland ;  but  as  Caldwell  and  Mc- 
Whorter had  both  become  insolvent,  the  prospect  of  Kirkland  obtain- 
ing indemnity  out  of  the  land  for  the  consideration  unpaid,  was  there- 
by greatly  diminished.  After  being  involved  in  such  a  dilemma,  by  the 
backwardness  and  delay  of  Caldwell  and  McWhorter,  the  only  safe 
alternative  which  could  have  been  pursued  by  Kirkland,  was  that 
adopted  by  him  to  sell  the  land  to  Broadnax,  the  proprietor  of  the  oth- 
er claim;  and  having  done  so,  Frazier,  claiming  under  those  who  by 
their  delay  had  produced  that  necessity,  ought  not  to  receive  the  assist- 
ance of  a  court  of  conscience ;  and,  consequently,  his  bill  was  properly 
dismissed  by  the  circuit  court. 

The  decree  must,  therefore,  be  affirmed  with  costs. 


KIMBROUGH  v.  CURTIS  et  al. 

(Supreme  Court  of  Mississippi,  1874.     50  Miss.  117.) 

Error  to  the  Chancery  Court  of  Leflore  County.  Hon.  J.  J.  Hooker, 
Chancellor. 

The  opinion  of  the  court  contains  a  sufficient  statement  of  the  case. 

Simrall,  J.90  A.  L.  McCaskill,  the  complainant's  intestate,  agreed 
in  writing  to  sell  and  convey  to  Curtis,  a  certain  tract  of  land ;  the 
conveyance  to  be  made  upon  payment  of  the  purchase  money.  By  a 
separate  instrument,  either  a  bond  or  a  promissory  note,  Curtis  obli- 
gated himself  to  pay,  "when  the  first  steam  car  shall  run  on  the  Mis- 
sissippi Central  Railroad,  through  any  part  of  Carroll  county,"  which 
event,  the  complainant  alleges,  occurred  on  or  about  the  first  of  Febru- 
ary, A.  D.  1860. 

In  1862,  Curtis  sold  and  conveyed  the  land  to  defendant,  Thomas 
Walton,  who  had  notice  of  the  contract  with  Curtis.  The  bill  was 
filed  by  O.  L.  Kimbrough,  administrator  of  the  estate  of  A.  L.  Mc- 
Caskill, deceased,  for  relief  in  the  nature  of  specific  performance,  that 
is  to  say,  that  unless  Walton  shall  pay  by  a  short  day  the  purchase 
money,  then  that  the  land  shall  be  sold.  The  complainants  tendered 
with  their  bill,  a  deed  purporting  to  be  executed  by  the  heirs  of  Mc- 
Caskill to  Curtis. 

To  this  bill,  WTalton  filed  an  answer  disclaiming  all  interest  in  the 
subject  matter  of  the  suit  alleging  that  before  the  suit  was  brought,  he 
had  conveyed  the  land  to  Mary  Ann  Walton  and  to  Shields. 

The  complainant  then  filed  an  amended  and  supplemental  bill,  mak- 
ing Mary  Ann  Walton  and  Shields  defendants,  and  asking  against 
them  the  relief  sought  in  the  original  bill  against  Thomas  Walton. 

:hi  Part  of  the  opinion  is  omitted. 


310  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

It  appears  that  the  court  permitted  Walton  to  withdraw  his  answer, 
and   disclaimer   to  the   original  bill ;     and   to   file  a   demurrer   there- 

\0  "T*  *J*  T* 

The  relations  and  rights  of  the  several  parties  are  these :  the  com- 
plainant is  a  creditor,  with  the  benefit  of  the  security  attending  the 
debt.  The  vendee,  the  debtor,  is  entitled  to  a  proper  assurance  of  title 
en  parting  with  his  money,  or  his  assignee  is  subjected  to  the  same  re- 
sponsibility. The  law  esteems  the  title  as  retained  by  the  vendor  as 
security  for  the  purchase  money.  The  assignee  of  the  purchaser  takes 
the  equitable  title  incumbered  with  a  quasi  lien  for  the  debt  to  the 
original  vendor. 

When  the  administrator  of  the  vendor  is  the  complainant,  asserting 
against  the  assignee  of  the  vendee  the  security  held  by  him  for  the 
debt,  the  heirs  of  the  vendor  are  necessary  parties,  so  that  their  title 
may  be  divested.  That  must  be  so,  unless  the  administrator  tenders 
a  proper  deed  from  the  heirs.  But  the  complainant  alleges  in  his  orig- 
inal bill,  that  Curtis  sold  and  conveyed  the  land  in  1862  or  1863.  to 
Thomas  Walton,  and  offers,  with  his  bill,  a  deed  executed  by  the  heirs, 
in  1870,  to  Curtis.  The  conveyance  to  Wralton  operated  a  transfer 
from  Curtis  of  his  equity,  and  substituted  Walton  to  all  of  his  rights 
under  the  title  bond.  Under  the  allegations  of  the  original  bill,  Wal- 
ton could  not  have  been  required  to  accept  that  deed  as  fulfilling  the 
measure  of  his  rights  as  assignee  of  Curtis. 

But  the  supplemental  and  amended  bill  alleges  that  Walton  had  sold 
and  conveyed  to  Mary  Ann  W'alton  and  Shields.  To  entitle  the  com- 
plainant to  relief  against  them,  he  should  have  tendered  a  deed  from 
the  heirs  to  them ;  or  he  should  have  made  the  heirs  parties,  and 
prayed  a  specific  performance  of  the  original  contract  with  Curtis,  and 
on  a  failure  of  these  assignees  to  pay,  then  the  lands  be  sold. 

We  have  held  in  a  case,  analogous  to  this,  that  the  assignee  of  the 
note  for  the  purchase  money  could  sustain  a  bill  against  the  vendor 
and  vendee,  or  their  respective  representatives,  to  enforce  the  lien  and 
for  a  specific  performance  of  the  contract  of  sale ;  and  that  it  was  no 
objection  to  the  bill,  that  a  deed  was  not  tendered;  for  the  title  did  not 
reside  in  the  complainant,  and  he  could  only  reap  the  benefit  of  his 
equity  by  demanding  that  the  parties  to  the  contract  of  sale  shall  be 
held  to  the  performance  of  their  respective  covenants. 

In  this  case  the  complainant  may  resort  to  the  security  of  his  intes- 
tate for  the  debt.  But  his  equity  upon  the  land  should  not  be  meted 
out  to  him,  at  the  expense  of  the  respective  rights  of  parties  arising 
out  of  the  contract  of  sale.  That  can  be  conserved  to  them  by  making 
them  parties  to  the  suit,  and  adjusting  the  decree  according  to  their 
respective  equities. 

Under  neither  of  the  bills  could  this  sort  of  relief  have  been  admin- 
istered.    It  was  proper,  therefore,  to  have  sustained  the  demurrer. 

We  think  enough  appears  in  the  complainant's  bills  to  show,  upon 
a  proper  statement  of  his  case,  he  may  have  relief.     We  do  not  think 


Sec.  5)  EQUITABLE    INTERESTS RESTRICTIVE   AGREEMENTS  311 

that  it  is  necessary  that  the  complainant  should  aver  in  his  bill  a  ten- 
der of  a  deed  from  the  heirs,  before  suit  brought,  nor  is  he  bound  to 
offer  such  a  deed  with  his  bill.  It  may  be  impossible  for  him  to  in- 
duce the  heirs  to  execute  a  conveyance.  The  reason  of  the  authorities 
cited  does  not  apply. 

We  do  not  think  the  bill  amenable  to  the  objection,  that  the  contin- 
gency stated  for  the  payment  of  the  purchase  money,  is  a  wagering 
or  gambling  contract.  At  the  date  of  the  obligation,  The  Mississippi 
Central  Railroad  was  being  constructed.  When  the  contingency  would 
happen  was  uncertain ;  but  it  was  reasonably  certain,  according  to  ap- 
pearances, that  the  event  would  take  place  at  some  time  in  the  not  re- 
mote future.  We  waive  the  point  made  in  the  demurrer  on  the  statute 
of  limitations,  and  leave  that  open  if  the  litigation  shall  be  continued. 
It  does  not  distinctly  appear  whether  the  debt  was  evidenced  by  bond 
or  promissory  note,  nor  are  dates  stated  with  sufficient  precision. 

The  decree  sustaining  the  demurrer  is  affirmed;  so  much  as  dis- 
misses the  bill  is  reversed,  and  cause  is  remanded,  with  leav«  to  com- 
plainant to  amend  his  bill ;  if  not  amended,  then  the  chancellor  shall 
dismiss  it. 

Appellant  to  pay  the  costs  in  this  court. 


SECTION  5.— EQUITABLE  INTERESTS  AND  BURDENS 
ARISING  FROM  RESTRICTIVE  AGREEMENTS 


MANN  v.  STEPHENS. 

(In  Chancery  before  Sir  Lancelot  Shadwell,  1846.     15  Sim.  377.) 

In  1838,  T.  Smith,  being  seized  in  fee  of  a  piece  of  land  near  Graves- 
end,  in  Kent,  on  which  he  had  built  three  houses,  sold  and  conveyed 
one  of  the  houses  to  J.  T.  Scott,  and  covenanted,  for  himself,  his  heirs 
and  assigns,  with  Scott,  his  heirs  and  assigns,  that  an  adjoining  piece 
of  land,  of  which  also  he  was  seized  in  fee,  should,  forever  thereafter, 
remain  and  be  used  as  a  shrubbery  or  garden,  and  that  no  house  or 
other  building  should  be  erected  on  any  part  of  it,  except  a  private 
house  or  ornamental  cottage,  and  that  only  on  a  certain  part  of  it  called 
The  Dell,  and  so  as  to  be  an  ornament,  rather  than  otherwise,  to  the 
surrounding  property.  In  October,  1845,  the  house,  after  several  mesne 
conveyances,  became  vested  in  the  plaintiff  in  fee.  In  1843,  T.  Smith 
sold  and  conveyed  the  piece  of  land,  to  which  the  covenant  related,  to 
H.  W.  Smith  in  fee;  and  H.  W.  Smith  entered  into  a  covenant  with 
T.  Smith,  similar  to  that  which  T.  Smith  had  entered  into  with  Scott. 
H.  W.   Smith  afterwards  sold  the  piece  of  land  to  F.  Chinnock,  of 


312  SrECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

whom  the  defendant  purchased  it  in  November,  1845 ;  and,  in  January 
following,  H.  W.  Smith  conveyed  it  to  him.  The  defendant,  at  the 
time  of  his  purchase,  had  actual  notice  of  the  covenant  entered  into 
by  H.  W.  Smith  with  T.  Smith,  and  constructive  notice  of  the  original 
covenant ;  but  nevertheless,  he  began  to  build  a  beer-shop  and  brewery 
on  part  of  the  land  not  in  The  Dell.  Whereupon  the  bill  was  filed  for 
an  injunction  to  restrain  him  from  proceeding  with  those  buildings, 
and  from  erecting  any  other  building  on  the  land,  except  a  private 
house  or  ornamental  cottage,  to  be  erected  in  The  Dell,  and  so  as  to 
be  an  ornament,  rather  than  otherwise,  to  the  surrounding  property. 

Mr.  Bethell  and  Mr.  J.  T.  Humphry  now  moved  for  the  injunction, 
on  the  ground  that  the  defendant  purchased  the  piece  of  land  with 
notice  of  the  covenant.  They  referred  to  The  Duke  of  Bedford  v. 
The  Trustees  of  the  British  Museum,  2  Myl.  &  K.  552,  Whatman  v. 
Gibson,  9  Sim.  196,  and  Rankin  v.  Huskisson,  4  Sim.  13. 

Mr.  Stuart  and  Mr.  Mee  Matthew,  contra,  said  that  there  was  no 
privity  between  the  plaintiff  and  the  defendant ;  and  that  the  burden 
of  the  covenant  did  not  run  with  the  land.  They  cited  Spencer's  Case, 
5  Rep.  31b,  Hemingway  v.  Fernandes,  13  Sim.  228,  and  Keppell  v. 
Bailey,  2  Myl.  &  K.  517. 

Mr.  Bethell,  in  reply,  said  that  he  did  not  ask  for  the  injunction  upon 
a  legal,  but  upon  an  equitable  ground;  namely,  that  the  defendant  pur- 
chased the  piece  of  land  with  notice  of  the  covenant. 

The  VicE-Chancellor  was  clearly  of  opinion  that  the  erecting  of 
the  beer-shop  and  brewery  was  a  gross  violation  of  the  covenant.  And, 
accordingly,  he  granted  an  injunction  to  restrain  the  defendant  from 
erectirg,  on  the  piece  of  land,  any  brewery  or  other  building  except 
one  private  house  or  ornamental  cottage,  to  be  erected  in  The  Dell,  and 
so  as  to  be  an  ornament,  rather  than  otherwise,  to  the  surrounding 
property. 

The  plaintiff,  afterwards,  obtained  an  order  for  the  commitment  of 
the  defendant,  on  the  ground  that  he  had  committed  a  breach  of  the 
injunction.  The  defendant  appealed  to  the  Lord  Chancellor,  from 
that  order,  and  also  from  the  order  for  the  injunction. 

His  lordship  considered  that  the  injunction  was  properly  granted, 
but  directed  the  order  for  it  to  be  varied,  by  omitting  the  words,  "and 
which  shall  be  ornamental,  rather  than  otherwise,  to  the  surrounding 
property,"  as  being  too  indefinite.  His  lordship  directed  also  that  the 
order  for  the  commitment  of  the  defendant  should  be  discharged,  be- 
cause the  evidence  of  the  breach  of  the  injunction  was  not  sufficient  to 
justify  it ;  and  that  the  motion  should  stand  over,  with  liberty,  to  the 
plaintiff,  to  bring  an  action  on  the  covenant. 


Sec.  5)  EQUITABLE    INTERESTS RESTRICTIVE   AGREEMENTS  313 

TULK  v.  MOXHAY. 

(In  Chancery  before  Lord  Cottenhani,  1848.     2  Phil.  Ch.  774.) 

In  the  year  1808  the  plaintiff,  being  then  the  owner  in  fee  of  the 
vacant  piece  of  ground  in  Leicester  Square,  as  well  as  of  several  of 
the  houses  forming  the  square,  sold  the  piece  of  ground  by  the  descrip- 
tion of  "Leicester  Square  Garden  or  Pleasure  Ground,  with  the  eques- 
trian statue  then  standing  in  the  centre  thereof,  and  the  iron  railing 
and  stone  work  round  the  same,"  to  one  Elms  in  fee :  and  the  deed  of 
conveyance  contained  a  covenant  by  Elms,  for  himself,  his  heirs,  and 
assigns,  with  the  plaintiff,  his  heirs,  executors,  and  administrators : 

"That  Elms,  his  heirs,  and  assigns,  should,  and  would  from  time  to  time, 
and  at  all  times  thereafter  at  his  and  their  own  costs  and  charges,  keep  and 
maintain  the  said  piece  of  ground  and  Square  Garden,  and  the  iron  railing 
round  the  same  in  its  then  form,  and  in  sufficient  and  proper  repair  as  a 
Square  Garden  and  Pleasure  Ground,  in  an  open  state,  uncovered  with  any 
buildings,  in  neat  and  ornamental  order  ;  and  that  it  should  be  lawful  for  the 
inhabitants  of  Leicester  Square,  tenants  of  the  plaintiff,  on  payment  of  a  rea- 
sonable rent  for  the  same,  to  have  keys  at  their  own  expense  and  the  privi- 
lege of  admission  therewith  at  any  time  or  times  into  the  said  Square  Garden 
and  Pleasure  Ground." 

The  piece  of  land  so  conveyed  passed  by  divers  mesne  conveyances 
into  the  hands  of  the  defendant,  whose  purchase  deed  contained  no 
similar  covenant  with  the  vendor :  but  he  admitted  that  he  had  pur- 
chased with  notice  of  the  covenant  in  the  deed  of  1808. 

The  defendant  having  manifested  an  intention  to  alter  the  character 
of  the  Square  Garden,  and  asserted  a  right,  if  he  thought  fit,  to  build 
upon  it,  the  plaintiff,  who  still  remained  owner  of  several  houses  in 
the  Square,  filed  this  bill  for  an  injunction;  and  an  injunction  was 
granted  by  the  Master  of  the  Rolls,  to  restrain  the  defendant  from  con- 
verting or  using  the  piece  of  ground  and  Square  Garden,  and  the  iron 
railing  round  the  same,  to  or  for  any  other  purpose  than  as  a  Square 
Garden  and  Pleasure  Ground  in  an  open  state,  and  uncovered  with 
buildings. 

On  a  motion,  now  made,  to  discharge  that  order, 

The  Lord  Chancellor  (without  calling  upon  the  other  side). 
That  this  court  has  jurisdiction  to  enforce  a  contract  between  the 
owner  of  land  and  his  neighbor  purchasing  a  part  of  it,  that  the  latter 
shall  either  use  or  abstain  from  using  the  land  purchased  in  a  particular 
way,  is  what  I  never  knew  disputed.  Here  there  is  no  question  about  the 
contract;  the  owner  of  certain  houses  in  the  Square  sells  the  land  ad- 
joining, with  a  covenant  from  the  purchaser  not  to  use  it  for  any  other 
purpose  than  as  a  Square  Garden.  And  it  is  now  contended,  not  that 
the  vendee  could  violate  that  contract,  but  that  he  might  sell  the  piece 
of  land,  and  that  the  purchaser  from  him  may  violate  it  without  this 
court  having  any  power  to  interfere.  If  that  were  so,  it  would  be 
impossible  for  an  owner  of  land  to  sell  part  of  it  without  incurring  the 
risk  of  rendering  what  he  retains  worthless.     It  is  said  that,  the  cove- 


314  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

nant  being  one  which  does  not  run  with  the  land,  this  court  cannot  en- 
force it;  but  the  question  is,  not  whether  the  covenant  runs  with  the 
land,  but  whether  a  party  shall  be  permitted  to  use  the  land  in  a  man- 
ner inconsistent  with  the  contract  entered  into  by  his  vendor,  and 
with  notice  of  which  he  purchased.  Of  course,  the  price  would  be 
affected  by  the  covenant,  and  nothing  could  be  more  inequitable  than 
that  the  original  purchaser  should  be  able  to  sell  the  property  the  next 
day  for  a  greater  price,  in  consideration  of  the  assignee  being  allowed 
to  escape  from  the  liability  which  he  had  himself  undertaken. 

That  the  question  does  not  depend  upon  whether  the  covenant  runs 
with  the  land,  is  evident  from  this,  that  if  there  was  a  mere  agreement 
and  no  covenant,  this  court  would  enforce  it  against  a  party  purchas- 
ing with  notice  of  it ;  for  if  an  equity  is  attached  to  the  property  by  the 
owner,  no  one  purchasing  with  notice  of  that  equity  can  stand  in  a 
different  situation  from  the  party  from  whom  he  purchased.  There 
are  not  only  cases  before  the  Yice-Chancellor  of  England,  in  which  he 
considered  that  doctrine  as  not  in  dispute;  but  looking  at  the  ground 
on  which  Lord  Eldon  disposed  of  the  case  of  the  Duke  of  Bedford  v. 
The  Trustees  of  the  British  Museum,  2  My.  &  K.  552,  it  is  impossible 
to  suppose  that  he  entertained  any  doubt  of  it.  In  the  case  of  Mann 
v.  Stephens  before  me,  I  never  intended  to  make  the  injunction  depend 
upon  the  result  of  the  action ;  nor  does  the  order  imply  it.  The  mo- 
tion was,  to  discharge  an  order  for  the  commitment  of  the  defendant 
for  an  alleged  breach  of  the  injunction,  and  also  to  dissolve  the  injunc- 
tion. I  upheld  the  injunction,  but  discharged  the  order  of  commitment, 
on  the  ground  that  it  was  not  clearly  proved  that  any  breach  had  been 
committed ;  but  there  being  a  doubt  whether  part  of  the  premises  on 
which  the  defendant  was  proceeding  to  build,  was  locally  situated  with- 
in what  was  called  the  Dell,  on  which  alone  he  had  under  the  covenant 
a  right  to  build  at  all,  and  the  plaintiff  insisting  that  it  was  not,  I 
thought  the  pendency  of  the  suit  ought  not  to  prejudice  the  plaintiff 
in  his  right  to  bring  an  action  if  he  thought  he  had  such  right,  and, 
therefore,  I  gave  him  liberty  to  do  so. 

With  respect  to  the  observations  of  Lord  Brougham  in  Keppell  v. 
Bailey  [2  M.  &  K.  547]  he  never  could  have  meant  to  lay  down,  that 
this  court  would  not  enforce  an  equity  attached  to  land  by  the  owner, 
unless  under  such  circumstances  as  would  maintain  an  action  at  law. 
If  that  be  the  result  of  his  observations,  I  can  only  say  that  I  cannot 
coincide  with  it. 

I  think  the  cases  cited  before  the  Vice-Chancellor  and  this  decision 
of  the  Master  of  the  Rolls  perfectly  right,  and,  therefore,  that  this 
injunction  must  be  refused  with  costs. 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  315 

LORD  MANNERS  v.  JOHNSON. 

(In  Chancery  before  Sir  Charles  Hall,  1875.     1  Ch.  Div.  673.) 

HalIv,  V.  C.91  *  *  *  This  suit  embraces  two  distinct  objects' 
the  one  to  restrain  the  defendant  from  encroaching  and  bringing  for- 
ward the  general  front  of  the  two  houses  in  question ;  and  the  other 
to  restrain  him  from  allowing  the  bay  windows  in  these  houses  to  re- 
main.    I  shall  deal  first  with  the  latter  object.     *     *     * 

The  covenant  is  a  covenant  by  the  defendant  that  he  will  not  "erect 
any  building  on  the  said  premises  Nos.  1  and  2,  Palace  Road"  (that 
is,  upon  the  two  sites),  "nearer  to  the  said  Palace  Road  than  the  line 
of  frontage  of  the  present  houses  in  Palace  Road."  And  then  it  goes 
on,  "but  shall  observe  a  straight  line  of  frontage  with  the  line  of  houses 
Nos.  3  to  8,  Palace  Road,  aforesaid."  As  I  read  that,  there  is  a  posi- 
tive obligation  on  the  defendant  not  to  erect  any  buildings  on  the  two 
sites  nearer  to  Palace  Road  than  the  line  of  frontage  of  the  houses  in 
Palace  Road,  which  is  not  in  any  way  qualified  or  detracted  from  by 
the  following  words,  "but  shall  observe  a  straight  line  of  frontage  with 
the  line  of  the  existing  houses."  I  consider  it  is  an  independent  cove- 
nant in  its  first  part,  not  in  any  way  restricted  or  cut  down  to  mean 
merely  that  he  will  observe  in  his  buildings  "a  straight  line  of  front- 
age with  the  line  of  houses."  But  if  it  be  not  a  separate  obligation, 
reading  the  whole  of  the  obligation,  and  treating  it  for  this  purpose  as 
if  it  were  all  to  be  taken  together,  then  it  appears  to  me  there  is  a  plain 
obligation  in  that  clause  that  there  shall  be  no  buildings  on  those  two 
sites  "nearer  to-  the  said  Palace  Road  than  the  line  of  frontage  of  the 
present  houses  in  Palace  Road."     *     *     * 

Then  it  is  said  it  is  not  a  case  for  a  mandatory  injunction,  because, 
although  the  covenant  may  be  such  as  I  have  held  it  to  be,  not  only  is 
the  amount  of  damage  and  injury  nil,  but  more  than  that,  what  has 
been  done  is  actually  an  improvement  to  the  plaintiff's  property.  Of 
course  the  plaintiff  is  the  best  judge  of  what  will  be  an  improvement 
to  his  own  property ;  but  I  take  it  now  to  be  the  law  that  if  a  covenant 
of  this  character  is  entered  into  with  reference  to  the  position  of  build- 
ings upon  a  particular  plot  of  ground  as  part  of  a  scheme  for  building 
upon  property,  then  the  party  who  stipulates  for  and  obtains  that  cove- 
nant does  so  free  from  being  embarrassed  by  the  question  whether 
any,  and  if  any,  what  injury  or  damage  is  consequent  on  the  breach  of 
the  covenant,  and  that  an  assign  of  the  benefit  of  the  covenant  is  in  as 
good  a  position  as  the  original  covenantee.     *     *     * 

I  see  no  reason  why  the  court  should  not  exercise  its  jurisdiction  by 
a  mandatory  injunction  as  to  the  bow  windows.  I  can  not  listen  to 
suggestions  of  hardships  and  loss  of  value,  and  so  forth.  The  defend- 
ant, by  cutting  off  the  bow  windows,  will  have  to  make  every  one  of 

01  The  statement  of  facts  is  found  in  the  report  of  this  case  printed  at  page 
100,  supra,  as  is  also  the  part  of  the  opinion  here  omitted. 


316  SPECIFIC   PERFORMANCE   OP   CONTRACTS  (Ch.  2 

his  rooms  that  has  a  bow  window  smaller,  but  he  must  take  the  conse- 
quences of  that. 

The  next  and  only  remaining  question  is  that  as  to  the  advance  of 
the  main  building,  which  I  could  not  determine,  in  the  present  state 
of  the  evidence,  without  sending  a  surveyor  to  examine  and  report  and 
take  the  measurements.  That  part  of  the  case  the  plaintiffs  very  reason- 
ably and  properly  have  not  desired  to  press,  and  it  therefore  becomes 
only  material  with  reference  to  the  costs  of  the  litigation.  Instead, 
therefore,  of  incurring  the  expense  of  a  surveyor's  report,  I  shall  not 
give  the  plaintiffs  any  costs  of  their  cross-examination  of  witnesses,  a 
considerable  portion  of  which  was  directed  to  that  part  of  the  case ; 
but,  with  that  exception,  while  granting  them  a  mandatory  injunction, 
I  shall  give  them  the  costs  of  the  suit.02 


RENALS  v.  COWLISHAW. 

(Chancery  Division,  1878,     L.  R.  9  Ch.  Div.  125.     Court  of  Appeal,  1879. 

11  Ch.  Div.  866.) 

By  an  indenture  dated  the  29th  of  September,  1845,  Messrs.  Hoby, 
Winterbotham  and  Russell,  as  the  devisees  in  trust  for  sale  of  a  man- 
sion-house and  residential  property  known  as  the  Mill  Hill  estate,  and 
of  certain  pieces  of  land  adjoining  thereto,  sold  and  conveyed  two  of 

92  in  Equitable  Life  Assurance  Society  v.  Brennan  (1S96)  148  N.  Y.  661, 
671,  43  N.  E.  173,  175,  the  court  thus  speaks  of  the  law  of  restrictive  cove- 
nants: "While  it  may  not  be  possible  to  harmonize  all  the  authorities  in  this 
country  and  England  on  the  subject  of  equitable  negative  easements,  yet  a 
few  general  rules  may  be  regarded  as  settled  by  the  cases.  It  is  not  necessary, 
in  order  to  sustain  the  action,  that  there  should  be  privity  either  of  estate  or 
of  contract,  nor  is  it  essential  that  an  action  at  law  should  be  maintainable 
on  the  covenant;  but  there  must  be  found  somewhere  the  clear  intent  to  es- 
tablish the  restriction  for  the  benefit  of  the  party  suing  or  his  grantor,  of 
which  rigbt  the  defendant  must  have  either  actual  or  constructive  notice.  If 
the  covenant  is  silent,  if  there  is  no  mutual  agreement  or  understanding  be- 
tween the  various  owners  creating  an  easement,  if  there  is  nothing  in  the 
surrounding  circumstances  from  which  mutual  rights  can  be  fairly  inferred, 
then  no  action  can  be  maintained.  There  is  a  class  of  eases  where  the  cove- 
nant, by  a  fair  interpretation  of  its  language,  is  not  exclusively  for  the  benefit 
of  the  grantor,  but  of  other  property  owners  in  the  immediate  vicinity.  Bar- 
row v.  Richard  (1840)  8  Paige,  351,  35  Am.  Dec.  713;  Brouwer  v.  Jones  (1856) 
23  Barb.  153;  Seymour  v.  McDonald  (1S47)  4  Sandf.  Ch.  502;  Lattimer  v. 
Livermore  (1878)  72  N.  Y.  174.  There  is  still  another  line  of  cases  where  the 
covenant  was  for  the  benefit  of  specific  owners  of  lots,  and  reciprocal  cove- 
nants were  entered  into.  Trustees  v.  Lynch  (1877)  70  N.  Y.  440,  26  Am.  Rep. 
615.  There  are  many  cases  in  this  country  and  England  which  uphold  the 
doctrine  laid  down  in  Tallmadge  v.  Bank  (1862)  26  N.  Y.  105,  to  the  effect 
that,  although  the  legal  title  be  absolute  and  unrestricted,  yet  the  owner  may, 
by  parol  contract  with  the  purchasers  of  successive  parcels  in  respect  to  the 
manner  of  its  improvement  and  occupation,  affect  the  remaining  parcels  with 
an  equity  requiring  them  also  to  be  occupied  in  conformity  to  the  general  plan, 
which  is  binding  upon  a  subsequent  purchaser  with  notice.  In  the  case  at 
l»ar  the  covenant  running  to  the  grantor  only  does  not,  standing  by  itself,  tend 
in  any  way  to  prove  the  plaintiff's  case,  while  the  surrounding  circumstances 
fail  to  establish  any  uniform  plan  of  restriction  on  the  eastern  half  of  the 
block." 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  317 

these  adjoining  pieces  of  land  to  one  Francis  Shaw,  in  fee,  and  Shaw 
therehy,  for  himself,  his  heirs,  executors,  and  administrators,  cove- 
nanted with  Hoby,  Winterbotham  and  Russell,  their  heirs,  executors, 
administrators,  and  assigns,  not  to  build  upon  the  lands  thereby  con- 
veyed within  a  certain  distance  from  a  particular  road  leading  "to  the 
Mill  Hill  house  and  property  belonging  to  the  said  trustees" ;  that  the 
garden  walls  or  palisades  to  be  set  up  along  the  side  of  the  said  road 
should  stand  back  a  certain  distance  from  the  centre  of  the  road ;  that 
any  house  to  be  built  on  the  land  adjoining  the  road  should  be  of  a 
certain  value,  and  of  an  elevation  at  least  equal  to  that  of  the  houses 
on  a  particular  road ;  and  that  no  trade  or  business  should  be  carried 
on  in  any  of  such  houses  or  buildings,  but  that  the  same  should  be 
used  as  private  dwelling  houses  only.  The  conveyance  did  not  state 
that  this  covenant  was  for  the  protection  of  the  residential  property, 
or  in  reference  to  the  other  adjoining  pieces  of  land,  or  make  any  state- 
ment or  reference  thereto. 

The  same  trustees  also  sold  about  this  time  other  pieces  of  lands  ad- 
joining the  Mill  Hill  estate;  and  the  conveyance  to  the  purchaser  in 
each  case  contained  restrictive  covenants  similar  to  those  above  men- 
tioned. It  was  alleged  by  the  plaintiffs  in  their  statement  of  claim  that 
the  intention  of  all  the  restrictive  covenants  was  to  protect  and  main- 
tain the  value  of  the  Mill  Hill  estate,  and  to  secure  the  continuance  of 
the  surrounding  neighbourhood  as  purely  residential  in  character. 

The  trustees,  in  December,  1854,  sold  and  conveyed  the  Mill  Hill 
estate  to  T.  P.  Bainbrigge  in  fee,  and,  Bainbrigge  having  died,  his  dev- 
isees in  trust,  in  September,  1870,  sold  and  conveyed  the  same  estate 
to  the  plaintiffs  as  tenants  in  common  in  fee. 

In  neither  of  these  two  conveyances  were  there  covenants  similar 
to  those  in  the  conveyance  to  Shaw,  but  there  was  in  the  conveyance 
to  the  plaintiffs  a  covenant  by  them  with  their  vendors  not  to  build  a 
public-house  or  carry  on  offensive  trades  upon  a  particular  portion  of 
the  property  conveyed  to  them.  Neither  of  the  two  conveyances  re- 
cited or  mentioned  in  any  way  the  conveyance  or  sale  to  Shaw,  or  the 
existence  of  any  restrictive  covenant  entered  into  by  Shaw  or  by  Gads- 
by,  nor  did  either  of  them  recite  or  mention  the  sales  or  conveyances 
of  the  other  pieces  of  land  sold  as  above  mentioned. 

There  had  also  been  a  devolution  title  with  regard  to  the  lands  sold 
to  Shaw,  for  after  his  death  Mary  Shaw,  the  person  entitled  under 
his  will,  in  August,  1867,  sold  and  conveyed  part  of  the  lands  com- 
prised in  the  indenture  of  September,  1845,  to  John  Gadsby  in  fee, 
who,  in  his  conveyance,  entered  into  covenants  with  Mary  Shaw,  her 
heirs,  executors,  and  administrators,  substantially  identical  mutatis 
mutandis  with  the  restrictive  covenants  contained  in  the  indenture  of 
the  29th  of  September,  1845.  And  subsequently  the  lands  so  con- 
veyed to  Gadsby  were  sold  and  conveyed  (with  certain  buildings 
erected  thereon)  by  Gadsby  or  persons  deriving  title  through  him,  to 
the  defendants  as  tenants  in  common  in  fee. 


318  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

The  plaintiffs  alleged  that  the  defendants  were  carrying  on  upon 
their  lands  and  in  contravention  of  the  restrictive  covenants  first  above 
mentioned,  the  trade  of  wheelwrights,  smiths,  and  bent  timber  manu- 
facturers, and  had  erected  a  high  chimney  which  emitted  thick  black 
smoke,  and  that  those  acts  were  destructive  of  the  residential  charac- 
ter of  the  neighbourhood,  and  had  deteriorated  the  value  and  amenity 
of  the  Mill  Hill  estate.  By  their  action  they  claimed  an  injunction  to 
restrain  the  defendants  from  carrying  on  any  trade  or  business  upon 
their  lands,  and  from  permitting  the  buildings  erected  thereon  to  be 
used  otherwise  than  as  private  houses,  and  from  contravening  in  any 
manner  the  restrictive  covenants  contained  in  the  indenture  of  Sep- 
tember, 1845. 

The  principal  question  argued,  and  that  on  which  the  decision  turn- 
ed, was  as  to  the  right  of  the  plaintiffs  to  sue  upon  these  covenants. 

It  appeared  that  no  contract  had  been  entered  into  or  representations 
made,  either  upon  the  occasion  of  the  purchase  by  Bainbrigge  from 
the  trustees,  or  upon  the  purchase  from  Bainbrigge  by  the  plaintiffs, 
that  the  purchaser  should  have  the  benefit  of  the  covenants  entered 
into  by  Shaw  with  the  trustees. 

Hall,  V.  C.  I  think  this  case  is  governed  by  Keates  v.  Lyon,  L.  R. 
4  Ch.  218,  by  Child  v.  Douglas,  Kay,  560,  5  D.,  M.  &  G.  739,  as  ulti- 
mately decided  by  Vice-Chancellor  Wood,  2  Jur.  (N.  S.)  950,  who, 
after  granting  an  interlocutory  injunction  in  the  first  instance,  refused 
to  grant  the  plaintiff  an  injunction  at  the  hearing,  and  by  the  case  of 
Master  v.  Hansard,  4  Ch.  D.  718. 

The  law  as  to  the  burden  of  and  the  persons  entitled  to  the  benefit 
of  covenants  in  conveyances  in  fee,  was  certainly  not  in  a  satisfactory 
state ;  but  it  is  now  well  settled  that  the  burden  of  a  covenant  entered 
into  by  a  grantee  in  fee  for  himself,  his  heirs,  and  assigns,  although 
not  running  with  the  land  at  law  so  as  to  give  a  legal  remedy  against 
the  owner  thereof  for  the  time  being,  is  binding  upon  the  owner  of  it 
for  the  time  being,  in  equity,  having  notice  thereof.  Who,  then  (other 
than  the  original  covenantee),  is  entitled  to  the  benefit  of  the  covenant? 
From  the  cases  of  Mann  v.  Stephens,  15  Sim.  377,  Western  v.  Mac- 
Dermott,  L.  R.  2  Ch.  72,  and  Coles  v.  Sims,  Kay,  56,  5  D.,  M.  &  G.  1, 
it  may,  I  think,  be  considered  as  determined  that  any  one  who  has  ac- 
quired land,  being  one  of  several  lots  laid  out  for  sale  as  building  plots, 
where  the  court  is  satisfied  that  it  was  the  intention  that  each  one  of 
the  several  purchasers  should  be  bound  by  and  should,  as  against  the 
others,  have  the  benefit  of  the  covenants  entered  into  by  each  of  the 
purchasers,  is  entitled  to  the  benefit  of  the  covenant ;  and  that  this 
right,  that  is,  the  benefit  of  the  covenant,  enures  to  the  assign  of  the 
first  purchaser,  in  other  words,  runs  with  the  land  of  such  purchaser. 
This  right  exists  not  only  where  the  several  parties  execute  a  mutual 
deed  of  covenant,  but  wherever  a  mutual  contract  can  be  sufficiently 
established.  A  purchaser  may  also  be  entitled  to  the  benefit  of  a  re- 
strictive covenant  entered  into  with  his  vendor  by  another  or  others 


{Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  319 

where  his  vendor  has  contracted  with  him  that  he  shall  be  the  assign 
of  it,  that  is,  have  the  benefit  of  the  covenant.  And  such  covenant  need 
not  be  express,  but  may  be  collected  from  the  transaction  of  sale  and 
purchase.  In  considering  this,  the  expressed  or  otherwise  apparent 
purpose  or  object  of  the  covenant,  in  reference  to  its  being  intended 
to  be  annexed  to  other  property,  or  to  its  being  only  obtained  to  en- 
able the  covenantee  more  advantageously  to  deal  with  his  property,  is 
important  to  be  attended  to.  Whether  the  purchaser  is  the  purchaser 
of  all  the  land  retained  by  his  vendor  when  the  covenant  was  entered 
into,  is  also  important.  If  he  is  not,  it  may  be  important  to  take  into 
consideration  whether  his  vendor  has  sold  off  part  of  the  land  so  re- 
tained, and  if  he  has  done  so,  whether  or  not  he  has  so  sold  subject  to 
a  similar  covenant :  whether  the  purchaser  claiming  the  benefit  of  the 
covenant  has  entered  into  a  similar  covenant  may  not  be  so  important. 
The  plaintiffs  in  this  case,  in  their  statement  of  claim,  rest  their  case 
upon  their  being  "assigns"  of  the  Mill  Hill  estate,  and  they  say  that  as 
the  vendors  to  Shaw  were  the  owners  of  that  estate  when  they  sold  to 
Shaw  a  parcel  of  land  adjoining  it,  the  restrictive  covenants  entered 
into  by  the  purchaser  of  that  parcel  of  land  must  be  taken  to  have  been 
entered  into  with  them  for  the  purpose  of  protecting  the  Mill  Hill  es- 
tate, which  they  retained ;  and,  therefore,  that  the  benefit  of  that  re- 
strictive covenant  goes  to  the  assign  of  that  estate,  irrespective  of 
whether  or  not  any  representation  that  such  a  covenant  had  been  en- 
tered into  by  a  purchaser  from  the  vendors  was  made  to  such  assigns, 
and  without  any  contract  by  the  vendors  that  that  purchaser  should 
have  the  benefit  of  that  covenant.  The  argument  must,  it  would  seem, 
go  to  this  length,  viz.,  that  in  such  a  case  a  purchaser  becomes  entitled 
to  the  covenant  even  although  he  did  not  know  of  the  existence  of  the 
covenant,  and  that  although  the  purchaser  is  not  (as  the  purchasers  in 
the  present  case  were  not)  purchaser  of  all  the  property  retained  by  the 
vendor  upon  the  occasion  of  the  conveyance  containing  the  covenants. 
It  appears  to  me  that  the  three  cases  to  which  I  have  referred  shew 
that  this  is  not  the  law  of  this  court;  and  that  in  order  to  enable  a 
purchaser  as  an  assign  (such  purchaser  not  being  an  assign  of  all  that 
the  vendor  retained  when  he  executed  the  conveyance  containing  the 
covenants,  and  that  conveyance  not  shewing  that  the  benefit  of  the 
covenant  was  intended  to  enure  for  the  time  being  of  each  portion  of 
the  estate  so  retained  or  of  the  portion  of  the  estate  of  which  the  plain- 
tiff is  assign)  to  claim  the  benefit  of  a  restrictive  covenant,  this,  at 
least,  must  appear,  that  the  assign  acquired  his  property  with  the  ben- 
efit of  the  covenant,  that  is,  it  must  appear  that  the  benefit  of  the  cove- 
nant was  part  of  the  subject-matter  of  the  purchase.  Lord  Justice 
Bramwell,  in  Master  v.  Hansard,  4  Ch.  D.  724,  said : 

"I  am  satisfied  that  the  restrictive  covenant  was  not  put  in  for  the  benefit 
of  this  particular  property,  but  for  the  benefit  of  the  lessors  to  enable  them 
to  make  the  most  of  the  property  which  they  retained." 


320  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

In  the  present  case  I  think  that  the  covenants  were  put  in  with  a 
like  object.  If  it  had  appeared  in  the  conveyance  to  Bainbrigge  that 
there  were  such  restrictive  covenants  in  conveyances  already  executed, 
and  expressly  or  otherwise  that  Bainbrigge  was  to  have  the  benefit  of 
them,  he  and  the  plaintiffs,  as  claiming  through  him,  would  have  been 
entitled  to  the  benefit  of  them.  But  there  being  in  the  conveyance  to 
Bainbrigge  no  reference  to  the  existence  of  such  covenants  by  recital 
of  the  conveyances  containing  them  or  otherwise,  the  plaintiffs  cannot 
be  treated  as  entitled  to  the  benefit  of  them.  This  action  must  be  dis- 
missed with  costs. 


/;/  the  Court  of  Appeal 

This  was  an  appeal  by  the  plaintiffs  from  a  decision  of  Vice-Chan- 
cellor Hall,  9  Ch.  D.  125. 

Hastings,  Q.  C,  and  Renshaw,  for  the  appellants : 

We  contend  that  a  covenant  must  be  treated  in  equity  as  running 
with  the  land  to  assigns  of  the  covenantees  if  three  requisites  are  sat- 
isfied— 1,  that  the  covenant  must  extend  to  assigns;  2,  that  the  person 
claiming  the  benefit  of  the  covenant  must  be  assign  of  the  same  estate 
as  the  covenantee ;  and,  3,  that  there  is  not  anything  in  the  nature  of 
the  transaction  to  shew  that  it  was  not  the  intention  of  the  parties  that 
the  covenant  should  run  with  the  land. 

[James,  L.  J.  With  what  land  do  you  say  that  the  covenant  runs? 
If  the  vendors  had  also  had  property  in  Yorkshire,  a  purchaser  of  that 
would  have  been  an  assign.    Could  he  enforce  the  covenant?] 

We  say  it  runs  with  the  Mill  Hill  estate,  which  is  mentioned  in  the 
covenant  as  belonging  to  the  trustees.  The  covenant  cannot  have  been 
intended  for  their  personal  benefit,  but  must  have  been  intended  to 
enure  for  the  benefit  of  the  neighbouring  unsold  lands.  We  are  eq- 
uitable assignees  of  the  covenant.  Western  v.  MacDermott,  Law  Rep. 
1  Eq.  499 ;   Id.  2  Ch.  72. 

[James,  L.  J.  There  a  particular  field  was  clearly  referred  to,  and 
it  was  a  case  of  reciprocal  rights. 

Baggallay,  L.  J.  Both  parties  derived  title  under  a  deed  embody- 
ing a  general  building  scheme.] 

The  Master  of  the  Rolls  puts  it  on  this,  that  the  covenant  was  a 
covenant  entered  into  for  the  benefit  of  the  unsold  property,  and  that 
the  plaintiff,  as  assign  of  part  of  that  property,  was  entitled  to  the 
benefit  of  the  covenant.  The  Vice-Chancellor  holds  that  it  is  not 
enough  for  the  subsequent  purchaser  to  be  an  assign  of  the  land,  but 
that  he  must  shew  an  intention  to  give  him  the  benefit  of  the  restric- 
tive covenants.  This  is  a  novel  doctrine,  and  inconsistent  with  what 
was  said  by  Lord  Hatherley  in  Child  v.  Douglas,  2  Jur.  (N.  S.)  950. 

[  I'.aggallay,  L.  J.  Was  not  the  land  there  laid  out  according  to  a 
building  scheme?] 

Yes ;  but  we  say  it  is  not  necessary  that  there  should  be  any  express 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  32J 

notice  or  mention  of  the  restrictive  covenant.    The  purchaser  takes  the 
land  with  the  advantages  appurtenant  to  it. 

[James,  L.  J.  Is  there  any  case  to  shew  that  if  the  owner  of  100 
acres  sells  an  acre,  taking  a  restrictive  covenant,  and  sells  the  remain- 
der in  lots  of  an  acre  each,  every  one  of  the  ninety-nine  purchasers 
can  enforce  the  covenant  against  the  purchaser  of  the  first  acre?] 

The  case  does  not  seem  to  have  occurred  at  law,  but  in  equity  there 
are  Mann  v.  Stephens,  15  Sim.  377,  and  Eastwood  v.  Lever,  4  D.,  J. 
&  S.  114,  where  the  law  is  laid  down  in  our  favour,  though  the  plain- 
tiff there  was  held  to  have  lost  his  right  by  acquiescence. 

[James,  L.  J.  There  was  a  building  scheme,  and  the  covenants  were 
entered  into  for  maintaining  the  general' character  of  the  neighbour- 
hood. If  the  general  character  of  the  neighbourhood  changes  the  obli- 
gation ceases :  Duke  of  Bedford  v.  Trustees  of  British  Museum,  2 
My.  &  K.  552.] 

Child  v.  Douglas,  2  Jur.  (X.  S.)  950,  is  an  authority  that  express 
words  are  not  wanted.  Here  we  have  all  the  elements  of  that  case. 
In  Eastwood  v.  Lever  no  doubt  stress  is  laid  on  the  particular  ground 
mentioned  in  the  judgment,  but  there  is  nothing  laying  down  that  in 
the  absence  of  that  ground  the  plaintiff  could  not  have  sued.  The 
Vice-Chancellor  thought  that  this  case  was  governed  by  Keates  v. 
Lyon,  Law  Rep.  4  Ch.  218,  but  there  the  covenant  did  not  mention  as- 
signs. 

[JamES,  L.  J.  That  is  immaterial  in  equity,  though  it  is  important 
on  the  question  whether  a  covenant  runs  with  the  land  at  law.] 

In  Master  v.  Hansard,  4  Ch.  D.  718,  the  plaintiff  was  not  assign  of 
the  same  estate  as  the  covenantee ;  he  was  only  another  lessee  under 
the.  covenantee. 

W.  Pearson,  Q.  C,  and  Bury,  for  the  respondents,  were  not  called 
upon. 

James,  L.  J.  I  am  of  opinion  that  the  decision  of  Vice-Chancellor 
Hall  is  correct.  It  is  impossible,  as  it  seems  to  me,  to  distinguish  this 
case  from  the  cases  to  which  he  has  referred.  To  enable  an  assign  t<  i 
take  the  benefit  of  restrictive  covenants  there  must  be  something  in  the 
deed  to  define  the  property  for  the  benefit  of  which  they  were  entered 
into.  Supposing  I  were  now  framing  the  deed  afresh,  I  should  not 
have  the  remotest  idea  how  the  covenant  ought  to  be  framed,  as  I  can 
not  tell  what  the  property  was  which  the  parties  intended  to  be  pro- 
tected, and  within  what  limits. 

I  do  not  think  it  necessary  to  add  anything  more,  except  that  I  en- 
tirely concur  with  every  word  of  the  judgment  of  Vice-Chancellor 
Hall. 

Baggallay,  L.  J.  I  am  of  the  same  opinion  with  the  Lord  Justice, 
and  I  adopt  entirely  the  language  of  the  Vice-Chancellor  in  his  judg- 
ment, as  reported,  9  Ch.  D.  125. 

ThesigEr,  L.  J.    I  am  of  the  same  opinion. 
Boke  Eq. — 21 


322  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Ch.  2 

SHARP  v.  ROPES. 
(Supreme  Judicial  Court  of  Massachusetts,  1872.    110  Mass.  3S1.) 

Bill  in  Equity.     *     *     * 

Ames,  J.93  The  case  finds  that  Stephen  Heath,  being  the  owner  of 
the  entire  tract  of  land,  caused  it  to  be  laid  out  in  eleven  separate  build- 
ing- lots.  A  plan,  showing  the  streets  that  were  to  be  opened,  and 
the  different  lots,  with  their  respective  dimensions,  areas  and  numbers, 
was  duly  recorded  in  the  registry  of  deeds ;  but  this  plan  furnishes  no 
intimation  of  an  intention  on  the  part  of  the  grantor  to  impose  any  re- 
striction whatever  upon  purchasers,  in  regard  to  the  manner  in  which 
they  were  to  occupy  or  build  upon  the  lots  which  they  should  purchase. 
Of  the  five  lots  upon  the  northerly  side  of  Gordon  street,  lot  10  was 
built  upon  by  the  grantor  himself,  he  having  erected  a  dwelling-house 
thereon,  which  has  been  occupied  by  his  family  since  his  decease.  Lot 
8  and  a  portion  of  lot  7  were  sold  and  conveyed  by  him  to  George  G. 
Drew,  and  have  since  been  conveyed  to  the  plaintiff.  The  remainder  of 
lot  7  and  the  whole  of  lot  6  were  conveyed  to  the  defendant.  Thus, 
of  the  five  lots  lying  on  the  northerly  side  of  that  street,  three  were  con- 
veyed by  said  Heath  to  two  separate  purchasers,  subject  to  the  condi- 
tions and  restrictions  recited  in  the  plaintiff's  bill.  There  is  no  sug- 
gestion that  the  other  two  lots  were  subjected  to  any  restriction  of  the 
kind. 

It  is  not  claimed  that,  in  regard  to  any  of  the  lots,  there  was  any 
written  covenant  by  the  grantor,  and  it  does  not  appear  that  there  was 
any  express  stipulation  or  direct  assurance  on  his  part,  that  any  person 
who  should  purchase  a  lot  on  the  north  side  of  that  street  should  have 
the  benefit  of  a  restriction  binding  all  the  other  purchasers  to  leave  an 
open  space  between  their  dwelling-houses  and  the  street.  The  only 
ground  upon  which  the  plaintiff  can  rest  her  claim  that  the  restriction 
in  question  was  intended  to  operate  for  the  benefit  of  all  the  purchas- 
ers, and  to  establish  a  general  plan  of  building,  by  which  each  one 
would  acquire  a  right  in  the  nature  of  an  easement  in  the  land  pur- 
chased by  the  others,  is  to  be  found  in  the  fact,  that  in  his  transactions 
with  two  separate  and  independent  purchasers,  the  grantor  conveyed 
a  portion  of  the  land  in  each  case,  subject  to  the  terms  and  conditions 
set  forth  in  the  bill  of  complaint.  It  is  true,  that  of  these  conditions, 
the  one  prohibiting  the  prosecution  of  any  offensive  trade  or  manufac- 
ture upon  the  premises,  or  the  using  of  them  for  the  keeping  of  swine, 
or  of  a  livery  stable,  would  in  practice  be  beneficial  to  the  neighborhood 
generally.  But  it  is  to  be  remembered  that  the  grantor  had  himself 
built  a  dwelling-house  in  that  immediate  neighborhood,  and  the  pro- 
vision which  he  made  for  the  prevention  of  nuisances  may  have  been 
intended  for  the  benefit  of  that  particular  house. 

It  is  undoubtedly  true,  and  has  often  been  decided,  that  where  a  tract 

93  The  statement  of  facts  is  omitted. 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  323 

of  land  is  subdivided  into  lots,  and  those  lots  are  conveyed  to  separate 
purchasers,  subject  to  conditions  that  are  of  a  nature  to  operate  as 
inducements  to  the  purchase,  and  to  give  to  each  purchaser  the  bene- 
fit of  a  general  plan  of  building  or  occupation,  so  that  each  shall  have 
attached  to  his  own  lot  a  right  in  the  nature  of  an  easement  or  incor- 
poreal hereditament  in  the  lots  of  the  others,  a  right  is  thereby  acquir- 
ed by  each  grantee  which  he  may  enforce  against  any  other  grantee. 
Whitney  v.  Union  Railway  Co.,  11  Gray,  359,  71  Am.  Dec.  715 ;  Parker 
v.  Nightingale,  6  Allen,  341,  83  Am.  Dec.  632;  Linzee  v.  Mixer,  101 
Mass.  512;  Tulk  v.  Moxhay,  2  Phil.  Ch.  774.  But  in  the  case  at  bar 
there  is  nothing  from  which  the  court  can  infer  that  the  restriction 
contained  in  the  deed  from  Heath  to  the  defendant  was  intended  for 
the  benefit  of  the  estate  now  owned  by  the  plaintiff.  No  such  purpose 
can  be  gathered  from  the  plan,  or  from  the  situation  of  the  property 
with  reference  to  other  land  of  the  grantor.  It  purports  to  be  a  condi- 
tion imposed  by  the  grantor,  and  the  deed  points  out  the  mode  in 
which  he,  his  heirs  or  devisees  may  enforce  it.  Neither  of  the  deeds, 
under  which  these  parties  respectively  claim,  purports  to  give  to  the 
grantee  any  such  right  against  any  other  grantee.  For  aught  that 
appears,  the  condition  may  have  been  intended  for  the  benefit  of  the 
grantor  or  his  family,  as  long  as  they  continued  to  own  the  dwelling- 
house.  The  burden  of  proof  is  upon  the  plaintiff,  if  she  insists  upon 
giving  to  that  condition  any  wider  application,  and  this  burden  we  do 
not  find  that  she  has  sustained. 

The  cases  cited  and  relied  upon  by  the  plaintiff's  counsel  do  not 
appear  to  us  to  meet  this  difficulty.  In  Tallmadge  v.  East  River  Bank, 
26  N.  Y.  105,  a  landowner  in  New  York  City  had  laid  out  a  street  sixty 
feet  in  width,  and  had  sold  the  building  lots  on  each  side,  making  use 
in  the  sales  of  a  plan  which  showed  that  an  open  space  was  to  be  re- 
served in  front  of  each  lot.  The  purchasers  bought  under  this  plan, 
and  with  the  express  assurance  that  it  should  be  adhered  to,  and  their 
right  to  enjoy  the  promised  advantages  was  sustained  by  the  court. 
In  Hills  v.  Miller,  3  Paige  (N.  Y.)  254,  24  Am.  Dec.  218,  the  owner  had 
sold  a  tract  of  land,  giving  at  the  same  time  a  bond  that  a  smaller  tri- 
angular lot  belonging  to  him,  in  front  of  the  lot  sold,  should  not  be 
occupied  with  buildings.  The  court  held  that  the  deed  and  the  bond 
constituted  one  contract,  and  created  an  easement  which  could  be  en- 
forced against  any  purchaser  of  the  triangular  lot,  with  notice.  In 
Barrow  v.  Richard,  8  Paige  (N.  Y.)  351,  35  Am.  Dec.  713,  an  estate 
had  been  subdivided  into  a  large  number  of  building  lots,  which  the 
owner  had  conveyed  by  deeds  to  various  purchasers,  with  express 
covenants  against  all  trades,  &c,  offensive  to  ''the  neighboring  inhabi- 
tants." The  English  cases  also  cited,  Child  v.  Douglas,  Kay,  560, 
Coles  v.  Sims,  5  De  G.,  M.  &  G.  1,  and  Western  v.  MacDermott,  L.  R. 
2  Ch.  72,  are  all  of  them  cases  in  which  a  general  building  plan,  or  uni- 
form system  and  mode  of  occupation,  had  been  distinctly  established 
and  made  a  part  of  the  title  conveyed,  in  express  terms,  either  by  the 


324  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

deed  itself,  or  by  some  covenant  or  obligation  connected  with  it  by 
reference.  But  we  find  nothing  in  the  terms  of  the  conveyance,  or 
in  any  reference  to  a  plan  or  covenant,  or  in  the  circumstances  of  the 
transaction,  or  the  situation  of  the  property,  that  will  justify  us  in 
saying  that  any  such  general  plan  or  system  was  intended  by  the  gran- 
tor to  be  established  for  the  benefit  of  grantees,  or  to  make  a  part  of 
their  respective  titles.  The  case  in  our  judgment  is  closely  analogous 
to  Badger  v.  Boardman,  16  Gray,  559,  Tewell  v.  Lee,  14  Allen,  145, 
92  Am.  Dec.  744,  Hubbell  v.  Warren,  8  Allen,  173,  178,  and  is  disposed 
of  according  to  the  law  decided  in  these  cases,  by  an  order  that  the 
Bill  be  dismissed,  with  costs. 


MANDER  v.  FALCKE. 

(Court  of  Appeal.     [1891]  2  Ch.  554.) 

Lindlf,y,  L.  J.94  This  is  an  appeal  by  George  Edward  Hinde  from 
an  injunction  restraining  him  and  his  son,  George  William  Hinde,  from 
using,  or  permitting  certain  premises  to  be  used,  as  a  brothel  or  disor- 
derly house,  or  from  doing,  causing,  permitting,  or  suffering  therein 
anything  which  may  grow  to  the  annoyance,  damage,  injury,  prejudice, 
or  inconvenience  of  the  premises  or  of  the  adjoining  property  of  the 
plaintiffs.  The  plaintiffs  are  the  freehold  reversioners  of  the  house  in 
question.  A  lease  of  it  was  granted  by  their  predecessor  in  title,  and 
the  defendant  Falcke  is  entitled  to  the  benefit  of  this  lease,  subject 
to  an  underlease,  which,  in  1889,  was  assigned  to  George  William 
Hinde,  who  has  not  appealed.  The  father  appeals  on  the  ground  that 
he  has  nothing  to  do  with  the  property.  Now,  what  the  business  rela- 
tions between  the  father  and  son  are  is  very  obscure.  Whether  the 
father  acquired  the  underlease  in  the  son's  name  is  uncertain,  but  that 
the  father  has  much  more  to  do  with  the  business  carried  on  in  the 
house  than  he  wishes  us  to  believe  appears  to  me  quite  clear.  After 
perusing  the  affidavits,  I  have  not  the  slightest  doubt  that  the  father  is 
substantially  the  person  interested  in  the  business,  and  that  the  son 
is  put  forward  as  a  screen.  I  have  no  doubt  that  the  father  is  manag- 
ing the  house ;  and  that  he  does  so  with  full  notice  of  the  terms  on 
which  the  son  holds  the  property.  I  feel  certain  that  he  has  a  pecuniary 
interest  in  the  concern.  I  do  not  proceed  on  the  hypothesis  that  he  is 
cestui  que  trust  of  the  underlease,  for  that  is  uncertain.  I  treat  him 
simply  as  an  occupier  managing  the  business.  He  may  be  neither  an 
assignee  nor  purchaser,  but  he  is  in  occupation,  and  that  is  enough  to 
affect  him,  he  having  notice  of  the  covenants  in  the  lease.  I  have  not 
followed  all  the  cases  from  Tulk  v.  Moxhay,  2  Ph.  774,  but  in  Wilson 
v.  Hart,  Law  Rep.  1  Ch.  463,  it  was  held  that  a  tenant  from  year  to 

94  The  statement  of  facts  and  the  concurring  opinions  of  Bowen  and  Fry, 
L.  JJ.,  are  omitted. 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  325 

year  was  bound  in  equity  by  a  restrictive  covenant  of  which  he  had 
express  notice,  and  though  I  cannot  say  that  it  has  been  decided  that 
a  mere  occupier  is  in  the  same  position,  I  am  satisfied  on  principle  that 
a  simple  occupier  comes  within  the  decision  of  Lord  Cottenham  in  Tulk 
v.  Moxhay.    The  appeal  will  be  dismissed. 


BARNEY  v.  EVERARD. 

(Supreme  Court  of  New  York,  Special  Term,  New  York  County,  1900. 
32  Misc.  Rep.  648,  67  N.  Y.  Supp.  535.) 

Action  by  Charles  T.  Barney  against  James  Everard  for  an  injunc- 
tion restraining  the  erection  of  an  apartment  house. 

Beekman,  J.  Prior  to  the  date  hereinafter  mentioned  one  Thomas 
J.  Robinson  was  the  owner  of  a  plot  of  ground  on  the  southerly  side 
of  120th  street,  distant  300  feet  westerly  from  Fifth  avenue,  and  having 
a  frontage  on  said  street  of  160  feet.  On  the  23d  day  of  June,  1892, 
he  sold  and  conveyed  to  Malvina  Hammerstein  the  extreme  westerly 
portion  of  said  property,  beginning  410  feet  from  Fifth  avenue,  and 
extending  westerly  50  feet.  This  deed  of  conveyance  contained  a  cove- 
nant on  the  part  of  the  grantee  in  the  following  words : 

"And  the  party  of  the  second  part,  by  the  acceptance  of  these  presents, 
hereby  covenants  that  she  will  not  erect,  or  permit  to  be  erected,  on  any  part 
of  the  aforesaid  premises  fronting  on  One  Hundred  and  Twentieth  street,  any 
building  other  than  a  private  dwelling  house  or  houses;  it  being  understood, 
however,  that  a  private  stable  may  be  erected  at  a  distance  not  less  than 
sixty  feet  from  the  curb  line,  and  on  the  rear  of  the  westerly  twenty-five  feet 
of  the  lots  hereby  conveyed." 

The  balance  of  the  property  owned  by  Robinson  was  subsequently 
sold  by  him  in  parcels  from  time  to  time,  but  without  any  restric- 
tion of  any  kind  whatsoever  with  respect  to  their  improvement  or 
use.  On  February  8,  1897,  Mrs.  Hammerstein  conveyed  to  one  Mc- 
Grann  the  easterly  portion  of  the  premises  which  she  had  acquired 
under  the  above-mentioned  deed,  having  a  frontage  of  20  feet.  On 
February  15,  1898,  the  latter  conveyed  the  same  property  to  one  Kel- 
lar,  who  on  July  28,  1898,  in  turn  conveyed  the  same  to  the  plaintiff 
in  this  action.  In  none  of  these  deeds  was  any  reference  made  to  the 
restrictive  covenant  above  mentioned,  nor  did  any  of  them  contain 
any  covenant  or  agreement  on  the  part  of  the  grantee  or  the  grantor 
respecting  any  such  restriction.  On  March  3,  1898,  the  defendant 
acquired  title  to  the  remaining  30  feet  of  the  Hammerstein  parcel. 
Upon  this  parcel  the  defendant  purposes  to  erect  a  first-class,  fire- 
proof apartment  house,  which  is  to  be  eight  stories  in  height,  and  so 
constructed  as  to  accommodate  one  family  on  each  floor,  and  the 
family  of  a  janitor  in  the  basement.  The  plans  provide  for  an  electric 
passenger  elevator  opening  on  each  floor,  there  being  on  three  sides 
of  the  interior  of  the  elevator  shaft  a  passageway,  and  a  doorway 
opening  into  the  respective  apartments  is  to  be  through  the  wall  on 


326  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Ch.  2 

each  story  which  faces  the  doorway  of  the  elevator.  The  object  of 
this  action  is  to  secure  injunctive  relief,  prohibiting  the  defendant  from 
erecting  such  building,  on  the  ground  that  it  is  not  a  private  dwelling 
house,  within  the  meaning  of  the  covenant  above  referred  to.  The 
defendant  resists  the  action  on  two  grounds :  First,  that  the  proposed 
building  is  a  private  dwelling  house,  and  that  consequently  no  violation 
of  the  restriction  is  contemplated ;  and,  second,  that,  in  any  event,  the 
plaintiff  is  not  entitled  to  maintain  this  action,  because  the  restrictive 
covenant  in  question,  which  he  seeks  to  have  specifically  performed, 
was  not  made  or  executed  by  Robinson  for  the  benefit  of  the  plaintiff 
or  his  lot,  and  that  he  has  therefore  no  easement  in,  or  right  over,  the 
defendant's  land  arising  out  of  the  existence  of  said  covenant. 

Logically,  the  ground  last  above  mentioned  should  be  first  consider- 
ed and  disposed  of ;  for,  if  it  should  be  sustained,  it  finally  disposes  of 
the  action,  and  the  plaintiff  would  have  no  interest  in  the  determina- 
tion of  the  question  as  to  whether  what  the  defendant  proposes  to  do 
is  or  is  not  contrary  to  the  covenant.  In  support  of  his  right  to  main- 
tain the  action,  the  learned  counsel  for  the  plaintiff  cites  the  case  of 
Brouwer  v.  Jones,  23  Barb.  153.  The  facts  of  this  case,  briefly  stated, 
are  as  follows :  Brouwer  &  Mason  were  the  owners  of  a  certain  tract 
of  land  in  the  city  of  Brooklyn,  which  was  divided  up  into  city  lots, 
two  of  which  they  sold  to  one  Sands,  who  in  turn  conveyed  the  same 
to  one  Arents,  by  whom  they  were  demised  to  the  defendant  Jones  for 
a  term  of  five  years.  Previous  to  the  said  conveyance  so  made  to 
Sands,  Brouwer  &  Mason  had  sold  and  conveyed  other  lots  in  the 
vicinity  of  the  said  two  lots,  and  embraced  in  the  same  tract  of  land, 
to  the  plaintiffs  or  to  the  grantors  of  the  plaintiffs.  In  all  of  said 
conveyances  made  by  Brouwer  &  Mason  to  Sands,  as  well  as  to  the 
plaintiffs  and  their  grantors,  there  was  contained  an  express  covenant 
on  the  part  of  the  respective  grantees  to  the  effect  that  at  no  time  should 
there  be  erected,  established,  or  carried  on  in  any  manner,  on  the  prem- 
ises so  granted,  any  slaughter  house,  tallow  chandlery,  etc.,  or  any 
manufactory,  trade,  business,  or  calling  whatever,  which  might  be  in 
any  way  dangerous  or  noxious  or  offensive  to  the  neighboring  inhab- 
itants. The  action  was  brought  to  restrain  the  defendant  from  car- 
rying on  a  sawmill  which  he  had  erected  upon  the  premises  that  had 
been  demised  to  him,  which  was  alleged  to  be  noxious  and  offensive, 
and  therefore  against  the  covenant  in  question.  Although  not  referred 
to  in  the  statement  of  facts  contained  in  the  report,  it  appears  from 
the  opinion  of  the  court  that  the  objection  was  raised  by  the  defend- 
ant that  one  of  the  plaintiffs,  Philbrick  by  name,  deduced  his  title 
through  Sands,  the  defendant's  grantor,  and  the  original  covenantor 
in  the  covenant  in  question,  and  that  for  that  reason  the  action  could 
not  be  maintained,  so  far  as  that  plaintiff  was  concerned.  As  this  ob- 
jection was  disposed  of  adversely  to  the  defendant's  claim,  this  case  is 
relied  upon  by  the  learned  counsel  for  the  plaintiff  as  disposing  of  the 
contention  of  the  defendant  in  this  case  which  is  now  under  discus- 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  327 

sion.    The  principal  question  which  was  decided  in  the  case  will  appear 
from  the  following  quotation  from  Judge  Emott's  opinion  (page  162): 

"The  object  of  the  covenants  inserted  in  the  deeds  of  all  the  lots  included 
in  the  tract  of  which  the  lots  both  of  the  plaintiffs  and  defendants  are  a  part 
was  to  protect  the  whole  tract,  and  every  lot  belonging  to  it,  whether  in  the 
hands  of  the  original  owners  or  of  any  subsequent  grantees,  from  nuisances 
or  offensive  and  injurious  erections  or  occupations.  Every  conveyance  from 
Brouwer  &  Mason  contained  such  a  covenant,  and  every  lot  conveyed  by  them 
had  an  easement  in  every  other  lot  to  forbid  or  restrain  its  use  or  occupation 
in  any  offensive  way.  And  therefore  I  am  unable  to  see  in  what  respect  the 
relative  dates  of  the  conveyances  to  the  grantees  of  Brouwer  &  Mason  can 
make  any  difference.  Every  such  covenant,  in  every  deed  given  by  them,  was 
intended,  not  only  for  their  benefit,  but  also  for  that  of  their  prior  as  well 
as  subsequent  grantees,  and  created  this  easement  in  behalf  of  the  whole  prop- 
erty. This  court  may  therefore  very  properly  be  asked  to  interpose  in  behalf 
of  any  of  the  owners  of  the  lots,  as  being  parties  for  whose  benefit  the  cove- 
nants were  made." 

With  respect  to  the  plaintiff  Philbrick  and  his  right  to  unite  with 
the  other  plaintiffs  in  seeking  equitable  relief  for  the  enforcement  of 
the  covenant,  the  court  says  (page  162) : 

"One  of  the  plaintiffs  deduces  his  title  through  Sands,  the  defendant's  gran- 
tor, and  the  original  covenantor  in  the  covenant  in  question.  I  think  this  is 
wholly  immaterial.  Title  to  lands  within  the  tract,  for  the  common  benefit  of 
which  this  easement  was  created,  is  the  only  requisite,  as  I  view  this  case, 
to  support  such  an  action  as  this  to  restrain  any  violation  of  this  covenant  by 
any  proprietor." 

No  further  reference  to  this  feature  of  the  case  is  made.  In  my 
opinion,  the  case  at  bar  is  so  radically  different  from  that  of  Brou- 
wer v.  Jones  that  the  latter  cannot  be  regarded  as  an  authority  con- 
trolling its  disposition.  There  all  of  the  conveyances  affecting  each 
lot  in  the  entire  tract  contained  similar  covenants,  which  were  intended 
for  the  benefit  of  every  other  lot  in  the  tract.  Out  of  this  condition 
there  was  associated  with  the  burden  which  each  lot  was  under  a  bene- 
fit arising  out  of  the  covenants  contained  in  the  deeds  affecting  each 
and  all  of  the  other  lots.  Thus,  there  existed  in  favor  of  each  lot  an 
easement,  as  it  has  been  called,  in  each  of  the  other  lots  intended  to 
be  benefited  by  the  system  of  restriction  which  was  adopted  by  the 
original  owners  of  the  tract.  But  no  such  condition  exists  in  the  case 
at  bar.  Obviously  the  only  intention  that  Robinson  had  in  imposing 
the  restriction  in  question  only  upon  the  parcel  conveyed  to  Mrs.  Ham- 
merstein  was  to  protect  and  benefit  himself  and  his  grantees  in  his  and 
their  enjoyment  of  the  balance  of  the  tract  of  which  the  Hammerstein 
lots  formed  a  part.  Certainly,  the  restriction  in  question  was  not  a 
benefit  to  Mrs.  Hammerstein,  and  it  is  impossible  to  see  how,  under 
this  covenant,  it  can  be  said  that  in  her  hands  there  could  be  any 
easement  arising  out  of  the  restriction  in  favor  of  any  one  portion  of 
her  property  over  any  other  portion  of  the  same,  the  relation  of  dom- 
inant and  servient  tenement  being  impossible  where  both  pieces  of 
property  are  under  the  same  ownership.  Had  she,  in  conveying  the 
parcel  now  owned  by  the  plaintiff,  inserted  any  provision  which  gave 
to  her  grantee  the  benefit  of  the  restriction  with  respect  to  the  remain- 


328  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

der  of  the  property  (of  which  the  defendant  is  now  the  owner),  a  differ- 
ent case  would  have  been  presented ;  but  nothing  of  this  kind  was  done, 
for,  as  we  have  seen,  such  deed  made  no  reference  in  any  way  what- 
soever to  the  restriction  in  question  or  to  any  other.  Having  reached 
the  conclusion  that  the  covenant  in  question  was  not  one  for  the  bene- 
fit of  the  plaintiff  or  his  grantors,  and  that  he  has  acquired  no  right  to 
the  enforcement  of  the  same,  it  follows  that  there  must  be  judgment 
for  the  defendant  dismissing  the  complaint.  In  view  of  this  conclu- 
sion, it  becomes  a  matter  of  no  importance  whether  the  building  which 
the  defendant  proposes  to  erect  is  within  the  covenant  or  not,  and  a 
discussion  of  that  point  is  therefore  unnecessary.  Judgment  for  the 
defendant,  dismissing  the  complaint,  with  costs. 
Judgment  for  defendant,  with  costs. 


VANSANT  et  al.  v.  ROSE. 
(Appellate  Court  of  Illinois,  1912.     170  111.  App.  572.) 

Appeal  from  the  Circuit  Court  of  Cook  County,  the  Hon.  Adelor  J. 
Petit,  Judge,  presiding.  Heard  in  the  Branch  Appellate  Court  at  the 
March  term,  1912. 

Mr.  Justice  F.  A.  Smith  05  delivered  the  opinion  of  the  court. 

This  is  an  appeal  from  an  interlocutory  order  granting  an  injunc- 
tion to  restrain  an  appellant  upon  a  bill  supported  by  affidavits  from  a 
breach  of  covenants  or  restrictions  in  a  deed  through  which  she  acquir- 
ed title. 

John  C.  Vansant,  Marcellus  E.  McDowell  and  the  Guaranty  Trust  & 
Savings  Deposit  Company  as  executors  and  trustees  under  the  last  will 
and  testament  of  Marcellus  E.  McDowell,  deceased,  filed  a  bill  in  the 
Circuit  Court  of  Cook  County  against  Alvida  A.  Rose,  appellant,  to 
enjoin  the  defendant  from  erecting  a  flat  building  at  the  southwest 
corner  of  Kenmore  and  Glen  Lake  Avenues  in  Edgewater,  and  from 
placing  the  flat  building  on  the  lot  lines  of  the  premises,  in  alleged  vio- 
lation of  a  covenant  in  the  deed  of  conveyance  from  appellees,  the 
complainants  in  the  bill,  to  defendant's  grantor.  The  court  granted  an 
injunction  pendente  lite  on  the  giving  of  a  bond  by  appellees  in  the 
sum  of  $5,000. 

From  the  averments  of  the  bill  it  appears  that  December  16,  1904, 
appellees  were  the  owners  of  the  two  lots,  now  owned  by  appellant, 
at  the  southwest  corner  of  Kenmore  and  Glen  avenues.  On  that  day 
appellees  conveyed  to  appellant's  husband  Frank  A.  Rose,  the  two  lots 
by  a  deed  containing  the  following  restrictive  covenants : 

"It  is  hereby  expressly  covenanted  and  agreed  that  neither  said  party  ot 
the  second  part  nor  his  heirs,  executors  and  administrators,  or  assigns  shall 
erect  any  fence,  enclosure  or  obstruction  to  view  on  said  lots  within  thirty 
(30)  feet  of  the  front  or  side  street  line  of  said  lots  for  a  period  of  ten  years 

:,:>  Tarts  of  the  opinion  are  omitted. 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  329 

from  the  date  hereof,  and  shall  not  build  any  wall  of  any  building  erected  on 
said  lots  within  said  thirty  feet  of  the  front  or  side  street  line  of  said  lots 
for  a  period  of  twenty  years  from  the  date  hereof  without  the  written  con- 
sent of  said  parties  of  the  first  part.  *  *  *  It  is  hereby  expressly  cove- 
nanted and  agreed  that  neither  said  party  of  the  second  part  nor  his  heirs, 
executors,  administrators  or  assigns  shall  build  or  cause  to  be  built  on  said 
lots  any  building  known  as  a  flat  or  a  tenement  building,  hereby  covenanting 
to  erect  thereon  only  a  single  private  dwelling  house  (excepting  the  stable  as 
aforesaid),  for  a  period  of  twenty  years  from  this  date." 

This  deed  was  duly  recorded  and  subsequently  the  title  of  Frank  A. 
Rose  passed  to  his  wife,  the  appellant,  by  conveyances.  It  is  the  breach 
of  the  above  covenants  in  the  deed  from  appellees  to  Frank  A.  Rose 
that  appellees  seek  to  enjoin. 

The  bill  nowhere  alleges  that  the  complainants  own  any  land  in  the 
vicinity  of  the  land  conveyed  to  Frank  A.  Rose  with  the  restrictions 
above  set  forth,  nor  is  there  any  averment  in  the  bill  that  appellees 
now  own  any  land  in  Edgewater  or  the  city  of  Chicago  or  elsewhere 
which  would  be  affected  in  the  slightest  degree  by  the  enforcement 
or  breach  of  the  covenant  in  question.  Appellees  rely  simply  and 
solely  upon  the  fact  that  they  are  the  promisees  in  the  covenants  of  the 
grantee  Frank  A.  Rose  in  the  above  deed,  and  in  legal  effect  say 
that  they  are  entitled  to  enforce  that  contract  specifically  in  equity 
solely  on  the  ground  that  they  are  parties  to  it,  and  that  it  makes  no 
difference  whatever  that  they  own  no  real  estate  in  the  vicinity  which 
will  be  affected  in  any  way  by  the  enforcement  or  the  violation  of  the 
covenants. 

Appellant  contends  that  the  bill  is  fatally  defective  because  it  does 
not  show  that  complainants  have  any  right  to  the  beneficial  interest  in 
the  land  affected  by  the  covenants,  or  in  adjoining  lands,  which  will 
confer  upon  complainants  a  property  interest  in  the  enforcement  of 
the  covenants,  and  cite  in  support  of  her  contention  High  on  Injunc- 
tions (4th  Ed.)  vol.  11,  p.  1137;  Los  Angeles  University  v.  Swarth,  46 
C.  C.  A.  647,  107  Fed.  798,  54  L.  R.  A.  262 ;  Graves  v.  Deterling,  120 
N.  Y.  447,  24  X.  E.  655;  Rector  v.  Rector,  130  App.  Div.  166,  114  N. 
Y.  Supp.  623;    and  Dana  v.  Wentworth,  111  Mass.  291. 

In  support  of  this  contention  and  under  the  above  authorities  it  is 
urged  by  appellant  that  the  law  is  that  a  complainant  has  no  standing  to 
file  a  bill  to  enforce  a  restrictive  covenant  as  to  the  use  of  land,  unless 
he  has  a  right  or  beneficial  interest  in  the  land  affected  by  the  covenant, 
or  in  adjoining  land  which  will  confer  upon  the  complainant  a  property 
interest  in  the  enforcement  of  the  covenant. 

On  the  other  hand,  it  is  contended  by  appellees  that  the  covenants 
above  set  forth  in  the  deed  constitute  a  valid,  legal  contract,  and  that 
its  obligatory  force  is  co-extensive  with  its  terms  and  stipulations ; 
and  the  theories  upon  which  they  predicate  the  right  to  the  injunction 
granted  by  the  court  are  as  follows : 

First,  the  theory  of  a  mere  negative  covenant  sustained  by  adequate 
consideration,  just  and  reasonable  in  itself,  and  without  ambiguity,  its 
nature  being  such  that  it  can  be  enforced  only  by  injunction ; 


330  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

Second,  the  theory  of  a  reserved  right  or  interest  in  the  property 
conveyed,  that  is  to  say,  the  grantors  owning  the  property  in  fee  con- 
veyed it  subject  to  restrictions  which  are  in  the  nature  of  encumbrances 
pro  tanto,  the  purchaser  acquiring  only  a  part  of  the  property  and  the 
vendor  remaining  the  owner  of  the  rest.  The  interest  thus  reserved 
may  be  large  or  small,  but,  if  it  is  a  right  in  or  over  the  premises  in 
question  it  is  property;  the  covenant  is  a  property  right  winch  the 
grantor  reserves.  This  theory  admits  the  application  of  a  rule,  which 
seems  to  embarrass  some  courts,  that  such  a  covenant  is  in  the  nature 
of  an  easement  and  must  inhere  in  reserved  property  to  be  enforced ; 
and, 

The  third  theory  is  that  the  purchaser,  having  acquired  the  prop- 
erty at  a.  low  price  by  reason  of  the  restrictions,  has  received,  if  the 
restrictions  are  not  binding,  property  of  the  vendor  which  he  ought 
not  to  retain,  except  on  terms  of  the  conveyance;  so  the  denial  of  a 
remedy  is  taking  a  vendor's  property  without  compensation. 

In  support  of  this  bill  appellees  cite  Haves  v.  St.  Paul  M.  E.  Church, 
196  111.  633,  63  N.  E.  1040.  At  page  635'  of  196  111.,  and  at  page  1041 
of  63  N.  E.,  it  is  said : 

••  *  *  *  An  owner  lias  a  right  to  sell  his  property  upon  such  terms  and 
conditions  as  he  may  see  proper,  and  if  the  terms  are  accepted  by  the  grantee, 
and  are  not  ohjectionahle  in  law,  they  will  be  enforced  at  the  suit  of  the  one 
in  whom  the  right  is  vested.  (Frye  v.  Partridge,  S2  111.  207.)  If  a  subsequent 
owner  has  taken  title  with  notice,  either  actual  or  constructive,  of  a  binding 
agreement  between  his  grantor  and  the  original  owner  establishing  a  building 
restriction,  he  will  be  bound  to  abide  by  it  and  equity  will  enforce  it.  The 
question  is  whether  by  the  agreement  between  King  and  his  grantee,  this  lot 
was  burdened  with  the  restriction  for  the  benefit  of  the  complainant's  lot,  so 
that  she  can  enforce  the  agreement.  The  restriction  was  imposed  by  John  A. 
King  and  the  agreement  was  with  him.  Complainant  was  a  stranger  to  that 
transaction  and  there  is  no  covenant  or  agreement  between  her  and  the  de- 
fendant or  its  grantor.  Her  right  to  enforce  the  agreement  must  depend  upon 
her  making  it  appear  that  it  was  entered  into  for  the  benefit  of  her  lot.  In 
making  his  conveyance  John  A.  King  had  a  legal  right  to  impose  the  condi- 
tion from  any  motive,  and  it  is  immaterial  what  the  motive  was.  and  he  could 
impose  it  in  favor  of  property  which  he  did  not  own  and  which  belonged  to 
complainant  if  he  saw  fit  to  do  so.  When  he  executed  his  deed  he  did  not 
own  any  other  property  in  the  block  or  in  that  vicinity.  He  did  not  own  the 
lot  or  house  south  of  the  premises  which  he  conveyed,  and  had  no  interest  in 
either.  *  *  *  The  defendant  took  the  premises  bound  by  the  agreement, 
and  can  be  restrained  from  violating  it  at  the  suit  of  any  one  having  the  in- 
terest." 

********** 

By  accepting  the  deed  containing  the  restrictions  a  valid  contract  is 
consummated  which  is  enforceable  against  the  grantee  and  his  succes- 
sors in  title  and  equity  will  enjoin  the  breach.  Frye  v.  Partridge,  su- 
pra; McDougall  v.  Burrows,  154  111.  App.  375;  Wakefield  v.  Van 
Tassell,  supra  [202  111.  41,  66  N.  E.  830,  65  L.  R.  A.  511,  95  Am.  St. 
Rep.  207]. 

It  is  not  necessary  that  the  right  preserved  or  the  restriction  im- 
posed be  an  easement  appurtenant  to  other  land,  though  that  situation 
frequently  occurs,  and  such  easements  are  protected,  but  in  Illinois 
the  right  to  enforce  the  contract  made  bv  the  covenants  of  the  deed 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  331 

does  not  depend  upon  whether  there  is  a  dominant  estate.  Rights  in 
gross  will  be  protected  in  equity.  Frye  v.  Partridge,  supra ;  Willough- 
by  v.  Lawrence.  116  111.  11,  4  N.  E.  356,  56  Am.  Rep.  758;  Wakefield 
v.  Van  Tassell,  supra;  Eckhart  v.  Irons,  128  111.  568,  20  N.  E.  687. 

In  our  opinion  the  negative  covenants  in  the  deed  to  Rose  subjected 
the  loss  in  question  to  a  lien  in  the  nature  of  an  easement  in  gross  or  a 
personal  servitude.  When  the  property  was  transferred  to  his  wife  ap- 
pellant, she  had  notice  of  the  servitude,  knew  that  complainants  had 
not  conveyed  the  entire  estate  to  her  husband,  and  that  complainants 
had  restricted  the  use  of  the  lots  and  reserved  in  themselves  certain 
rights  or  interests  therein.  She  therefore  took  the  lots  bound  by  the 
covenants,  and  in  our  opinion  may  be  restrained  from  violating  the 
covenants.  When  Rose  accepted  the  deed  from  complainants  she  did 
not  acquire  absolute  and  unqualified  dominion  over  the  lots.  On  the 
contrary  it  was  part  of  the  title  which  he  accepted  that  he  should  be 
limited  and  restricted  in  the  use  of  the  lots,  in  important  particulars, 
and  such  restrictions  partake  of  the  nature  of  an  encumbrance  upon 
the  lots.     *     *     * 

We  must  be  governed  by  the  authorities  of  this  state,  and  we  think 
they  uphold  clearly  that  the  contract  contained  in  the  deed  by  which 
appellees  conveyed  the  property  was  a  valid  binding  contract,  not  only 
upon  the  grantee  in  the  deed,  but  upon  his  heirs  and  assigns,  and  that 
the  remedy  for  a  violation  of  the  restrictive  covenants  is  by  injunction 
even  though  a  recovery  at  law  might  be  sustained.  But  where,  as  in 
this  case,  there  can  be  no  adequate  recovery  at  law,  the  remedy  is 
clearly  by  injunction.  In  our  opinion,  the  authorities  further  sustain 
the  proposition  that  an  injunction  will  be  granted  without  reference 
to  any  injury  to  the  complainants,  and  that  it  will  be  granted  although 
there  is  no  easement  in  favor  of  adjacent  property  to  protect  and  no  in- 
jury proved,  and  whether  complainants  own  property  in  the  immediate 
neighborhood  or  not  which  would  be  injuriously  affected  by  a  violation 
of  the  restrictive  conditions  contained  in  the  deed. 

We  are  of  the  opinion,  therefore,  that  the  order  granting  the  in- 
junction upon  the  bill  and  affidavits  was  proper,  and  it  is  affirmed. 

Affirmed. 


In  re  NISBET  AND  POTTS'  CONTRACT. 
(Court  of  Appeal.     [1906]  1  Ch.  386.) 

A  covenant  restricting  the  use  of  the  land  had  been  entered  into 
between  the  owner  and  an  adjoining  owner.  Subsequently  a  squatter 
on  the  restricted  land  held  it  by  adverse  possession  for  twelve  years 
and  acquired  a  statutory  title.  The  covenantee  sought  to  hold  the 
squatter's  adverse  possession  subject  to  the  restrictive  covenant. 

Held  by  Farwell,  J.,  that  it  was  so  bound.     Affirmed  on  appeal. 


332  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

Romer,  L.  J.06  *  *  *  In  the  first  place,  with  regard  to  the  gen- 
eral doctrine  concerning  a  negative  covenant,  such  as  we  are  deal- 
ing with  in  this  case,  I  think  that  whatever  reasons  may  have  been  giv- 
en for  the  doctrine  in  the  earlier  cases,  and  notwithstanding  the  way 
in  which  the  doctrine  has  been  referred  to  in  some  judgments  in  early 
cases,  yet,  at  the  present  day,  the  doctrine  ought  to  be  regarded  as  well 
settled.  I  think  the  law  is  that  such  a  covenant,  when  validly  created, 
binds  the  land  in  equity,  and  can  be  enforced  as  against  subsequent 
owners  of  the  land,  subject  only  to  the  limitation  that,  being  equitable, 
it  can  not  be  enforced  as  against  a  bona  fide  purchaser  of  the  land — 
that  is  to  say,  of  the  legal  estate — without  notice.  This  was  clearly 
pointed  out  by  Sir  George  Jessel,  M.  R.,  in  the  case  of  London  and 
South  Western  Rv.  Co.  v.  Gomm,  20  Ch.  D.  562,  where,  referring  to 
Tulk  v.  Moxhay,  2  Ph.  774,  he  says  this  (20  Ch.  D.  583) : 

"The  doctrine  of  that  case,  rightly  considered,  appears  to  me  to  he  either 
an  extension  in  equity  of  the  doctrine  of  Spencer's  Case,  5  Rep.  ICa,  to  an- 
other line  of  cases,  or  else  an  extension  in  equity  of  the  doctrine  of  negative 
easements ;  such,  for  instance,  as  a  right  to  the  access  of  light,  which  pre- 
vented the  owner  of  the  servient  tenement  from  building  so  as  to  obstruct  the 
light." 

Then,  speaking  of  a  negative  covenant,  such  as  not  to  build  so  as  to 

obstruct  a  view,  or  not  to  use  a  piece  of  land  otherwise  than  as  a 

garden,  he  says : 

"This  is  an  equitable  doctrine,  establishing  an  exception  to  the  rules  of 
common  law  which  did  not  treat  such  a  covenant  as  running  with  the  land, 
and  it  does  not  matter  whether  it  proceeds  on  analogy  to  a  covenant  running 
with  the  land  or  on  analogy  to  an  easement.  The  purchaser  took  the  estate 
subject  to  the  equitable  burden,  with  the  qualification  that  if  he  acquired  the 
legal  estate  for  value  without  notice  he  was  freed  from  the  burden.  That 
qualification,  however,  did  not  affect  the  nature  of  the  burden ;  the  notice 
was  required  merely  to  avoid  the  effect  of  the  legal  estate,  and  did  not  create 
the  right,  and  if  the  purchaser  took  only  an  equitable  estate  he  took  subject 
to  the  burden,  whether  he  had  notice  or  not." 

And,  as  pointed  out  by  my  Lord,  in  subsequent  cases  that  view  of 
the  law  has  been  adopted  by  this  court.  Indeed,  to  hold  otherwise 
would  lead  to  a  result  which,  in  my  opinion,  would  be  lamentable ; 
for,  according  to  the  contention  of  the  appellant,  the  result  would  be 
that  while  any  person  in  occupation  of  the  land  claiming  through  the 
covenantor,  even  though  only  a  tenant  from  year  to  year  or  a  mere 
occupant  by  permission,  would  be  bound  by  the  covenant,  yet  a  squat- 
ter going  into  occupation,  without  any  right  or  any  permission  of  the 
true  owner,  could  say  that,  as  between  him  and  the  covenantee,  the 
land  was  freed  from  the  covenant.  In  other  words,  the  squatter  could, 
as  against  the  covenantee,  successfully  plead  his  own  trespass  as  put- 
ting him  in  a  better  position  than  if  he  had  gone  upon  the  land  by 
right.  I  cannot  think  that  the  law  necessitates  any  such  result.  On 
the  contrary,  as  I  have  said,  in  my  opinion  the  negative  covenant  does 

9(i  The  statement  of  facts  is  abridged  and  part  of  the  opinion  of  Romer, 
L.  J.,  and  all  of  the  concurring  opinions  of  Collins.  M.  EL,  and  Cozens-]  lardy, 
L.  J.,  are  omitted. 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  333 

bind  the  land  in  equity ;  and  I  think  that  with  regard  to  a  subsequent 
squatter,  dealing  in  the  first  place  with  the  time  before  that  squatter 
has  acquired  any  statutory  right  by  lapse  of  time,  inasmuch  as  he 
could  not  say  he  was  a  purchaser  of  a  legal  estate  without  notice,  he 
would  be  bound  by  the  covenant  during  his  squatting,  and  accordingly 
the  covenant,  if  he  sought  to  break  it,  could  be  enforced  against  him 
at  the  instance  and  on  behalf  of  the  covenantee. 

Now  that  being,  in  my  opinion,  the  position  of  the  squatter  before 
he  has  acquired  a  statutory  right  under  the  statute  of  limitations,  let 
me  consider  what  would  be  the  position  of  a  squatter  after  a  twelve 
years'  occupation  under  the  statute.  By  that  occupation  he  has  no 
doubt  acquired  a  statutory  title  as  against  the  covenantor  or  the  heirs 
or  assigns  of  the  land  of  the  covenantor  who  during  those  twelve  years 
has,  or  have  been,  so  remiss  as  not  to  eject  him ;  but  he  does  not  there- 
by of  necessity  become  entitled  to  hold  the  land  free  from  the  obliga- 
tion of  the  negative  covenant.  That  obligation  is  one  existing  against 
the  title  of  the  true  owner  of  the  land.  The  right  of  the  true  owner 
to  the  land  has,  no  doubt,  gone  as  against  the  successful  squatter,  who 
has  acquired  a  title  against  him  under  the  statute,  but  the  original 
equitable  right  of  the  covenantee  still  exists.  It  was  not  a  right  that 
could  be  barred  by  the  operation  of  the  statute  of  limitations  in  favour 
of  the  statutory  squatting  owner.  The  covenantee  was  not  an  assign 
of  the  land,  or  of  any  part  of  the  land,  or  of  any  estate  in  the  land, 
which  was  capable  of  being  barred  by  the  operation  of  the  statute  of 
limitations ;  nor  was  the  covenantor  a  trustee,  in  any  sense,  of  the 
land  for  the  covenantee,  or  of  any  part  of  it,  or  of  any  estate  in  it. 
The  covenantee  could  not,  directly  or  indirectly,  by  any  person  repre- 
senting him  and  his  right,  in  respect  of  that  right  under  the  restrictive 
covenant,  take  proceedings  to  recover  possession  against  the  squatter 
during  the  twelve  years;  and,  in  the  case  I  am  considering,  the  cove- 
nantee would,  in  my  opinion,  be  no  more  barred  by  the  operation  of 
the  statute  of  limitations  by  not  taking  proceedings  against  the  squat- 
ter during  the  twelve  years  than  he  would  have  been  barred  by  not 
taking  proceedings  against  the  true  owner,  had  that  true  owner  re- 
mained in  possession  during  that  period. 

There  is  a  fallacy,  as  it  appears  to  me,  in  the  argument  of  the  ap- 
pellant, and  I  think  it  is  this :  The  argument  seems  to  assume  that  the 
statutory  owner  becomes,  at  the  end  of  the  statutory  period  of  limita- 
tion, in  the  same  position  as  if  he  had  ousted  by  statutory  title  all  the 
prior  owners  of  the  estate  so  as  to  destroy  all  negative  covenants  valid- 
ly created  by  them.  That  is  not  so.  If  A.,  being  really  entitled  to 
land,  ousts  by  his  superior  good  title  one  B.  who  has  created  restrictive 
covenants,  or  purported  to  create  them,  at  a  time  when  B.'s  title  was 
bad  as  against  A.,  then,  of  course,  when  A.  recovers  possession,  he  is 
not  bound  by  the  restrictive  covenants,  for  they  were  not  originally 
validly  created  as  against  him,  A. ;  but  if  A.  is  admittedly  the  true 
owner  in  fee  in  possession  of  the  land  at  the  time  when  he  enters  into 


334  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

valid  restrictive  covenants  binding  the  land  in  equity,  then  a  subse- 
quent squatter,  even  when  he  ultimately  by  twelve  years'  occupation 
becomes  entitled  to  the  land  as  against  A.  or  his  heirs  or  assigns,  can- 
not be  heard  to  say  that  A.  had  no  right  to  enter  into  the  covenants 
originally,  or  that  those  covenants  never  had  any  validity  as  against 
him,  the  squatter,  or  ceased  to  have  validity  directly  the  twelve  years 
elapsed.  And  certainly  that  squatter  who,  if  he  did  not  know  of  the 
restrictive  covenants  validly  entered  into  by  the  true  owner,  at  best 
could  only  say  that  he  did  not  know  of  them  because  he  made  no 
inquiry  as  to  the  title  before  he  squatted,  cannot  say  that  he  is  in  the 
position  of  a  purchaser,  as  it  were,  of  the  land  for  value  without 
notice.  So  to  hold  would,  in  my  opinion,  be  most  unjust  towards  the 
covenantee,  and  would  lead  to  most  undesirable  consequences  affecting 
many  estates  in  this  country  now  usefully  regulated  by  such  restrictive 
covenants  as  I  am  now  considering. 

Xow,  that  being  so,  it  remains  to  be  considered  whether  in  the 
present  case,  the  vendor,  or  the  vendor  to  him,  was  a  purchaser  for 
value  without  notice.  In  my  opinion,  if  a  purchaser  chooses,  either  by 
agreement  with  his  vendor  or  otherwise,  to  take  less  than  a  forty  years' 
title,  he  cannot  by  so  restricting  his  investigation,  and  by  not  inquiring 
into  the  title  for  the  full  period  of  forty  years,  say  that  he  is  not  af- 
fected with  notice  of  such  equities  affecting  the  land  as  he  would  have 
ascertained  by  reasonable  inquiries  into  the  title  for  the  earlier  part  of 
the  forty  years. 

The  appellant  seems  to  contend  that  where  a  vendor  has  acquired 
a  title  merely  by  possession  under  the  statute  of  limitations,  such  a  case 
is  to  be  treated  as  an  exception  to  the  rule  I  have  indicated,  and  that 
a  trespasser  who  has  acquired  a  good  title  by  successful  trespass  for 
twelve  years  or  more  is  not  bound,  or  should  be  treated  as  not  being 
bound,  to  make  any  inquiries  whatever  as  to  the  earlier  title,  and 
should  be  treated  as  if  he  were  in  the  position  of  a  person  purchasing 
and  taking  a  proper  title.  I  cannot  agree  with  that  contention  of  the 
appellant.  I  cannot  see  why  a  successful  trespasser  for  twelve  years, 
or  a  purchaser  from  him,  should  be  placed  in  a  better  position  than  an 
ordinary  owner  or  vendor,  or  a  purchaser  from  such  ordinary  vendor. 
I  do  not  see  that  he  is  entitled  to  be  regarded  as  being  in  any  pecul- 
iarly favoured  position.  That  being  so,  in  the  present  case  neither 
the  present  vendor,  nor  the  vendor  to  him,  can  say  he  was  a  purchaser 
without  notice.  If  the  present  vendor,  or  his  vendor,  had  insisted  on 
a  proper  title  in  regard  to  length  being  given  to  him,  or  had  made 
proper  inquiries  into  that  title,  it  is  clear  that  he  must  have  ascertain- 
ed the  existence  of  the  negative  covenants  in  question.  It  certainly  is, 
in  my  opinion,  for  the  vendor  in  this  case  to  prove  the  plea  of  pur- 
chaser for  value  without  notice  on  his  behalf,  or  on  behalf  of  the  ven- 
dor to  him ;  but  he  has  not  discharged  the  onus  so  cast  upon  him. 
For  these  reasons  1  think  the  appeal  fails.     *     *     * 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  335 

HAYWOOD  v.   BRUNSWICK   PERMANENT  BEN.  BLDG. 

SOCIETY. 

(Court  of  Appeal,  1881.    8  Q.  B.  Div.  403.) 

Appeal  from  the  judgment  of  Stephen,  J.,  on  further  consideration. 
This  was  an  action  against  a  building  society,  the  mortgagees  of 
certain  land,  upon  a  covenant  to  build  and  keep  in  repair  houses  erected 
upon  the  land.     The  facts  were  these : 

By  an  indenture  dated  the  17th  of  May,  1866,  made  between  Charles 
Jackson  and  Edward  Jackson,  Charles  Jackson  granted  a  plot  of  land 
to  Edward  to  the  use  that  Edward  should  pay  Charles  an  annual 
chief  rent  of  £11,  and  Edward  for  himself,  his  heirs,  executors,  ad- 
ministrators, and  assigns,  covenanted  with  Charles,  his  executors  and 
assigns,  that  he  Edward,  his  heirs  and  assigns,  would  pay  Charles,  his 
heirs  and  assigns,  this  rent  half-yearly,  and  would  erect  and  keep  in 
good  repair,  and,  when  necessary,  rebuild,  messuages  on  the  land 
of  the  value  of  double  the  rent.  On  the  2d  of  March,  1867,  Charles 
Jackson  conveyed  to  Haywood  to  the  use  of  Haywood,  his  heirs 
and  assigns,  the  said  chief  rent  and  all  powers  and  remedies  in  respect 
thereof,  together  with  the  benefit  of  the  said  covenant.  Edward  Jack- 
son assigned  his  interest  to  MacAndrew.  MacAndrew  by  a  deed  of 
the  8th  of  September,  1871,  mortgaged  the  premises  in  question  to  cer- 
tain persons  described  as  the  trustees  of  the  Brunswick  Building  So- 
ciety in  fee  subject  to  the  rent-charge  and  covenants  above  mentioned. 
The  building  society  was  afterwards  incorporated  under  the  Act  of 
1874,  and  under  the  mortgage  deed  took  possession  of  the  land  and  the 
buildings  on  it.  It  was  conceded  on  the  one  hand  that  buildings  of  the 
stipulated  value  had  been  erected  upon  the  land,  and  on  the  other 
that  they  had  not  been  kept  in  repair,  and  the  question  was  whether, 
under  the  circumstances  stated,  the  building  society  was  liable  upon 
the  covenant  to  keep  them  in  repair.  No  question  arose  as  to  their 
liability  to  pay  the  chief  rent,  as  the  arrears  were  paid  into  court  in 
the  action. 

The  case  was  tried  before  Stephen,  J.,  without  a  jury,  at  the  Man- 
chester Winter  Assizes,  1881,  who  reserved  it  for  further  considera- 
tion, and  after  stating  the  facts  as  above,  gave  judgment  as  fol- 
lows :     *     *     * 

The  result  is  that  there  must  be  judgment  for  the  plaintiff,  with 
costs.  There  will  be  no  damages,  the  parties  having  agreed  that  if  it  is 
formally  decided  that  the  defendants  are  to  put  the  buildings  in  repair, 
they  must  be  repaired  to  the  satisfaction  of  a  gentleman  agreed  upon. 

The  defendants  appealed. 

Dec.  3.  Brett,  L,.  J.97  This  appeal  must  be  allowed.  I  am  clearly 
of    opinion,    both   on    principle    and    on   the   authority   of    Milnes    v. 

»7  The  statement  of  facts  is  abridged,  part  of  the  opinion  of  Brett,  L.  J.fl 
and  the  concurring  opinions  of  Cotton,  L.  J.,  and  Lindley,  L.  J.,  are  omitted , 


336  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Ch.  2 

Branch,  5  M.  &  S.  411,  that  this  action  could  not  be  maintained  at 
common  law.  Mimes  v.  Branch,  5  M.  &  S.  411,  must  be  understood, 
as  it  always  has  been  understood,  and  as  Lord  St.  Leonard's,  Sug.  V. 
&  P.  (14th  Ed.)  p.  590,  understood  it,  and  it  will  be  seen,  on  a  refer- 
ence to  his  book,  that  he  considers  the  effect  of  it  to  be  that  a  cove- 
nant to  build  does  not  run  with  the  rent  in  the  hands  of  an  assignee. 

This  being  so,  the  question  is  reduced  to  an  equitable  one.  Now 
the  equitable  doctrine  was  brought  to  a  focus  in  Tulk  v.  Moxhay,  2 
Ph.  774,  which  is  the  leading  case  on  this  subject.  It  seems  to  me  that 
that  case  decided  that  an  assignee  taking  land  subject  to  a  certain 
class  of  covenants  is  bound  by  such  covenants  if  he  has  notice  of  them, 
and  that  the  class  of  covenants  comprehended  within  the  rule  is  that 
covenants  restricting  the  mode  of  using  the  land  only  will  be  enforced. 
It  may  be  also,  but  it  is  not  necessary  to  decide  here,  that  all  cove- 
nants also  which  impose  such  a  burden  on  the  land  as  can  be  enforced 
against  the  land  would  be  enforced.  Be  that  as  it  may,  a  covenant 
to  repair  is  not  restrictive  and  could  not  be  enforced  against  the  land ; 
therefore  such  a  covenant  is  within  neither  rule.  It  is  admitted  that 
there  has  been  no  case  in  which  any  court  has  gone  farther  than  this, 
and  yet  if  the  court  would  have  been  prepared  to  go  farther,  such  a 
case  would  have  arisen.  The  strongest  argument  to  the  contrary  is, 
that  the  reason  for  no  court  having  gone  farther  is  that  a  mandatory 
injunction  was  not  in  former  times  grantable,  whereas  it  is  now ;  but 
I  cannot  help  thinking,  in  spite  of  this,  that  if  we  enlarged  the  rule 
as  it  is  contended,  we  should  be  making  a  new  equity,  which  we  can- 
not do. 

I  think  also  that  Cox  v.  Bishop,  8  De  G.,  M.  &  G.  815,  26  L.  J.  (Ch.) 
389,  shews  that  a  court  of  equity  has  refused  to  extend  the  rule  of 
Tulk  v.  Moxhay,  2  Ph.  774,  in  the  direction  contended  for,  and  that 
if  we  decided  for  the  plaintiff  we  should  have  to  overrule  that  case. 
But  it  is  said  that  if  we  decide  for  the  defendants  we  shall  have  to 
overrule  Cooke  v.  Chilcott,  3  Ch.  D.  694.  If  that  case  was  decided 
on  the  equitable  doctrine  of  notice,  I  think  we  ought  to  overrule  it. 
But  I  think  there  is  much  to  shew  that  the  ground  of  the  decision  was 
that  Malins,  V.  C,  was  of  the  opinion — wrongly  as  it  now  turns  out — 
that  the  covenant  ran  with  the  land,  and  the  decision  of  the  Court 
of  Appeal  appears  to  have  proceeded  on  an  admission.     *     *     * 

Appeal  allowed.98 

os  in  Cooke  v.  Chilcott  (1876)  L.  R.  3  Ch.  Div.  694,  the  vendee  of  land 
containing  a  spring  covenanted  for  himself,  his  heirs  and  assigns  with  the 
vendor  to  erect  and  maintain  a  pumping  plant  to  furnish  the  land  held  by 
vendor  with  water.  Vice-Chancellor  Malins  held  that  this  covenant,  though 
affirmative,  could  lie  enforced  (by  an  indirect  decree)  under  the  doctrine  of 
Tulk  v.  Moxhay,  saying: 

"That  this  is  a  covenant  which  the  court  ought  to  support,  if  possible,  is 
evident.  The  defence  is  rested  partly  on  the  ground  of  the  expense  which  the 
performance  of  the  covenant  would  involve.  But  I  cannot  listen  to  a  de- 
fence of  that  kind,  because  the  defendant  bought  the  property  with  express 
notice  of  the  covenant  by  which  he  is  bound  to  supply  water  to  these  houses, 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  337 

and  it  was  for  him  to  consider,  when  he  bought  it,  whether  the  covenant  did 
or  not  involve  too  great  a  burden.  But  the  plaintiffs'  right  is  resisted  princi- 
pally on  two  grounds.  First,  it  is  said  that  the  covenant  does  not  run  with  the 
land.  Now,  there  is  no  dispute  as  to  what  acts  the  performance  of  the  cove- 
nant requires.  The  well  has  been  sunk,  and  the  defendant  is  bound  to  main- 
tain and  keep  in  repair  a  steam-engine  to  be  used  for  supplying  the  houses 
with  water  from  it.  The  defendant  also  bought  with  notice  of  the  obligation, 
and  cannot  take  the  property  without  performing  the  obligation  attached  to  it. 
It  is,  therefore,  immaterial  whether  the  covenant  runs  with  the  land,  but  I 
think  it  does  run  with  the  land.  This  is  the  case  of  two  persons  claiming 
title  under  grants  from  the  same  vendor  by  which  one  piece  of  land  became 
bound  for  the  benefit  of  the  other,  and  the  question  is  whether  the  covenant 
can  be  enforced  against  the  person  who  contracted  to  bear  the  burden.  That 
as  between  the  original  parties,  it  could  have  been  enforced,  I  cannot  enter- 
tain a  doubt ;  and  I  think  that  it  is  a  covenant  which  runs  with  the  land 
for  all  time.  I  entertain  no  doubt  that  as  between  contiguous  owners,  both 
being  sub-purchasers  under  the  same  vendor,  tbey  take  subject  to  the  burden. 
*  *  *  If  the  covenant  is  not  binding  on  the  ground  that  it  does  not  run 
with  the  land,  the  consequence  would  be  that,  though  these  contiguous  own- 
ers have  relied  on  having  it  performed,  the  defendant  might  from  this  hour 
refuse  to  supply  a  single  gallon  of  water,  and  thus  every  house  which  has 
been  erected  in  the  expectation  that  this  covenant  would  be  performed  might 
be  at  once  deprived  of  water.  It  would  be  perfectly  monstrous  that  such  a 
defence  should  be  allowed.  In  my  opinion,  therefore,  the  covenant  runs  with 
the  land,  but  it  is  immaterial  whether  it  does  or  not,  because  the  defendant 
took  with  notice  of  the  obligation.  *  *  *  I  do  not  think  it  necessary  to 
go  into  all  the  cases  which  were  cited.  But  I  think  that  when  a  contract  is 
entered  into  for  the  benefit  of  contiguous  landowners,  and  one  is  bound  by  it, 
and  the  other  entitled  to  the  benefit  of  it,  the  covenant  binds  him  forever,  and 
also  runs  with  the  land.  But  it  is  equally  clear  that  he  is  bound  by  taking 
the  land  with  notice  of  the  covenant.     *     *     * 

"Aug.  2.  The  defendant  having  appealed  against  the  order  overruling  the 
demurrer,  the  appeal  now  came  on  to  be  heard  before  the  court  of  appeal. 
The  attention  of  their  Lordships  having  been  drawn  to  the  fact  that  by  the 
statement  of  claim  it  was  alleged  that  the  defendant  had  admitted  his  lia- 
bility on  the  covenant,  the  court  of  appeal  affirmed  the  decision  of  the  Vice- 
Chancellor  without  going  into  the  points  argued  before  him  on  the  motion." 

But  this  case  was  overruled.  See  Austerberry  v.  Corporation  of  Oldham,  29 
Ch.  Div.  750  (1S85),  where  Cotton,  L.  J.,  holds:  "Here  the  covenant  which 
is  attempted  to  be  insisted  upon  on  this  appeal  is  a  covenant  to  lay  out  money 
in  doing  certain  work  upon  this  land ;  and,  that  being  so,  in  my  opinion — 
and  the  court  of  appeal  has  already  expressed  a  similar  opinion  in  a  case 
which  was  before  it — that  is  not  a  covenant  which  a  court  of  equity  will  en- 
force: it  will  not  enforce  a  covenant  not  running  at  law  when  it  is  sought  to 
enforce  that  covenant  in  such  a  way  as  to  require  the  successors  in  title  of 
the  covenantor,  to  spend  money,  and  in  that  way  to  undertake  a  burden  upon 
themselves.  The  covenantor  must  not  use  the  property  for  a  purpose  incon- 
sistent with  the  use  for  which  it  was  originally  granted:  but  in  my  opinion 
a  court  of  equity  does  not  and  ought  not  to  enforce  a  covenant  binding  only 
in  equity  in  such  a  way  as  to  require  the  successors  of  the  covenantor  himself, 
they  having  entered  into  no  covenant,  to  expend  sums  of  money  in  accord- 
ance with  what  the  original  covenantor  bound  himself  to  do.  The  case  prin- 
cipally relied  upon  by  the  appellant  was  one  before  Vice-Chancellor  Malins. 
That  was  the  case  of  Cooke  v.  Chilcott  (1876)  3  Ch.  D.  694.  Now  undoubtedly 
the  Vice-Chancellor  did  decide  that  case  on  the  equitable  doctrine,  and  said 
that  he  would  enforce  the  covenant;  but  that  is  an  authority  which  in  my 
opinion  was  not  right  on  that  point.  In  the  subsequent  case  of  Haywood  v. 
Brunswick  Permanent  Benefit  Building  Society  (1881)  8  Q.  B.  D.  403,— both 
Lord  Justice  Lindley  and  myself  were  members  of  the  court  which  decided 
that  case, — we  expressed  our  opinion  against  Cooke  v.  Chilcott  being  a  cor- 
rect development  of  the  doctrine  established  by  Tulk  v.  Moxhay  (1848)  2  Ph. 
774.  or  for  which  Tulk  v.  Moxhay  was  an  authority." 

In  London  &  South  Western  By.  Co.  v.  Cumin,  (1882)  20  Ch.  Div.  562- 
Boke  Eq.— 22 


338  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

587,  the  Court  of  Appeal  set  aside  the  decree  of  Kay,  J.,  who  had  held 
that  a  subsequent  alienee  with  notice  was  bound  by  a  covenant  to  reconvey 
for  a  stipulated  sum  as  a  restrictive  covenant  capable  of  specific  performance. 
The  view  of  the  Court  of  Appeal  was  thus  set  forth  by  Jessel,  M.  R.,  and 
Lindley,  L.  J.: 

"Jessel,  M.  R.  With  regard  to  the  argument  founded  on  Tulk  v.  Moxhay 
(1848)  2  Ph.  774,  that  case  was  very  much  considered  by  the  court  of  appeal 
at  Westminster  in  Haywood  v.  The  Brunswick  Permanent  Benefit  Building 
Society  (1SS1)  S  Q.  B.  D.  403,  and  the  court  there  decided  that  they  would  not 
extend  the  doctrine  of  Tulk  v.  Moxhay  (184S)  2  Ph.  774,  to  affirmative  cove- 
nants, compelling  a  man  to  lay  out  money  or  do  any  other  act  of  what  I  may 
call  an  active  character,  but  that  it  was  to  be  confined  to  restrictive  covenants. 
Of  course  that  authority  would  be  binding  upon  us  if  we  did  not  agree  to  it, 
but  I  most  cordially  accede  to  it.  I  think  that  we  ought  not  to  extend  the 
doctrine  of  Tulk  v.  Moxhay  in  the  way  suggested  here.  The  doctrine  of  that 
case,  rightly  considered,  appears  to  me  to  be  either  an  extension  in  equity 
of  the  doctrine  of  Spencer's  Case  (1585)  5  Co.  Rep.  16a,  to  another  line  of 
cases,  or  else  an  extension  in  equity  of  the  doctrine  of  negative  easements ; 
such,  for  instance,  as  a  right  to  the  access  of  light,  which  prevents  the  owner 
of  the  servient  tenement  from  building  so  as  to  obstruct  the  light.  The  cove- 
nant in  Tulk  v.  Moxhay  was  affirmative  in  its  terms,  but  was  held  by  the 
court  to  imply  a  negative.  Where  there  is  a  negative  covenant  expressed  or 
implied,  as.  for  instance,  not  to  build  so  as  to  obstruct  a  view,  or  not  to  use 
a  piece  of  land  otherwise  than  as  a  garden,  the  court  interferes  on  one  or 
other  of  the  above  grounds.  This  is  an  equitable  doctrine,  establishing  an  ex- 
ception to  the  rules  of  common  law  which  did  not  treat  such  a  covenant  as 
running  with  the  land,  and  it  does  not  matter  whether  it  proceeds  on  analogy 
to  a  covenant  running  with  the  land  or  on  analogy  to  an  easement.  The  pur- 
chaser took  the  estate  subject  to  the  equitable  burden,  with  the  qualification 
that  if  he  acquired  the  legal  estate  for  value  without  notice  he  was  freed  from 
the  burden.  That  qualification,  however,  did  not  affect  the  nature  of  the  bur- 
den ;  the  notice  was  required  merely  to  avoid  the  effect  of  the  legal  estate, 
and  did  not  create  the  right,  and  if  the  purchaser  took  only  an  equitable  es- 
tate he  took  subject  to  the  burden,  whether  he  had  notice  or  not.  It  appears 
to  me  that,  rightly  considered,  that  doctrine  is  not  an  authority  for  the  propo- 
sition that  an  equitable  estate  or  interest  may  be  raised  at  any  time,  not- 
withstanding the  rule  against  remoteness.     *     *     * 

"Lindley,  L.  J.  *  *  *  This  is  an  action  for  specific  performance  of  a 
contract  entered  into  not  by  the  defendant  but  by  somebody  else.  The  .first 
thing,  therefore,  the  plaintiffs  must  shew  is,  upon  what  legal  principle  the  de- 
fendant is  bound  by  a  contract  into  which  he  did  not  enter.  It  is  not  con- 
tended that  he  is  bound  by  it  on  the  ground  that  the  covenant  entered  into  by 
Powell  runs  with  the  land  and  binds  him  at  law,  but  it  is  said  that  though  it 
does  not  bind  him  at  law  it  binds  him  in  equity.  Then  upon  what  principle 
is  it  that  he  is  bound  in  equity  V  It  is  said  that  he  is  bound  in  equity  because 
he  bought  the  land  knowing  of  the  covenant  into  which  his  predecessor  in 
title  had  entered.  That  proposition  stated  generally  assumes  that  every  pur- 
chaser of  land  with  notice  of  covenants  into  which  his  vendor  has  entered 
with  reference  to  the  land  is  bound  in  equity  by  all  those  covenants.  That  is 
precisely  the  proposition  which  had  to  be  considered  in  Haywood  v.  Bruns- 
wick Permanent  Benefit  Building  Society  (1881)  8  Q.  B.  D.  403,  and  because 
it  was  sought  there  to  extend  the  doctrine  of  Tulk  v.  Moxhay  (1S48)  2  Ph.  774, 
to  a  degree  which  was  thought  dangerous,  considerable  pains  were  taken  by 
the  court  to  point  out  the  limits  of  that  doctrine.  *  *  *  The  conclusion  ar- 
rived at  by  the  court  was  that  Tulk  v.  Moxhay,  when  properly  understood, 
did  not  apply  to  any  but  restrictive  covenants.  The  case  of  Cooke  v.  Chilcott 
(1876)  3  Ch.  D.  694,  before  Vice-Chancellor  Malins  was  very  much  considered, 
but  it  was  not  followed  by  the  Court  of  Appeal.  Here  we  are  asked  to  ex- 
tend the  doctrine  of  Tulk  v.  Moxhay,  and  to  apply  it  to  a  covenant  to  sell 
land  at  any  time  for  a  specified  sum  of  money.  That  this  is  an  extension  of 
the  doctrine  cannot,  I  think,  be  denied;  and  for  the  reasons  which  were  given, 
by  the  court  of  appeal  in  the  case  to  which  I  have  referred  1  think  we  ought, 
to  decline  to  extend  that  doctrine.    If  so,  how  is  Comm  to  be  held  to  be  bound 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  339 

ATLANTA,  K.  &  N.  RY.  CO.  v.  McKINNEY. 

(Supreme  Court  of  Georgia,  1906.    124  Ga.  020,  53  S.  E.  701, 
6  L.  R.  A.  [N.  S.]  436,  110  Am.  St.  Rep.  215.) 

Error  from  Superior  Court,  Fannin  County ;    Geo.  F.  Gober,  Judge. 

Action  by  M.  McKinney  against  the  Atlanta,  Knoxville  &  Northern 
Railway  Company.  A  general  demurrer  to  the  petition  was  overruled, 
and  defendant  brings  error. 

McKinney  brought  suit  against  the  Atlanta,  Knoxville  &  Northern 
Railway  Company,  and  alleged:  On  September  13,  1886,  Andrew  W. 
Green  conveyed  to  petitioner  the  exclusive  right  to  the  use  and  con- 
trol of  all  the  springs  and  branches  upon  a  described  lot  of  land  in 
Fannin  county,  for  the  purpose  of  being  used  on  an  adjacent  lot  of 
land.  On  November  12,  1888,  petitioner  conveyed  to  the  Marietta 
&  North  Georgia  Railroad  Company  the  right  to  the  use  of  water 
from  the  branches  and  springs  on  the  said  lot  of  land,  for  the  pur- 
pose of  supplying  its  water  tank  at  Blue  Ridge,  Ga..  "in  consideration 
of  the  fact  that  said  Marietta  &  North  Georgia  Railroad  Company 
shall  carry  and  convey  sufficient  water  to  the  residence  of  said  Mc- 
Kinney for  the  ample  use  and  accommodation  of  said  residence  and 
its  occupants."  It  is  further  alleged  that  the  Atlanta,  Knoxville  & 
Northern  Railway  Company  purchased  all  the  property,  rights,  and 
franchises  of  the  Marietta  &  North  Georgia  Railroad  Company  at  a  re- 
ceiver's sale,  and  became  thereby  bound  by  all  the  conditions  of  the 
above-described  deed,  and  that  for  more  than  four  years  and  ever  since 
the  purchase  of  the  Marietta  &  North  Georgia  Railroad  the  defendant 
has  been  continuously  using  the  water  conveyed  in  the  above-described 
deed,  and  that  neither  the  defendant  nor  its  assignor  ever  carried  wa- 
ter to  the  residence  of  petitioner.  Petitioner  claimed,  as  damages 
for  the  breach  of  the  covenant,  $500  as  the  cost  of  conveying  the  wa- 
ter to  his  residence  as  contemplated  in  the  deed,  and  the  value  of  the 
use  of  the  water  at  the  rate  of  $25  per  year  since  November  12,  1888, 
the  date  of  the  covenant.  The  defendant  demurred  generally  to  the 
petition,  and  specially  to  that  portion  seeking  damages  for  the  cost  of 
conveying  the  water  to  the  petitioner's  residence.  The  special  demur- 
rer was  sustained,  and  the  general  demurrer  overruled.  To  the  judg- 
ment overruling  the  general  demurrer  the  defendant  excepted. 

Clay  &  Blair  and  Wm.  Butt,  for  plaintiff  in  error.  J.  Z.  Foster,  O. 
R.  Dupree,  and  Thos.  A.  Brown,  for  defendant  in  error. 

Cobb,  P.  J.09  (after  stating  the  foregoing  facts).  The  right  of  ac- 
tion of  the  petitioner  depends  upon  whether  or  not  the  covenant  to 
convey  water  to  his  residence  is  a  covenant  running  with  the  land. 

by  this  covenant?    He  did  not  enter  into  it,  be  is  not  bound  at  law,  and  Tulk 
v.  Moxbay  is  no  authority  for  saying  that  he  is  bound  in  equity.     Tbat  ap- 
pears to  me  to  dispose  of  this  case." 
99  Parts  of  the  opinion  are  omitted. 


340  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

If  it  is  a  real  covenant,  he  may  recover  for  its  breach  against  the  as- 
signee of  the  covenantor.  If  it  is  only  a  collateral  or  personal  cove- 
nant, he  has  no  cause  of  action.  The  determination  of  a  question  of 
this  character  is  usually  one  of  some  difficulty.  "All  covenants  are 
either  real  or  personal.  Those  so  closely  connected  with  the  realty  that 
their  benefit  or  burden  passes  with  the  realty  are  construed  to  be  cove- 
nants real ;   all  others  are  personal."     *     *     * 

Spencer's  Case,  5  Coke,  16,  1  Smith's  Leading  Cases  (9th  Ed.)  174. 
*     *     *     The  rule  as  there  laid  down  is  as  follows : 

"When  the  covenant  extends  to  a  thing  in  esse,  parcel  of  the  demise,  the 
thing  to  be  done  by  force  of  the  covenant  is  quodanimodo  annexed  and  ap- 
purtenant to  the  thing  demised,  and  shall  go  with  the  land  and  shall  bind  the 
assignee  although  he  be  not  bound  by  express  words ;  but  when  the  covenant 
extends  to  a  thing  which  is  not  in  being  at  the  time  the  demise  is  made,  it 
cannot  be  appurtenant  or  annexed  to  the  thing  which  hath  no  being." 

In  the  case  of  Atlanta  Con.  St.  Ry.  v.  Jackson,  108  Ga.  638,  34  S.  E. 
184,  Mr.  Chief  Justice  Simmons  said : 

"To  constitute  a  covenant  running  with  the  laud,  the  covenant  'must  have 
relation  to  the  interest  or  estate  granted,  and  the  act  to  be  done  must  concern 
the  interest  created  or  conveyed.'     *     *     *  " 

Under  the  rules  above  laid  down,  we  think  it  is  clear  that  this  is  a 
covenant  running  with  the  land.  It  measures  up  to  every  test  suggest- 
ed. It  not  only  relates  to  the  interest  or  estate  conveyed ;  it  is  insep- 
arably annexed  to  and  a  part  of  it,  a  charge  upon  it.  It  affects  the 
nature,  quality,  and  value  of  the  thing  demised.  It  qualifies  its  mode  of 
enjoyment;  it  restricts  its  use.  It  is  inextricably  woven  into  the 
manner  in  which  the  grantee  shall  enjoy  the  thing  demised.  "A  cove- 
nant by  a  lessor  to  supply  houses  with  water  at  a  rate  therein  men- 
tioned for  each  house  also  runs  with  the  land,  and  for  a  breach  of  it 
the  assignee  of  the  lessee  may  maintain  an  action  against  the  rever- 
sioner."    *     *     * 

The  second  rule  in  Spencer's  Case  is  stated : 

"But  when  the  covenant  extends  to  a  thiug  which  is  not  in  being  at  the 
time  the  demise  is  made,  it  cannot  be  appurtenant  or  annexed  to  the  thing 
which  hath  no  being." 

And  this  rule  was  urged  as  a  sufficient  reason  for  holding  that  the 
covenant  in  the  present  case  was  not  one  running  with  the  land.  This 
rule  has  been  severely  criticised  by  various  courts  of  this  country  and 
of  England.  See  American  notes  to  Spencer's  Case,  1  Smith's  Leading 
Cases  (9th  Ed.)  186  et  seq. ;  Aikin  v.  Albany,  Vermont  &  Canada  R. 
Co.,  26  Barb.  (N.  Y.)  294;  Masury  v.  Southworth,  9  Ohio  St.  350. 
And  see,  also,  Willcox  v.  Kehoe,  124  Ga.  484,  52  S.  E.  896,  4  L.  R. 
A.  (N.  S.)  466,  4  Ann.  Cas.  437.  But  in  the  present  case  the  facts 
do  not  make  out  a  covenant  extending  to  a  thing  not  in  esse.  The 
demise  is  of  the  right  to  convey  water  from  certain  springs  and  branch- 
es to  a  water  tank.  The  covenant  is  to  convey  a  part  of  such  water 
to  the  plaintiff's  residence.  The  covenant  extends  to  the  water  to  be 
conveyed  to  the  plaintiff's  residence.     The  water  is  the  subject-matter 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  341 

of  the  covenant.  The  manner  of  conveying  it  is  not  even  specified. 
The  fact  that  the  machinery  for  so  conveying  the  water  was  not  in 
existence  does  not  bring  the  covenant  within  the  second  rule  of  Spen- 
cer's Case.  There  is  an  element  of  futurity  in  every  covenant;  a 
covenant  is  a  promise  to  do.  The  manner  of  its  performance  is,  of 
course,  contemporaneous  with  its  performance,  and  it  is  immaterial 
whether  the  means  upon  which  the  manner  of  its  performance  is  de- 
pendent be  or  be  not  in  existence  at  the  time  the  covenant  is  made. 
Another  objection  urged  against  the  alleged  covenant  was  that  die 
deed  of  conveyance  was  a  unilateral  contract,  and  that  no  undertak- 
ing of  the  grantee  in  the  deed,  the  covenantor  in  the  present  case, 
could  be  construed  to  be  more  than  a  simple  contract,  as  he  neither 
signed  nor  sealed  the  instrument.  Unquestionably,  in  some  jurisdic- 
tions, this  would  be  a  good  objection.  It  has  been  held  that  the  mere 
acceptance  of  a  deed  poll  will  not  bind  the  grantee  therein  as  a  covenan- 
tor. See  8  Am.  &  Eng.  Enc.  Law,  65,  and  cit. ;  contra,  11  Cyc.  1045, 
and  cit.  But  this  question  is  not  open  in  this  state;  this  court  having 
adopted  the  rule  stated  in  Taylor  on  Landlord  and  Tenant,  §  245.  "It 
[a  covenant]  can  only  be  created  by  a  deed,  but  may  be  by  a  deed  poll 
(the  party  named  in  the  deed)  as  well  as  by  indenture,  but  where  lands 
are  conveyed  by  indenture  to  a  person  who  does  not  seal  the  deed,  yet  if 
he  entered  upon  the  land,  and  accepts  the  deed  in  other  matters,  he  will 
be  bound  by  the  covenants  contained  in  it.''  Georgia  Southern  Rail- 
road v.  Reeves,  64  Ga.  494. 

Judgment  affirmed.    All  the  Justices  concur. 


HALL  v.  EWIN. 

(Court  of  Appeal,  1887.    37  Ch.  Div.  74.) 

The  plaintiff,  W.  H.  Hall,  was  the  owner  of  a  house  in  Edgware 

Road,  in  the  parish  of  Paddington.     By  an  indenture  dated  the  3d  of 

November,  1849,  the  plaintiff  granted  a  lease  of  the  house  to  G.  Tar- 

lington  for  eighty  years.    The  lease  contained  a  covenant  by  the  lessee 

for  himself,  his  heirs,  executors,  administrators,  and  assigns,  in  the 

following  terms : 

"That  he,  his  executors,  administrators,  and  assigns,  shall  not  at  any  time 
during  the  said  term  use,  exercise,  or  carry  on  in  or  upon  the  said  hereby 
demised  premises,  or  permit  or  suffer  any  part  thereof  to  be  occupied  by  any 
person  or  persons  who  shall  use,  occupy,  or  carry  on  therein  any  noisome  cr 
offensive  trade,  business,  or  employment  whatsoever  without  the  like  consent 
in  writing  of  the  said  W.  H.  Hall,  his  heirs  or  assigns,  first  obtained." 

By  an  indenture  dated  the  11th  of  January,  1851,  G.  Tarlington  de- 
mised the  premises  to  R.  S.  Ruddach,  for  the  residue  of  the  term  of 
eighty  years,  except  the  last  three  days  thereof,  by  way  of  mortgage 
for  securing  the  repayment  of  a  principal  sum  and  interest. 

By  an  indenture  dated  the  19th  of  September,  1865,  the  executors  of 


342  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

R.  S.  Ruddach,  under  the  power  of  sale  contained  in  the  mortgage 
deed,  assigned  the  premises  for  the  residue  of  the  term  of  eighty  years, 
except  the  last  three  days  thereof,  to  the  defendant  John  Ewin. 

By  an  indenture  dated  the  29th  of  October,  1885,  the  defendant 
John  Ewin  demised  the  premises  to  the  defendant  George  McNeff  for 
twenty-one  years.  This  lease  contained  the  following  covenant  by  Mc- 
Neff :' 

"And  also  shall  not  at  any  time  during  the  said  term  use,  exercise,  or  carry 
on  in  or  upon  the  said  demised  premises  any  noisome  or  offensive  trade,  busi- 
ness, or  employment  whatsoever  without  the  like  consent  in  writing  of  the 
said  John  Ewin,  his  executors,  administrators,  or  assigns,  first  obtained." 

In  the  month  of  February,  1886,  the  defendant  McXeff  purchased 
some  lions,  and  opened  an  exhibition  of  wild  beasts  on  the  premises. 
He  exhibited  pictures  outside  the  house,  and  employed  black  men  .to 
parade  in  front  of  it  with  a  gong  and  trumpet,  so  that  the  neighbours 
complained  of  the  nuisance. 

The  present  action  was  brought  by  W.  H.  Hall  and  C.  Breitbart,  who 
wras  a  carver  and  gilder,  keeping  a  shop  two  doors  from  the  premises 
in  question,  asking  for  an  injunction  to  restrain  Ewin  and  McNeff 
from  using  the  premises  as  an  exhibition  of  wild  animals,  or  otber- 
wise,  so  as  to  cause  a  nuisance  to  the  plaintiffs,  and  also  from  carrying 
on  upon  the  premises,  or  permitting  or  suffering  any  part  thereof  to  be 
occupied  by  any  person  carrying  on,  any  noisome  or  offensive  trade  or 
business  without  the  consent  in  writing  of  the  plaintiff  W.  H.  Hall. 

In  his  defense  the  defendant  Ewin  pleaded  that  if  the  allegations  in 
the  statement  of  claim  were  correct  they  created  no  cause  of  action 
against  him,  that  none  of  the  acts  complained  of  had  been  committed 
by  him.  and  that  he  had  given  no  consent  in  writing  to  the  acts  com- 
plained of ;  but,  on  the  contrary,  he  had  done  all  in  his  power,  save  by 
bringing  an  action,  to  induce  McNeff  to  desist  from  any  acts  which 
might  cause  annoyance  to  the  neighbourhood,  and  that  he  was  not 
liable  for  the  alleged  acts  of  McNeff. 

The  existence  of  the  nuisance  was  sufficiently  proved  by  the  evidence. 
There  was  no  evidence  of  Ewin  having  in  any  way  encouraged  or 
consented  to  the  exhibition  complained  of.  Three  letters  were  put  in 
evidence  from  the  plaintiffs'  solicitors  to  Ewin,  dated  the  9th  and 
15th  of  February,  and  the  13th  of  March,  1886,  complaining  of  the 
nuisance,  to  which  Ewin  made  no  reply.  It  also  appeared  that  on  the 
12th  of  March  the  clerk  of  the  plaintiffs'  solicitors  called  on  Ewin. 
The  latter  was  ill  and  did  not  see  him,  but  sent  a  message  down  to 
him  that  he  would  speak  to  McXeff  at  once  upon  the  subject.  On  the 
1 5th  of  March  McNeff  wrote  to  the  solicitors  stating  that  he  had 
closed  the  exhibition  out  of  respect  to  the  wishes  of  his  landlord.  It 
was  not,  however,  really  closed  for  two  or  three  days  afterwards. 

On  the  18th  of  March  the  plaintiffs  issued  the  writ  in  the  action, 
asking  for  an  injunction  and  damages;  and  on  the  following  day 
gave  notice  of  motion  for  an  interim  injunction,  which  was  granted. 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  343 

The  case  was  heard  on  the  3d  of  May,  1887,  before  Mr.  Justice 
Kekewich.  His  Lordship  was  of  opinion  that  although  Ewin  was  not 
an  assignee  of  the  lease,  he  was  equitably  bound  by  the  covenant,  and 
that  as  he  had  the  power  to  enforce  his  own  covenants  against  Mc- 
Xeff  and  to  stop  the  nuisance,  he  had  broken  the  covenant  against 
suffering  the  premises  to  be  used  for  the  purpose  of  carrying  on  a  noi- 
some occupation.  He  therefore  granted  the  injunction  against  both  of 
the  defendants,  with  costs.  From  this  judgment  the  defendant  Ewin 
appealed. 

Cotton,  L.  J.1  This  is  an  appeal  by  the  defendant  Ewin  against 
a  judgment  of  Air.  Justice  Kekewich,  granting  an  injunction  restraining 
him  from  the  breach  of  a  certain  covenant  in  a  lease.  Is  this  right? 
Ewin  is  in  this  position  :  The  plaintiff  Hall  granted  a  lease  contain- 
ing the  covenant  in  question,  and  the  lessee  made  a  mortgage  of  the 
lease  by  underlease,  and  the  mortgagee  sold  his  interest  under  the 
power  of  sale  to  Ewin ;  therefore  Ewin  was  merely  an  underlessee 
and  was  not  bound  at  law  by  the  covenants  in  the  original  lease.  He 
would  have  been  bound  if  he  had  taken  an  assignment  of  the  estate  of 
the  lessee  under  the  lease,  but  he  took  no  such  assignment.  It  is  use- 
less to  consider  whether  if  Ewin  had  been  bound  at  law  the  plaintiff 
could  have  maintained  an  action  against  him  and  got  damages.  If  the 
plaintiff  is  entitled  to  relief  in  this  case  it  must  be  not  on  the  ground  of 
breach  of  covenant,  but  on  the  ground  that  he  is  equitably  bound,  on 
the  principle  laid  down  in  Tulk  v.  Moxhay,  2  Ph.  774,  to  use  the  house 
in  conformity  with  the  covenants  in  the  lease.  I  am  of  opinion  that  it 
would  be  an  extension  of  the  principle  of  Tulk  v.  Moxhay  to  hold  him 
liable  to  an  injunction  in  such  a  case  as  this.  The  words  of  the  cove- 
nant in  the  original  lease  are  these.  [His  Lordship  read  the  covenant.] 
Then  what  are  the  facts?  The  defendant  Ewin,  who  was  himself  an 
underlessee,  granted  an  underlease  to  McNeff,  in  which  there  was  a 
covenant  that  he  could  not  exercise  any  noisome  or  offensive  trade  or 
business  without  the  consent  in  writing  of  Ewin.  If  the  plaintiffs  had 
shewn  that  Ewin  had  granted  this  underlease  for  the  purpose  of  its 
being  used  for  an  offensive  trade  or  had  granted  a  written  license  to 
McXeff  so  to  use  it,  he  would  have  acted  in  a  way  inconsistent  with 
the  covenants  in  the  original  lease,  and  I  should  have  had  no  hesita- 
tion in  granting  an  injunction  against  him;  but  he  has  done  nothing 
of  the  kind,  and  the  case  made  against  him  is  that  by  standing  by 
and  allowing  the  house  to  be  used  for  the  exhibition  of  wild  beasts,  he 
has  acted  in  violation  of  the  covenant.  I  give  no  opinion  whether  the 
plaintiff  would  have  had  a  right  of  action  against  him  if  he  had  been 
bound  in  law  by  the  covenant.  There  is  no  doubt  that  under  the  prin- 
ciple of  Tulk  v.  Moxhay,  2  Ph.  774,  if  a  man  had  actually  done  any- 
thing in  contravention  of  the  covenants  of  which  he  bad  notice,  the 
court  would  grant  an  injunction.     As  I  understand  Tulk  v.  Moxhay, 

1  The  concurring  opinions  of  Lindley  and  Lopes,  L.  JJ.,  are  omitted. 


344  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

the  principle  there  laid  down  was  that  if  a  man  bought  an  underlease, 
although  he  was  not  bound  in  law  by  the  restrictive  covenants  of  the 
original  lease,  yet  if  he  purchased  with  notice  of  those  covenants  the 
court  of  chancery  could  not  allow  him  to  use  the  land  in  contravention 
of  the  covenants.  That  is  a  sound  principle.  If  a  man  buys  land  sub- 
ject to  a  restrictive  covenant,  he  regulates  the  price  accordingly,  and 
it  would  be  contrary  to  equity  to  allow  him  to  use  the  land  in  con- 
travention of  the  restriction.  But  here  the  plaintiff  does  not  seek  to 
restrain  Ewin  from  using  the  house  in  a  particular  way,  or  from  doing 
something  which  will  enable  the  tenant  so  to  use  it,  but  to  compel  him 
to  bring  an  action  against  his  tenant  who  is  in  possession  of  the  house. 
The  principle  of  Tulk  v.  Moxhay  has  never  been  carried  so  far  except 
in  a  case  before  Vice-Chancellor  Malins.  Cooke  v.  Chilcott,  3  Ch.  D. 
694.  The  question  came  practically  before  the  court  of  appeal  in  Hay- 
wood v.  Brunswick  Permanent  Benefit  Building  Society,  8  Q.  B.  D. 
403,  and  the  court  there  laid  down  that  the  principle  in  Tulk  v.  Mox- 
hay was  not  to  be  applied  so  as  to  compel  a  man  to  do  that  which  will 
involve  him  in  expense.  The  covenant  in  Haywood  v.  Brunswick  Per- 
manent Benefit  Building  Society  was  to  repair  buildings  on  the  land, 
and  was  therefore  as  much  with  reference  to  the  land  as  the  covenant 
in  this  case,  but  the  court  would  not  compel  the  defendant,  who  was 
the  assignee  of  the  original  grantee,  to  repair  the  buildings.  There  is 
no  evidence  in  this  case  that  the  defendant  Ewin  has  given  any  license 
to  his  tenant  to  do  the  act  complained  of.  I  think  it  would  be  wrong 
to  make  an  order  that  would  have  the  effect  of  compelling  him  to 
bring  an  action,  or  of  making  him  liable  to  damages  if  he  did  not 
bring  an  action.  It  is  said  that  he  did  nothing  to  prevent  the  use  of 
the  house  in  the  way  complained  of.  But  before  the  action  was 
brought  it  appears  from  the  evidence  that  the  clerk  of  the  plaintiffs' 
solicitor  called  at  the  house  of  the  defendant  Ewin,  and  that  Ewin 
informed  him  that  he  would  see  AIcNeff  about  the  matter,  and  then 
the  plaintiff  himself  puts  in  evidence  a  letter  from  McNeff  saying 
that  out  of  respect  to  Ewin's  wishes  he  had  stopped  the  exhibition. 
It  is  true  that  the  statement  of  McXeff,  that  the  exhibition  was  closed, 
was  false,  but  the  plaintiff  has  not  proved  that  it  was  false  that  Ewin 
had  requested  him  to  stop  it.  So  that  on  the  evidence  it  stands  that 
there  is  no  proof  that  the  defendant  gave  permission  to  his  tenant  to 
open  the  exhibition,  but  it  does  appear  that  he  spoke  to  him  and  re- 
quested him  to  discontinue  it.  I  think  it  would  be  wrong  to  grant  an 
injunction  against  Ewin  under  these  circumstances.  The  injunction 
against  him  must  therefore  be  discharged. 

With  respect  to  the  costs,  I  was  at  first  of  opinion  that,  having 
regard  to  the  fact  that  Ewin  did  not  answer  the  letters  sent  to  him  by 
the  plaintiffs'  solicitor,  the  action  ought  .to  be  dismissed  against  him 
without  costs ;  but  considering  the  fact  that  before  the  action  was 
brought  the  clerk  of  the  solicitor   was  told   that  the  defendant  was 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  345 

doing  something  to  induce  his  tenant  to  stop  the  exhibition,  I  think 
we  can  not  do  otherwise  than  dismiss  the  action  against  him,  with 
costs,  in  the  usual  way.2 


ABBEY  v.  GUTTERES. 
(Chancery  Division,  1911.    55  Solicitors'  Journal,  364.) 

In  this  action  the  plaintiff  sought  an  injunction  to  enforce  the  keep- 
ing closed  of  certain  windows  in  a  flat  occupied  by  the  defendant.  In 
1898  Mrs.  Bethell,  the  plaintiff's  predecessor  in  title,  was  the  owner 
of  a  house  called  Chelsea  Lodge,  which  adjoined  property  belonging  to 
Sir  Chas.  Oppenheim.  In  1897  the  latter  had  entered  into  an  agree- 
ment with  a  builder,  Lovat,  under  which  Lovat  was  to  erect  a  block 
of  flats  on  the  said  property,  on  the  completion  of  which  a  lease  for 
ninety-nine  years  was  to  be  granted  him.  On  the  13th  of  May,  1898, 
before  the  flats  were  erected,  Lovat  entered  into  an  agreement  with 
Mrs.  Bethell,  whereby  he  agreed  that  the  lower  sashes  of  the  windows 
of  the  proposed  flats  facing  Chelsea  Lodge  should  be  glazed  with 
opaque  glass,  and  permanently  fixed.  In  1899  the  flats  were  completed 
and  the  lease  granted  to  Lovat,  who  mortgaged  it  in  1902,  subsequent- 
ly releasing  the  equity  of  redemption.  In  1909  the  defendant  became 
tenant  of  one  of  the  flats  on  a  twenty-one  years'  lease,  and  opened  one 
of  the  windows  which  had  been  fixed,  whereupon  the  plaintiff  insti- 
tuted proceedings. 

Warrington,  J.,  after  reviewing  the  facts,  continued :  There  are 
three  points  of  defence  raised  in  this  action :  First,  that  the  covenant 
is  not  one  which  comes  within  the  equitable  doctrine  in  accordance 
with  which  covenants  may  be  made  to  run  with  land,  because  it  is  not 
restrictive.  Second,  that  the  obligation  was  created  by  a  person  who 
had  no  power  to  bind  the  land.  Third,  that  the  defendant  is  in  the 
position  of  a  bona  fide  purchaser  for  value  without  notice.  As  to  the 
first,  it  is  said  the  covenant  is  not  restrictive  because  not  negative. 
Now  a  restrictive  covenant  is  one  that  restricts  the  enjoyment  of  land. 
When  a  person  in  possession  of  land  binds  himself  to  maintain  a  build- 
ing, or  part  thereof,  in  a  certain  condition  he  enters  into  an  obligation 
restrictive  of  his  full  enjoyment  of  the  land.  It  is  not  necessary  that 
there  should  be  an  express  negative  covenant ;  a  negative  may  be  im- 
plied. I  think,  therefore,  that  this  covenant  is  restrictive.  Secondly, 
it  is  said  that  at  the  date  of  the  covenant  Lovat  was  a  mere  licensee, 
with  no  estate  or  interest  in  the  land,  and  therefore  could  not  bind  it. 
The  building  agreement  is  one  in  ordinary  form — that  when  certain 
things  have  been  done  a  lease  will  be  granted.  Under  such  an  agree- 
ment, as  stated  by  Collins,  M.  R.,  in  Quick  v.  Chapman  (1903)  1  Ch. 

2  "It  is  not  at  all  necessary  that  the  person  enjoined  should  he  standiug  in 
the  legal  shoes  of  the  covenantor."  Maitland,  Lectures  on  Equity,  16S,  citing 
Mander  v.  Falcke  (C.  A.  1801)  2  Ch.  554. 


346  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

659,  the  builder  "has  at  the  most  a  kind  of  licence,  coupled  with  an 
interest  in  the  land."  He  has  an  interest  because,  on  the  fulfiling  of 
certain  conditions,  he  may  require  a  lease  to  be  granted  him.  I  can- 
not see  why  he  cannot  create  a  charge  on  the  land,  limited  to  his  in- 
terest therein.  He  has  in  equity  a  right  to  call  for  a  lease,  subject  to 
the  fulfilment  of  certain  conditions ;  he  has  an  equitable  interest  which 
will  ripen  into  a  legal  interest.  Why  should  he  not  create  an  obliga- 
tion to  be  coincident  with  his  interest?  If  he  mortgaged  his  expectant 
right  to  obtain  a  lease,  he  could  not  say  that  the  mortgage  was  invalid 
after  he  had  obtained  it.  I  think,  therefore,  that  the  second  defence 
fails.  Lastly,  as  to  notice.  The  onus  is  on  the  defendant  to  prove 
that  she  had  none.  She  made  no  investigation  of  title  at  all,  and  the 
result  of  that  is  well  expressed  by  Romer,  L.  J.,  in  Nisbet  &  Potts' 
Contract  (1906)  1  Ch.  408,  the  effect  of  which  is  that  a  purchaser  ac- 
cepts a  less  than  forty  years'  title  at  his  own  risk.  In  this  case  if  the 
defendant  had  wanted  to  investigate  the  title  she  would  not  have  been 
entitled  to  do  so;  but  for  the  purposes  of  this  case  she  must  be  treated 
as  if  she  was  entitled  to  a  forty  years'  title.  Now  this  agreement  se- 
cures certain  benefits  of  light  over  the  garden  of  Chelsea  Lodge  to  the 
premises  in  question,  and  is  therefore  the  title  part  of  what  the  pur- 
chaser was  going  to  acquire,  and  would  therefore  have  been  disclosed 
by  the  vendor  to  the  purchaser  in  the  ordinary  course  of  business,  if 
a  full  forty  years'  title  had  been  furnished.  The  defendant,  therefore, 
must  be  considered  to  have  had  full  notice  of  the  covenant.  As  all  the 
defences  fail,  the  plaintiff  is  entitled  to  an  injunction  to  restrain  the 
defendant  from  opening  the  windows  in  question ;  or  from  keeping 
the  lower  sashes  otherwise  than  permanently  fixed ;  but  the  plaintiff 
will  find  himself  in  difficulties  if  he  asks  for  an  injunction  that  the  said 
windows  be  kept  glazed  with  opaque  glass. 


SANFORD  v.  KEER. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1912.    SO  N.  J.  Eq.  240, 
83  Atl.  225,  40  L.  R.  A.  [N.  SJ  1090.) 

Appeal  from  Court  of  Chancery. 

Bill  in  equity  by  Margaret  J.  Sanford  against  Ernest  F.  Keer. 
From  a  decree  for  defendant,  complainant  appeals. 

The  complainant  and  her  husband  (who  is  now  deceased,  and  whose 
share  has  passed  to  her)  were  the  owners,  by  the  entirety,  of  a  tract 
of  land  on  the  north  side  of  Clinton  avenue,  in  the  city  of  Newark, 
which  they  laid  out  into  building  lots,  opening  up  streets  (Shanley,  for- 
merly Sanford,  avenue,  South  Tenth  street,  and  South  Eleventh  street, 
running  north  and  south,  and  Madison  avenue,  running  east  and  west) 
through  it,  and  of  which  they  prepared  a  plan,  showing  the  streets  and 
the  building  lots  thereon.    They  sold  a  very  large  portion  of  these  lots, 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  347 

and  conveyed  them  to  the  respective  purchasers  under  and  subject  to 
express  restrictive  covenants  against  their  use  for  other  than  residen- 
tial purposes,  and  providing  for  improvements  of  a  character  indicated 
by  the  terms  of  the  covenants,  which  terms  varied  somewhat  in  the 
different  sections  of  the  tract,  apparently  in  accordance  with  the  class 
of  improvements  intended  to  be  promoted  in  each  section.  All  the  lots 
sold,  however,  were  restricted  for  residential  purposes  and  dwelling 
house  improvements  of  one  class  or  another.  The  original  mansion 
house  portion  of  the  tract,  where  complainant  and  her  husband  lived 
when  the  sales  took  place,  and  where  she  still  resides,  and  which  she 
now  owns,  occupies  nearly  the  entire  block  on  the  west  side  of  South 
Tenth  street  from  Clinton  avenue  to  Madison  avenue,  and  the  lots, 
nine  in  number,  on  the  opposite,  or  easterly,  side  of  South  Tenth  street 
in  this  block,  including  the  lot  in  question  now  owned  by  defendant, 
have  all  been  sold,  except  one,  which  complainant  still  owns,  and  con- 
veyed, subject  to  the  express  restrictive  covenants  that  the  grantee,  his 
heirs  and  assigns,  will  not  erect,  suffer  or  permit  to  be  erected,  there- 
on, within  a  period  of  50  years,  any  building  whatsoever  other  than  a 
private  dwelling  house,  such  private  dwelling  house 'to  be  used  only 
as  and  for  a  private  residence  and  for  one  family  only ;  that  it  should 
set  back  from  the  street  line  30  feet  to  the  piazza  line,  or  39  feet  to 
the  main  building  (except  the  one  on  the  corner  of  Madison  avenue, 
which  had  to  set  back  42  feet),  and  that  it  should  cost  at  least  $5,- 
000.     *     *     * 

The  defendant  owns  a  lot  fronting  on  South  Tenth  street  and  direct- 
ly opposite  the  mansion  house  owned  and  occupied  by  complainant,  as 
aforesaid,  and  about  the  middle  of  the  block  in  question,  which  lot  he 
bought  from  one  Weston,  a  grantee  from  complainant  and  her  hus- 
band.    *     *     * 

Defendant  has  constructed  a  garage,  not  upon  the  rear  of  his  lot, 
but  in  substantially  the  exact  location  (40  feet  from  the  curb  line) 
thereon  specified  by  the  restrictive  covenant  for  a  dwelling  house.  He 
has  not  constructed  any  dwelling  house  on  this  lot,  but  resides  in  a 
dwelling  house  on  another  lot  which  he  owns,  fronting  on  Shanley  ave- 
nue and  abutting  up  to  the  lot  in  question  in  the  rear ;  and  he  uses  the 
garage  in  connection  with  his  dwelling  house  on  said  other  lot. 

The  bill  was  filed  promptly  upon  the  commencement  of  the  building 
of  the  garage,  a  restraining  order  was  applied  for  and  refused,  and 
the  defendant  proceeded  with  and  completed  the  garage  at  his  peril. 
Upon  final  hearing,  a  decree  was  entered,  refusing  the  injunction 
prayed  for  and  dismissing  the  bill,  and  the  present  appeal  is  from  that 
decree. 

White;,  J.3  *  *  *  The  complainant  in  her  bill  expressly  repu- 
diates any  general  or  neighborhood  scheme  of  restrictive  covenants, 
and  bases  her  prayer  for  relief  upon  the  individual  and  particular  cov- 

3  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


348  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

enant  (above  recited  in  full)  entered  into  with  her  by  defendant's  ven- 
dor and  appearing  in  his  chain  of  title.  It  is  beyond  question,  and  is 
admitted,  that  what  defendant  has  done  is  a  clear  violation  of  the  terms 
of  this  covenant,  and  that  he  purchased  with  complete  notice  of  these 
terms.  Under  these  circumstances,  standing  alone,  it  is  too  well  set- 
tled to  require  discussion  that  complainant,  whose  remaining  property, 
still  owned  by  her,  is  clearly  injured  by  the  breach,  is  entitled  in  equity 
to  enforce  performance  of  the  covenant  against  the  defendant.  Tulk 
v.  Moxhay,  2  Phil.  744- ;  Coudert  v.  Sayre,  46  N.  J.  Eq.  386,  19  Atl. 
190;  Hayes  v.  Waverly  &  Passaic  R.  R.  Co.,  51  N.  J.  Eq.  345,  27  Atl. 
648;  and  other  cases  too  numerous  to  mention.  The  defendant,  on 
the  other  hand,  invokes  in  defense  two  principles,  which,  if  substan- 
tiated by  the  facts,  are  almost,  if  not  quite,  equally  well  settled. 

The  first  is  that  the  covenant  in  question  formed  part  of  a  general 
or  neighborhood  scheme,  and  that  this  scheme,  in  so  far  as  it  is  involved 
in  this  violation,  has  been  abandoned  by  mutual  consent  and  acqui- 
escence of  all  parties  in  interest,  including  the  complainant,  not  only 
by  permitted  violations  of  its  requirement  in  several  cases  where  it  did 
appear  in  the  covenants,  but  by  its  entire  omission  from  the  covenants 
upon  some  of  the  lots,  and  the  substitution  in  place  of  it  of  express 
consent  to  such  violation.  This  point,  if  applicable  to  the  facts,  is  fatal 
to  the  relief  asked  by  complainant.  In  a  neighborhood  scheme,  the 
burden  follows  the  benefit.  It  is  the  mutual  benefit  accruing  to  all  and 
to  each  which  makes  it  inequitable  for  any  one  so  benefited  to  repudi- 
ate the  burden  to  the  injury  of  the  others.  If,  therefore,  the  parties  in 
interest,  by  express  act  or  passive  acquiescence,  permit  such  violations 
of  the  plan  or  scheme  as  destroy,  wholly  or  partially,  the  benefit  there- 
from, they  have  to  a  corresponding  extent  absolved  each  other  from 
its  burdens.  *  *  *  In  Peek  v.  Matthews,  L.  R.  3  Eq.  Cas.  515, 
it  was  said: 

"The  vendor  in  such  cases,  stipulating  for  the  benefit  of  himself  and  others, 
as  a  quasi  trustee  for  them,  is  bound  to  enforce  the  covenant  as  much  against 
one  as  against  the  other." 

See,  also,  Ocean  City  Ass'n  v.  Headley,  62  N.  J.  Eq.  322,  50  Atl. 

7g        *       *       * 

Turning,  now,  to  the  present  case,  the  Vice  Chancellor  found  as  a 
fact  that  the  restrictive  covenants  contained  in  the  deeds  from  com- 
plainant and  her  husband  for  the  various  lots  of  this  tract  which  were 
sold  constituted  a  general  or  neighborhood  scheme;  and  an  examina- 
tion of  the  evidence  completely  confirms  this  view.  There  was  a  plan 
of  the  lots,  with  the  streets  and  avenues  laid  out  thereon,  exhibited  to 
the  purchasers,  who  were  induced  to  buy  by  representations  that  the 
value  of  their  proposed  improvements  would  be  protected  by  the  fact 
that  restrictions  were  placed  on  all  lots  as  sold ;  and  the  nature  and 
provisions  of  these  restrictions  were  explained  to  them  according  to 
the  particular  section  in  which  they  proposed  to  purchase.     *     *     * 

As  incidental  to  this  general  purpose,  there  was  also  a  start  made 


Sec.  5)  EQUITABLE   INTERESTS RESTRICTIVE   AGREEMENTS  349 

to  restrict  against  outbuildings  of  any  character,  but  this  part  of  the 
restriction,  where  it  was  imposed,  has  been  modified  by  mutual  acqui- 
escence by  the  insertion,  in  place  of  it,  in  some  of  the  conveyances,  in 
connection  with  the  dwelling  house  covenants,  of  the  phrase,  "with 
necessary  or  desirable  outbuildings,"  and  by  its  violation,  in  one  or 
more  instances,  by  the  erection  of  a  garage  on  the  rear  of  a  lot  upon 
which  a  dwelling  house  was  constructed  in  conformity  with  the  dwell- 
ing house  restriction.  We  do  not  think,  however,  that  this  modifica- 
tion of  this  incidental  feature  is  of  such  a  nature  as  to  destroy  or  im- 
pair the  mutual  benefit  to  the  lot  owners  of  the  essential  general  dwell- 
ing house  scheme  upon  the  protection  of  which  they  relied.  So  far  as 
the  modification  of  what  may  be  called  the  incidental  "no  outhouse 
scheme"  is  concerned,  of  course,  defendant's  covenant  is  likewise  mod- 
ified, so  that  his  burden  will  correspond  with  his  benefit;  but,  as  to 
the  main  essential  purpose  of  the  neighborhood  dwelling  house  scheme, 
we  think  defendant's  lot  continues  to  participate  in  its  benefit,  and  con- 
sequently remains  subject  to  its  burden. 

This  being  the  case,  the  question  arises :  Does  the  construction  of 
the  defendant's  garage,  not  on  the  rear  of  his  lot  behind  a  dwelling 
house  constructed  thereon  in  conformity  with  the  covenant,  but,  in- 
stead of  that,  constructed  without  any  dwelling  house  on  the  lot  at  all, 
and  in  the  very  place  fixed  by  the  covenant  for  the  dwelling  house  to 
go,  fall  within  the  modification  of  the  incidental  outhouse  covenant,  so 
as  to  be  protected  by  such  modification?  We  not  only  think  that  it 
does  not,  but,  on  the  contrary,  that  it  is  a  violation  of  the  essential  and 
beneficial  purpose  and  effect  of  the  neighborhood  dwelling  house 
scheme.  This  scheme  gave  each  lot  owner,  who  paid  a  higher  price 
for  his  lot  with  that  in  view  and  constructed  his  dwelling  house  in  ac- 
cordance with  the  covenant,  the  right  to  expect  that  the  improvement 
upon  his  neighbor's  lot,  in  close  proximity  to  his  own  dwelling  house 
and  fronting  upon  an  uniform  building  line,  would  be  a  similar  dwell- 
ing, or  one  at  least  of  the  designated  cost.  The  advantages  to  him  of 
such  an  arrangement  are  too  obvious  to  require  discussion.  Instead  of 
this,  he  finds  as  the  neighboring  improvement  a  sheet  iron  garage  build- 
ing of  probably  comparatively  trifling  expense  as  compared  with  the 
cost  of  the  improvement  which  he  had  a  right  to  expect,  and  doubtless 
of  such  displeasing  appearance  as  to  quite  justify  the  taste  of  the  own- 
er in  placing  it  beside  some  one  else's  dwelling  house,  instead  of  be- 
side his  own. 

While  we  entirely  agree,  therefore,  with  the  view  of  the  Vice  Chan- 
cellor that  there  was  in  this  instance  a  neighborhood  scheme,  we  think 
he  erred  in  his  conclusion  that  it  had  been  abandoned  in  such  essential 
features  as  to  justify  its  violation  in  the  manner  in  which  defendant 
has  violated  it. 

The  other  principle  invoked  by  the  defendant  to  justify  his  violation 
of  this  covenant  is  that,  by  reason  of  other  similar  constructions  (ga- 
rages) in  alleged  similar  locations  with  reference  to  complainant's  re- 


350  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

maining  property,  the  violated  covenant,  in  so  far  as  it  is  violated,  has 
ceased  to  have  any  beneficial  value  to  complainant's  property,  and  con- 
sequently can*  form  no  ground  for  equitable  relief.  This  principle,  if 
applicable,  would  also  be  decisive.     *     *     * 

The  facts  in  this  case,  however,  fall  very  far  short  of  bringing  it 
within  the  operation  of  this  doctrine.     *     *     * 

For  the  reasons  above  stated,  the  decree  of  the  Court  of  Chancery 
is  reversed,  and  the  case  is  remanded  to  that  court,  in  order  that  a  de- 
cree may  be  entered  in  accordance  with  the  opinion  herein  expressed. 


SECTION   6.— PERFORMANCE   IN   PART  WITH   COMPEN- 
SATION FOR  DEFICIENCY 


ROFFEY  v.  SHALLCROSS. 

(In  Chancery  before  Sir  John  Leach,  1819.     4  Madd.  227,  56  E.  R.  690.) 

A  person  purchased,  under  a  decree,  two-sevenths  of  an  estate,  in 
one  lot.  There  was  a  good  title  to  one-seventh,  but  not  to  the  other 
one-seventh;  and,  upon  this,  The  Vice  Chancellor  held  that  the 
purchaser  was  at  liberty  to  be  discharged  from  the  whole  of  his  pur- 
chase.4 


HILL  v.  BUCKLEY. 

(In  Chancery  before  Sir  William  Grant,  M.  R.,  1811.     17  Yes.  391, 
31  E.  R.  153.) 

The  bill  prayed  the  specific  performance  of  a  contract  for  the  sale  of 
an  estate  by  the  Defendants,  devisees  in  trust,  to  the  Plaintiff;  with 
an  abatement  out  of  the  purchase  money,  in  respect  of  a  deficiency  in 
quantity. 

The  particular  represented  Kestle  Woods,  part  of  the  premises  in- 
cluded in  the  contract,  as  containing  two>  hundred  and  seventeen  acres 

4  The  cases  are  conflicting  on  this  subject ;  but  it  is  unnecessary  to  enu- 
merate them,  as  they  are  all  stated  in  Sugd.  Vend.  &  Purch.  (5th  Ed.)  246 
et  seq.  Lord  Eldon  is  there  represented  to  have  been  of  opinion  that  where 
there  is  a  purchase  of  two  lots,  and  no  title  can  be  made  to  one  lot,  the  pur- 
chaser is  bound  to  take  the  lot  to  which  a  good  title  can  be  made,  unless  there 
was  an  understanding  that  the  purchaser  was  not  to  take  any  of  the  lots  un- 
less he  could  obtain  them  all ;  but,  in  an  analogous  case.  Ex  parte  Tilsley, 
Jan.  22,  1819,  where  there  was  a  purchase  of  two  lots,  under  a  sale  in  lunacy, 
and  the  biddings  were  sought  to  be  opened  as  to  one  lot,  his  Lordship  would 
not  suffer  the  sale  of  that  one  lot  to  be  opened,  unless  the  other  was,  excepl 
the  purchaser  chose  to  keep  the  lot  as  to  which  the  bidding  was  not  sought 
to  be  opened,  because  he  might  not  have  bought  that  lot  unless  he  was  to 
have  both. 


Sec.  G)  COMPENSATION   ON   PARTIAL   BREACH  351 

and  ten  perches  of  Statute  measure;  in  which  was  included  a  marsh, 
called  Gulberry  Marsh. 

The  draft  of  the  agreement,  sent  by  the  Defendant's  agent  to  the 
agent  for  the  Plaintiff,  by  whom  it  was  engrossed,  described  the  woods 
as  containing,  together  with  the  hedges  and  fences  thereof,  two  hun- 
dred and  seventeen  acres  and  ten  perches,  and  the  meadow  adjoining 
the  said  woods,  called  Gulberry  Marsh,  as  containing  two  acres  and 
twenty-four  perches. 

The  bill  stated,  that,  upon  perusing  the  draft  of  the  contract,  previ- 
ous to  the  engrossment,  the  Plaintiff  objected  to  the  words,  "be  the 
same  more  or  less,"  being  added  to  the  specification  of  the  quantity  of 
acres;  as  the  woods  were  stated  in  the  particular  to  contain  two  hun- 
dred and  seventeen  acres  and  ten  perches ;  and  the  Plaintiff  and  his 
agent  had  no  opportunity  of  ascertaining  the  correctness  of  the  state- 
ment:  but  the  Plaintiff  formed  his  judgment  of  the  value  from  the 
particular,  and  therefore  insisted  that  such  words  should  be  omitted  in 
the  engrossment.  The  Plaintiff's  agent,  having  engrossed  the  contract 
accordingly,  with  that  alteration,  transmitted  it  to  the  Defendant's 
agent  for  his  signature ;  with  a  letter,  stating,  that  he  had  made  some 
alterations,  of  no  material  consequence.  After  the  contract  had  been 
returned,  executed  by  the  Defendant's  agent,  the  Plaintiff,  in  the 
course  of  a  treaty  to  sell  the  woods  to  another  person,  had  the  first 
intimation,  from  an  estimate  and  measurement  shown  to  .him,  of  a 
deficiency  in  the  quantity;  and  by  a  measurement  which  was  furnish- 
ed upon  application  to  the  Defendant's  agent,  it  plainly  appears  that  the 
statement  upon  which  he  purchased  is  erroneous;  and,  instead  of  the 
woods,  including  Gulberry  Marsh,  containing  two  hundred  and  seven- 
teen acres  and  ten  perches,  they  do  not  contain  more  than  one  hundred 
and  ninety-one  acres. 

The  Defendants,  by  their  answer,  stated,  that  in  a  Map  Book,  in  the 
possession  of  their  agent,  containing  a  copy  of  two  valuations,  former- 
ly made,  the  said  woods,  exclusive  of  Gulberry  Marsh,  are  stated  to 
contain  188  acres,  1  rood,  4  perches,  Statute  measure,  and  158  acres, 
25  perches,  customary  measure ;  and  immediately  under  these  num- 
bers are  the  following  words  and  figures :  "Hedges,  &c.  28  3  6 — 
24  0  25  ;  which  numbers  188  1  4  &  28  3  6  together  amount  to  217  0  10 ;" 
that  in  the  said  Map  Book,  Gulberry  Marsh  is  mentioned  in  a  differ- 
ent page ;  stated  to  contain  2  acres,  24  perches ;  amounting,  together 
with  188  acres,  1  rood,  4  perches,  to  190  acres,  1  rood,  38  perches ;  that 
the  agent,  by  mistake,  added  the  quantity  of  28  acres,  3  roods,  6  perches, 
which  is  meant  (though  not  so  stated)  in  the  said  Book  to  express  the 
quantity  of  land  occupied  in  hedges,  ditches,  and  other  wastes,  through- 
out the  whole  Barton  of  Newhouse,  and  not  merely  in  Kestle  Woods, 
to  the  quantity  of  188  acres,  1  rood,  4  perches ;  suggesting  that  the  De- 
fendant's agent  did  not  know  the  exact  quantity  of  acres  contained  in 
the  said  woods ;  and  therefore  added  the  words  "be  the  same  more  or 
less;"  and  would  not  have  signed  the  contract,  if  he  had  been  aware 


352  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

that  it  differed  from  the  draft  by  omitting  those  words;  of  which  he 
was  not  aware,  when  he  signed  the  contract;  and  therefore  signed  by 
surprise. 

The  Defendants  submitted,  that,  as  they  were  trustees  for  infants, 
and  their  agent  was  not  expressly  authorized  to  sign  the  contract,  and 
signed  without  knowing  the  real  quantity,  they  ought  not  to  be  preju- 
diced by  his  mistake ;  but  the  contract  ought  either  to  be  specifically  per- 
formed without  abatement,  or  wholly  abandoned. 

The  Defendant's  agent  proved  the  circumstances  under  which  he 
signed  the  contract :  being  ill  at  Bath,  he  did  not  particularly  compare 
it  with  the  draft ;  and  was  not  aware  that  they  differed,  excepting 
in  a  few  trifling  circumstances.  He  was  not  authorized  by  the  De- 
fendants to  sign  the  said  agreement,  otherwise  than  from  his  general 
authority,  and  his  particular  authority  to  accept  the  sum  of  £5250  for 
the  woods  and  marsh. 

The  Master  of  the  Rolls.  The  facts  of  this  case  are  very  few; 
and  there  is  very  little  controversy  upon  them.  In  the  particular,  which 
was  sent  by  the  Defendants'  agent  to  the  Plaintiff's,  which  is  the  basis 
of  the  subsequent  negotiation,  the  woods,  called  the  Kestle  Woods, 
including  the  Gulberry  Marsh,  were  represented  as  containing  two 
hundred  and  seventeen  acres  and  ten  perches.  In  fact  there  was  not 
that  quantity  by  about  twenty-six  acres.  No  deception  was  intended. 
The  Defendants'  agent  fell  into  a  mistake ;  the  nature  and  cause  of 
which  now  distinctly  appear :  but  I  do  not  think  myself  warranted,  by 
any  evidence  in  the  cause,  to  infer,  that  the  Plaintiff  knew  the  real 
quantity.  A  very  intimate  acquaintance  with  the  premises  would  not 
necessarily  imply  knowledge  of  their  exact  contents;  while  the  partic- 
ularity of  the  statement,  descending  to  perches,  would  naturally  con- 
vey the  notion  of  actual  admeasurement.  Where  a  misrepresentation 
is  made  as  to  the  quantity,  though  innocently,  I  apprehend  the  right 
of  the  purchaser  to  be,  to  have  what  the  vendor  can  give,  with  an 
abatement  out  of  the  purchase  money  for  so  much  as  the  quantity  falls 
short  of  the  representation.  That  is  the  rule  generally ;  as,  though  the 
land  is  neither  bought  nor  sold  professedly  by  the  acre,  the  presump- 
tion is,  that  in  fixing  the  price,  regard  was  had  on  both  sides,  to  the 
quantity  which  both  suppose  the  estate  to  consist  of.  The  demand  of 
the  vendor,  and  the  offer  of  the  purchaser,  are  supposed  0  be  influenc- 
ed in  an  equal  degree  by  the  quantity,  which  both  believe  to  be  the  sub- 
ject of  their  bargain  :  therefore,  a  rateable  abatement  of  price  will  prob- 
ably leave  both  in  nearly  the  same  relative  situation  in  which  they 
would  have  stood,  if  the  true  quantity  had  been  originally  known ;  and 
I  do  not  think  I  could,  upon  any  principle  in  the  case  of  Mortlock  v. 
Buller,  to  which  this  bears  no  resemblance,  exempt  these  the  Defend- 
ants from  this  equity,  upon  the  ground  of  their  being  trustees,  and  not 
owners. 

But  there  is  a  difficulty  in  this  case  from  the  nature  of  the  mistake, 
which  must  have  influenced  the  vendors  in  their  estimate  of  the  price, 


Sec.  6)  COMPENSATION   ON   PARTIAL   BREACH  353 

in  a  manner,  that,  if  a  rateable  abatement  were  now  to  be  decreed,  would 
be  extremely  disadvantageous  to  them;  for,  though  they  believed  they 
had  two  hundred  and  seventeen  acres  to  give  to  the  purchaser,  and 
must  be  supposed  to  have  asked  a  price  in  proportion,  yet  they  did  not 
believe  that  it  was  all  wood  land.  They  imagined  that  twenty-eight 
acres  consisted  only  of  hedges  and  fences,  and  other  waste.  They 
could  not  certainly  set  the  same  value  upon  that,  though  perhaps  it  was 
considered  of  some  value,  as  upon  land  covered  with  wood  of  ma- 
ture growth :  therefore,  by  a  rateable  abatement  from  the  purchase 
money,  it  is  clear  they  must  allow  to  the  purchaser  much  more  than 
they  would  have  received  from  him  ;  and  consequently  they  would  be 
compelled  to  accept  less  than  it  was  ever  in  their  contemplation  to  take. 
That  is  not  all.  The  purchaser  also  would  obtain  a  better  bargain  than 
he  ever  had  in  his  contemplation.  He  was,  in  the  course  of  the  nego- 
tiation, furnished  with  the  value  of  the  woods,  qua  wood,  as  ascertain- 
ed in  the  year  1805.  The  value  being  given,  it  was  immaterial,  in  that 
respect,  whether  the  woods  were  spread  over  a  greater  or  less  number 
of  acres.  The  valuation  had  no  reference  to  the  quantity  of  ground. 
All  the  wood  upon  the  estate  was  comprehended ;  and  it  was  represent- 
ed to  the  purchaser,  that  what  he  was  to  get  was  wood,  which,  in  1805, 
was  of  the  value  of  £3500.  He  has  got  all  the  wood  upon  which  that 
value  was  set.  Is  he  entitled  also,  to  the  value  of  twenty-six  additional 
acres  of  wood ;  which  he  would  have,  in  effect,  by  an  abatement  made 
to  him  out  of  the  purchase  money,  upon  the  proportion  merely  of 
quantity  and  price.  The  wood  would  have  been  no  more  valuable  to 
him,  if  in  fact  it  had  occupied  two  hundred  and  seventeen  acres,  in- 
stead of  one  hundred  and  eighty-eight :  nor  would  he  have  paid  a  shil- 
ling more  for  it ;  as  the  price  of  the  wood  was  not  fixed  with  reference 
to  the  ground  which  it  covered.  Therefore  it  is  only  in  the  price  of 
the  soil,  and  not  in  the  price  of  the  wood,  that  the  purchaser  could  be 
injured  by  the  mistake  of  the  vendor:  the  particular  representing  the 
wood  as  occupying  two  hundred  and  seventeen  acres :  the  purchaser 
has  the  right  quantity  of  wood,  but  not  of  soil.  He  is  therefore  en- 
titled to  some  abatement,  as  they  gave  him  reason  to  believe  that  he  was 
to  obtain  two  hundred  and  seventeen  acres  of  soil;  but  the  abatement 
is  to  be  only  so  much  as  soil,  covered  with  wood,  would  be  worth, 
after  deducting  the  value  of  the  wood ;  and  with  an  abatement,  to  be 
ascertained  upon  that  principle,  the  agreement  ought  to  be  carried 
into  execution. 

Boke  Eq— 23 


354  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Cll.  2 

SIR  GEORGE  HANGER  v.  EYLES. 

(In  Chancery,  1722.    2  Eq.  Cas.  Abr.  689,  placitum  7,  22  E.  R.  579.) 

Bill  for  a  specific  Performance  of  Articles  for  the  Purchase  of 
Lands.  The  Case  was,  the  Plaintiff  agreed  to  sell  the  Manor  and 
Lands  in  A.  in  Kent  to  the  Defendant  by  a  Particular,  wherein  the 
Manor  and  Royalties  are  mentioned,  but  no  Value  set  upon  them  there- 
in. It  happened  that  the  Plaintiff  had  no  Title  to  the  Manor,  but  had 
been  in  Possession  of  the  Royalties  several  Years.  The  Defendant  ob- 
jected against  going  on  with  the  Purchase.  And  this  was  a  Contract 
at  a  South-Sea  Price,  viz.  forty-six  Years  Purchase ;  and  secondly, 
that  tho'  no  Value  was  set  upon  the  Manor  and  Royalties  by  the  Par- 
ticular, yet  they  are  valuable  in  themselves,  and  was  a  great  Induce- 
ment to  him  to  purchase  the  Estate;  and,  therefore,  since  the  Plain- 
tiff cannot  strictly  perform  his  Part  of  the  Agreement  by  conveying 
the  Manor,  he  ought  not  to  have  the  Aid  of  a  Court  of  Equity  to  com- 
pel the  Defendant  to  pay  the  Money,  since  he  cannot  nave  the  full 
Benefit  of  the  Agreement;  and  for  this  last  Reason  the  Bill  was  dis- 
missed, but  without  Costs,  if  the  Plaintiff  would  deliver  up  the  Articles. 
Per  Lord  Chan.  Macclesfield. 


BURNELL  v.  BROWN. 
(In  Chancery,  1820.     1  Jac.  &  W.  168,  37  E.  R.  339.) 

This  was  a  suit  to  compel  the  completion  of  the  purchase  of  an  es- 
tate, sold  to  the  Defendant  by  auction  on  the  14th  September,  1812. 
The  Defendant  admitted  the  agreement,  but  insisted  on  having  a  de- 
duction made  from  the  stipulated  price,  as  a  compensation  for  a  right 
of  shooting,  hunting,  and  hawking,  which  had  been  reserved  over  a 
part  of  the  premises.  The  reservation  was  not  mentioned  in  the  par- 
ticulars or  conditions  of  sale,  and  the  Defendant  stated  in  his  answer 
that  he  was  induced  to  purchase  the  estate,  which  was  contiguous  to 
one  of  his  own,  chiefly  for  the  sake  of  the  game.  A  deposit  of  ten 
per  cent,  was  paid  soon  after  the  sale;  the  remainder  of  the  purchase 
money,  according  to  one  of  the  conditions  was  to  be  paid  on  the  25th 
April  following,  at  which  time  possession  was  to  be  given. 

It  appeared  that  in  January,  1813,  the  abstract  was  delivered,  which 
stated  the  reservation  in  question.  In  the  month  of  April  following  the 
Defendant,  upon  his  own  request,  was  let  in  possession.  Several  let- 
ters passed  between  the  Plaintiff  and  Defendant  and  their  solicitors, 
and  the  greater  part  of  the  purchase  money  was  paid,  without  any  ob- 
jection being  made  to  the  completion  of  the  purchase,  on  the  ground 
of  the  reservation  till  October  in  the  same  year,  when  the  Defendant's 
solicitor  claimed  to  have  some  compensation  made  for  it.  A  clerk  of 
the  Plaintiff's  solicitor,  in  answer  to  the  letter  containing  this  claim, 


Sec.  6)  COMPENSATION   ON   PARTIAL  BREACH  355 

said  that  a  reasonable  compensation  would  be  allowed  :  this,  however, 
was  done  without  the  concurrence  of  the  Plaintiff,  who,  upon  its  com- 
ing to  his  knowledge,  refused  his  assent.  The  clerk  being  examined  in 
the  cause,  admitted  that  he  had  no  express  authority  from  the  Plain- 
tiff or  his  solicitor,  to  accede  to  the  Defendant's  demand. 

The  conveyance  had  been  delayed  for  some  time  by  a  difficulty 
about  the  description  of  the  parcels,  and  afterwards  by  the  necessity  of 
levying  a  fine  of  part  of  the  premises.  The  Plaintiff's  solicitor  had, 
after  the  Defendant  was  in  possession,  furnished  him  with  additional 
papers,  which  were  required  to  give  some  information  not  contained 
in  the  abstract.  The  Plaintiff,  on  receiving  from  the  Defendant  the 
portion  of  the  purchase  money  which  was  paid  to  him,  gave  a  receipt 
undertaking  to  be  accountable  for  it. 

That  part  of  the  purchase  money,  which  had  not  been  paid  to  the 
Plaintiff,  had  been  ordered  into  Court.     *     *     * 

The  Lord  Chief  Baron  [Sir  Richard  Richards].5  This  is  a 
Bill  for  the  specific  performance  of  an  agreement.  There  is  no  doubt 
as  to  the  agreement  in  general ;  the  only  question  is,  whether  the  De- 
fendant is  entitled  to  have  a  deduction  made  from  the  purchase  money. 
This  depends  on  a  consideration  of  the  circumstances  of  the  case, 
which  are  not  many,  and  which  lead,  I  hope,  to  a  very  clear  conclusion. 

The  Defendant  became  the  purchaser  at  the  auction  on  the  14th 
September,  1812.  By  the  conditions,  he  was  to  make  a  deposit  at  the 
time,  and  to  pay  the  residue  of  the  purchase  money  on  the  25th  April 
next,  at  which  time  he  was  to  enter  into  possession.  It  is  observable, 
that  in  the  contemplation  of  the  parties,  the  payment  and  the  taking 
possession  were  to  be  at  the  same  time. 

By  the  particulars  and  conditions  of  sale,  it  does  not  appear  that 
there  was  any  reservation  of  a  right  of  sporting  over  the  premises; 
of  course,  therefore,  the  Defendant  agreed  to  purchase  them  free  from 
any  such  right.  On  the  16th  January,  1813,  the  Plaintiff's  solicitor 
delivered  the  abstract ;  by  that  the  reservation  appeared.  It  must  neces- 
sarily have  happened  that  the  Defendant's  solicitor  knew  of  it  soon 
after  the  delivery  of  the  abstract;  and  making  all  allowances  for  his 
other  engagements  I  must  presume  that  the  Defendant  himself  was  soon 
apprised  of  it.  When  he  saw  this,  he  saw  what  was  a  palpable  obiec- 
tion.  I  might  say  a  permanent  one,  for  it  was  one  that  the  Plaintiff 
could  not  remove.  If  he  had  then  stated  any  objection  on  that  ground, 
attention  must  have  been  paid  to  it.  I  will  not  stay  to  enquire,  whether 
the  objection  is  one  for  which  a  compensation  would  have  been  de- 
creed, but  it  certainly  must  have  been  attended  to.  It  would  be  very 
difficult  for  the  Court  to  decide,  what  difference  in  value  such  a  reser- 
vation made ,  no  doubt  however,  the  purchaser  might  waive  the  ob- 
jection, and  the  question  here  is  whether  he  has  not  done  so.     *     *     * 

5  Parts  of  the  opinion  of  the  Lord  Chief  Baron  (who  heard  the  case  for  the 
Master  of  the  Kolls)  are  omitted. 


356  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

I  think  that  on  his  being  let  into  possession,  the  contract  was  com- 
pleted, except  the  execution  of  the  conveyance  and  the  payment  of  the 
purchase  money;  and  the  objection  having  been  waived,  could  not  be 
set  up  again,  without  some  act  of  the  Plaintiff's,  or  of  some  person  au- 
thorized by  him. 

Then,  let  us  see  what  happened  afterwards.  In  December,  the  clerk 
of  the  Plaintiff's  solicitor  writes,  that  no  objection  will  be  made  to  a 
reasonable  compensation.  In  a  subsequent  letter  he  repeats  this.  Now, 
in  his  evidence  he  states,  that  he  had  no  authority  for  writing  as  he 
did.  It  is  clear  that  he  had  none ;  and  Burnell,  as  soon  as  he  heard  of 
the  claim  that  was  made  for  compensation,  immediately  refused  to 
acquiesce  in  it.  It  appears  to  me,  that  if  the  contract  was  previously 
completed,  it  was  impossible  to  set  up  any  new  contract  between  them 
without  an  authority  given  by  Burnell. 

If  so,  it  follows  that  Brown  having  taken  possession,  his  solicitor  at 
the  time  clearly  knowing  the  objection  that  is  now  made,  but  neither  of 
them  giving  any  information  of  it,  has  waived  the  objection,  which, 
he  certainly  might  have  made  before,  and  he  is  not,  from  what  has 
since  taken  place,  enabled  now  to  make  it.  The  Plaintiff  is  therefore 
entitled  to  the  relief  he  prays ;  and  the  Defendant  must  pay  him  inter- 
est on  the  remainder  of  the  purchase  money,  from  the  time  of  his  tak- 
ing possession  till  the  time  of  its  being  paid  into  Court.     *     *     * 


LORD  BOLINGBROKE'S  CASE. 
(In  Chancery.     1  Schoales  &  L.  19,  -note.) 

The  incumbent  of  a  living  had  contracted  with  the  present  Lord 
B.  for  the  purchase  of  the  advowson,  and  on  the  faith  of  the  contract 
had  built  a  much  better  house  in  the  glebe  than  he  would  otherwise 
have  done.  The  late  Lord  B.  was  then  living,  and  the  present  Lord 
only  tenant  in  tail  in  remainder,  and  the  contract  was  made  with  a 
perfect  understanding  how  the  parties  were  situated.  The  late  Lord 
B.  was  not  in  a  state  of  mind  to  do  any  act  himself,  but  the  legal  es- 
tate was  vested  in  a  Mr.  Cator  during  his  Lordship's  life,  and  there- 
fore he  was  competent  to  make  a  tenant  to  the  precipe.  Cator  refused 
to  do  so,  consequently  the  present  Lord  B.  could  make  no  sufficient  con- 
veyance. 

Lord  Thurlow  thought  that  the  gentleman  who  had  made  the  con- 
tract, and  who,  upon  the  faith  of  it,  had  built  a  good  house  on  the 
glebe,  should  get  the  utmost  Lord  B.  could  give  him,  and  directed  that 
his  Lordship  should  convey  a  base  fee  by  levying  a  fine  with  a  cove- 
nant to  suffer  a  recovery  whenever  he  should  be  enabled  so  to  do  by  the 
death  of  the  tenant  for  life. 


Sec.  G)  COMPENSATION   ON   PARTIAL   BREACH  357 

DREWE  v.  HANSON. 
(In  Chancery  before  Lord  Eldon,  1802.    6  Ves.  675,  31  E.  R.  1253.) 

An  injunction  having  been  obtained,  restraining  the  defendant  from 
proceeding  at  law  to  recover  his  deposit,  the  usual  order  was  made  for 
dissolving  the  injunction,  unless  cause,  upon  the  answer  coming  in ; 
by  which  the  following  circumstances  appeared. 

In  August  the  defendant  purchased  from  the  plaintiff  by  private 
contract  an  estate,  consisting  of  some  farms  and  the  tithes  of  the  par- 
ish of  Bishop's  Lincomb  in  Devonshire,  for  the  sum  of  £11,000  the 
purchase  to  be  completed  on  the  25th  of  December.  The  description 
in  the  particular  as  to  the  tithes  was  this :  "Also  the  valuable  corn  and 
hay  tithes  of  the  whole  parish  of  Bishop's  Lincomb."  An  abstract  was 
soon  afterwards  delivered ;  and  a  rental :  containing  the  general  de- 
scription of  the  garb,  otherwise  the  tithe,  of  hay  and  corn :  the  latter 
expressing  nothing  relative  to  tithe  of  hay ;  but  containing  these  en- 
tries : 

"Custom  hay  about  £2." 

"Farms  out  of  tillage  this  year  and  not  in  composition  5." 

"Estates  occasionally  in  tillage  but  not  in  composition  20." 

In  September  the  defendant  went  into  Devonshire  to  see  the  estate ; 
and  employed  a  surveyor  to  look  over  it.  Upon  the  14th  of  December 
he  wrote  to  the  plaintiff,  refusing  to  complete  his  purchase;  and  call- 
ing for  his  deposit. 

The  corn  tithes  arose  from  about  8000  acres ;  and  were  paid  by  an- 
nual composition.  The  tithe  of  hay  was  from  so  much  of  about  2000 
additional  acres,  as  was  meadow,  (how  much  did  not  appear :)  one- 
half  of  the  tithe  of  hay  contained  in  the  allotment  belonging  to  the 
Vicar :  the  other  half  commuted  for  by  a  payment  of  £2  per  annum ; 
the  nature  of  which  did  not  appear :  the  conversations  upon  the  sub- 
ject not  carrying  it  further  than  belief  that  it  was  a  modus.  The  an- 
swer also  stated,  that  the  tenants  had  converted  arable  to  meadow,  and 
threatened  to  convert  more. 

Lord  Chancellor.  Without  meaning  to  say,  what  may  be  the 
final  decision,  I  am  of  opinion,  attending  to  all  the  circumstances,  it  is 
too  hazardous  to  say,  there  is  not  a  fair  and  reasonable  question, 
whether  this  contract  may  not  be  specifically  executed.  It  is  certainly 
to  be  observed,  that  under  the  head  of  specific  performance  contracts, 
substantially  different  from  those  entered  into  have  been  enforced.  In 
the  case  of  a  contract  for  a  house  and  a  wharf,  the  object  of  a  pur- 
chaser being  to  carry  on  his  business  at  the  wharf,  it  was  considered, 
that  this  Court  was  specifically  performing  that  man's  contract  by  giv- 
ing him  the  house  without  the  wharf.  So  in  Shirley  v.  Davis,  in  the 
Court  of  Exchequer,  the  subject  of  the  contract  was  a  house  on  the 
north  side  of  the  river  Thames,  supposed  to  be  in  the  county  of  Essex ; 


358  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

but  which  turned  out  to  be  in  Kent;  a  small  part  of  which  county 
happens  to  be  on  the  other  side  of  the  river.  The  purchaser  was  told, 
he  would  be  made  a  church-warden  of  Greenwich ;  and  though  his 
object  was  to  be  a  freeholder  of  Essex,  he  was  compelled  to  take  it. 
So  in  Lord  Stanhope's  case  the  object  was  to  get  an  estate  tithe-free; 
and  yet  Lord  Thurlow  obliged  him  to  take  it  subject  to  tithes. 

In  this  case,  the  hay-tithes  were  represented  to  be  of  so  much  of 
about  2000  acres  as  happened  to  be  employed  in  meadow :  how  much 
is  not  at  all  distinctly  in  proof.  There  is  something  like  a  distinct  rep- 
resentation as  to  the  arable  land,  but  not  amounting  to  a  warranty.  It 
appears  also,  that  the  corn-tithe  was  really  the  principal  part  of  the 
estate;  that  the  farms  were  purchased  for  the  purpose  of  enjoying  the 
corn-tithe  estate.  The  aspect  of  the  particular  is  a  farm  in  hand,  ren- 
dered beneficial  by  the  circumstance,  that  the  purchaser  would  have 
the  whole  tithes  of  the  parish  of  corn  and  hay ;  which  is  also  some 
representation,  that  the  tithes  are  to  be  taken  in  kind ;  and  I  take  it  so 
as  to  the  corn-tithe ;  being  paid  for  by  annual  composition.  As  to  the 
nature  of  the  payment  for  the  moiety  of  the  tithe  of  hay,  it  is  not  un- 
derstood, whether  it  is  a  modus  or  a  payment  capable  of  being  shaken 
in  Law.  It  is  impossible  to  deny,  that  the  purchaser  under  such  a  par- 
ticular is  put  in  a  situation  of  great  hardship.  The  abstract  does  not 
correct  the  representation ;  as  the  rental  in  a  degree  does.  If  this  case 
stands  simply  upon  the  representation  in  the  particular,  the  abstract, 
and  the  rental,  it  would  be  within  the  authorities.  That  they  are  ex- 
tremely strong  cannot  be  denied;  and  upon  a  motion  for  an  injunction 
a  precedent  cannot  be  established,  to  affect  the  vast  class  of  authori- 
ties upon  a  point  of  such  importance,  turning  upon  all  their  particu- 
larities. In  the  case  of  an  estate  sold  tithe-free  it  is  a  prodigiously 
strong  measure  in  a  Court  of  Equity  to  say,  as  a  discreet  exercise  of 
its  jurisdiction,  that  the  contract  shall  be  performed;  the  defendant 
swearing  positively,  and  proving,  that  he  would  have  nothing  to  do 
with  the  estate,  if  not  tithe-free.  That,  though  a  very  strong  proposi- 
tion, does  not  come  up  to  this  case ;  for  in  those  cases  the  Court  prob- 
ably speculates,  that  tithes  and  land  are  the  subjects  of  separate  and 
accurate  valuation  ;  and  the  value  of  the  one  does  not  affect  the  other ; 
and  therefore,  though  there  is  a  failure  as  to  the  tithes,  a  part  only  of 
the  subject  of  the  contract,  the  whole  is  not  affected;  as  it  would  be, 
if  the  contract  was  for  tithes  only.  Suppose  it  proved,  that  this  farm 
was  taken  for  the  purpose  of  enjoying  the  corn-tithe  principally :  that 
the  hay-tithe  was  a  very  small  object;  great  part  of  that  capable  of 
being  taken  in  kind ;  but  a  small  part,  not  much  affecting  the  bargain, 
liable  to  an  exemption  or  modus :  the  Court  in  such  a  case  might  de- 
cree upon  the  doctrine  of  compensation.  But  it  will  be  very  different, 
if  it  turns  out  upon  examination,  that  1  or  2000  acres  are  capable  of 
being  converted  to  the  purpose  of  producing  hay ;  or,  that  a  part  or 
the  whole  may  be  converted  from  arable  to  meadow.  All  those  con- 
siderations are  very  material  upon  the  question  of  compensation ;   and 


Sec.  6)  COMPENSATION   ON   PARTIAL   BREACH  359 

it  is  impossible  to  determine,  now,  that  this  will  not  be  within  the 
reach  of  some  of  the  authorities  a  case  for  compensation. 

Upon  the  conduct  of  the  party  this  may  differ  materially  from  For- 
dyce  v.  Ford.  In  that  case,  only  seven  acres  were  freehold,  and  all  the 
rest  leasehold :  but  the  abstract  distinctly  stated  what  was  freehold, 
and  what  leasehold.  From  the  delivery  of  the  abstract  it  was  perfectly 
understood  beyond  dispute,  without  any  ground  for  inquiry,  that  it 
was  leasehold  unquestionably  and  irrevocably.  The  purchaser  receives 
the  abstract ;  treats  upon  it  with  full  knowledge  up  to,  and  long  after, 
the  day,  on  which  the  contract  was  to  be  performed,  not  upon  the  na- 
ture of  the  property,  but  the  title;  and  the  Master  of  the  Rolls 
thought,  there  was  a  clear  waiver.  I  doubt  extremely,  whether  that 
will  turn  out  to  be  the  case  here.  Taking  the  representation  in  the  con- 
versation to  be,  that  they  believe  it  to  be  a  modus,  and  supposing  the 
purchaser  could  have  been  off  the  bargain  at  that  moment,  which  is 
very  questionable,  can  it  be  said  from  what  passed  afterwards,  that  he 
cannot  now;  having  contracted  under  this  representation,  and  learn- 
ing no  more  afterwards  than  that  they  conceive  it  to  be  a  modus? 
That  is  not  like  the  representation  as  to  the  leasehold  property,  but  one 
requiring  a  reasonable  time  for  inquiry.  Suppose,  he  had  said,  he 
would  take  it  notwithstanding,  if  the  quantity  of  land  likely  to  produce 
hay  was  small,  or,  provided  it  would  not  affect  the  value  of  the  other 
part  of  the  purchase :  some  time  was  necessary  to  inquire  into  that ; 
to  know,  whether  the  tenants  mean  to  convert  the  arable  land  into 
meadow,  and  can  by  that  force  him  to  an  agreement  as  to  his  corn- 
tithe.  The  answer  swears,  they  threaten  this ;  that  they  have  done 
it  in  some  instances ;  and  mean  it  in  more.  The  inference  will  depend 
a  great  deal  upon  the  extent,  to  which  the  fact  may  exist ;  and  till  that 
is  determined,  I  cannot  say,  whether  this  can  lie  in  compensation.  If 
it  goes  to  the  destruction  of  the  corn-tithe,  he  not  only  loses  the  hay- 
tithe,  but  he  does  not  get  the  thing  which  is  the  principal  object  of  the 
contract.     It  is  not  merely  a  small  abatement. 

I  cannot  therefore  decide  this  cause  upon  the  grounds  now  before 
me.  There  is  question  enough,  independent  of  the  conduct  of  the  de- 
fendant, to  lay  a  fair  ground  for  litigation.  The  Injunction  must 
therefore  be  continued. 


ROYAL  BRISTOL  PERMANENT  BLDG.  SOCIETY 
v.  BOMASH. 

(In  Chancery,  18S7.    35  Ch.  Div.  390.) 

The  Royal  Bristol  Permanent  Building  Society,  the  Plaintiffs  in 
this  case,  were  mortgagees  of  two  leasehold  houses  at  Penarth,  and 
under  their  power  of  sale  put  them  up  for  sale  by  auction  on  the  14th 
of  October,  1885,  in  two  lots,  under  conditions  that  the  purchase 
was  to  be  completed  on  the  11th  of  November.     In  the  particulars  it 


360  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  '2 

was  stated  that  each  lot  was  "recently  in  the  occupation  of  Mr.  Flem- 
ing." The  conditions  were  in  a  form  used  by  the  building  society,  the 
15th  being  that : 

"The  rents  or  possession  will  be  received  or  retained  and  the  outgoings  dis- 
charged by  the  vendors  up  to  the  day  appointed  by  the  special  conditions  of 
sale  for  the  completion  of  the  purchase,  and  as  from  that  day  the  outgoings 
shall  be  discharged  and  the  rents  or  possession  shall  belong  to  the  purchaser ; 
but  unless  otherwise  provided  by  the  special  conditions  he  shall  not  be  let  into 
the  actual  possession  or  receipt  of  the  rents  until  the  completion  of  the  pur- 
chase." 

By  the  16th  it  was  provided  that  if  the  delay  in  the  completion  of 
the  purchase  should  arise  from  any  cause  other  than  the  neglect  of  or 
default  of  the  purchaser,  and  if  he  deposited  the  remainder  of  the 
purchase-money  in  the  bank  named  in  the  special  conditions,  the  ven- 
dors should  during  the  continuance  of  such  deposit  be  entitled  to  the 
interest  on  the  deposit,  and  not  to  the  rents  and  profits. 

T.  S.  Bomash,  the  Defendant,  became  the  purchaser,  and  signed  an 
agreement  with  the  conditions  annexed,  and  paid  the  deposit.  The 
houses  were  at  the  time  still  in  the  occupation  of  Fleming,  the  mort- 
gagor, who  was  said  to  be  insolvent ;  and  Bomash  refused  to  complete 
until  he  could  have  actual  possession.  Many  letters  passed  between 
the  parties,  and  on  the  10th  of  November  the  building  society  brought 
an  action  of  ejectment  against  Fleming.  The  sheriff  went  into  posses- 
sion on  the  14th  of  December,  and  Fleming  was  turned  out  on  the 
15th,  or  the  following  day,  but  as  to  the  exact  dates  there  was  some 
dispute.  The  sheriff  did  not  give  the  keys  to  the  building  society  un- 
til the  28th  of  December.  Bomash  had  refused  to  take  possession  un- 
til the  building  society  could  give  possession,  and  the  building  society 
had  not  offered  to  give  possession  until  the  12th  of  December.  He  had 
refused  to  complete  without  compensation  for  the  loss  of  a  tenant,  and 
he  had  also  claimed  damages  for-  injury  by  removal  of  the  fixtures 
and  otherwise,  and  also  claimed  certain  fixtures.  Several  offers  for  a 
settlement  were  made  on  each  side,  and  not  accepted  by  the  other  side. 
The  houses  had  remained  vacant.  Proposals  had  been  made  for  their 
being  let  without  prejudice,  but  the  parties  could  not  agree  as  to  the 
terms. 

The  building  society  on  the  17th  of  December,  1885,  had  brought 
this  action  for  specific  performance  simply.  The  Defendant  alleged 
that  he  had  bought  the  houses  in  the  belief  that  they  were  vacant,  and 
with  a  view  of  immediately  letting  them ;  and  that  he  had  lost  a  ten- 
ant by  not  having  possession :  and  by  counter-claim  he  claimed  spe- 
cific performance  with  damages.  It  appeared  that  soon  after  he  be- 
came the  purchaser,  he  agreed  to  let  one  of  the  houses  to  one  Wilson 
for  fourteen  years,  and  Wilson  was  to  have  possession  on  the  16th  of 
November,  but  as  he  found  that  he  could  not  then  have  possession  the 
agreement  was  broken  off.  Bomash  also  claimed  some  fixtures.  The 
decision  on  that  point  was  against  him,  and  does  not  require  to  be  re- 


Sec.  G)  COMPENSATION    ON   PARTIAL   BREACH  361 

ported.  He  had  on  the  28th  of  November  deposited  the  balance  of  his 
purchase-money  in  the  bank. 

Kekewich,  J.6  I  have  now  to  dispose  of  two  questions,  which  de- 
pend more  or  less  on  the  main  question  who  is  in  default.  In  saying 
this,  I  do  not  wish  to  cast  any  blame  upon  either  party.  In  the  corre- 
spondence the  solicitor  on  the  one  side  has,  on  behalf  of  his  client, 
contended  very  fairly  for  his  view ;  and  the  solicitor  on  the  other  side 
has  contended  very  fairly  for  his  view,  and  I  must  decide  which  of 
the  two  is  right. 

The  first  question  is  as  to  the  possession.  I  have  no  doubt,  quite  in- 
dependently of  the  case  of  Hughes  v.  Jones,  3  D.,  F.  &  J.  307,  that  this 
contract  was  a  contract  for  the  sale  of  these  houses,  with  vacant  pos- 
session. I  have  no  doubt  that  this  contract  contains  what  I  may  de- 
scribe as  a  guarantee  that  on  completion  of  the  purchase  the  purchaser 
would  be  let  into  possession.  That  being  so,  and  it  being  admitted  on 
all  hands  that  he  could  not  have  possession  at  the  date  fixed  for  the 
completion  of  the  contract,  and  could  not  have  had  possession  until 
either  the  15th  or  16th  of  December,  the  question  is,  whether  the  pur- 
chaser or  the  vendors  were  in  default,  and  whether,  if  the  vendors 
were  in  default,  the  purchaser  is  entitled  to  any  and  what  compensa- 
tion. 

Mr.  Ford  has  argued  with  considerable  force  that  the  sheriff  could 
have  given  possession  and  would  have  given  possession  to  the  pur- 
chaser on  a  day  which  would  have  satisfied  all  the  reasonable  require- 
ments of  the  purchaser.  I  do  not  think  that  a  purchaser  having  a  con- 
tract to  sell  with  vacant  possession,  is  bound  to  take  possession  from 
the  sheriff  when  he  knows,  as  he  did  know  in  this  case,  that  the  man 
to  be  evicted,  the  man  who  had  been  holding  over,  was  still  on  the 
premises  and  would  have  to  be  turned  out  by  force.  I  think  the  pur- 
chaser is,  under  those  circumstances,  entitled  to  say : 

"Exercise  your  rights ;    first  turn  the  man  out,  and  then  give  me  vacant 

possession." 

Therefore  I  think  the  vendors  were  in  fault,  that  they  had  con- 
tracted to  give  vacant  possession,  that  they  were  not  prepared  to  give 
vacant  possession  at  the  time  when  the  contract  ought  to  have  been 
completed,  and  that  in  fact  the  purchaser  could  not  have  got  within  a 
reasonable  time  that  vacant  possession  for  which  he  had  contracted ; 
and  to  that  extent  he  has  obtained  something  less  than  that  which  he 
contracted  to  buy. 

Now,  the  question  is,  whether  he  is  entitled  to  be  compensated  for 
that?  On  the  2d  of  November,  1885,  that  is,  before  the  date  fixed  for 
the  completion,  he  entered  into  an  agreement  with  a  Mr.  Wilson  to 
let  him  these  houses  for  a  term  of  fourteen  years,  at  the  yearly  rent 
of  £85,  and  that  was  to  be  completed  on  the  16th  of  November,  1885. 
The  day  of  completion  of  the  original  contract  having  been  the  11th, 

e  Part  of  the  opinion  is  omitted. 


362  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

there  was  five  days'  margin.  As  a  matter  of  fact,  Mr.  Wilson's  con- 
tract went  off.  He  wanted  vacant  possession ;  he  could  not  get  vacant 
possession ;  and  on  some  day  not  accurately  fixed,  but  varying,  I  think, 
from  the  16th  to  the  23d  of  November,  1885,  he  threw  up  his  bargain, 
as  he  was  entitled  to  do.  He  was  cross-examined  to  shew  that  he  was 
willing  to  stay  on.  I  dare  say  he  was.  The  premises  seemed  suitable 
to  him.  He  does  not  seem  to  say  that  it  was  too  much  rent  to  pay,  and 
it  may  be  that  after  all  he  will  take  them ;  but  was  the  purchaser 
bound  to  urge  him  to  wait,  and  can  we  say  now  that  Mr.  Wilson  was 
not  reasonable  in  throwing  them  up  ?  At  that  time  there  was  no  proof 
that  Mr.  Fleming  would  be  turned  out  at  any  particular  day.  He  was 
still  in  possession,  and  was  apparently  not  intending  to  go  out,  and  I 
do  not  think  Mr.  Wilson  acted  otherwise  than  prudently  in  throwing 
up  a  bargain  of  that  kind,  nor  that  the  purchaser  acted  otherwise  than 
prudently  in  acquiescing,  and  saying : 

"I  cannot  help  it.  I  am  not  prepared  to  give  you  the  possession  which  I 
bargained  for,  and  I  must  part  with  you." 

Therefore  the  Defendant  suffered  some  reasonable  loss.  I  think  he 
might  fairly  presume  that  the  vendors  would  do  their  duty  and  get  rid 
of  Fleming,  so  as  to  complete  the  contract  say  by  the  3d  of  December ; 
and  I  do  not  think  it  was  an  unreasonable  contract  for  him  to  enter 
into.  He  did  enter  into  it,  and  lost  it;  and  he  claims  to  be  compen- 
sated for  that  loss. 

This  question  deals  with  a  branch  of  law  which  is  very  difficult,  and 
for  this  reason,  that  there  is  certainly  a  distinction  between  compensa- 
tion and  damages.  It  has  always  been  held  that  a  purchaser  may,  if 
he  likes,  take  specific  performance  with  compensation,  though  a  ven- 
dor cannot  force  it  upon  him ;  but  where  what  he  wants  is  strictly 
damages,  such  as  were  claimed  in  Bain  v.  Fothergill,  Law  Rep.  7  H. 
L.  158 — damages  for  the  loss  of  a  bargain  where  the  title  has  failed — 
then  it  has  been  held  that  he  cannot  get  those  damages.  The  question 
here  is  not,  whether  this  is  compensation  or  damages,  because  the  dis- 
tinction is  not  sufficiently  defined  for  that,  but  whether  it  is  damages 
in  the  nature  of  compensation  or  not.  In  the  second  edition  of  Lord 
Justice  Fry's  book  on  Specific  Performance,  page  550,  the  distinction 
is  drawn,  and  he  refers  to  a  case  of  Prothero  v.  Phelps,  7  D.,  M.  & 
G.  722,  in  which  damages  were  given  in  the  nature  of  compensation. 
I  hold  the  distinction  applicable  here,  and  giving  the  purchaser  dam- 
ages in  the  nature  of  compensation,  I  must  consider  what  is  the  proper 
measure  of  those  damages.  There  again  I  am  assisted  by  the  case  of 
Jaques  v.  Millar,  6  Ch.  D.  153.  Lord  Justice  Fry  (then  Mr.  Justice 
Fry)  says  in  his  judgment,  6  Ch.  D.  159: 

"The  question  of  damages  is  a  more  difficult  one.  Damages  are  claimed,  in 
addition  to  the  specific  performance  of  the  agreement,  in  respect  of  the  delay 
which  was  caused  by  the  defendant's  wilful  refusal" — here  it  is  the  Plain- 
tiffs' refusal,  though  tbere  is  no  wilful  refusal  on  their  part,  and  I  do  not  im- 
pute it  to  them — "to  perform  his  contract,  and  the  consequent  loss  of  profit 
to  the  plaintiff.    I  think  I  am  at  liberty  to  consider  what  would  have  been  the 


Sec.  6)  COMPENSATION    ON   PARTIAL   BREACH  363 

value  of  the  possession  of  the  premises  to  the  plaintiff  for  the  period  between 
the  5th  of  September,  1S76,  and  the  time  when  he  actually  obtained  possession 
of  other  premises.  I  shall  not  attempt  to  explain  in  detail  the  motives  which 
operate  on  iny  mind.  But  I  am  entitled  to  have  regard  to  the  damages  which 
may  be  reasonably  said  to  have  naturally  arisen  from  tbe  delay,  or  which  may 
be  reasonably  supposed  to  have  been  in  the  contemplation  of  tbe  parties  as 
likely  to  arise  from  the  partial  breach  of  the  contract." 

I  hold  this  case  to  fall  not  within  Bain  v.  Fothergill,  which  seems 
to  me  to  deal  with  a  different  class  of  circumstances  altogether,  but 
to  fall  within  a  class  of  cases  which  is  illustrated  by  Jaques  v.  Mil- 
lar, and  I  must  give  the  Defendant  damages  calculated  on  some  such 
principle  as  Lord  Justice  Fry  indicated.  I  think  that  the  proper  way 
of  doing  that  is  simply  to  take  the  rent  which  he  would  have  received 
under  that  contract,  against  which  there  is  nothing  to  set  off.  That 
seems  to  me  to  be  the  reasonable  way  of  dealing  with  the  case.  I  take 
it  at  a  year  and  three  months  roughly,  and  I  shall  award  the  Defendant 
£110  damages  by  way  of  compensation  for  not  having  obtained  that 
vacant  possession  which  I  think  he  was  entitled  to  under  the  con- 
tract.    *     *     * 

Therefore  there  will  be  judgment  on  the  claim  and  counter-claim 
for  specific  performance,  and  for  the  payment  by  the  Defendant  to 
the  Plaintiffs  of  the  purchase-money  with  interest  until  the  agreed  day 
when  the  money  was  deposited  in  the  bank,  with  the  following  deduc- 
tions:  £1  for  damage  to  the  garden,  £110  as  compensation  for  the 
want  of  vacant  possession,  and  £25  for  the  damage  to  the  property 
since  the  date  of  the  contract.  That  is  a  mere  matter  of  arithmetic, 
which  can  be  worked  out  on  the  face  of  the  judgment. 

Then  as  regards  the  costs.  I  think  that  though  the  question  about 
the  fixtures  has  been  treated  as  being  much  more  important  than  to 
my  mind  was  at  all  necessary,  still  it  has  been  treated  as  an  important 
question,  and  costs  have  been  incurred  about  it.  I  think  the  Defendant 
has  failed  as  regards  that,  and  he  must  pay  those  costs.  The  Plain- 
tiffs must  pay  the  general  costs  of  the  action. 


NELSON  et  al.  v.  GIBE. 

(Supreme  Court  of  Michigan,  1910.    162  Mich.  410,  127  N.  W.  304.) 

The  bill  of  complaint  was  filed  in  this  case  by  complainants  against 
defendant  to  foreclose  a  land  contract,  claiming  a  balance  due.  In  the 
contract  the  complainants  agreed  to  sell,  and  defendant  to  buy,  a  lot 
in  the  village  and  county  of  Xewaygo,  state  of  Michigan,  for  the  con- 
sideration of  $500  with  interest  at  6  per  cent.  Defendant  was  put  in 
possession,  and  paid  all  of  the  purchase  price  and  interest  except  $100, 
when  he  discovered  that  a  Mr.  Boyd,  owner  of  the  lot  next  to  the  one 
he  had  purchased,  had  for  many  years  been  in  possession  of  the  east  23 


364  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

feet  and  2  inches  of  said  lot  he  had  purchased.  He  notified  complain- 
ants, stating  that  the  balance  of  the  purchase  price  was  ready  and  de- 
manding that  they  dispossess  Boyd  and  give  him  possession.  Com- 
plainants offered  him  a  deed,  and  on  his  refusal  to  complete  the  pur- 
chase unless  Boyd  was  dispossessed  and  he  put  in  possession,  they 
filed  this  bill.  In  his  answer  defendant  repeated  his  offer  to  complete 
the  transaction  if  Boyd  were  dispossessed  and  himself  put  in  posses- 
sion and  contends  that,  complainants  not  being  in  a  position  to  convey 
to  him  all  of  said  lot,  he  is  entitled  to  an  accounting,  and  a  repay- 
ment of  the  excess  he  has  overpaid,  and  a  conveyance  of  such  lot  as 
he  has  actually  received  from  complainants.7 

McAlvay,  J.  The  question  is,  i\re  [the  complainants]  entitled 
to  the  relief  they  seek?  More  than  one-third  of  this  lot  never  be- 
longed to  complainants.  Whether  at  the  time  of  entering  into  the 
contract  complainants  believed  that  they  owned  it  is  immaterial.  As 
far  as  the  proposition  of  law  is  concerned  they  might  have  intended 
to  purchase  it,  or  if  it  was  incumbered  have  expected  to  remove  the 
incumbrance.  They  are  bound  by  the  terms  of  their  contract.  They 
agreed  to  sell  all  of  the  land  described.  To  grant  them  the  relief  ask- 
ed would  operate  to  allow  them  to  take  advantage  of  their  own  default. 
Specific  performance  of  a  land  contract  will  not  be  granted  where  the 
vendor  is  unable  to  perform,  but  the  purchaser  may  elect  to  proceed 
pro  tanto,  with  an  abatement  in  the  purchase  price  for  the  deficiency. 
26  Am.  &  E.  Enc.  of  Law  (2d  Ed.).  116;  Pomeroy  on  Contracts  (2d 
Ed.)  §  347  et  seq.  It  is  immaterial  what  the  form  of  the  action  may 
be  if  the  relief  sought  be  identical.  This  principle  is  applicable  to  this 
case. 

Defendant  by  proper  pleadings  had  asked  the  court  to  equitably  de- 
termine the  rights  of  the  parties.  He  is  willing  to  accept  a  warranty 
deed  for  the  portion  of  the  premises  complainants  own,  but  asks  that 
they  account  to  him  for  overpayment  already  made.  He  should  have 
been  given  the  affirmative  relief  he  asked.  It  is  in  accord  with  sound 
principles  of  equity,  and  is  supported  by  reason  and  authorty.  The 
court  having  obtained  jurisdiction  of  the  subject-matter  and  the  parties 
was  authorized  to  finally  determine  the  dispute. 

The  decree  of  the  circuit  court  must  be  reversed,  because  there  is  no 
evidence  in  the  case  from  which  this  court  can  determine  the  amount 
which  should  be  deducted  from  the  contract  price  by  reason  of  com- 
plainant's default  in  title  to  23%  feet  of  this  lot,  and  how  much,  less 
said  premises  are  worth  by  reason  thereof.  The  case  must  be  re- 
manded for  the  purpose  of  taking  testimony  upon  that  question  to 
determine  that  amount,  and  also  to  determine  the  amount  defendant 
has  overpaid,  if  any,  and  the  interest  thereon,  and  all  other  interest  to 
which  he  is  entitled,  and  that  thereupon  a  decree  be  entered  in  his 
favor  for  a  conveyance  by  warranty  deed  to  him  of  42%  feet  of  said 

i  The  statement  made  in  the  opinion  by  McAlvay,  J.,  has  been  rewritten. 


Sec.  6)  COMPENSATION   ON   PARTIAL   BREACH  365 

lot,  and  for  a  money  judgment  for  the  amount  to  which  he  is  found  to 
be  entitled  to  over  and  above  his  payments,  with  interest  from  August 
20,  1909,  and  that  he  recover  all  costs  of  both  courts  to  be  taxed. 


MARTIN  v.  MITCHELL. 
MARTIN  v.  PEILE. 

(In  Chancery  before  Sir  Thomas  Plumer,  1S20.    2  Jac.  &  W.  413,  37  E.  R.  685.) 

The  Master  of  the;  Rolls.8  *  *  *  The  original  bill,  which 
was  filed  in  February,  1815,  was  for  a  specific  performance,  by  J. 
Mitchell  and  his  wife,  of  their  agreement  to  sell  to  the  Plaintiff  their 
reversionary  interest  in  this  property.     *     *     * 

The  acts  of  a  married  woman,  with  respect  to  her  estate,  are  per- 
fectly void;  she  has,  as  is  said  by  the  Master  of  the  Rolls,  in  Wright 
v.  Rutter  (2  Ves.  Jr.  676),  no  disposing  power,  though  she  may  have 
a  disposing  mind.  This  agreement  signed  by  her  with  her  husband 
cannot  affect  her  estate,  and  cannot  give  the  party  a  right  to  call  upon 
her  in  a  court  of  equity  to  execute  a  conveyance  to  bar  her  if  she 
survives,  and  to  bind  her  inheritance.  It  was  only  under  the  power 
reserved  by  the  settlement,  that  its  validity  could  be  contended  for,  and 
on  that  point  I  wished  to  be  satisfied,  whether  being  void  on  general 
principles,  it  was  made  good  by  the  reservation  of  the  power.  I  wish- 
ed to  know  if  there  was  any  case  in  which  a  husband  and  wife  having" 
a  power  of  appointment  by  deed  over  the  wife's  estate,  a  paper,  not 
executed  modo  et  forma  pursuant  to  the  power,  was  held  to  take  effect 
as  an  appointment.  If  it  is  signed  by  a  person  competent  to  contract, 
and  is  for  a  valuable  consideration,  but  defective  in  form,  there  is  a 
remedy  in  equity,  for  you  have  a  valid  contract  to  stand  upon.  But 
with  a  married  woman  there  can  be  no  binding  contract ;  the  instru- 
ment is  good  as  an  agreement,  then  how  can  it  be  said  to  bind  her? 
She  had  a  power  to  convey  by  deed,  attested  by  two  witnesses ;  her 
disability  as  a  married  woman  was  taken  away  as  to  that  mode  of  pro- 
ceeding :  and  she  might,  by  an  instrument  executed  with  the  required 
formalities,  point  out  the  uses  to  which  the  estate  was  to  be  conveyed 
and  the  fine  would  then  enure  to  those  uses.  But  where  the  instru- 
ment is  not  executed  according  to  the  power,  it  is  nothing  but  an  agree- 
ment signed  by  a  married  woman,  and  as  an  agreement  it  is  invalid. 
This  is  a  point  on  which  I  do  not  mean  to  give  a  definitive  opinion, 
because  it  is  not  necessary  for  the  decision  of  this  cause ;  but  I  feel  that 
there  would  be  very  great  difficulty  in  extending  the  doctrine  of  the 
Court  as  to  defective  executions  to  instruments  signed  by  married 
women ;   it  would  be  introducing  quite  a  new  line  of  cases.    The  power 

s  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


366  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

gives  a  competency  to  act,  with  certain  protections,  but  it  is  a  very 
weighty  question  whether  it  can  be  held  that  that  gives  a  general  com- 
petency. 

Then,  if  it  was  only  the  agreement  of  the  husband,  what  becomes  of 
the  Plaintiff's  case?  The  point,  that  the  Court  should  compel  the 
husband  to  coerce  the  wife  to  join  with  him  in  the  conveyance,  was 
abandoned.  The  counsel  did  not  urge  that  that  is  the  law  now.  and 
that  the  husband  was  to  go  to  prison,  if  she  refuses  to  concur.  It  is  not 
necessary,  therefore,  to  go  into  the  class  of  cases  upon  that  subject, 
the  authority  of  which  has  been  very  much  weakened.  Morris  v. 
Stephenson,  7  Ves.  474;  Emery  v.  YVase,  8  Yes.  505;  Howell  v. 
George,  1  Mad.  7.  They  were  much  shaken  by  the  remark  of  the  Lord 
Chancellor,  upon  the  difficulty  of  a  court  of  equity  compelling  her  to 
consent  to  a  fine,  while  the  Court  of  Common  Pleas  always  examines 
her  to  ascertain  whether  she  acts  freely,  and  if  they  find  her  to  be  un- 
der constraint,  still  her  consent  must  be  taken,  or  the  husband  will  be 
punished.     *     *     * 

With  all  these  difficulties  hanging  over  it,  it  is  not  a  case  for  a 
specific  performance ;  the  parties  must  be  left  to  their  legal  remedies. 
On  the  original  bill  I  think  the  Plaintiff  is  not  entitled  to  a  de- 
cree. 9     *     *     * 

9  In  Howell  v.  George  (1815)  1  Madd.  1,  56  E.  R.  1,  Vice  Chancellor  Plumer 
said:  '"The  Defendant  thought,  when  he  entered  into  the  agreement,  he  had 
an  absolute  power  over  the  estate,  but  has  since  found  he  is  only  tenant  for 
life,  and  his  wife  and  son  refuse  to  join  with  him  in  suffering  a  recovery,  so 
as  to  enable  him  to  perform  his  agreement.  He  is  willing  to  convey  as  far 
as  he  can,  and  to  compensate  the  Plaintiff  for  any  injury  he  may  have  sus- 
tained. It  is  contended  that  the  Defendant  ought  to  be  compelled  to  procure 
his  wife  and  son  to  join  with  him  in  a  recover}- ;  or  that,  under  the  proviso, 
he  ought  to  acquire  a  fee  in  the  lands  in  question,  and  convey  them  to  the 
Plaintiff.  It  was  not  much  pressed  in  argument  that  he  ought  to  be  decreed 
to  procure  his  wife  and  son  to  join  in  a  recovery.  It  could  not  be  argued  that 
a  man  should  be  compelled  to  use  his  marital  and  parental  authority  to  com- 
pel his  wife  and  son  to  do  acts  which  ought  only  to  be  spontaneously  done. 
In  Hall  v.  Hardy  (1733)  3  P.  Wms.  189,  the  Master  of  the  Rolls  says,  there 
have  been  an  hundred  precedents  where,  if  the  husband,  for  a  valuable  con- 
sideration, covenants  that  his  wife  shall  join  with  him  in  a  fine,  the  Court  has 
decreed  the  husband  to  perform  his  covenant;  and  in  Morris  and  Stephenson 
(1802)  7  Ves.  474,  a  husband  was,  under  the  circumstances,  decreed  to  procure 
his  wife  to  join  a  surrender  of  copyhold  estate;  but  in  Emery  v.  Wase  (1803) 
S  Ves.  505,  Lord  Eldon  reviews  the  cases,  and  expresses  great  doubt,  whether 
under  a  contract  by  a  husband  to  sell  the  estate  of  his  wife,  the  Court  will 
decree  him  to  procure  her  to  join.  In  Davis  v.  Jones  (1S05)  1  B.  &  P.  X.  R,  267, 
the  Chief  Justice  of  the  Common  Pleas,  Sir  James  Mansfield,  who  was  very 
conversant  in  the  doctrines  of  a  Court  of  Equity,  thought  nothing  could  be 
more  absurd  than  to  allow  a  married  woman  to  be  compelled  to  levy  a  fine 
through  the  fear  of  her  husband  being  sued  and  thrown  into  gaol,  when  the 
general  principle  of  the  law  was,  that  a  married  woman  shall  not  be  compelled 
to  levy  a  fine.  Those  cases  in  which  a  husband  was  compelled  to  make  his 
wife  concur  have  been  where  he  has  agreed  she  should  convey,  and  her  con- 
sent might  be  supposed  to  have  been  previously  obtained ;  but  in  this  case 
there  is  no  pretence  that  the  Defendant  agreed  that  his  wife  and  son  should 
join  in  a  recovery.  None  of  the  cases  have  gone  so  far  as  to  say  a  father 
can  be  compelled  to  procure  his  son  to  join  in  a  recovery." 


Sec.  6)  COMPENSATION   ON   PARTIAL   BREACH  367 

JONES  v.  EVANS. 
(In  Chancery  before  Sir  Launcelot  Shadwell,  1848.    17  Law  J.  Ch.  409.) 

This  was  a  bill  filed  by  the  purchaser  of  an  estate  for  the  specific 
performance  of  an  agreement,  dated  the  8th  of  January,  1847,  by  which 
it  was  recited  that  James  Evans  and  Thomas  Jones  were  each  of  them 
entitled  to  two-sixth  parts  of  and  in  the  residue  of  a  term  of  ninety- 
nine  years  in  certain  lands ;  and  by  the  said  agreement  it  was  wit- 
nessed that,  in  consideration  of  the  sum  of  £140  to  them  the  said  J. 
Evans  and  T.  Jones,  paid  by  the  plaintiff,  Hector  Jones,  they,  the  said 
J.  Evans  and  T.  Jones,  respectively  agreed  to  assign  to  the  plaintiff  the 
said  two  sixth  parts  or  shares  in  the  said  leasehold  property,  together 
with  all  other  their  rights  and  interests  therein ;  and  each  of  the  said 
parties  was  further  bound  in  the  sum  of  £30,  to  be  recovered  as  liqui- 
dated damages,  to  perform  the  said  agreement.  Upon  the  execution 
of  the  said  agreement  the  sum  of  £1  was  paid  by  the  plaintiff  to  each  of 
the  said  vendors  by  way  of  deposit.  It  turned  out  upon  investigation 
of  the  title  of  the  vendors,  that  instead  of  being  entitled  to  two  sixth 
parts  of  the  said  premises,  they  were  only  entitled  to  two  twenty-one 
parts  each,  and  in  consequence  of  this  discovery  they  refused  to  com- 
plete the  contract,  and  tendered  the  sum  of  £30  by  way  of  damages, 
according  to  the  terms  of  the  agreement.  The  plaintiff,  however, 
being  satisfied  to  accept  performance  of  the  contract  to  such  extent 
only  as  the  interests  of  the  vendors  extended,  upon  having  a  propor- 
tionate reduction  in  the  amount  of  purchase  money,  filed  this  bill  for 
specific  performance. 

The;  Vice  Chancellor.  As  to  one  of  the  parties  being  entitled  in 
right  of  his  wife,  that  is  a  matter  for  the  consideration  of  the  purchas- 
er; he  may  if  he  likes  waive  the  conveyance  from  the  wife.  It  is  evi- 
dent from  the  terms  of  the  agreement  that  the  intention  of  the  pur- 
chaser was  to  buy  what  the  vendors  had  to  sell.  This  is  very  unlike 
the  case  where  parties  contracted  to  sell  an  entirety,  and  then  it  turned 
out  that  they  had  only  seven  sixteenth ;  here  the  contract  was  to  sell 
two  sixths,  and  it  afterwards  appeared  that  the  vendors  had  only 
two  twenty-one  parts  each.  The  intention  of  the  vendors  was  to  sell 
what  they  had,  and  it  seems  to  me  to  be  quite  right  that  there  should 
be  a  specific  performance  of  that  agreement  to  the  extent  of  the  ven- 
dors' interests,  and  that  a  proportionate  abatement  should  be  made 
in  the  purchase-money. 


30S  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

EBERT  v.  ARENDS. 
(Supreme  Court  of  Illinois,  1901.    190  111.  221,  60  N.  E.  211.) 

Appeal  from  circuit  court,  Ford  county ;  John  H.  Moffett,  Judge. 
Suit  by  Theodore  Arends  against  Samuel  Ebert.  *  *  * 
This  is  a  bill,  filed  on  March  22,  1900,  by  the  appellee  against  the  ap- 
pellant, for  the  specific  performance  of  a  written  contract  for  the  sale 
of  80  acres  of  land  in  Ford  county  by  the  appellant  to  the  appellee. 
Answer  was  filed  to  the  bill  by  the  appellant,  and  the  cause  was  refer- 
red to  a  special  master  to  take  evidence  and  report  his  conclusions. 
Objections  were  filed  to  the  report  before  the  master,  and  by  him  over- 
ruled. The  master  reported  in  favor  of  the  appellant,  and  recommend- 
ed that  appellee's  bill  should  be  dismissed.  Exceptions  were  filed  to 
the  master's  report,  and,  upon  the  coming  in  of  the  report  to  be  heard 
upon  such  exceptions,  the  same  were  sustained  by  the  circuit  court; 
and  the  circuit  court  entered  a  decree  in  favor  of  the  appellee,  and  or- 
dered a  specific  performance  of  the  contract  by  the  appellant.  From 
the  latter  decree  by  the  circuit  court  the  present  appeal  is  prosecuted. 
*     *     * 

Magruder,  J.,10  delivered  the  opinion  of  the  court.  *  *  * 
There  is  one  feature,  however,  of  the  decree,  entered  by  the  court  be- 
low, which  we  cannot  but  regard  as  erroneous.  The  decree  provides 
that,  if  the  appellant  shall  deliver  a  deed,  in  the  execution  of  which 
his  wife  shall  join  with  him,  to  the  master,  then  the  master  is  to  pay 
to  appellant  the  full  amount  of  money  required  to  be  deposited  with 
him  by  the  appellee.  But  the  decree  also  provides  that  if  appellant  shall 
deliver  a  deed  signed  by  himself  alone,  without  the  execution  thereof 
by  his  wife,  so  as  to  release  her  dower,  then  the  master  shall  pay  over 
to  the  appellant  all  of  the  money  so  deposited,  except  the  sum  of  $1,- 
000,  and  that  said  sum  of  $1,000  shall  be  retained  by  the  master  until 
the  value  of  the  dower  interest  of  the  wife  of  appellant  can  be  ascer- 
tained. As  the  appellant  is  still  alive,  his  wife's  dower  is  as  yet  in- 
choate. In  Humphrey  v.  Clement,  44  111.  299,  which  was  a  proceeding 
to  compel  the  specific  performance  of  a  contract  for  the  sale  and  con- 
veyance of  land,  the  court  decreed  a  conveyance  upon  payment  by  the 
purchaser  of  $880,  the  amount  due  on  the  contract,  and  also  decreed 
that,  in  case  the  wife  of  the  defendant  should  refuse  to  join  in  the 
deed,  the  purchaser  might  retain  $250  out  of  the  purchase  money ;  and 
it  was  there  held  that  this  provision  in  the  decree,  authorizing  the  pur- 
chaser to  retain  $250  out  of  the  purchase  money,  as  an  indemnity 
against  the  contingent  right  of  dower,  was  erroneous,  there  being  no 
grounds  upon  which  to  base  such  judicial  action.  See,  also,  Sloan  v. 
Williams,  138  111.  43,  27  N.  E.  531,  12  L.  R.  A.  496.  Under  the  doc- 
trine laid  down  in  Humphrey  v.  Clement,  supra,  the  retention  of  the 
$1,000  out  of  the  purchase  money  is  unauthorized.    We  do  not  regard 

io  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Sec.  6)  COMPENSATION   ON   PARTIAL   BREACH  369 

the  case  of  Humphrey  v.  Clement,  supra,  as  overruled  by  the  case  of 
McCord  v.  Massey,  155  111.  123,  39  N.  E-  592.  In  the  latter  case,  the 
appellee  therein  brought  suit  to  recover  the  residue  of  the  purchase 
money  of  certain  premises,  and  the  appellants  there  sought  to  set  off 
against  his  demand  an  amount  which  appellants  had  been  obliged  to  pay 
to  remove  an  inchoate  right  of  dower ;  and  it  was  there  held  that  the 
damages  sustained  by  the  covenantee  through  a  breach  of  covenant 
against  incumbrances  was  not  established  by  proof  of  the  amount  paid 
to  discharge  such  inchoate  right  of  dower.  The  vendee,  in  cases  like 
the  one  at  bar,  must  take  his  deed  without  the  execution  thereof  by 
the  wife,  and  rely  upon  its  covenants.  If  a  purchaser  of  land  desires 
to  protect  himself  against  the  dower  of  the  vendor's  wife,  he  should 
provide  against  it  in  his  contract. 

The  decree  of  the  circuit  court  is  affirmed  so  far  as  it  awards  to 
appellee  a  specific  performance  of  the  contract,  but  is  reversed  so  far 
as  it  authorizes  a  part  of  the  purchase  money  to  be  held  back  until  the 
value  o't  the  dower  interest  of  appellant's  wife  can  be  ascertained ;  and 
the  cause  is  remanded  to  the  court  below  with  directions  to  change 
and  modify  its  decree  in  accordance  with  the  views  herein  expressed. 
Partly  affirmed  and  partly  reversed,  and  remanded  with  directions. 


WALKER  v.  KELLY  et  al. 

(Supreme  Court  of  Michigan,  1892.     91  Mich.  212,  51  N.  W.  934.) 

Appeal  from  circuit  court,  Gratiot  county,  in  chancery ;  Sherman  B. 
Daboll,  Judge. 

Bill  by  Ella  Walker  against  Frederick  S.  Kelly,  Simon  Munson,  and 
Rudolph  Walker,  to  enforce  specific  performance  of  a  contract  to  con- 
vey land.     From  a  decree  for  defendants,  complainant  appeals. 

McGraTh,  J.11  This  is  a  bill  for  specific  performance  of  a  contract 
for  the  conveyance  of  120  acres  of  land.  Complainant,  who  is  the 
daughter  of  defendant  Kelly,  owned  80  acres  of  other  land,  and  de- 
fendant Walker,  the  husband  of  the  complainant,  owned  40  acres  ad- 
joining. Complainant  and  husband,  in  September,  1881,  sold  their 
land,  receiving  therefor  $1,000  in  cash  and  a  mortgage  of  $1,300.  They 
were  to  give  possession  in  April;  1882.  Defendant  Kelly  owned  a 
farm  of  200  acres,  upon  which  he,  with  his  wife  and  son,  resided.  Kel- 
ly's wife  was  complainant's  stepmother.  The  proceeds  of  the  land  sold 
by  complainant  and  her  husband  were  turned  over  to  defendant  Kelly, 
with  which  he  purchased  a  small  farm  near  the  village  of  Ithaca,  to 
which  Kelly  and  wife  removed  from  the  farm  in  dispute.  After  the 
lapse  of  two  years  and  a  half,  complainant  and  her  husband  moved 
upon  the  land  in  question,  where  they  have  since  resided.     Since  she 

ii  Part  of  the  opinion  is  omitted. 
Boke  Eq. — 24 


370  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

moved  upon  the  farm  complainant  has  turned  over  one-third  of  the 
crops  to  her  father.  These  facts  are  not  disputed.  Complainant 
claims  that,  after  she  had  sold  her  farm,  her  father  represented  to  her 
that  he  was  getting  too  old  to  work  his  farm,  and  desired  to  buy  a 
small  place  near  the  village,  and  divide  up  the  200-acre  farm  between 
complainant  and  her  brother;  that  he  had  been  looking  at  the  Kinwit- 
ter  place,  near  the  village  of  Ithaca,  and  he  agreed  that,  if  she  would 
let  him  have  the  proceeds  of  her  farm,  he  would  buy  the  Kin  witter 
place,  and  remove  thereto,  and  would  give  her  a  deed  of  the  premises 
in  question,  provided  that  she  would  agree  to  give  him  one-third  of  the 
hay,  wheat,  oats,  clover-seed,  corn,  and  apples  that  would  be  raised 
on  said  farm  during  his  life ;  that,  in  consideration  thereof,  he  would 
pay  the  taxes  assessed  upon  said  land ;  that  she  accepted  her  father's 
proposition,  and  went  with  her  father  to  Kinwitter,  assigned  her  mort- 
gage to  him,  and  paid  over  to  him  the  $1,000  in  cash  ;  that  in  the  spring, 
after  her  father  had  removed  from  the  farm,  she  refused  to  go  upon 
the  farm,  because  her  brother,  who  was  about  to-  get  married,  occupied 
the  homestead,  and  her  father  insisted  that  her  brother  should  remain 
there  for  an  indefinite  period,  until  he,  the  father,  should  build  a  house 
for  the  brother  on  the  adjoining  80  acres,  which  was  to  go  to  the 
brother.  She  claims  that  she  told  her  father  that  no  one  house  was 
large  enough  for  two  families.  The  father  finally  agreed  to  build  a 
house  for  the  brother  at  once,  and  complainant  moved  upon  the  farm, 
the  father  built  the  house  for  the  brother,  and  the  brother  removed 
thereto.  She  claims  that  the  deed  to  her  was  to  be  delivered  at  once, 
but  the  father,  when  first  asked  for  the  deed,  told  her  that  he  had  not 
yet  obtained  his  wife's  signature,  but  he  promised  to  obtain  it ;  that 
afterwards  he  represented  to  her  that  his  wife  refused  to  sign  the  deed, 
but  assured  her  that  she  should  be  protected ;  that  she  relied  upon  her 
father's  promises  made  from  time  to  time;  that  the  father  continued 
making  these  promises,  and  giving  these  assurances,  until  two  years 
before  this  suit  was  brought ;  and  that  this  suit  was  instituted  because 
she  learned  that  her  father  had  sold  and  conveyed  10  acres  of  the  land 
in  question  to  defendant  Munson.     *     *     * 

It  is  insisted,  however,  that  the  contract  is  not  enforceable,  because 
the  wife  cannot  be  compelled  to  release  her  dower.  There  is  no  ques- 
tion but  what  the  contract  here  was  for  a  deed  from  both  Kelly  and 
wife,  and,  while  the  wife  cannot  be  compelled  to  release  her  dower, 
(Richmond  v.  Robinson,  12  Mich.  193 ;  Phillips  v.  Stauch,  20  Mich. 
369,)  there  is  no  reason  why  complainant  may  not  have  a  decree  for 
specific  performance  so  far  as  defendant  Kelly  is  concerned,  and  for 
compensation  as  to  the  dower  interest  of  his  wife.  In  Phillips  v. 
Stauch,  supra,  the  wife  did  not  join  in  the  contract,  which  related  to 
a  homestead.  The  court  could  not  decree  a  conveyance  of  the  home- 
stead, for,  under  the  statute,  a  deed  by  the  husband  alone  of  the  home- 
stead is  wholly  invalid.  The  present  case  is  without  that  complication. 
Here  there  is  no  partial  alienation,  no  severance  of  the  property,  and 


SeC.  7)  STATUTE  OF  FRAUDS ORAL  CONTRACTS  371 

the  dower  interest  is  unaffected.  There  is  no  legal  obstacle  to  the  con- 
veyance by  a  husband  of  his  interest  in  real  estate,  and,  if  so,  why  may 
not  the  husband  be  compelled  to  so  convey,  when  he  has  contracted 
so  to  do,  and  to  give  compensation  wherein  he  has  failed  to  perform 
his  contract?  The  complainant  is  entitled  to  a  deed  from  defendant 
Kelly  of  the  premises  described  in  complainant's  bill,  subject  to  a  res- 
ervation of  one-third  of  the  crops  above  named  to  defendant  Kelly,  for 
and  during  his  natural  life,  upon  payment  of  the  taxes  upon  said  prem- 
ises, and  complainant  is  also  entitled  to  compensation  for  the  present 
value  of  the  contingent  right  of  dower  of  the  wife  of  defendant  Kelly. 
The  decree  below  is  reversed,  and  a  decree  entered  here  in  accordance 
with  this  opinion,  and  the  record  remanded,  with  directions  to  proceed 
to  the  award  of  compensation  in  accordance  herewith,  with  costs  of 
both  courts  to  complainant. 

Long,  J.,  did  not  sit.    The  other  justices  concurred. 


SECTION   7.— THE    STATUTE   OF   FRAUDS   IN   EQUITY- 
ORAL  CONTRACTS  PARTLY  PERFORMED 


LASSENCE  v.  TIERNEY. 

(In  Chancery  before  Lord  Cottenhain,  1849.    1  Maen.  &  G.  551.) 

The;  Lord  Chancellor.12  *  *  *  Here  is  a  bill  filed  by  a  mar- 
ried woman,  alleging  a  parol  agreement  before  marriage,  and  a  mar- 
riage following.  The  contract  alleged  is  one  solely  and  entirely  for 
her  benefit ;  nothing  is  given  up  by  the  husband,  nothing  contracted  to 
be  done  by  him,  but  he  is  to  take  £3000,  which  he  does  take,  and  taking 
£3000,  he  contracts  that  the  wife  shall  enjoy  the  rest  of  her  property. 
Nothing  is  done  upon  that ;  the  marriage  takes  place,  and  then  a  deed 
is  prepared,  to  which  the  name  of  the  wife  appears  attached  (a  circum- 
stance quite  immaterial,  as  she  was  incapable  of  binding  herself  in 
that  way).  The  deed  was  not  acknowledged  by  her,  and  therefore 
never  underwent  that  ceremony  which  by  law  is  necessary  for  the  pur- 
pose of  binding  her  interest.  Under  these  circumstances  she  dies,  and 
then  her  husband  files  a  bill ;  and  the  equity  which  he  asserts  in  that 
bill  is  this :  that  he  and  his  wife  contracted  before  marriage  that  there 
should  be,  if  necessary,  a  settlement  ("if  necessary,"  of  course,  means 
necessary  for  the  purpose  of  the  contract  which  was  to  secure  to  the 
wife  the  enjoyment  of  her  separate  estate);  that  nothing  took  place 
subsequently  to  bind  the  wife ;  that  if  a  settlement  had  been  prepared, 

12  Parts  of  the  opinion  are  omitted. 


372  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

it  ought  to  have  contained  (as  the  deed  purporting  to  be  such  settlement 
did  contain)  a  power  to  her  to  give  away  the  property  by  will ;  that  she 
made  a  will,  of  which  he,  the  husband,  was  to  have  the  benefit  to  a  cer- 
tain extent ;  and  that  as  devisee,  and  as  against  her  heir,  he  claims  to 
have  this  will  carried  into  effect. 

Now,  in  the  first  place,  if  the  wife  was  alive,  could  any  equity  be 
asserted  against  her?  There  is  nothing  against  her  but  a  parol  contract 
before  marriage,  and  nothing  but  marriage  following,  which  will  not 
support  the  contract ;  and  such  a  contract  cannot  be  carried  into  effect 
under  the  Statute  of  Frauds.  The  case  of  Hammersley  v.  Baron  de 
Biel,  12  CI.  &  Fin.  45,  was  referred  to  in  support  of  this  equity.  That 
case,  as  it  came  before  this  Court,  is  not  reported  at  all,  except  in  a 
note  to  the  report  of  the  case  before  the  House  of  Lords,  in  which  my 
judgment  only  is  given.  I  was  very  glad  to  find  that  in  giving  judg- 
ment in  that  case,  I  guarded  myself,  as  I  supposed,  against  such  a 
use  being  made  of  the  case,  for  I  there  said  that  a  parol  contract  fol- 
lowed Only  by  marriage  is  not  to  be  carried  into  effect,  marriage  being 
no  part-performance  of  the  contract.  If  it  were,  there  would  be  an 
end  of  the  statute,  which  says  that  a  contract  in  consideration  of  mar- 
riage shall  not  be  binding,  unless  it  be  in  writing;  but  if  marriage  be 
part-performance,  every  parol  contract  followed  by  marriage  would  be 
binding.  That  is  no  new  doctrine ;  it  is  what  Lord  Eldon  lays  down  in 
Dundas  v.  Dutens,  1  Yes.  Jr.  196,  and  has  always  been  considered  and 
recognized  as  law.     *     *     * 

The  appeal  must  therefore  be  dismissed  with  costs. 


MOORE  v.  SMALL. 

(Supreme  Court  of  Pennsylvania,  1852.     19  Pa.  461.) 

Error  to  the  Common  Pleas  of  Lawrence  County.  Action  of  eject- 
ment. 

Buffington,  J.,  charged  as  follows : 

"There  are  a  few  prominent  facts  in  this  case  that  seem  to  be  satisfactorily 
established,  and  not  controverted.  John  Small  was  the  owner  of  the  whole 
tract  prior  to  the  year  1S20.  From  the  year  1823  till  the  time  of  his  death, 
Matthew  was  taxed  with  one  hundred  acres;  John  Small  with  two  hundred 
acres  till  1825,  and  from  that  time  till  1831  with  one  hundred  and  sixty  acres, 
and  Matthew  Small  with  one  hundred  acres,  part  of  Thompson's,  for  1S2S.  A 
house  was  built  in  1S24  on  the  land  in  dispute;  attempts  were  made  to  dig  a 
well,  estimated  altogether  at  $200.  A  second  cabin  was  erected  on  the  land, 
and  a  quantity  of  land  cleared,  amounting  to  upwards  of  five  acres.  A  ten- 
ant, Samuel  Stanton,  resided  there  from  the  spring  of  1829  to  the  fall  of  1S38. 
On  the  19th  of  November,  1835,  John  Small  made  his  will,  devising  this  land 
to  the  plaintiff,  and  shortly  afterwards  died.  In  the  spring  of  1847  a  suit 
was  brought  in  the  Court  of  Common  Pleas  of  Mercer  county,  by  the  present 
defendants,  which  resulted  in  a  verdict  and  judgment  in  their  favor,  in  the 
spring  of  L849. 

"If  John  Small  was  the  owner  of  the  land  at  the  time  he  made  his  will, 
and  at  the  time  of  his  death,  the  devise  passed  the  land  to  the  plaintiffs,  and 


Sec.  7)  STATUTE   OF   FRAUDS ORAL   CONTRACTS  373 

they  are  entitled  to  recover.  The  question,  then,  in  dispute  is,  did  the  old 
man  give  the  property  to  his  son  Matthew  by  a  parol  gift,  which  is  valid  in 
law  to  pass  the  title?    The  defendants  so  allege."     *     *     * 

The  opinion  of  the  Court  was  delivered  by 

Woodward,  J.13  The  statute  of  frauds  and  perjuries,  regarded  as 
a  rule  of  property,  is  simple  and  intelligible.  Every  mind  is  capable  of 
understanding  that  contracts  about  land,  if  more  is  meant  than  a  three 
years'  lease,  must  be  in  writing.  This  rule  is  as  apprehensible  and 
appreciable  by  the  common  mind  as  those  other  statutory  rules  which 
make  twenty-one  years'  adverse  possession  of  land,  title  thereto ;  bar 
actions  on  simple  contracts  after  six  years'  delay ;  require  judgments 
to  be  revived  once  in  five  years ;  and  liens  of  mechanics  and  material 
men  to  be  entered  within  six  months  after  the  contract  executed. 

And  what  rule  is  more  reasonable?  Land  is  the  most  important  and 
valuable  kind  of  property.  Or  if  it  be  not,  there  is  no  other  stake 
for  which  men  will  play  so  desperately.  In  men  and  nations  there  is 
an  insatiable  appetite  for  lands,  for  the  defence  or  acquisition  of  which 
money  and  even  blood  sometimes  are  poured  out  like  water.  The  evi- 
dence of  land  title  ought  to  be  as  sure  as  human  ingenuity  can  make  it. 
But  if  left  in  parol,  nothing  is  more  uncertain,  whilst  the  temptations 
to  perjury  are  proportioned  to  the  magnitude  of  the  interest. 

The  infirmities  of  memory,  the  death  of  witnesses,  the  corruptibility 
of  witnesses,  the  honest  mistakes  of  witnesses,  and  the  misunderstand- 
ings of  parties,  these  are  all  elements  of  confusion  and  discord  which 
ought  to  be  excluded  from  titles  to  the  most  coveted,  if  not  most  val- 
uable of  terrestrial  objects.  And  it  is  the  purpose  of  the  statute  of 
frauds  and  perjuries  to  exclude  these  elements,  and  to  compel  men  to 
create  testimonials  of  their  intentions  which  are  certain  and  enduring. 

Blackstone  speaks  of  the  reign  of  Charles  II  as  more  polite  than  its 
predecessors,  and  it  was  distinguished  by  several  enactments  that 
marked  an  advancing  civilization.  The  statute  for  prevention  of  frauds 
and  perjuries  was  one  of  those  enactments.  Though  enacted  before 
the  charter  to  William  Penn,  this  statute  has  been  held  not  to  extend 
to  Pennsylvania.  But  its  most  material  provisions  were  supplied  to 
us  by  our  Act  of  21st  March,  1772.  It  is  remarkable  how  complete- 
ly, both  in  England  and.  Pennsylvania,  the  public  mind  has  acquiesced 
in  these  enactments.  History  tells  of  no  popular  movement,  in  either 
of  these  representative  governments,  for  the  repeal  or  material  modi- 
fication of  the  statute  of  frauds  and  perjuries.  Chancellors  and  judg- 
es have  often  manifested  great  uneasiness  under  its  operation,  and  have 
expounded  and  refined  until  the  rule  has  ceased  to  be  looked  for  in 
the  statute  itself,  but  must  be  tracked  through  volumes  of  jarring  and 
contradictory  decisions.  The  people  however,  whose  representatives 
furnished  the  rule,  have  indicated  their  willingness  that  it  should  have 
free  course,  by  never  calling  on  their  representatives  to  repeal  it. 

13  The  statement  of  facts,  excepting  a  part  of  the  charge  of  the  trial  court, 
and  a  part  of  the  opinion  of  Woodward,  J.,  are  omitted. 


374  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

And  yet  it  must  be  confessed,  the  idea  first  started  in  England,  I 
believe  by  Sir  William  Jones,  that  a  statute  made  to  suppress  perjuries 
and  frauds  should  be  so  construed  as  not  to  become  an  instrument  of 
fraud,  was  a  logical  deduction.  The  popular  acquiescence  of  which  I 
have  spoken  may  be  due,  in  some  measure,  to  this  necessary  and  rea- 
sonable construction.  But,  that  the  statute  should  have  effect  except 
where  its  operation  would  defeat  its  objects,  is  a  corollary  from  this 
principle  of  construction,  and  agreeable  to  reason,  though  lost  sight  of 
in  the  decision  of  many  cases.  Hard  cases  make  bad  precedents,  is  a 
maxim  that  has  been  strikingly  illustrated  by  the  course  of  decision 
under  this  statute.  Judges  have  been  borne  away,  by  sympathy  for 
parties  from  the  letter  of  the  law,  and  in  their  benevolent  efforts  to 
accommodate  it  to  the  changeful  circumstances  of  cases,  copious  foun- 
tains of  litigation  have  become  unsealed.  Nobody  has  lamented  this 
judicial  amiability  more  than  the  judges  themselves.  For  the  last 
twenty  years  there  has  scarcely  been  a  judge  of  any  considerable  repu- 
tation, either  in  England  or  the  United  States,  who  has  not  in  some 
manner  put  on  record  his  regrets,  the  results  of  large  experience  that 
the  statute  had  been  so  widely  departed  from,  and  his  conviction,  that 
more  evils  have  resulted  from  such  departures  than  they  have  reme- 
died. 

The  best  rule  of  construction  that  I  have  ever  seen  applied  t-o  the 
statute  of  frauds  and  perjuries,  is  that  suggested  in  some  of  the 
English  cases,  and  adopted  by  the  Legislature  of  Pennsylvania  in  the 
Act  of  10th  March,  1818,  providing  for  the  proof  and  specific  execu- 
tion of  the  parol  contracts  of  decedents,  where  such  contract  shall 
have  been  so  far  in  part  executed  as  to  render  it  unjust  to  rescind  the 
same. 

This  excludes  the  possibility  of  the  statute  becoming  an  instrument 
or  occasion  of  fraud,  for  if,  in  any  case,  it  is  not  unjust  to  rescind  a 
parol  contract,  it  cannot  be  fraud  to  rescind  it.  The  Legislature  seem 
to  have  considered  all  parol  contracts  as  within  the  statute  of  frauds 
and  perjuries,  and  that,  though  partly  executed,  they  ought  to  be  re- 
scinded, if  it  can  be  done  without  injustice  to  the  parties;  but  if  they 
have  been  so  far  executed  as  to  render  it  unjust  to  rescind  them,  then 
the  Courts  shall  hold  them  to  be  without  the  statute,  and  go  on  and 
execute  them  fully.  In  passing  upon  the  question  of  injustice,  refer- 
ence is  to  be  had  to  the  fact  that  the  4th  section  of  the  British  statute, 
which  forbids  any  action  on  a  parol  agreement,  unless  there  be  a  note 
of  it  in  writing,  signed  by  the  party  to  be  charged,  is  wholly  omitted  in 
our  statute.  Actions  for  damages  on  parol  contracts  for  land  have 
been  often  sustained  in  Pennsylvania.  Bell  v.  Andrews,  4  Dall.  152,  1 
L.  Ed.  779;  Ewing  v.  Tees,  1  Bin.  450,  2  Am.  Dec.  455.  The  measure 
of  damages  in  such  actions  is  not  the  value  of  the  land,  for  that  would 
work  an  evasion  of  the  statute,  but  is  the  price  paid  or  services  render- 
ed.   Hastings  v.  Eckley,  8  Pa.  197. 

The  rule  of  construction,  then,  which  is  deducible  from  the  Act  of 


Sec.  7)  STATUTE  OF  FRAUDS ORAL  CONTRACTS  375 

1818,  may  be  stated  thus  :  Every  parol  contract  is  within  the  statute  of 
frauds  and  perjuries,  except  where  there  has  been  such  part  perform- 
ance as  cannot  be  compensated  in  damages.  This  rule  seems  to  me 
more  reasonable  than  that  delivery  of  possession  under  the  parol  con- 
tract shall  be  part  performance  to  take  it  out  of  the  statute,  as  has 
been  asserted  in  many  cases,  English  and  American,  and  especially  in 
Pugh  v.  Good,  3  Watts  &  S.  63,  37  Am.  Dec.  534.  Without  possession 
taken  and  maintained  under  the  contract,  there  can  be  no  pretence  of 
part  performance,  but  generally  that  is  an  act  which  admits  of  compen- 
sation, and  therefore  too  much  is  made  of  it  when  it  is  treated  as  suffi- 
cient ground  for  decreeing  specific  execution.     *     *     * 

In  the  third  place,  the  evidence  of  possession  is  wholly  defective. 
That  Matthew  took  possession  of  the  land  in  pursuance  of  the  contract, 
can  scarcely  be  said  to  be  proved,  whilst  it  is  proved  that  he  never  had 
the  exclusive  possession.  There  were  the  old  hill  fields  on  the  disputed 
tract,  spoken  of  by  Andrew,  as  v/orked  sometimes  by  Matthew  and 
sometimes  by  the  old  man ;  and  there  were  the  saw  logs,  barn  logs. 
firewood,  and  rails  taken  from  the  land  by  the  old  man,  to  show  that 
his  possession  had  never  been  fully  surrendered. 

Nor,  finally,  were  the  improvements  such  as  to  raise  an  equity.  The 
log  house  which  Matthew  commenced  he  removed  to  the  Thompsons' 
tract,  where  he  resided,  and  converted  it  into  a  barn.  The  small  piece 
of  land  he  cleared,  if  not  long  since  paid  for  in  the  use  of  the  improved 
fields,  admits  of  compensation. 

Without  discussing  the  evidence  in  full,  we  think  it  failed  entirely 
to  make  out  these  essential  points.  The  consequence  is,  the  defence 
fails.  A  chancellor  would  not  decree  a  conveyance  on  such  proofs.  If 
the  defendants  were  seeking  specific  execution  in  the  Common  Pleas 
or  the  Orphans'  Court,  they  could  not  have  it,  for  the  "contract  was  not 
so  far  in  part  executed  as  to  render  it  unjust  to  rescind  the  same." 
Nor  is  there  anything  in  the  charge  of  the  learned  judge  to  indicate  his 
satisfaction  with  the  evidence.  The  whole  case  was  turned  over  to  the 
jury,  and  they  were  substituted  for  the  chancellor,  to  pass  on  the 
equities  of  the  defendants,  and  of  course  they  were  dealt  with  loosely. 
In  all  this  the  principles  I  have  stated  were  contravened,  and  the  judg- 
ment must  be  reversed. 

Reversed  and  a  venire  de  novo  awarded. 


WATT  v.  EVANS. 

(Court  of  Exc-bequer,  1S34.     4  Younge  &  C.  579.) 

A  contract  by  parol  was  entered  into  fifteen  years  ago  for  the  pur- 
chase of  an  estate  for  the  price  of  f800,  and  i50  was  paid.  This  did 
not  take  the  case  out  of  the  Statute  of  Frauds. 

Lord  Lyndhurst,  C.  B.  The  balance  of  authority  upon  the  cases 
was  in  favour  of  the  contract  not  being  taken  out  of  the  statute,  al- 


376  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

though  the  payment  was  of  a  substantial  or  material  part  of  the  pur- 
chase-money, and  so  was  the  reasoning. 

The  two  arguments  were,  first,  the  impossibility  of  drawing  the 
line  between  substantial  and  insubstantial ;  and,  secondly,  that  the  stat- 
ute allowed  earnest-money,  or  part  payment  of  purchase-money,  to  be 
available  in  the  case  of  personal  estate,  which  negatived  its  being  al- 
lowed to  have  that  effect  in  the  case  of  real  estate. 

To  this  argument  it  had  been  replied,  that  it  had  proved  too  much ; 
for  delivery  or  part  delivery  of  goods  is  expressly  allowed  by  the  stat- 
ute to  take  a  contract  out  of  it,  and  yet  it  is  not  considered  to  negative 
the  position,  that  delivery  of  possession  of  real  estate  shall  have  the 
same  effect. 

But  to  this  it  is  answered,  that,  were  not  the  delivery  of  possession  of 
lands  to  take  the  case  out  of  the  statute,  the  purchaser  would  be  led 
into  difficulties,  and  would  be  a  trespasser. 

Considering  that  there  was  a  conflict  of  opinion,  the  Chief  BarOn 
dismissed  the  bill  seeking  to  establish  the  contract,  without  costs. 


LESTER  v.  FOXCROFT. 

(High  Court  of  Parliament,  1700.     1  Coll.  P.  C.  108,  1  E.  R.  205.) 

The  appellant  stated,  that  Isaac  Foxcroft  was  seized  in  fee  of  a  part 
of  an  ancient  messuage  called  Wildhouse,  in  the  parish  of  St.  Giles  in 
the  Fields,  in  the  county  of  Middlesex,  and  possessed  of  other  part 
thereof  for  a  long  term  of  years,  and  agreed  with  several  builders  to 
pull  down  parts  thereof,  and  build  new  houses  thereon;  and  about 
25th  March,  1695,  proposed  to  make  such  agreement  for  part  of  the 
said  house  with  appellant,  and  promised  to  assist  him  with  money 
without  interest,  in  case  he  should  want  it  to  finish  the  building ;  and 
it  was  particularly  agreed  between  them,  that  appellant  should  at  his 
own  cost  pull  down  a  certain  part  of  the  messuage,  and  build  thereon 
fourteen  or  more  good  messuages ;  and  that  Foxcroft  should,  in  con- 
sideration thereof,  lease  the  said  part  to  appellant,  from  Michaelmas, 
1695,  for  ninety-nine  years,  at  a  pepper-corn  for  the  first  year,  and 
±150  yearly  rent  for  the  last  ninety-eight  years.  At  the  time  of  making 
which  agreement,  there  was  no  memorandum  or  note  thereof  in  writ- 
ing; but  in  performance  of  the  agreement,  appellant  entered  into  that 
part  of  the  messuage,  and,  at  his  own  cost  pulled  down  the  same,  and 
built  several  new  houses  thereon  (the  whole  fourteen  being  almost  fin- 
ished) and  therein  disbursed  several  thousand  pounds ;  about  £2000 
his  own  money,  and  several  sums  borrowed  from  Foxcroft  upon  his 
own  securities,  yet  unsatisfied,  and  was  all  along  in  possession,  and 
acted  as  sole  proprietor  and  owner,  and  was  acknowledged  as  such  by 
Foxcroft ;  who  frequently  declared  that  he  had  only  a  ground  rent, 
and  that  appellant  was  the  landlord  ;    and  as  any  of  the  new  houses 


Sec.  7)  STATUTE  OF  FRAUDS — ORAL  CONTRACTS  377 

were  finished,  appellant  demised  the  same  in  his  own  name,  received 
the  rents,  and  Foxcrof  t  never  received  nor  claimed  any  part  thereof : 
And  about  August,  1698,  Foxcroft  (being  then  ill  of  the  sickness  where- 
of he  died)  made  his  will,  and  his  daughter,  Elizabeth  Foxcroft,  sole 
executrix ;  and  devised  to  his  second  son,  Isaac  Foxcroft,  his  heirs 
and  executors,  all  his  estate  in  the  said  ancient  messuage  called  Wild- 
house;  and  if  he  died  under  twenty-one,  to  his  eldest  son  Henry  Fox- 
croft.    *     *     * 

The  vendor,  Isaac  Foxcroft,  ordered  a  lease  prepared  according  to 
the  agreement,  which  was  done,  but  objected  to  by  Foxcroft  on  ac- 
count of  a  mistake  made.    Corrections  were  made. 

And  appellant  a  few  days  before  the  death  of  Foxcroft,  brought  the 
deeds  so  amended  to  his  house  to  have  them  executed  as  he  had  di- 
rected but  respondent  refused  to  let  appellant  see  or  speak  with  Fox- 
croft, and  used  several  indirect  and  unfair  methods  to  prevent  him 
from  executing  the  said  leases,  by  means  whereof  he  died  without  ex- 
ecuting them;  and  since  his  death  respondents  refused  to  execute  leas- 
es, according  to  the  agreement,  whereon  appellant,  in  Hilary  term, 
1698,  exhibited  his  bill  in  Chancery  for  a  specifick  execution  of  the 
agreement,  and  the  cause  being  heard  6th  March,  1700,  the  Lord  Keep- 
er declared  that  there  was  no  sufficient  proof  of  the  said  agreement, 
and  ordered  appellant's  bill  to  stand  dismissed  without  any  relief ; 
which  decree  appellant  insisted  ought  to  be  reversed,  for  that  the 
agreement  was  sufficiently  proved ;  and  though  not  originally  reduced 
into  writing,  occasioned  by  the  entire  confidence  the  parties  had  in 
each  other,  yet  the  same  having  been  at  appellant's  great  expense  so 
far  executed  on  his  part,  there  ought  to  be  a  reciprocal  performance 
of  it  on  the  other  part ;  and  the  rather  so,  as  the  terms  of  the  agree- 
ment were  reduced  to  a  certainty,  by  the  lease  prepared  by  direction 
of  the  lessor,  and  the  execution  thereof  prevented  by  the  unfair  prac- 
tices of  the  respondents,  or  some  of  them.     *     *     * 

Die  Lunae,  7  Aprilis,  1701.  Upon  hearing  council  on  this  appeal, 
it  was  ordered  and  adjudged  by  the  Lords,  that  the  decretal  order  of 
dismission  complained  of  should  be  reversed,  and  that  the  respondent, 
Isaac  Foxcroft,  or  such  other  of  the  respondents  to  whom  the  estate 
in  question  should  come  by  virtue  of  his  father's  will,  should  when 
he  or  they  should  be  of  age  execute  to  the  appellant  Lyster,  his  execu- 
tors, &c,  such  a  lease  of  the  premises  in  question  as  was  prepared  and 
approved  of  by  the  said  Isaac  Foxcroft,  the  father,  before  his  death, 
and  that,  the  appellant  and  his  assigns  should  in  the  mean  time  hold 
and  enjoy  the  same  under  the  covenants  and  agreements  in  the  said 
intended  lease  contained,  discharged  of  all  incumbrances  done  by  said 
Isaac  Foxcroft,  or  any  claiming  under  him. — Lords'  Journ.  vol.  XVI, 
p.  644.14 

i*  Parts  of  lab  opinion  are  omitted. 


378  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

PAWLING  et  al.  v.  PAWLING  et  al. 

(Supreme  Court  of  New  York,  General  Term,  Third  Department,  1895. 
S6  Hun,  502,  33  N.  Y.  Supp.  7S0.) 

Appeal  from  special  term,  Montgomery  county. 

Action  by  Catherine  E.  Pawling,  as  administratrix  of  Henry  Has- 
kell Pawling,  deceased,  and  others,  against  William  M.  Pawling  and 
Margaret  Pawling,  individually  and  as  administrators  of  Henry  Paw- 
ling, deceased,  and  Mary  Jane  Herrick,  for  specific  performance  of  a 
contract  for  the  sale  of  land.  Judgment  was  entered  in  favor  of  plain- 
tiffs, and  defendants  appeal. 

Argued  before  Putnam,  Herrick,  and  StovEr,  JJ. 

Putnam,  J.  Henry  Pawding,  father  of  the  original  plaintiff,  Henry 
Haskell  Pawling,  and  the  defendants  William  M.  Pawding  and  Mary 
Jane  Herrick,  died  in  1892,  leaving  said  parties  his  only  heirs,  and 
the  defendant  Margaret  Pawling  his  widow,  and  owning  the  lot  of 
land  described  in  the  complaint.  In  1874,  Henry  Pawding  and  Henry 
Haskell  Pawling  entered  into  a  partnership,  and  the  former  conveyed 
to  the  latter  an  undivided  half  of  the  premises  in  question.  In  1877 
the  firm  borrowed  from  one  Stairs  $2,600,  which  it  used  in  its  busi- 
ness. For  this  loan  Henry  Pawling  and  Henry  Haskell  Pawling  exe- 
cuted their  joint  and  several  bond  secured  by  a  mortgage  on  the  prop- 
erty. In  1882  the  partnership  was  dissolved,  and  Henry  Haskell  Paw- 
ling reconveyed  to  his  father  the  undivided  one-half  of  said  premises. 
In  December,  1889,  Stairs  demanded  payment  of  said  bond  and  mort- 
gage of  Henry  Pawding,  who  said  he  would  furnish  the  money,  and 
then  made  the  proposition  to  Henry  Haskell  that,  if  the  latter  would 
pay  off  said  bond  and  mortgage  to  Stairs,  the  said  Henry  Pawding 
would  give  him  a  deed  of  the  property  in  question.  Henry  Haskell 
at  first  objected,  but  afterwards  accepted  said  proposition,  and  in  pur- 
suance of  the  verbal  contract  paid  said  bond  and  mortgage,  and  ob- 
tained a  satisfaction  thereof.  The  amount  paid  was  $2,865.63.  Aft- 
erwards, and  about  June  1,  1892,  Henry  Pawling,  being  in  poor  health 
and  intending  to  carry  out  said  agreement,  requested  Henry  Haskell 
to  have  a  proper  deed  drawn  to  convey  said  premises  in  pursuance  of 
said  verbal  contract,  and  promised  to  execute  the  same.  Said  Henry 
Haskell  thereupon  procured  a  deed  to  be  drawn,  and  presented  the 
same  to  Henry  Pawling  for  execution.  Said  deed  was  read  to  and 
approved  by  Henry  Pawling,  and  he  promised  to  execute  the  same, 
but  soon  afterwards,  and  before  he  had  performed  his  promise,  died. 
The  learned  trial  court,  on  sufficient  evidence,  found  the  facts  sub- 
stantially as  above  stated,  and  also  found  as  follows : 

"And  the  plaintiff  has  for  the  use  and  purpose  of  his  said  mill  and  busi 
ness,  ever  since  his  said  agreement  with  said  decedent  in  December,  1889, 
and  for  some  time  prior  thereto,  taken  and  used  the  water  from  said  dam, 
and  maintained  a  pipe  for  his  said  purposes  extending  from  his  said  mill 
and  premises  into  said  dam  above,  and  drawing  and  conducting  the  water 
therefrom,   and  supplying  his  said   mill   therewith,   with  the  knowledge  and 


Sec.  7)  STATUTE   OF   FRAUDS ORAL   CONTRACT?  379 

assent  of  said  decedent,  until  the  time  of  Ms  death,  and  still  uses  the  same 
for  such  purposes ;  and  ever  since  said  agreement  was  made  in  December, 
1SS9,  the  plaintiff  has  also*  used  and  occupied  a  portion  of  the  said  old  mill 
building  as  a  carpenter  shop,  and  a  portion  thereof  for  storage  purposes,  in 
connection  with  his  said  mill  and  manufacturing  business  adjoining  on  the 
west  thereof,  and  with  the  knowledge  and  assent  of  said  decedent  to  the  time 
of  his  said  death,  and  still  uses  and  occupies  the  same  for  such  purposes." 

The  subject  of  the  specific  performance  of  oral  contracts  for  the 
conveyance  of  land  void  by  the  statute  of  frauds  has  been  extensively 
discussed  by  elementary  writers  and  by  courts  in  many  cases.  It  is 
well  settled  that  equity  will,  to  prevent  injustice,  enforce  the  perform- 
ance of  a  parol  contract  partly  carried  into  execution,  on  the  ground 
that  otherwise  one  party  would  be  enabled  to  practice  a  fraud  on  an- 
other, and  that  it  could  not  be  the  intent  of  the  statute  to  enable  one 
party  to  commit  such  a  fraud  with  impunity.  Story,  Eq.  Jur.  §  759 ; 
Dygert  v.  Remerschnider,  32  N.  Y.  629-642.  A  parol  contract  for  the 
sale  of  land,  where  the  vendee  has  paid  the  whole  purchase  price,  and 
entered  into  possession  under  the  contract,  may  be  specifically  en- 
forced. Pom.  Spec.  Perf.  §  115.  In  Dunckel  v.  Dunckel,  141  N.  Y. 
427-435,  36  N.  E.  405,  Earl,  J,  remarks : 

"We  think  it  is  a  general  rule  to  be  gathered  from  the  authorities  that  mere 
payment  of  the  purchase  price  of  land  is  not  sufficient  to  authorize  the  specific 
performance  of  the  contract  of  sale,  unless  the  peculiar  circumstances  of  the 
case  be  such  that  an  action  at  law  to  recover  back  the  money  paid  would  not 
give  the  purchaser  an  adequate  remedy.  But  it  is  also  a  general  rule  that 
when  the  consideration  has  been  paid,  and  possession  under  the  contract  of 
sale  has  been  taken,  the  contract  will  be  specifically  enforced,  and  to  take 
the  case  out  of  this  rule  the  circumstances  must  be  peculiar  and  exceptional." 

A  multitude  of  cases  might  be  cited  holding  the  same  doctrine.  Ma- 
lins  v.  Brown,  4  N.  Y.  403-410;  Dugan  v.  Gittings,  3  Gill  (Md.)  138, 
139,  43  Am.  Dec.  306;  Gregory  v.  Mighell,  18  Ves.  328;  Fitzsimmons 
v.  Allen,  39  111.  440 ;  Shirley  v.  Spencer,  9  111.  (4  Gilman)  583 ;  Bigelow 
v.  Armes,  108  U.  S.  10,  1  Sup.  Ct.  83,  27  L.  Ed.  631 ;  Fannin  v.  Mc- 
Mullen,  2  Abb.  Prac.  (N.  S.)  224.  There  are  some  authorities  holding 
that  the  mere  payment  of  the  whole  of  the  purchase  price  by  the  ven- 
dee, and  full  performance  by  him  of  the  verbal  contract,  will  entitle 
him  to  a  specific  performance.  Will.  Eq.  Jur.  p.  284;  Morrill  v.  Cooper, 
65  Barb.  512-517. 

In  this  case  there  is  no  serious  dispute  as  to  the  facts.  The  deceased, 
Henry  Pawling,  in  December,  1889,  was  the  owner  of  the  premises  de- 
scribed in  the  complaint  which  were  subject  to  the  mortgage  held  by 
Stairs,  on  which  was  due  $2,865.63.  Stairs  demanded  the  money  on 
the  mortgage.  Deceased,  being  unable  to  pay  him,  then  made  a  verbal 
contract  with  his  son,  the  original  plaintiff,  Henry  Haskell  Pawling,  by 
which,  if  the  latter  would  pay  up  the  mortgage,  he  would  convey  the 
premises  in  question  to  him.  Henry  Haskell  accepted  the  proposition, 
paid  up  the  mortgage,  and  procured  a  satisfaction  thereof,  and  re- 
mained in  occupation  of  the  premises  from  that  time  until  the  death 
of  Henry,  in  1892.  Shortly  prior  to  this  event,  Henry  Haskell,  at 
the  request  of  Henry,  prepared  a  deed  for  the  latter  to  execute,  which 


380  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

he  was  prevented  from  doing  by  his  death.15  I  do  not  regard  it  as  of 
much  consequence  whether  Henry  was  legally  bound  to  pay  the  whole 
mortgage  or  only  one-half  of  it.  The  evidence  indicates  an  understand- 
ing between  the  parties  that  it  was  for  Henry  to  pav  off  the  whole 
mortgage.  But  whether  so  or  not,  he  was  liable  for  his  proportion  of 
the  mortgage  debt,  and  it  was  clearly  shown  that  he  agreed  with  Henry 
Haskell  that,  if  the  latter  would  satisfy  the  mortgage,  he  (Henry) 
would  convey  the  premises  in  question  to  him ;  that  Henry  Haskell 
did  pay  up  the  mortgage,  and  remained  in  possession  of  the  premises, 
and,  according  to  the  terms  of  the  verbal  contract,  was  entitled  to  a 
conveyance  thereof. 

I  think  that  the  parol  contract  entered  into  between  the  father  and 
son,  in  1889,  and  which  the  former  was  about  to  carry  out  at  the 
time  of  his  death,  should  be  enforced  by  this  court.  It  would  be  most 
unjust,  and  a  virtual  fraud,  if  the  defendants,  the  heirs  of  Henry  Pawl- 
ing, after  the  acts  of  part  performance  done  by  the  plaintiff's  intestate, 
could  be  allowed  to  interpose  successfully  the  statute  of  frauds  as  a 
bar  to  plaintiff's  rights.  There  has  been  such  a  part  performance  of 
the  original  oral  contract  by  Henry  Haskell  as  enables  this  court  to- 
decree  a  specific  performance.  There  has  been  a  payment  of  the  full 
purchase  price,  and  possession  of  the  premises  under  the  oral  contract, 
for  a  period  of  three  years.  See  Pom.  Eq.  Jur.  §  409,  and  note,  and 
cases  above  cited.  It  is  suggested  by  the  learned  counsel  for  the  appel- 
lants that,  although  Henry  Haskell  remained  in  possession  of  the 
premises  in  question  from  the  time  of  the  making  of  the  oral  contract 
to  the  time  of  the  death  of  Henry  Pawling,  such  possession  was  not 
under  or  referable  to  the  oral  contract,  as  he  was  also  in  occupancy  of 
the  premises  at  the  time  and  prior  to  the  making  thereof.  It  is  true 
that  Henry  Haskell  was  in  possession  of  the  premises  in  question  be- 
fore and  at  the  time  of  the  making  of  the  oral  contract.  It  is  not 
shown  how,  whether  by  license  from  deceased  or  as  a  tenant.  I  think, 
however,  that  on  the  making  of  the  oral  contract,  and  the  payment  of 
the  purchase  price  according  to  its  terms,  and  when  Henry  Haskell 
was  entitled  to  a  deed  of  the  premises  by  the  terms  of  said  contract  and 
to  the  possession  thereof  thereunder  (Miller  v.  Ball,  64  N.  Y.  286),  that 
his  possession  should  be  deemed  as  under  the  contract.  It  is  held,  in 
reference  to  a  tenant,  that  his  possession  after  the  expiration  of  his 
term,  and  a  payment  of  an  increased  rent,  are  together  a  part  perform- 
ance of  a  verbal  contract  for  a  renewal  of  the  lease.     So  possession 

is  See  Brans  v.  Huseman  (1914)  266  111.  212,  214,  107  N.  E.  462,  463,  where 
the  court  said:  "Appellant  contends  that  the  signing  of  the  undelivered  deed 
will  satisfy  the  statute.  While  an  undelivered  deed  may  be  resorted  to,  to 
supply  the  description  or  other  matters  of  detail  in  respect  to  a  contract,  if 
the  contract  is  so  referred  to  in  the  deed  that  the  two  instruments  can  be  said 
to  constitute  one  transaction,  still  the  law  is  well  settled  that  an  undelivered 
deed  which  does  not  in  any  way  refer  to  a  prior  written  contract  is  not  a 
compliance  with  the  statute.  Kopp  v.  Reiter  (1893)  14(j  111.  437,  34  N.  E.  942, 
22  L.  K.  A.  273,  37  Am.  St.  Rep.  156." 


SeC.  7)  STATUTE   OF   FRAUDS ORAL   CONTRACTS  381 

after  the  term,  and  a  payment  shown,  which  could  not  be  referred  to 
the  old  rent,  but  could  only  be  explained  on  the  supposition  of  a  con- 
tract, should  be  part  performance  of  a  verbal  contract  for  the  les- 
see to  sell  and  convey  the  land.  Pom.  Spec.  Perf.  §  124.  Henry 
Haskell  was  in  possession  before  he  made  a  verbal  contract  to  buy  the 
land.  Tn  pursuance  of  the  verbal  contract,  he  afterwards  paid  the 
purchase  price  and  remained  in  possession,  to  which  he  was  legally  en- 
titled under  the  contract.  His  possession  thereafter  should  be  deemed 
thereunder.  In  Dunckel  v.  Dunckel,  56  Hun,  28,  8  N.  Y.  Supp.  888 ; 
Id.,  141  N.  Y.  430,  36  N.  E.  405,— the  plaintiff,  at  the  time  of  making 
the  contract  for  a  life  lease  sought  to  be  enforced  in  that  action,  was 
in  possession  of  the  premises,  and  the  general  term,  in  reversing  the 
judgment  first  rendered  in  the  action,  adverted  to  the  fact  as  follows: 

"The  plaintiff  was  at  the  time  in  possession  and  actual  occupancy  of  the 
premises  in  question :  had  no  occasion  to  move  or  make  any  change  in  her 
business  or  condition  in  consequence  of  the  agreement.  She  simply  continued 
to  occupv  the  same  as  she  had  done  while  her  husband  was  living."  56 
Hun,  2S,  8  N.  Y.  Supp.  88S. 

But  the  court  of  appeals  in  effect  held  (141  N.  Y.  430,  36  N.  E.  405) 
that,  although  the  plaintiff  was  in  possession  of  the  house  and  lot  af- 
fected by  the  action  when  the  verbal  contract  was  entered  into,  after 
the  making  thereof  her  possession  was  referable  to  and  under  such 
contract.  In  this  case,  as  in  the  one  cited,  there  was  a  possession  of 
three  years  by  Henry  Haskell  prior  to  the  death  of  his  father,  and  after 
full  performance  by  him  of  the  contract.  As  we  have  seen,  on  the  full 
performance  by  Henry  Haskell  he  was  entitled  to  the  possession  of 
the  premises  thereunder,  and  it  seems  proper  that  his  actual  possession 
should  be  deemed  taken,  rather  under  the  contract,  as  he  lawfully  could, 
than  in  any  other  way.  See  Spear  v.  Orendorf,  26  Md.  37-44;  Wills 
v.  Stradling,  3  Ves.  379.  We  conclude,  therefore,  that  the  learned  trial 
justice  properly  disposed  of  this  case,  and  that  the  judgment  should  be 
affirmed,  with  costs. 

Herrick,  ].,  concurs.     StovER,  J.,  not  acting. 


MATTHES  v.  WIER. 

(Court  of  Chancery  of  Delaware,  1912.     84  Atl.  87S.) 

The  Chancellor  [Curtis].16  The  bill  sets  up  a  right  to  specific 
performance  of  an  agreement  to  lease  to  the  complainant  a  lot  of 
land,  with  a  store  thereon  erected,  for  a  term  of  years  with  the  right 
of  the  lessee  to  purchase  the  demised  premises  during  the  term.  It 
is  alleged  and  shown  that  the  defendant,  Margaret  Wier,  owned  a  lot 
of  land  and  store  in  Wilmington,  known  as  No.  811  King  street,  and 
that  her  brother,  Thomas  M.  Wier  (as  her  agent),  on  or  about  Decem- 

is  Parts  of  the  opinion  are  omitted. 


382  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

ber  16,  1909,  made  a  parol  agreement  with  the  complainant  to  lease  to 
him  the  premises,  No.  811  King  street,  for  five  years,  commencing 
March  25,  1910,  at  a  rent  of  $360  per  annum,  payable  in  monthly  in- 
stallments of  $30  per  month,  the  first  payment  to  be  made  April  25, 
1910,  the  lessor  agreeing  that  the  lessee  during  the  term  could  pur- 
chase the  premises  for  $6,500,  and  that  upon  payment  of  the  purchase 
money  the  premises  should  be  conveyed  to  the  lessee  and  the  lease  be 
thereby  determined.  Subsequently  the  complainant  submitted  to  Tho- 
mas M.  Wier  a  draft  of  a  lease  embracing  the  above  terms  to  be  ex- 
ecuted by  the  owner,  and  at  the  same  time  delivered  to  Thomas  M. 
Wier  a  certified  check  for  $100  as  a  payment  on  account  of  the  pur- 
chase price.  The  lease  was  not  at  that  time  signed  by  either  party, 
but  Thomas  M.  Wier  then  stated  he  was  satisfied  but  wanted  to  sub- 
mit the  draft  of  agreement  to  a  lawyer  and  would  send  to  the  com- 
plainant a  receipt  for  the  money  paid.  A  few  days  later  the  complain- 
ant received  a  receipt  for  the  money,  as  follows : 

"Received  December  16th,  1909,  from  Arthur  M.  Matthes  a  check  for  one 
hundred  dollars,  in  payment  on  account  of  purchase  of  property  811  King  St. 
"§100.     Received  payment.  Thomas  M.  Wier,  M.  W." 

It  was  admitted  that  the  whole  of  the  receipt  was  written  by  the 
defendant,  Margaret  Wier,  by  the  direction  of  her  brother,  Thomas  M. 
Wier.  *  *  *  It  was  shown  by  the  testimony  of  George  E.  Miller, 
a  witness  having  no  interest  in  the  matter,  that  Margaret  Wier  ad- 
mitted that  Thomas  M.  Wier  was  her  agent  "partly,"  and  that  she 
had  been  satisfied  with  the  terms  of  the  lease  until  she  consulted  her 
attorney.  Margaret  Wier  retained  the  $100  for  nearly  four  months 
and  then  endeavored  to  return  it  to  the  complainant,  who  refused  to 
accept  it.  The  testimony  of  Margaret  Wier,  and  her  explanations,  are 
unsatisfactory,  but  it  does  appear  therefrom  that  when  she  took  the 
$100  and  wrote  the  receipt  she  knew  that  it  was  a  payment  on  account 
of  the  purchase  price  of  the  premises,  No.  811  King  street,  and  that 
according  to  the  arrangement  made  by  her  brother  for  her,  and  the 
draft  of  the  lease,  the  complainant  had  the  right  to  purchase  the  prop- 
erty at  the  price  therein  stated.  When  she  signed  the  receipt  she 
knew  that  the  form  of  agreement  which  the  complainant  submitted 
involved  a  possible  purchase  of  No.  811  King  street.  (See  page  100 
of  the  testimony  of  Margaret  Wier;    also  her  answer.) 

It  is  not  denied  that  the  draft  of  the  lease  stated  the  agreement 
made  between  Thomas  M.  Wier  and  the  complainant,  but  the  agency 
of  Thomas  M.  Wier  to  act  for  Margaret  Wier  was  denied,  and  it  was 
urged  further,  as  a  defense,  that  there  was  no  written  evidence  of 
the  agency. 

The  prayer  of  the  bill  is  that  the  defendant  be  decreed  to  specifically 
perform  the  agreement  and  be  required  to  grant  a  lease  pursuant 
thereto. 

The  jurisdiction  of  the  Court  of  Chancery  to  require  a  vendor  to 
specifically  perform  an  executory  contract  to  sell  land  is  well  establish- 


Sec.  7)  STATUTE   OF   FRAUDS ORAL   CONTRACTS  383 

ed  and  based  on  the  broad  principle  that  to  do  so  would  do  more  per- 
fect and  complete  justice  than  by  remitting  the  vendee  to  the  recovery 
of  damages  at  law.  Inadequacy  of  the  legal  remedy  is  always  assumed. 
But  a  surer  ground  for  the  remedy  is  the  consideration,  that  the  vendee 
by  reason  of  the  contract  acquires  an  equitable  interest  in  the  land, 
which  the  court  perfects  by  requiring  the  transfer  to  him  of  the  legal 
estate.  Therefore  the  right  to  specific  performance  of  a  contract  for 
the  sale  of  land  depends  not  merely  upon  the  inadequacy  of  the  legal 
remedy  of  damages,  but  also  on  the  equitable  interest  which  he  acquires 
by  the  contract.     1  Pom.  Eq.  Jur.  §  221,  note. 

In  this  state  the  equitable  interest  which  a  vendee  acquires  under  a 
valid  contract  for  sale  of  land  has  been  recognized.  Flanagin  v.  Daws, 
2  Houst.  476.  But  the  existence  of  this  equitable  interest  has  not 
here  been  regarded  as  the  basis  for  relief  of  specific  performance  to 
the  vendee,  and  the  prevention  of  fraud  has  generally  been  regarded 
here  as  the  origin  of  the  jurisdiction. 

In  a  sense  the  making  of  a  decree  is  discretionary,  but  this  should 

be  taken  to  mean  that  if  the  elements,  conditions  and  incidents  which 

equity  regards  as  essential  to  the  administration  of  its  peculiar  modes 

of  relief  are  present,  the  remedial  right  is  perfect  in  equity.     With 

respect  to  the  remedy  of  specific  performance  of  executory  contracts, 

the  elements  are  thus  stated  by  Pomeroy : 

"The  contract  must  be  concluded,  certain,'  unambiguous,  mutual  and  upon  a 
valuable  consideration ;  it  must  be  perfectly  fair  in  all  its  parts ;  free  from 
any  misrepresentation  or  misapprehension,  fraud  or  mistake,  imposition  or 
surprise ;  not  an  unconscionable  or  hard  bargain  ;  and  its  performance  not 
oppressive  upon  the  defendant;  and  finally  it  must  be  capable  of  specific  exe- 
cution through  a  decree  of  the  court."  3  Pom.  Eq.  Jur.  (2d  Ed.)  §  1404,  note 
1,  p.  2162. 

This  summary  is  in  accord  with  the  decisions  of  the  courts  of  this 
state.  Where  the  defendant  alone  has  signed  the  memorandum  re- 
quired by  the  statute  of  frauds,  the  requisite  mutuality  is  supplied  by 
the  complainant  filing  his  bill.  3  Pom.  Eq.  Jur.  (2d  Ed.)  §  1405,  note 
1,  p.  2163;  Clason  v.  Bailev,  14  Johns.  (N.  Y.)  484;  Hodges  v.  Row- 
ing, 58  Conn.  12,  18  Atl.  979,  7  L.  R.  A.  87;  Moses  v.  McClain,  82 
Ala.  370,  2  South.  741;  Docter  v.  Hellberg,  65  Wis.  415,  27  N.  W. 
176;  Mastin  v.  Grimes,  88  Mo.  478. 

The  parol  contract  set  up  by  the  bill  meets  all  these  requirements. 
The  requisites  stated  by  Chancellor  Saulsbury  in  Connaway  v.  Wright, 
5  Del.  Ch.  472,  are  present,  viz. : 

"A  valuable  consideration,  particularity,  certainty,  mutuality  and  a  neces- 
sity for  performance." 

All  these  appear  in  the  draft  of  the  proposed  lease  submitted  to  the 
defendant  for  execution  as  containing  all  the  terms  agreed  upon — the 
premises  to  be  demised,  the  terms,  and  the  rent  and  the  terms  of  the 
purchase,  including  the  price  to  be  paid,  and  the  time  within  which  the 
purchase  could  be  made.  No  inequitable  elements  appeared  to  im- 
peach the  fairness  of  the  bargain,  or  mistake,  imposition  or  hard  bar- 


384  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

gain,  or  even  inadequacy  of  rent  or  purchase  price.  Mutuality  is  sup- 
plied by  the  filing  of  the  bill. 

In  this  case  there  is  not  in  the  memorandum  signed  by  the  vendor 
such  full  statement  of  the  terms  of  the  contract  as  is  required.  There 
is,  for  instance,  no  statement  of  the  purchase  price,  and  there  is  no 
mention  in  it  of  a  lease,  and,  therefore,  no  such  memorandum  of  the 
terms  thereof  as  the  court  must  have  in  awarding  the  relief  asked  for, 
viz.,  a  decree  that  the  defendant  execute  a  certain  lease  to  the  com- 
plainant. To  prove  the  contract,  therefore,  the  complainant  must  re- 
sort to  oral  testimony,  if  the  defendant  is  entitled  to  the  protection  of 
the  statute  of  frauds.     *     *     * 

Elsewhere  than  in  Delaware  payment,  in  whole  or  part,  of  the  pur- 
chase money  is  not  of  itself  such  part  performance  as  justifies  a  court 
of  equity  to  disregard  the  prohibition  of  the  statute  of  frauds.  But 
in  Delaware  part  payment  of  the  purchase  price,  if  shown  in  writing, 
is  such  part  performance  as  removes  the  bar  of  the  statute.  In  Town- 
send  v.  Houston,  1  Har.  532,  27  Am.  Dec.  732,  as  early  as  1835  the 
highest  court  in  Delaware  definitely  established  the  rule  that  payment 
of  a  part  of  the  purchase  money  is  such  a  part  performance  of  a  parol 
agreement  for  the  sale  of  land  as  will  take  the  case  out  of  the  statute 
of  frauds  if  the  payment  be  either  admitted  by  the  vendee,  or  be  proved 
upon  him  by  writing.     There  the  court  said : 

"If  the  fact  of  payment  is  connected  with  the  concurrent  act  of  the  vendor 
receiving  and  appropriating  the  money  paid  as  purchase  money,  and  this  ap- 
pears either  by  the  defendant  in  his  answer  confessing  the  receipt  of  the 
money  for  that  purpose,  as  charged  in  the  bill,  or  if  denied,  it  be  proved  upon 
him  by  writing,  as  by  a  letter  under  his  hand,  or  other  written  evidence, 
*  *  *  in  all  such  cases  and  upon  every  principle  it  seems  to  me  such  a 
fact  thus  appearing  would  be  conclusive  evidence  of  an  existing  agreement  of 
which  it  was  part  performance  and  which  the  defendant  having  carried  part 
into  execution  should  be  compelled  specifically  to  perform  the  whole.''     *     *     * 

As  to  part  payment,  there  is  no  difference  in  principle  between  the 
effect  to  be  given  to  payment  of  a  small  part  of  the  purchase  money 
and  the  payment  of  all  or  a  considerable  part  of  it.     *     *     * 

The  conclusion  is  that  the  complainant  is  entitled  to  a  decree  for 
specific  performance  of  the  agreement  to  make  the  lease  set  out  in  the 
bill,  with  such  correction  in  the  description  of  the  premises  to  be  de- 
mised as  will  make  it  conform  to  the  fact. 

Let  a  decree  be  submitted  in  accordance  herewith. 


PERKINS  v.  PERKINS. 
(Supreme  Judicial  Court  of  Massachusetts,  1902.    1S1  Mass.  401,  63  N.  E.  926.) 

Appeal  from  superior  court,  Suffolk  county. 

Action  by  Elmer  H.  Perkins  against  Charles  E.  Perkins.  From  a 
decree  dismissing  the  bill,  plaintiff  appeals. 

Morton,  J.  This  is  a  bill  in  equity  to  compel  the  defendant  to  con- 
vey to  the  plaintiff  certain  land  in  Scituate,  and  to  cancel  and  dis- 


Sec.  7)  STATUTE   OP   FRAUDS ORAL  CONTRACTS  385 

charge  any  mortgage  placed  by  him  thereon.  There  was  a  demurrer 
to  the  bill  as  originally  filed,  which  was  sustained,  and  the  bill  was 
thereupon  amended.  There  was  also  a  demurrer  to  the  amended  bill, 
and  this,  too,  was  sustained,  and  the  bill  was  dismissed.  The  plain- 
tiff appealed. 

It  is  this  demurrer  which  is  before  us,  and  the  ground  of  it  is  the 
statute  of  frauds, — that  what  is  relied  on  is  an  oral  contract  for  the 
conveyance  of  land.  The  plaintiff  contends  that  there  was  a  resulting 
trust  in  his  favor,  and  that  therefore  the  statute  of  frauds  does  not 
apply.  But  we  see  no  ground  on  which  such  a  contention  can  be  sus- 
tained. No  part  of  the  consideration  for  the  conveyance  moved  from, 
or  was  furnished  by,  the  plaintiff.  The  most  than  can  be  said  is  that 
the  defendant  orally  agreed  with  the  plaintiff  and  his  mother  at  the 
time  of  the  conveyance  that  as  part  of  the  plan  which  the  latter  had 
formed  for  dividing  her  property  amongst  her  children,  of  whom  the 
defendant  was  one,  at  her  death  he  would  take  a  deed  of  the  premises, 
and  did  so  with  the  understanding  that  he  would  convey  the  property 
to  the  plaintiff  when  his  mother  requested,  and  that  in  the  meantime 
the  plaintiff  should  be  permitted  to  occupy  on  payment  of  the  taxes 
and  repairs,  and  that  the  plaintiff  entered  and  took  possession,  and  had 
occupied  openly  and  exclusively,  and  had  made  expenditures  and  im- 
provements, but  that  the  defendant  had  refused  to  convey  the  property 
to  the  plaintiff  when  requested  by  his  mother. 

It  is  manifest  that  this  falls  far  short  of  establishing  a  resulting  trust 
or  any  trust  in  the  plaintiff's  favor.  Indeed,  it  is  doubtful  whether, 
upon  the  allegations  of  the  bill,  there  was  a  trust  in  the  mother's  favor, 
or  any  consideration  for  the  alleged  agreement  on  the  part  of  the  de- 
fendant. The  money  with  which  the  premises  in  question  were  paid 
for  was  the  proceeds  of  a  mortgage  placed  by  the  defendant  on  prop- 
erty which  the  mother  had  conveyed  to  him  several  years  before  as  a 
part  of  the  same  plan  of  division  already  referred  to,  and  in  which, 
therefore,  it  would  seem  she  had  and  could  have  no  interest,  by  way 
of  resulting  trust  or  otherwise,  that  furnished  or  constituted  the  con- 
sideration for  the  conveyance  to  the  defendant ;  and  there  is  no  allega- 
tion that  the  money  thus  obtained  was  lent  to  the  mother,  and  used 
by  her  in  paying  for  the  land  in  question.  Fitzgerald  v.  Fitzgerald, 
168  Mass.  492,  47  N.  E.  431 ;  Campbell  v.  Brown,  129  Mass.  23 ;  Whit- 
ten  v.  Whitten,  3  Cush.  191. 

But  if  we  assume  that  there  was  a  good  and  sufficient  consideration, 
and  that  the  agreement  was  sufficiently  definite,  and  was  one  that  could 
have  been  enforced  against  the  defendant  but  for  the  statute  of  frauds, 
we  are  of  opinion  that  there  has  been  no  such  part  performance  as 
to  take  it  out  of  the  statute,  and  to  entitle  the  plaintiff  to  a  conveyance. 
The  only  allegation  is  that  the  plaintiff  entered  and  took  possession 
under  the  agreement,  and  has  had  possession  openly  and  exclusively, 
and    has    made    expenditures    and   profitable    improvements    with   the 

Boke  EQ.— 2.J 


386  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

knowledge  of  the  defendant,  and  has  also,  it  may  be  inferred,  paid  the 
taxes.    This  is  plainly  not  sufficient.    Burns  v.  Daggett,  141  Mass.  368, 
6  N.  E.  727 .    Indeed,  the  plaintiff  does  not  contend  that  there  was,  and 
we  only  mention  it  to  show  that  it  has  not  been  overlooked. 
Decree  affirmed.17 


SMITH  v.  TURNER. 

(In  Chancery,  before  Sir  J.  Jekyll,  M.  R.,  1720.  Prec.  Ch.  561, 
24  E.  R.  252  [cited].) 

So  where  a  man,  on  promise  of  a  lease  to  be  made  to  him,  lays 
out  money  on  improvements,  he  shall  oblige  the  lessor  afterwards 
to  execute  the  lease,  because  it  was  executed  on  the  part  of  the 
lessee;  besides,  that  the  lessor  shall  not  take  advantage  of  his  own 
fraud  to  run  away  with  the  improvements  made  by  another;  but  if  no 
such  expense  had  been  on  the  lessee's  part,  a  bare  promise  of  the 
lease,  though  accompanied  with  possession,  as  where  a  lessee  by  parol 
agreed  to  take  a  lease  for  a  term  for  years  certain,  and  continued  in 
possession  on  the  credit  thereof,  yet  there  being  no  writing  to  make 
out  this  agreement,  it  is  directly  within  the  statute. 

17  In  the  case  of  Baldridge  v.  Centgraf  (1910)  82  Kan.  240,  108  Pac.  83, 
Mason,  J.,  said:  "The  mere  payment  of  money  is  not  such  part  performance 
as  upon  this  principle  to  take  a  contract  out  of  the  statute  of  frauds,  because 
the  recipient  can  be  compelled  to  restore  it.  26  Am.  &  Eng.  Encycl.  of  L.  54 ; 
29  Same.  S3S ;  20  Cyc.  297,  29S ;  Baldwin  v.  Squier  (18S4)  31  Kan.  2S3,  284, 
1  Pac.  591.  The  verbal  agreement  is  not  the  basis  of  an  action  for  that  pur- 
pose, but  evidence  of  its  terms  is  often  necessary  to  establish  the  implied  con- 
tract upon  which  recovery  is  sought.  'In  an  action  to  recover  upon  an  im- 
plied promise  to  pay  for  partial  performance  of  a  contract  within  the  statute 
of  frauds,  the  contract  is  admissible  in  evidence,  not  as  being  binding  and  con- 
clusive as  to  the  amount  of  recovery,  but  merely  as  a  circumstance  to  be  con- 
sidered in  estimating  the  value  of  what  has  been  done.'  29  Am.  &  Eng.  Encycl. 
of  L.  842.  The  ground  upon  which  a  court,  notwithstanding  the  statute  of 
frauds,  may  compel  the  complete  performance  of  an  oral  contract  for  the  sale 
of  real  estate  which  has  been  partly  performed  is  that  such  a  decree  may  be 
necessary  in  order  to  avoid  injustice  toward  one  who  in  reliance  upon  the 
agreement  has  so  altered  his  position  that  he  cannot  otherwise  be  afforded 
adequate  relief.  His  mere  entry  into  possession  with  the  consent  of  the  owner 
does  not  in  and  of  itself  meet  this  condition.  It  does  not  make  him  a  tres- 
passer in  fact,  and  a  decree  of  specific  performance  is  not  necessary  to  pro- 
tect him  from  liability  as  such.  Nor  does  it  in  and  of  itself  place  him  at  any 
disadvantage  or  involve  him  in  any  loss.  True,  whenever  he  has  made  per- 
manent  improvements  upon  the  property  the  courts  are  ready  to  order  a  con- 
veyance, even  although  it  might  be  possible  to  provide  compensation  in  dam- 
ages. 

A  sufficient  reason  for  this  is  that  alterations  in  the  artificial  features  of 
real  estate  are  so  largely  a  matter  of  individual  taste  that  the  loss  to  their 
designer  in  being  deprived  of  their  benefit  might  not  be  adequately  measured 
either  by  the  increased  value  of  the  property,  or  by  his  expenditures  in  mak- 
ing them.  And  whenever  possession  is  taken  under  such  circumstances  that 
its  relinquishment  involves  a  disadvantage  apart  from  the  mere  loss  of  the 
benefits  of  the  bargain,  a  case  may  be  presented  for  equitable  relief,  depend- 
ent upon  the  special  circumstances.  Nothing  having  been  shown  here  beyond 
the  bare  fact  of  possession,  we  think  the  court  erred  in  finding  for  the  de- 
fendant." 


Sec.  7)  STATUTE   OF   FRAUDS ORAL  CONTRACTS  387 

LAMB  v.  HINMAN  et  al. 
(Supreme  Court  of  Michigan,  1881.    46  Mich.  112,  S  N.  W.  709.) 

Appeal  from  Berrien. 

Cooley,  J.  Specific  performance  is  prayed  in  this  case  of  an  oral 
contract  alleged  to  have  been  made  by  complainant  with  Hugh  Lamb, 
his  father,  now  deceased.  The  defendants  are  the  administrator  and 
heirs  at  law  of  Hugh  Lamb.  The  case  made  by  the  bill  is  that  on  or 
about  October  12,  1872,  Hugh  Lamb  owned  a  certain  80-acre  lot  of 
land  in  the  township  of  Warsaw,  of  the  value  of  about  $2,400,  upon 
which  he  lived  alone;  that  he  was  then  72  years  of  age^and  very  in- 
firm; that  among  his  infirmities  was  an  ungovernable  temper  which 
rendered  it  difficult  for  others  to  live  with  him ;  that  he  had  been  letting 
his  land  on  shares  and  had  not  succeeded  well  in  so  doing;  that  he 
had  no  team,  little  live  stock  and  few  farming  utensils ;  that  complain- 
ant was  then  a  married  man,  living  with  his  wife  and  two  children 
about  a  mile  from  his  father ;  that  his  father  went  to  see  him,  and  after 
talking  over  his  affairs  and  circumstances,  entered  into  a  verbal  agree- 
ment with  him  in  substance  and  effect,  as  follows : 

On  the  part  of  complainant  it  was  agreed  that  as  soon  as  suitable 
preparations  could  be  made,  complainant  with  his  wife  and  family 
should  remove  to  his  father's  dwelling-house  on  the  land  aforesaid,  and 
live  with  him  during  the  remainder  of  his  life,  and  should  give  him 
suitable  care  and  attention,  and  should  farm  the  land,  rendering  to 
his  father  annually  two-fifths  of  all  the  wheat  and  one-half  of  all  the 
corn  raised  on  the  land,  all  to  be  delivered  on  the  land,  the  wheat  in 
the  half  bushel  and  the  corn  in  the  shock  or  row ;  that  complainant 
should  furnish  the  seed,  farming  utensils  and  team  for  use  on  the 
farm,  and  supply  his  father  with  suitable  board,  lodging,  washing  and 
mending,  and  on  the  part  of  said  Hugh  Lamb  it  was  agreed  that  he 
should  pay  annually  to  complainant  $75,  and  let  complainant  have  the 
south  40  acres  of  the  land  and  give  him  a  good  and  sufficient  deed  there- 
of ;  that  this  agreement  was  fully  performed  on  his  part  to  the  satis- 
faction of  his  father;  that  complainant  took  possession  of  the  south 
40  as  his  own  in  July,  1873,  and  has  since  cultivated  and  improved 
the  same ;  that  his  father  often  promised  to  give  complainant  a  deed  of 
said  south  40,  but  neglected  to  do  so,  and  died  without  having  given 
a  deed,  in  September,  1878,  and  that  since  his  death  the  heirs  at  law 
and  the  administrator  appointed  to  settle  his  estate  refuse  to  recognize 
and  perform  the  agreement;  wherefore  complainant  prays  the  aid  of 
the  court. 

The  defendant  answered,  denying  that  Hugh  Lamb  ever  made  such 
an  agreement,  and  the  case  was  brought  to  a  hearing  on  pleadings  and 
proofs.  We  are  convinced  by  the  proofs  that  a  contract  substantially 
as  set  up  in  the  bill  was  made  by  the  parties,  and  that  complainant  has 


38S  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

strong  equities  in  his  favor  which  should  be  recognized  if  no  inflexible 
rules  of  law  forbid.  The  evidence  that  proves  the  contract  discloses 
little  discrepancies  in  the  understanding  of  particulars,  but  not  such  as 
to  make  us  doubt  the  parties  having  agreed  upon  the  terms  of  an  ar- 
rangement as  complainant  now  describes  them. 

If  there  is  any  doubt  as  to  the  precise  terms  of  the  contract,  it  con- 
cerns the  time  when  the  deed  was  to  be  given.  The  complainant  seems 
to  have  expected  his  father  would  give  him  a  deed  without  any  great 
delay ;  but  the  agreement  fixed  no  time ;  and  as  the  retention  of  the  title 
constituted  the  father's  security  for  the  performance  by  complainant, 
it  was  not  unnatural  that  he  should  delay  putting  the  security  out  of 
his  hands.  If  the  contract  had  been  in  writing,  Hugh  Lamb  would  have 
had  the  legal  right  to  decline  to  part  with  the  title  so  long  as  he  lived ; 
and  it  is  no  reason  for  declining  specific  performance  of  the  oral  con- 
tract that  complainant  had  expected  his  father  would  so  far  confide 
in  him  as  to  make  the  deed  in  person  instead  of  leaving  it  to  be  made 
by  his  heirs.  We  think,  therefore,  that  so  far  as  proof  of  the  contract 
is  concerned,  the  case  is  sufficiently  made  out  to  answer  the  require- 
ments of  cases  relied  upon  by  defendants.  Case  v.  Pelers,  20  Mich. 
298;  Wright  v.  Wright,  31  Mich.  380. 

But  it  is  said  there  has  been  no  such  part  performance  as  can  take 
the  case  out  of  the  statute  of  frauds.  The  most  important  act  of  part- 
performance  was  the  taking  possession  of  the  land,  occupying  and  culti- 
vating it  during  the  father's  life.  But  this  it  is  said  was  not  in  fact  the 
complainant's  possession,  but  the  possession  of  the  father;  so  that  on 
this  branch  of  the  case  there  is  substantial  failure  to  make  out  any 
recognizable  equity.  The  reason  why  taking  possession  under  an  oral 
contract  is  recognized  as  a  ground  for  specific  performance  when  pay- 
ment of  the  purchase  price  is  not,  is  that  in  one  case  there  is  no  stand- 
ard for  the  estimate  of  damages  when  the  contract  is  repudiated,  and 
in  the  other  there  is  a  standard  that  is  definite  and  certain.  A  purchaser 
who  takes  possession  of  land  under  an  oral  purchase  is  likely  in  so 
doing  to  change  very  considerably — perhaps  wholly — the  general  course 
of  his  life  as  previously  planned  by  him ;  and  if  he  is  evicted  on  a  repu- 
diation of  the  contract,  any  estimate  of  his  loss  by  others  must  in  many 
cases  be  mere  guess-work.  The  rule,  therefore,  rests  upon  the  element 
of  uncertainty,  and  not  upon  any  technical  ground  of  exclusiveness  in 
the  possession.  And  upon  this  point  no  case  on  its  equities  could  be 
plainer  than  this.  Complainant  abandoned  one  home  and  made  a 
new  one  in  reliance  upon  the  oral  contract :  occupied  the  land  bargain- 
ed for  and  cultivated  it  for  six  years  in  confidence  that  the  contract 
would  be  performed  ;  and  it  is  not  too  much  to  say  that  the  whole  course 
of  his  subsequent  life  was  probably  changed  in  consequence.  To  deny 
relief  under  such  circumstances  for  no  other  reason  than  that  he  did 
not  occupy  exclusively,  would  be  to  make  the  whole  case  turn  upon  a 


Sec.  7)  STATUTE   OF  FRAUDS ORAL   CONTRACTS  389 

point  in  itself  unimportant  as  affecting  the  real  equities.     The  case  is 
within  Kinyon  v.  Young,  44  Mich.  339,  6  N.  W.  835. 

The  decree  of  the  court  of  chancery  was  in  favor  of  complainant,  and 
it  must  be  affirmed  with  costs.18     The  other  Justices  concurred. 


FRAME  v.  DAWSON. 

(In  Chancery  before  Sir  William  Grant,  1S07.    14  Ves.  3S6,  33  E.  R.  569.) 

The  bill  stated  that  the  plaintiff,  possessed  of  a  house  for  a  term  of 
thirty-one  years  from  Christmas,  1800,  at  the  yearly  rent  of  35/.  with 
the  usual  covenant  among  others,  for  repairing  and  keeping  in  repair, 
&c,  having  in  1803,  employed  a  builder  to  repair  the  house,  the  party 
wall  was  discovered  to  be  in  a  very  ruinous  state.  The  plaintiff  upon 
that  discovery  applied  -to  the  defendant,  to  whom,  as  purchaser  of  the 
premises,  he  had  attorned,  requesting  that  the  defendant  would  either 
contribute  to  the  repairs,  or  make  some  abatement  in  the  rent.  The 
defendant  refused  to  do  either;  but  promised  in  consideration  of  the 
plaintiff's  repairing  the  party  wall,  to  grant  him  a  farther  term  of  ten 

is  See  Dalby  et  al.  v.  Maxfield  (1910)  244  111.  214,  at  page  218,  91  N.  E.  420, 
at  page  422  (135  Am.  St.  Rep.  312);  where  the  court,  by  Vickers,  J.,  said: 
"It  is  next  said  that  the  contract  cannot  be  enforced  because  appellant  did 
not  take  possession  under  it.  This  contract  does  not  belong  to  that  class 
wherein  it  is  necessary  to  show  possession  taken  and  the  making  of  valuable 
and  lasting  imi;rovements  in  order  to  take  the  case  out  of  the  operation  of  the 
statute  of  frauds.  That  statute,  passed  to  prevent  frauds,  cannot  be  resorted 
to  for  the  purpose  of  perpetrating  a  fraud.  Any  act  performed  under  a  parol 
contract  which  would  work  a  fraud  on  the  party  if  the  contract  was  not  en- 
forced may  be  sufficient  to  take  the  case  out  of  the  operation  of  the  statute  of 
frauds.  The  case  of  Warren  v.  Warren  (1SS2)  105  111.  568,  is  in  point  on  this 
question.  There  a  father  verbally  promised  his  daughter,  if  she  would  remain 
with  him  after  her  mother's  death  and  keep  house  for  him  as  long  as  he  lived, 
he  would  leave  his  farm  to  her  at  his  death.  The  daughter  accepted  the  offer 
and  complied  with  its  terms.  She  kept  house  for  her  father  for  38  years,  took 
care  of  the  infant  children,  managed  all  of  the  household  affairs,  and  assisted 
her  father,  in  his  declining  years,  in  managing  the  farm.  The  daughter  lived 
on  the  farm  with  her  father,  but  did  not  have  any  possession  apart  from  his ; 
neither  did  she  make  improvements,  nor  pay  taxes.  Still  this  court  held  that 
she  was  entitled  to  a  specific  performance  of  the  contract.  The  situation 
there  was,  as  it  is  in  this  case,  that  the  promisee  had  such  possession  as  the 
terms  of  the  contract  and  the  situation  of  the  parties  required.  Such  con- 
tracts have  frequently  been  enforced  by  courts  of  equity  without  proof  of  ex- 
clusive possession." 

See  Bruns  v.  Iluseman  (1914)  266  111.  212,  215,  107  N.  E.  462,  463:  "It  is 
said  by  appellant  that  there  was  such  part  performance  as  to  take  the  case 
out  of  the  operation  of  the  statute  of  frauds,  and  that  the  contract  should  for 
that  reason  be  enforced  as  a  parol  contract.  At  the  time  the  alleged  contract 
was  made  appellant  was  in  possession  of  the  premises  as  appellee's  tenant. 
His  possession  was  simply  continued  after  the  contract  was  entered  into. 
Where  possession  and  the  making  of  improvements  are  relied  upon  as  such 
part  performance  as  to  avoid  the  statute  of  frauds,  it  must  appear  that  pos- 
session was  taken  in  pursuance  of  the  contract.  A  mere  continuation  of  pos- 
session previously  acquired  is  not  sufficient.  The  possession  should  be  refera- 
ble to  the  contract  and  in  accordance  with  its  terms.  Shovers  v.  Warrick 
(1894)  152  111.  355,  38  N.  E.  792." 


390  SPECIFIC  PERFORMANCE  OF   CONTRACTS  (Ch.  2 

years.  Upon  the  faith  of  that  promise,  the  plaintiff  proceeded  and  laid 
out  460/.  being  obliged  to  rebuild  a  great  part  of  the  wall.  The  bill 
therefore  prayed,  that  the  defendant  may  be  decreed  specifically  to  per- 
form his  agreement  to  grant  an  extension  of  the  lease  for  ten  years. 

The  defendant  by  his  answer  admitted  that  upon  the  plaintiff's  re- 
quest, that  he  would  contribute  something  to  the  expense  of  rebuild- 
ing or  repairing  the  party  wall,  the  defendant  said,  that  if  the  plain- 
tiff should  be  obliged  to  pull  down  the  wall  and  rebuild  it,  he  might 
be  induced  to  grant  a  farther  term  of  ten  years ;  but  denied  that  he 
made  any  absolute  promise  or  agreement,  and  insisted  upon  the  stat- 
ute of  frauds. 

Parol  evidence  was  produced  on  both  sides,  proving  the  respective 
allegations  in  the  bill  and  answer.     *     *     * 

The  Master  of  the  Roles.  It  is  admitted,  that  supposing  an 
agreement  ever  so  clearly  proved,  yet,  as  a  parol  agreement,  the  plain- 
tiff is  not  entitled  to  have  it  executed.  It  is  necessary,  therefore,  to 
shew  a  part  performance;  that  is,  an  act  unequivocally  referring  to, 
and  resulting  from  the  agreement;  and  such,  that  the  party  would  suf- 
fer an  injury  amounting  to  fraud,  by  the  refusal  to  execute  that  agree- 
ment. But  that  is  not  the  nature  of  the  act  in  this  case.  First,  it  is 
equivocal.  Secondly,  it  is  such  as  easily  admits  of  compensation  with- 
out executing  the  agreement.  This  is  not  an  unequivocal  act,  for  it 
would  have  taken  place  equally,  if  there  had  been  no  agreement.  The 
principle  of  the  cases  is,  that  the  act  must  be  of  such  a  nature,  that 
if  stated,  it  would  of  itself  infer  the  existence  of  some  agreement;  and 
then  parol  evidence  is  admitted  to  shew  what  the  agreement  is.  But 
this  act  would  not  infer  existence  of  any  agreement,  as  it  must  have 
been  done  by  the  party  either  at  his  own,  or  the  landlord's  expense. 
Then,  is  there  such  injury  as  cannot  easily  be  repaired  in  any  other 
way  than  by  executing  the  agreement  ?  No ;  for  the  money  which  he 
has  expended,  he  may  recover  from  the  landlord,  if  it  was  by  the  land- 
lord that  the  expense  was  to  be  borne.  The  circumstance  that  the  party 
may  be  obliged  to  resort  to  an  action  to  get  back  his  money,  is  no  reason 
for  taking  the  case  out  of  the  statute. 

Lord  Redesdale,  in  a  case  before  him,  states  his  opinion  (a)  that  pay- 
ment of  money  is  not  a  part  performance :  yet  there  the  act  can  hard- 
ly be  said  to  be  equivocal  in  its  nature,  as  the  payment  of  a  price  pre- 
supposes a  sale ;  but  the  money  may  be  repaid,  and  the  parties  are  re- 
stored to  their  former  situation.  This  case  is  stronger,  for  the  ex- 
penditure does  not  imply  a  precedent  agreement. 

Suppose  my  tenant  should  set  up  an  agreement  for  a  purchase,  and 
get  a  witness  to  swear  to  it,  and  then  offer  as  evidence  of  part  per- 
formance, his  possession  and  cultivation  of  the  land;  could  that  be 
deemed  an  act  of  part  performance,  which  would  have  existed  precise- 
ly in  the  same  shape,  whether  there  was  any  agreement  for  a  purchase, 
or  not  ? 

The  bill  was  dismissed. 


Sec.  7)  STATUTE  OF  FRAUDS — ORAL  CONTRACTS  391 

MILLER  &  ALDWORTH,  Limited,  v.  SHARP. 

(Chancery  Division  [1899]  1  Ch.  622.) 

The  defendants  were  the  owners  in  fee  simple  of  a  beer-house  called 
"The  Jolly  Millers''  at  Dartford,  Kent,  and  which  the  plaintiffs  Miller 
&  Aldworth,  Limited,  held  from  them  as  yearly  tenants  at  the  rent  of 
£14  per  annum. 

In  May,  1894,  it  was  verbally  agreed  between  the  landlords  and  ten- 
ants that  the  former  should  grant  the  latter  a  lease  of  the  beer-house 
for  twenty-one  years  from  June  24,  1894,  at  the  rent  of  £26  per  annum, 
such  lease  to  contain  the  usual  covenants. 

In  pursuance  and  part  performance  of  the  agreement  the  plaintiffs 
Miller  &  Aldworth,  Limited,  and  the  purchasers  of  their  interest,  the 
plaintiffs  the  Dartford  Brewery  Company,  Limited,  remained  or  were 
in  possession  from  June  24,  1897,  to  the  time  of  the  commencement  of 
the  present  action  paying  the  increased  rent  of  £26,  which  the  defend- 
ants accepted. 

The  defendants  refused  to  execute  the  lease ;  the  two  plaintiff  com- 
panies brought  an  action  for  specific  performance  of  the  verbal  agree- 
ment by  granting  a  lease  to  the  Dartford  Brewery  Company,  Limited, 
or  alternatively  to  the  other  plaintiff  company. 

The  defendants,  amongst  other  defences,  pleaded  that  the  payment 
of  the  increased  rent  was  not  sufficient  part  performance  to  take  the 
case  out  of  the  Statute  of  Frauds. 

At  the  trial  the  receipts  for  the  increased  rent  were  produced,  and 
also  a  letter  of  March  8,  1894,  from  one  of  the  defendants  to  Miller  & 
Aldworth,  Limited,  which  was  as  follows  : 

"Jolly  Millers. — My  brothers  and  I  have  arranged  for  Mr.  E.  Waterman  to 
receive  the  rent  of  the  above,  so  kindly  pay  him  in  future.  We  are  advised 
that  the  rent  you  pay  is  a  great  deal  too  low,  but  as  we  are  unwilling  to  take 
it  out  of  your  hands  we  shall  be  glad  to  consider  a  proposal  from  you  to  take 
it  on  a  lease.    Kindly  let  us  have  your  early  reply." 

The  plaintiffs'  counsel  proposed  to  adduce  evidence  of  the  verbal 
agreement  to  grant  a  lease;  but  this  was  objected  to  by  defendants' 
counsel.     *     *     * 

Byrne,  J.  I  am  asked  by  the  defendants  to  exclude  parol  evidence 
sought  to  be  adduced  to  shew  whether  there  was  an  agreement,  and 
if  so  what  that  agreement  was,  with  reference  to  an  alleged  new  ten- 
ancy. 

First  of  all,  the  case  alleged  is  that  there  was  a  yearly  tenancy. 
Then  it  is  said  that  on  March  8,  1894,  a  letter  was  sent  from  one  of 
the  defendants  referring  to  a  proposed  lease,  and  that  there  was  a 
series  of  receipts  for  the  new  rent,  for  example,  one  dated  September 
29,  1894,  which  acknowledges  that  rent  has  been  received,  less  tax,  for 
the  Jolly  Millers,  the  name  of  the  public-house  which  is  the  subject  of 
the  action. 


392  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

Now  the  case  of  Nunn  v.  Fabian,  L.  R.  1  Ch.  35,  has  been  referred 
to,  and  has  been  commented  on  in  an  ingenious  argument  by  Mr.  Eve. 
That  case  has  never  been  overruled,  and  is  a  leading  authority.  Lord 
Cramvorth,  L.  C,  there  held  that  a  parol  agreement  for  a  lease  for 
twenty-one  years  at  an  increased  rent  might  be  established,  notwith- 
standing the  Statute  of  Frauds,  when  payment  of  a  quarter's  rent  at 
the  increased  rental  was  proved,  as  part  performance  of  the  agree- 
ment. Evidence  of  the  payment  was  there  admitted,  and  it  was  held 
that  the  agreement  was  proved  and  must  be  specifically  performed.  Mr. 
Eve  says  that  the  decision  turned  on  the  special  facts  of  the  case, 
from  the  report  of  which  it  appears  that  other  property  was  to  be  in- 
cluded in  the  new  lease  besides  that  which  the  tenant  had  formerly 
held  from  the  landlord,  whereas  in  the  present  case  only  the  same 
property  is  alleged  to  have  been  taken  at  an  increased  rent. 

I  think,  however,  that  in  considering  what  was  the  ratio  decidendi  in 
Nunn  v.  Fabian,  L.  R.  1  Ch.  35,  regard  must  be  had  to  the  observa- 
tions of  Baggallay,  L.  J.,  in  Humphreys  v.  Green,  10  Q.  B.  D.  148, 
156.  The  Lord  Justice,  after  stating  that  he  had  been  counsel  in  Nunn 
v.  Fabian,  L.  R.  1  Ch.  35,  and  referring  to  the  facts  of  it,  said : 

•'The  receipt  for  the  balance  of  rent  did  not  contain  all  the  necessary  ele- 
ments of  the  contract;  if,  therefore,  the  plaintiff  was  entitled  to  a  decree  for 
specific  performance,  it  must  have  been  upon  the  ground  of  proof  of  a  suffi- 
cient part  performance  to' take  the  case  out  of  the  statute,  and  so  Lord  Cran- 
worth  held.  The  fact  of  the  plaintiff  beiug  in  possession  of  the  property  was 
not  a  sufficient  part  performance  of  the  parol  agreement,  for  it  was  equally 
consistent  with  his  continuing  in  possession  under  his  previous  tenancy,  as 
of  his  possession  being  due  to  some  agreement  between  himself  and  his  land- 
lord ;  moreover,  Lord  Cramvorth  declined  to  treat  a  proved  expenditure  of 
money  upon  the  property  as  a  part  performance ;  but  he  held  that  there  was 
a  clear  part  performance  by  payment  and  acceptance  of  the  Michaelmas  rent 
at  the  increased  rate,  being  of  opinion  that  the  payment  of  the  increased 
amount  could  be  referable  only  to  some  agreement :  and  upon  that  ground, 
and  upon  that  ground  alone,  he  made  a  decree  for  specific  performance." 

I  think,  therefore,  that  Nunn  v.  Fabian,  L.  R.  1  Ch.  35,  is  an  au- 
thority in  point,  and  that  there  is  nothing  inconsistent  with  it  in  the 
observations  of  Lord  Selborne,  L.  C,  in  Maddison  v.  Alderson,  8  App. 
Cas.  467,  478,  where  he  said : 

"Lord  Hardwicke  in  Gunter  v.  Halsey  (1739)  Amb.  5S6,  said,  'As  to  the  acts 
done  in  performance,  they  must  be  such  as  could  be  done  with  no  other  view  or 
design  than  to  perform  the  agreement'  ('the  terms  of  which,'  he  added,  "must 
be  certainly  proved').  He  thought  it  indeed  consistent  with  that  rule  to  treat 
the  payment  of  purchase-money,  in  whole  or  in  part,  as  a  sufficient  part  per- 
formance. *  *  *  This  Lord  Cowper  *  *  *  and  Lord  Macclesfield 
*  *  *  had  refused  to  do.  On  that  point  later  authorities  have  overruled 
Lord  Hardwicke's  opinion;  and  it  may  be  taken  as  now  settled  that  part  pay- 
ment of  purchase-money  is  not  enough ;  and  judges  of  high  authority  have 
said  the  same  even  of  payment  in  full.  *  *  *  Some  of  the  reasons  which 
have  l>een  given  for  that  conclusion  are  not  satisfactory;  the  best  explana- 
tion of  it  seems  to  be,  that  the  payment  of  money  is  an  equivocal  act,  not  (in 
itself),  until  the  connection  is  established  by  parol  testimony,  indicative  of  a 
contract  concerning  land.  I  am  not  aware  of  any  case  in  which  the  whole 
purchase-money  has  been  paid  without  delivery  of  possession,  nor  is  such  a 
case  at  all  likely  to  happen.  All  the  authorities  shew  that  the  acts  relied 
upon  as  part  performance  must  be  unequivocally,  and  in  their  own  nature, 
referable  to  some  such  agreement  as  that  alleged." 


Sec.  7)  STATUTE   OF   FRAUDS ORAL   CONTRACTS  393 

In  the  present  case  what  was  done  could  not  refer  to  the  old  ten- 
ancy, but  is  in  my  judgment  an  unequivocal  act  referable  to  some  new 
contract,  and  that  could  only  be  a  contract  of  tenancy.  Evidence  must, 
therefore,  be  admitted  to  shew  what  the  contract  was. 

(Before  the  conclusion  of  the  trial  the  action  was  compromised.) 


WASHINGTON  v.  SORIA. 

(Supreme  Court  of  Mississippi,  1896.     73  Miss.  665,  19  South.  485, 
55  Am.  St.  Rep.  555.) 

Appeal  from  chancery  court,  Harrison  county;  W.  T.  Houston, 
Chancellor. 

Action  in  equity  by  Margaret  Soria  against  J.  J.  Washington.  From 
the  decree  both  parties  appeal. 

Cooper,  C.  J.10  Mrs.  Soria  exhibited  her  bill  in  the  chancery  court 
of  Harrison  county  to  subject  certain  lands  therein  described,  here- 
tofore conveyed  by  her  to  the  appellant  Washington,  to  the  payment 
of  the  purchase  price  thereof.  The  bill,  which  was  filed  on  December 
5,  1894,  charges  that  on  the  26th  day  of  July,  1887,  in  consideration  of 
the  sum  of  $500  to  her  in  cash  paid,  and  of  the  payment  of  a  like  sum 
to  be  made  12  months  therefrom,  and  of  the  payment  of  a  like  sum 
to  be  made  18  months  therefrom,  she  conveyed  the  land  to  the  de- 
fendant, reserving  a  lien  upon  the  land  until  payment  of  the  full  pur- 
chase price;  that,  though  the  defendant  executed  no  writing  promis- 
ing to  pay  the  deferred  payments,  he  received  and  put  to  record  the 
deed,  and  entered  upon  and  has  enjoyed  the  land  thereby  conveyed. 
The  defendant  filed  a  general  demurrer  to  the  whole  bill,  and  for 
causes  set  forth:  (1)  No  equity  on  the  face  of  the  bill;  (2)  that  the 
contract  sought  to  be  enforced,  not  being  evidenced  by  any  memoran- 
da or  note  thereof  signed  by  the  defendant,  is  unenforceable,  under 
the  statute  of  frauds ;  (3)  that  the  claim  sought  to  be  enforced  is 
barred  by  the  statute  of  limitations  of  three  years ;  (4)  that  the  install- 
ment of  the  purchase  money  alleged  by  the  bill  to  have  been  payable  12 
months  after  the  execution  of  the  deed  is  barred  by  the  6-years  statute 
of  limitations.  The  chancellor  entered  a  decree  overruling  the  demur- 
rer on  all  the  grounds  alleged,  except  the  fourth,  and  on  that  ground 
sustained  it,  but  directed  the  plaintiff  to  answer  over.  From  this  decree 
both  parties  appeal.     *     *     * 

The  defendant,  to  avoid  all  liability,  contends  (1)  that,  because  of 
the  statute  of  frauds,  no  relief  could  ever  have  been  afforded  the  com- 
plainant, either  at  law  or  in  equity ;  and,  if  mistaken  in  this,  then  (2) 
that,  if  there  ever  was  a  right  of  action,  it  existed  as  well  at  law  as 
in  equity,  and  was  barred  within  three  years  after  the  time  named  in 

19  Parts  of  the  opinion  are  omitted.' 


394  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Ch.  2 

the  deed  for  the  payment  of  the  deferred  part  of  the  purchase  price 
of  the  land. 

The  contention  of  neither  party  can  be  maintained.  In  many  juris- 
dictions it  has  been  held  that  part  performance  of  an  oral  agreement 
takes  it  beyond  the  application  of  the  statute  of  frauds ;  but  this  rule 
was  repudiated  in  this  state  at  an  early  day,  and  it  has  been  uniformly 
here  held  that  part  performance  is  not  sufficient  to  withdraw  a  case 
from  the  control  of  the  statute.  Payson  v.  West,  Walk.  515;  Beaman 
v.  Buck,  9  Smedes  &  M.  207;  Box  v.  Stanford,  13  Smedes  &  M.  93, 
51  Am.  Dec.  142;  Catlett  v.  Bacon,  33  Miss.  269.  In  Hairston  v. 
Jaudon,  42  Miss.  380,  the  court  of  the  military  commander  of  the 
district  absurdly  held  that  a  vendee  in  an  oral  contract  for  the  pur- 
chase of  land,  who  had  paid  $750  of  the  purchase  price,  might  recover 
the  same  back  from  the  vendor,  who  was  willing  to  complete  the  con- 
tract and  tendered  a  deed  with  his  plea.  This  never  was  the  law,  and 
that  case  is  overruled.  It  is  uniformly  held  that  after  full  performance 
of  an  oral  agreement  the  statute  of  frauds  does  not  apply.  The  stat- 
ute neither  declares  an  oral  contract  to  be  illegal  nor  void.  It  does 
not  prohibit  the  contract,  but  simply  declares  that  no  action  shall  be 
maintained  to  enforce  it.  Where  the  contract  has  been  fully  executed 
by  one  of  the  parties,  and  nothing  remains  to  be  done  by  the  other  than 
to  pay  the  consideration,  relief  is  very  generally  afforded  at  law  by  per- 
mitting the  plaintiff  to  recover,  not  upon  the  special  contract,  but  on 
assumpsit,  or  on  the  case,  upon  the  promise  implied  by  law,  for  the 
statute  has  no  application  to  promises  implied  by  law.  2  Reed,  St. 
Frauds,  §  640.  Where  there  has  been  a  special  contract,  fully  per- 
formed by  the  plaintiff,  he  may  recover  either  in  case,  on  the  contract, 
or  in  indebitatus  assumpsit,  for  the  consideration.  Fowler  v.  Austin,  1 
How.  156,  26  Am.  Dec.  701 ;  Hill  v.  Robeson,  2  Smedes  &  M.  541 ; 
Cutter  v.  Powell,  2  Smith,  Lead.  Cas.  17,  and  note;  2  Devi.  Deeds,  § 
1074.  When  the  vendor  has  made  a  conveyance  of  land  to  the  vendee, 
who  has  executed  no  written  promise  to  pay  the  purchase  price,  the 
courts,  while  uniformly  affording  relief,  are  not  very  well  agreed  upon 
what  precise  ground  the  right  is  rested.     *     *     * 

The  decree  is  reversed  on  the  appeal  of  Mrs.  Soria,  the  demurrer 
overruled,  and  the  defendant  required  to  answer  within  30  days  after 
the  mandate  shall  have  been  filed  in  the  court  below.20 

20  Claim  for  Betterments  as  Equitable  Defense  to  Ejectment. — In 
Daniel  v.  Grumpier  (1S76)  75  N.  C.  184:  "Civil  action  to  recover  possession  of 
two  acres  of  land.  Equitable  counterclaim  for  value  of  improvements.  On 
the  trial  the  court  refused  evidence  that  defendant  had  taken  possession  under 
a  parol  contract  of  sale  and  had  made  improvements.  There  was  judgment 
that  plaintiffs  recover  the  possession  and  damages,  from  which  defeudant  ap- 
pealed. Rodman,  J.,  said  (in  part):  We  suppose  that  the  Judge  rejected  the 
evidence  because  in  his  opinion  it  was  immaterial,  and  did  not  tend  to  sup- 
port any  available  defence,  legal  or  equitable.  In  this  we  think  he  was  in 
error.  It  tended  to  prove  what  was  equivalent  to  a  parol  agreement  by  plain- 
tiffs to  convey  the  land,  and  acceptance  of  the  purchase  money  from  the  de- 
fendant, or  from  some  one  from  him,  and  that  on  the  faith  of  this  contract 


SeC.  7)  STATUTE   OF   FRAUDS ORAL   CONTRACTS  305 

TOWNSEND  v.  FENTON. 

(Supreme  Court  of  Minnesota,  18S4.    32  Minn.  482,  21  N.  W.  726.) 

Appeal  from  an  order  of  the  district  court,  Murray  county. 

Mitchell,  J.  This  court  having,  on  a  former  appeal  in  this  case, 
(30  Minn.  528;  S.  C.  16  N.  W.  421),  held  that  the  complaint  was  bad 
for  the  reason  that  it  did  not  show  a  part  performance  of  the  oral 
agreement  to  convey  land,  declared  on  such  as  would  take  it  out  of  the 
operation  of  the  statute  of  frauds.  The  plaintiff  amended,  and  the 
case  now  presents  the  question  of  the  sufficiency  of  the  amended  com- 
plaint. The  most  important  amendment  is  the  allegation  that  defend- 
ant was  insolvent  at  the  time  of  making  the  oral  agreement,  which  fact 
was  known  to  plaintiff,  and  hence  that  he  would  not  have  accepted  the 
transfer  of  the  note  against  defendant,  and  paid  the  money  to  Darms, 
but  for  defendant's  promise  to  convey ;  further,  that  defendant  is  still 
insolvent.  We  have  already  decided,  in  accordance  with  the  unbroken 
current  of  modern  authorities,  that  the  mere  payment  of  purchase 
money  is  not  such  part  performance  as  will  take  the  case  out  of  the 
statute.  We  have  carefully  examined  numerous  authorities,  and  can 
find  none  that  hold,  or  even  suggest,  that  this  rule  is  at  all  changed  or 
affected  by  the  fact  that  the  vendor  is  insolvent.  It  may  be  difficult, 
on  principle,  to  distinguish  such  a  state  of  facts  from  some  which 
courts  have  held  sufficient  to  take  the  case  out  of  the  statute,  but  it 
is  our  well-settled  conviction  that  courts  have  gone  quite  as  far  in  ex- 
cepting oral  contracts  from  the  operation  of  the  statute  of  frauds  as  a 
sound  and  wise  policy  will  warrant,  and  that  what  is  left  of  that  stat- 
ute ought  to  stand,  unless  the  legislature  sees  fit  to  wipe  it  out  entirely. 

Plaintiff,  indeed,  concedes  that  insolvency  of  the  vendor  occurring 
after  the  making  of  the  contract  would  not,  under  the  authorities,  take 
the  case  out  of  the  statute,  but  claims  a  different  rule  should  be  applied 
when  the  insolvency  existed  at  the  time  the  contract  was  made,  be- 
cause, under  such  circumstances,  presumably,  the  vendor  would  not 
have  paid  the  money  except  in  reliance  on  the  promise  to  convey.  We 
can  find  no  authority,  and  are  referred  to  none,  which  even  suggests 
any  such  distinction.  We  cannot  see  any  difference  whether  the  in- 
ability of  the  vendor  to  repay  the  money  results  from  insolvency  ex- 
isting at  the  date  of  the  contract,  or  occurring  subsequently.     In  either 

the  defendant  entered  and  expended  money  in  improving.  It  is  settled  law 
in  this  state  that  although  a  parol  agreement  to  convey  land  is  void  by  our 
statute  of  frauds  (Bat.  Rev.  c.  50,  §  20),  yet  if  the  vendee  in  reliance  on  it 
pays  the  purchase  money  and  makes  improvements,  he  cannot  be  evicted  un- 
til the  vendor  repays  the  purchase  money  and  makes  compensation  for  the 
value  of  the  improvements.  Baker  v.  Carson  (1S36)  21  N.  C.  381;  Albea  v. 
Griffin  (1838)  22  N.  C.  9.  The  doctrine  stands  on  general  principles  of 
equity.     *     *     * 

"The  rule  for  estimating  the  value  of  the  improvements  is  declared  in  Weth- 
erell  v.  Gorman  (1876)  7-1  N.  C.  603.  It  is  not  what  they  have  cost  the  de- 
fendant, but  how  much  they  have  added  to  the  value  of  the  premises." 


396  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

case  the  practical  wrong  to  the  vendee  is  the  same.  Nothing  is  part 
performance  which  does  not  put  the  party  into  a  situation  that  is  a 
fraud  upon  him  unless  the  agreement  is  performed.  Clinan  v.  Cooke, 
1  Schoales  &  L.  22.  But  the  "fraud"  on  which  courts  of  equity  go  in 
cases  of  part  performance  is  not  fraud  merely  of  that  nature  which 
may  be  said  to  exist  in  every  case  of  refusal  to  fulfill  an  agreement, 
but  that  sort  of  fraud  "cognizable  in  equity  only."  O'Herlihy  v.  Hedg- 
es, 1  Schoales  &  L.  130;  Ham  v.  Goodrich,  33  N.  H.  39.  Therefore,  the 
courts  have  held  that  the  inability  of  the  vendor  to  repay  the  money 
by  reason  of  his  insolvency  does  not  in  that  respect  alter  the  rela- 
tion of  the  parties  so  as  to  modify  the  rule,  because,  there  being  noth- 
ing intrinsically  fraudulent  in  the  transaction,  this  circumstance  is  not 
a  sufficient  ground  for  imputing  to  the  vendor  the  wrongful  intent 
which  alone  furnishes  an  occasion  for  the  interference  of  equity  to 
enforce  verbal  agreements.     Pom.  Cont.  161. 

Counsel  further  urges  that  by  the  oral  agreement  this  land  was  to  be 
conveyed  as  soon  as  defendant  acquired  title,  without  regard  to  the  ma- 
turity of  the  note;  that  defendant  in  fact  acquired  title  and  refused  to 
convey  before  the  note  matured,  and  therefore  that  plaintiff,  at  that 
time,  was  without  remedy  at  law,  for  the  reasons — First,  that  he  could 
not  sue  on  the  note  because  it  was  not  due ;  and,  second,  that  he  could 
not  sue  defendant  to  recover  the  money  paid  to  Darms  because  it  was 
not  paid  on  account  of  defendant,  but  on  plaintiff's  own  account  in  pur- 
chasing the  note.  We  are  not  prepared  to  concede  that,  under  the 
terms  of  this  tripartite  agreement,  when  defendant  refused  to  convey, 
plaintiff  might  not,  at  his  election,  instead  of  waiting  for  the  note  to 
mature  and  suing  on  that,  have  immediately  sued  defendant  to  recover 
the  amount  paid  Darms  as  money  paid  at  his  instance  and  for  his  bene- 
fit. But,  even  if  his  only  remedy  was  to  sue  on  the  note,  we  do  not 
see  how  the  fact  that  it  was  not  yet  due  alters  the  case.  He  was 
not,  within  the  meaning  of  the  authorities,  without  remedy,  because  he 
might  have  to  wait  till  the  note  matured  before  bringing  an  action. 
Regarding  the  other  amendments  we  simply  remark  that  we  have 
examined  them  all,  but  do  not  think  that,  either  singly  or  collectively, 
they  aid  the  original  pleading.    Order  affirmed. 


FOUTS  v.  ROOF. 

(Supreme  Court  of  Illinois,  189S.    171  111.  568,  50  N.  E.  653.) 

Mr.  Justice  Boggs  21  delivered  the  opinion  of  the  Court: 
This  was  a  bill  in  chancery  by  the  appellee  to  enforce  specific  per- 
formance of  an  alleged  oral  contract  on  the  part  of  the  appellant  to 
convey  certain  real  estate  to  the  appellee.     The  bill  alleged  that  the 
appellee  is  a  married  woman,  having  a  husband  and  three  children,  and 

-i  Part  of  the  opinion  is  omitted. 


SeC.  7)  STATUTE   OF   FRAUDS ORAL  CONTRACTS  397 

that  the  appellant,  her  mother,  was  the  owner  of  65  acres  of  land  in 
Marshall  comity,  as  her  separate  property ;  that  on  or  about  February 
1,  1890,  the  appellant  expressed  a  desire  to  provide  the  appellee  with  a 
home,  and  offered  and  agreed  to  convey  her  the  said  land  in  Marshall 
county  if  the  appellee  and  her  husband  and  family  would  move  upon 
and  occupy  the  same  as  a  home ;  that  appellee  accepted  the  offer,  and  she 
and  her  husband  and  family  at  once  moved  upon  the  said  premises,  and 
have  since  lived  and  resided  there  as  their  home ;  that  they  made  lasting 
and  valuable  improvements  upon  the  property,  and  paid  all  taxes  there- 
on since  they  have  so  occupied  the  same,  a  period  of  about  seven  years, 
and  that  appellant  now  refuses  to  execute  a  deed  to  the  premises,  etc. 
The  appellant  answered  the  bill,  denying  the  material  allegations  there- 
of, and  invoking  the  statute  of  frauds  as  a  defense.  The  cause  was 
referred  to  the  master  to  take  and  report  the  proof,  with  his  conclusion 
as  to  the  facts.  The  master  reported  the  evidence  produced  by  the  re- 
spective parties,  and  his  conclusion  thereon  that  the  evidence  supported 
the  allegations  of  the  bill.  The  appellant's  exceptions  to  the  report  of 
the  master  were  heard  by  the  court  and  overruled,  and  a  decree  en- 
tered granting  the  relief  asked  by  the  bill.  The  defendant  to  the  bill 
has  removed  the  cause  to  this  court  by  appeal.     *     *     * 

Upon  full  consideration  of  all  the  evidence,  we  have  no  doubt  but 
appellant  and  her  husband  entered  into  the  agreement  as  set  forth  in 
the  bill,  and  testified  to  by  appellee,  and  that  they  intended  to  invest 
appellee  with  title  to  the  land  in  pursuance  of  the  agreement,  and  for 
that  purpose  executed  the  deed  to  appellee,  but  held  it  for  some  rea- 
son—possibly to  await  a  convenient  time  to  deliver  it,  or  possibly  un- 
til the)7  should  become  satisfied  appellee  and  her  husband  would  im- 
prove the  place,  and  make  it  their  permanent  home.  While  they  were 
so  holding  the  deed,  the  husband  and  father  died;  and  then  it  was,  and 
not  before,  that  appellant  conceived  the  idea  that  appellee  should  be  re- 
quired to  accept  the  premises  in  question  as  in  full  of  her  share  in  the 
estate  of  her  father,  and  destroyed  the  deed  because  appellee  would  not 
so  accept  it.  The  deed  contained  no  such  exception,  nor  was  the  agree- 
ment between  appellee  and  appellant  so  conditioned.  It  would  have 
been  an  injustice,  amounting  to  a  fraud  upon  appellee,  to  require  her, 
after  she  had  complied  with  the  contract,  to  submit  to  a  loss  of  her 
interest  in  th'e  estate  of  her  father,  in  order  to  obtain  the  fulfillment  of 
the  contract  by  the  appellant.  We  have  frequently  held  that  where 
a  parent  makes  a  parol  promise  to  a  child  to  convey  a  tract  of  land  if 
the  child  will  take  possession  of,  reside  upon,  and  improve  the  same, 
and  in  reliance  upon  the  promise  the  child  takes  possession,  and  makes 
improvements  of  a  permanent  and  valuable  character,  a  court  of  equity 
will  decree  specific  performance  of  the  agreement.  Such  a  promise 
rests  on  a  valuable  consideration,  and  performance  on  the  part  of  the 
child  takes  the  oral  contract  out  of  the  operation  of  the  statute  of 
frauds.  Bohanan  v.  Bohanan,  96  111.  591;  Bright  v.  Bright,  41  111. 
97;   Kurtz  v.  Hibner,  55  111.  514,  8  Am.  Rep.  665;  Wood  v.  Thornly, 


398  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

58  111.  468;  Langston  v.  Bates,  84  111.  524.  25  Am.  Rep.  466;   Padfield 
v.  Padfield,  92  111.  198;   McDowell  v.  Lucas,  97  111.  489. 
The  decree  is  affirmed.    Decree  affirmed. 


HENDERSON  v.  HEXRIE. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1911.     6S  W.  Va.  562, 
71  S.  E.  172,  34  L.  R.  A.  [N.  S.]  G2S,  Ann.  Cas.  1912B,  318.) 

Appeal  from  Circuit  Court,  Wood  County. 

Action  by  Jock  B.  Henderson  against  James  M.  Henrie  and  others. 
Judgment  for  plaintiff,  and  the  mentioned  defendant  appeals. 

Poffenbargf,r,  J.-2  The  general  nature  of  the  contract  involved 
in  this  cause  is  set  forth  in  the  report  of  a  former  decision  here,  on 
another  appeal,  found  in  61  W.  Va.  183,  56  S.  E.  369,  11  Ann.  Cas. 
741.*  This  appeal  is  from  a  final  decree,  requiring  Henrie  to  convey 
to  Henderson  a  portion  of  the  land  purchased  by  him  at  the  judicial 
sale,  by  way  of  specific  performance  of  the  verbal  agreement  constitut- 
ing the  basis  of  the  suit. 

The  former  decision  disposes  of  the  charge  of  illegality  or  invalidity 
of  the  contract,  as  alleged,  on  the  ground  of  fraud  or  inhibition  by 
public  policy ;  and  the  remaining  argument  against  the  sufficiency  of 
the  bill,  namely,  that  it  does  not  allege  irreparable  injury,  is  wholly 
inapplicable ;  the  legal  remedy  for  breach  of  a  contract  to  convey 
land  being  obviously  inadequate,  and  the  law  affording  no  remedy  at 
all  for  enforcement  of  a  trust.  Hence  the  demurrer  was  properly 
overruled. 

The  vital  inquiry  is  the  character  of  the  contract,  viewed  in  the  light 
of  the  statute  of  frauds,  relied  upon  in  a  plea  to  the  bill — a  question 
neither  raised  nor  considered  on  the  former  appeal,  involving  only  the 
ruling  on  a  motion  to  dissolve  an  injunction,  made  in  vacation.  At  that 
time  no  demurrer,  plea,  or  answer  had  been  filed.  The  contract  is 
verbal,  and  prior  in  date  to  the  purchase  by  the  defendant.  The 
plaintiff,  though  willing  to  pay,  or,  to  be  strictly  accurate,  repay,  a 
portion  of  the  purchase  money,  and  claiming  the  right  to  do  so,  has  in 

--  Parts  of  the  opinion  are  omitted. 

*  The  facts  of  the  principal  case  are  stated  in  Henderson  v.  Henrie,  61  W. 
Va.  L83,  184,  :>r,  S.  E.  369.  11  Ann.  Cas.  741  (1907),  as  follows:  "The  plaintiff 
alleges  that  on  the  day  of  sale  he  entered  into  an  agreement  with  the  appel- 
lant. James  M.  Henrie,  by  which  they  were  both  to  bid  on  the  sixty-two  acre 
tract,  and  in  the  event  either  became  the  purchaser  thereof  Henderson  was  to 
have  a  certain  portion  of  the  tract,  being  about  ten  acres,  laid  off  out  of  sub- 
division number  one,  and  Henrie  was  to  have  the  residue.  At  the  sale  the 
property  was  offered  as  a  whole,  and  also  by  the  several  parcels  into  which  it 
had  heen  laid  off,  and  the  price  bid  for  the  whole  being  greater  than  the  ag- 
gregate  amount  bid  for  the  three  several  parcels,  and  Henrie  being  the  highest 
bidder,  he  became  the  purchaser  thereof.  The  terms  of  sale  were  one-third 
cash,  and  the  remainder  in  installments,  but  Henrie,  not  desiring  to  pay  in- 
terest, paid  the  entire  amount  in  cash." 


Sec.  7)  STATUTE   OP  FRAUDS — ORAL  CONTRACTS  399 

fact  paid  nothing  at  all,  and  title  has  vested  in  the  defendant.  At  the 
date  of  the  making  of  the  agreement,  neither  party  had  any  interest 
whatever  in  the  land,  either  legal  or  equitable,  and  there  was  no  co- 
partnership relation.  Each  was  to  take  and  hold  a  portion  of  the  land. 
In  bidding,  each  acted  for  himself  and  as  agent  of  the  other  at  the 
same  time ;  the  action  in  one  capacity  relating  to  one  portion  of  the 
land,  and  in  the  other  to  the  residue  thereof. 

The  basis  of  the  cause  of  action,  as  disclosed  by  this  inquiry  and 
analysis,  seems  to  be  the  oral  agreement,  and  nothing  more.  We  per- 
ceive nothing  of  a  collateral  nature,  constituting  an  independent  equity, 
such  as  payment  of  purchase  money ;  a  prior  interest  in  the  land,  not 
released ;  lack  of  consideration  moving  from  the  grantee,  accompanied 
by  an  agreement  to  take  mere  legal  title  as  a  necessary  step  in  the 
execution  of  some  plan  or  purpose  previously  agreed  upon ;  or  a  co- 
partnership, covering  the  subject-matter  of  the  conveyance.  Such 
an  equity  seems  to  be  essential  to  the  establishment  of  a  trust  or  im- 
munity of  a  contract  of  sale  of  land  from  the  inhibition  of  the  stat- 
ute of  frauds.  In  Floyd  v.  Duffy,  68  W.  Va.  339,  69  S.  E.  993,  33  L. 
R.  A.  (N.  S.)  883,  we  said,  speaking  of  certain  provisions  of  that  stat- 
ute: 

"These  provisions  absolutely  prevent  the  acquisition  of  any  estate  in  land 
for  more  than  five  years  by  means  of  a  mere  verbal  contract.  There  must  be 
something  more — an  equity  outside  and  independent  of,  or  in  addition  to,  the 
contract.  *  *  *  By  the  great  weight  of  authority,  if  not,  indeed,  by  all 
courts,  an  agreement  on  the  part  of  one  purchasing  land  with  his  own  money, 
and  taking  the  conveyance  in  his  own  name,  to  hold  it  in  trust  for  another 
person,  or  to  reconvey  it  to  the  grantor,  is  within  the  statute  of  frauds." 

In  resulting  trusts,  the  basis  of  the  equity  is  the  payment  of  money. 
In  those  instances  in  which  deeds,  absolute  on  their  faces,  are  construed 
and  enforced  as  mortgages,  the  antecedent  interest  in  the  land  lies  at 
the  bottom  of  the  equity.  In  cases  of  voluntary  conveyances  for  spe- 
cific purposes,  the  fraud  of  the  grantee  is  the  circumstance  imposing  an 
obligation  in  conscience.  To  apply  the  statute  under  such  circum- 
stances would  allow  the  grantee  to  obtain  the  land  for  nothing,  defeat 
the  meritorious  purpose  of  the  conveyance,  and  make  the  statute  an 
instrument  of  fraud,  contrary  to  legislative  design.  As  copartnership 
is  a  confidential  relation,  and  there  is  a  joint  interest  in  firm  assets,  a 
conveyance  to  one  member,  under  a  purchase  with  partnership  funds, 
creates  a  constructive  or  resulting  trust ;  the  confidential  relation  con- 
stituting the  ground  of  equity.  In  cases  of  exception,  on  the  ground 
of  part  performance,  the  altered  situation  of  the  vendee,  in  reliance 
upon  the  contract,  working  irreparable  injury,  constitutes  the  inde- 
pendent equity.  In  parol  gifts  of  land,  enforceable,  the  equitable  foun- 
dation is  the  same. 

No  precedent  or  declaration  of  principle  by  this  court  is  broad 
enough  to  except  this  agreement  from  the  operation  of  the  statute. 
*  *  *  In  every  instance  of  exclusion  from  the  statute,  an  inde- 
pendent equity  has  been  found.     *     *     * 


400  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

Under  these  principles  and  conclusions,  we  reverse  the  decree,  dis- 
miss the  bill,  and  decree  to  the  appellant  his  costs  in  the  court  below, 
as  well  as  in  this  court. 

Williams,  P.,  absent.23 


PEEK  v.  PEEK. 

(Supreme  Court  of  California,  188S.    77  Cal.  106,  19  Pac.  227,  1  L.  R.  A.  185, 

11  Am.  St.  Rep.  244.) 

Commissioners'  decision.  In  bank.  Appeal  from  superior  court, 
San  Bernardino  county ;  Henry  M.  Willis,  Judge. 

Ejectment  by  Lee  Peek,  a  minor,  by  Jerry  McNew,  his  guardian, 
against  Nettie  A.  Peek,  for  land  in  San  Bernardino  county.  Defend- 
ant filed  a  cross-complaint,  asking  a  conveyance  of  the  legal  title  to  the 
land. 

Haynf,,  C.  Ejectment,  with  a  cross-complaint  by  defendant  pray- 
ing for  a  conveyance  of  the  legal  title.  The  facts  are  as  follows :  One 
L.  R.  Peek  orally  promised  the  defendant  that  if  she  would  marry  him, 
he  would,  on  or  before  the  marriage,  convey  to  her  the  property  in 
controversy.  She  relied  upon  this  promise,  and  married  him  "for  no 
other  reason  or  consideration."  The  conveyance  was  not  made.  He 
put  it  off  by  excuses  and  protestations,  and  on  the  morning  of  the  mar- 
riage, without  the  knowledge  of  defendant,  conveyed  the  property  to 
his  son  by  a  former  marriage,  who  was  then  a  boy  about  10  years  old. 
The  marriage  with  defendant  did  not  prove  a  happy  one,  and  after 
a  year's  residence  upon  the  property  Peek  deserted  the  defendant,  and 
the  son,  Lee  Peek,  brought  the  present  action  to  recover  possession  of 
the  property.  The  court  below  gave  judgment  for  the  plaintiff,  and 
the  defendant  appeals. 

The  foundation  of  the  defendant's  claim  being  the  promise  of  L.  R. 
Peek,  the  first  question  to  be  considered  is  whether  such  promise  was 
of  any  validity.  It  is  clear  that  it  was  within  the  statute  of  frauds. 
But  it  is  contended  that  there  was  such  part  performance  and  fraud 
as  would  induce  a  court  of  equity  to  give  relief,  notwithstanding  the 
statute.  We  think  that  if  the  actual  fraud  of  L.  R.  Peek  be  left  out 
of  view,  there  was  no  such  part  performance  as  would  take  the  case  out 
of  the  statute.  There  may  undoubtedly  be  cases  of  a  part  perform- 
ance of  oral  antenuptial  agreements  sufficient  to  warrant  their  enforce- 
ment in  equity.  See  Neale  v.  Neales,  9  Wall.  1,  19  L.  Ed.  590.  But  it 
seems  to  be  generally  agreed  that  the  marriage  alone  does  not  amount 
to  such  part  performance.  See  Ath.  Mar.  Sett.  90 ;  Browne,  St.  Frauds, 
(4th  Ed.)  §  459;  Henry  v.  Henry,  27  Ohio  St.  121.  With  reference 
to  this  subject,  Story  says: 

23  On  the  rule  in  this  ease,  see  American  Annotated  Cases,  1912B,  note. 


Sec.  7)  STATUTE   OF   FRAUDS ORAL   CONTRACTS  401 

"The  subsequent  marriage  is  not  deemed  a  part  performance,  taking  the  case 
out  of  the  statute,  contrary  to  the  rule  which  prevails  in  other  cases  of  con- 
tract. In  this  respect  it  is  always  treated  as  a  peculiar  case,  standing  on  its 
own  grounds."    2  Eq.  Jur.  §  76S. 

Nor  does  the  fact  that  the  defendant  resided  with  her  husband  upon 
the  property  make  any  difference.  The  reason  assigned  for  holding 
possession  to  be  part  performance  is  that,  unless  validity  be  given  to 
the  agreement,  the  vendee  would  be  a  trespasser.  But  it  is  manifest 
that  this  reason  would  not  apply  where  the  vendor  was  the  husband 
and  the  vendee  the  wife,  living  with  him  upon  the  property.  The  pos- 
session which  is  referred  to  by  the  cases  which  hold  it  to  be  sufficient 
part  performance  is  a  possession  exclusive  of  the  vendor.  Browne, 
St.  Frauds,  (4th  Ed.)  §  474.  But  the  fact  that  the  marriage  was 
brought  about  by  the  actual  fraud  of  L.  R.  Peek  seems  to  us  to  make 
a  difference.  There  can  be  little  doubt  upon  the  record  that  there 
was  actual  fraud  on  his  part.  He  denies  that  he  made  any  promise  to 
convey  the  property  in  controversy.  But  the  court  finds  that  he  did 
make  it,  and,  taking  this  to  be  the  fact,  we  think  that  the  defendant's 
account  as  to  the  time  of  the  promise,  and  of  the  reason  she  married 
him  without  the  conveyance,  must  be  accepted  as  the  true  one.  Ac- 
cording to  her  testimony,  the  promise  was  repeated  up  to  the  time  of 
the  marriage,  and  she  was  induced  to  have  the  ceremony  performed 
before  the  conveyance  was  executed  by  means  of  excuses  and  pro- 
testations, which  must  have  been  made  for  the  purpose  of  deceiving 
her.  On  the  day  before  the  marriage,  he  pretended  that  he  was  going 
to  have  the  deed  executed  at  once.    He  said  to  the  defendant : 

"The  officers  are  in  town  that  are  required  to  draw  up  the  papers.  Come 
to-night,  and  I  will  have  the  place  deeded  to  you,  and  the  $15,000  put  in  your 
name.  He  left  me  in  the  hotel,  and  in  a  few  minutes  he  came  and  told  me 
that  Mr.  Frank  McKenny  was  out  of  town,  and  it  could  not  be  attended  to 
that  evening." 

The  next  day  "he  said  he  would  have  the  deeds  drawn,  and  he  went 
up  and  said  that  they  were  all  busy  at  the  court-house,  and  he  couldn't 
have  it  done  at  that  time ;  and  he  dalled  on  me  again  with  the  same 
story,  that  the  gentlemen  at  the  court-house  were  busy,  and  that  he 
could  not  have  the  deeds  fixed,  and  that  I  could  rest  contented."  He, 
however,  succeeded  in  inducing  the  defendant  to  marry  him  that  eve- 
ning by  protesting  that  the  papers  should  be  executed  as  soon  as  practi- 
cable. After  the  marriage  he  kept  up  for  a  short  time  the  pretense 
that  he  was  going  to  fulfill  his  promise,  but  never  did  so.  It  seems 
clear  that  he  never  intended  to  have  the  deed  executed.  The  story 
that  he  could  not  have  it  done  because  the  officers  at  the  court-house 
were  busy  is  ridiculous.  On  the  very  day  that  he  was  making  this 
excuse  he  got  a  deed  executed  conveying  the  property  to  his  son.  And 
the  fact  that  he  induced  the  defendant  to  marry  him  by  promising  to 
convey  the  property  to  her,  when  at  that  very  time  he  was  convey- 
ing it  to  somebody  else,  seems  conclusive  as  to  his  fraudulent  intent. 
Boke  Eq.— 26 


402  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Ch.  2 

We  think,  therefore,  that  the  conclusion  of  the  court  below,  that  the 
deed  was  not  made  "with  any  fraudulent  intent  whatever,"  is  not  sus- 
tained by  the  facts.  This  fraud  on  the  part  of  L.  R.  Peek,  by  which 
he  induced  the  defendant  to  irretrievably  change  her  condition,  seems 
to  us  to  be  ground  for  relief  in  equity.  It  has  been  laid  down  that  if 
the  agreement  was  intended  to  be  reduced  to  writing,  but  was  pre- 
vented from  being  so  by  the  fraudulent  contrivance  of  the  party  to  be 
bound  by  it,  equity  will  compel  its  specific  performance.  2  Story, 
Eq.  Jur.  §  768 ;  Ath.  Mar.  Sett.  85.  And  the  recent  case  of  Green  v. 
Green,  34  Kan.  740,  10  Pac.  156,  55  Am.  Rep.  256,  is  exactly  in  point. 
In  that  case  a  widow,  owning  160  acres  of  land,  orally  promised  a 
man  that  if  he  would  marry  her,  she  would  devote  the  proceeds  of 
the  land  to  their  joint  support.  Relying  upon  this  promise,  he  married 
her,  but  subsequently  ascertained  that  on  the  eve  of  the  marriage  she 
had  conveyed  the  property  to  her  children  by  former  marriage,  "in  con- 
sideration of  love  and  affection."  The  court  held  that  he  could  main- 
tain an  action  to  have  the  deed  set  aside  on  the  ground  of  fraud.  Com- 
pare, also,  Petty  v.  Petty,  4  B.  Mon.  (Ky.)  215,  39  Am.  Dec.  501. 

We  do  not  say  that  the  mere  fraudulent  omission  to  have  an  agree- 
ment reduced  to  writing  would  of  itself  be  ground  for  specifically  en- 
forcing the  agreement.  But  where  the  fraudulent  contrivance  in- 
duces an  irretrievable  change  of  position,  equity  will  enforce  the  agree- 
ment; and  the  marriage  brought  about  by  the  fraudulent  contrivance 
is  a  change  of  position,  within  the  meaning  of  the  rule.  In  Glass  v. 
Hulbert,  102  Mass.  24,  3.  Am.  Rep.  418,  in  reasoning,  upon  somewhat 
different  facts,  to  the  conclusion  that,  in  order  to  be  ground  for  the 
enforcement  of  the  oral  contract,  the  fraudulent  contrivance  must  have 
induced  some  irretrievable  change  of  position,  the  court  said : 

"The  cases  most  frequently  referred  to  are  those  arising  out  of  agreements 
for  marriage  settlements.  In  such  eases,  the  marriage,  although  not  regarded 
as  a  part  performance  of  the  agreement  for  a  marriage  settlement,  is  such  an 
irretrievable  change  of  situation  that,  if  procured  by  artifice,  upon  the  faith 
that  the  settlement  had  been  made,  or  the  assurance  that  it  would  be  executed, 
the  other  party  is  held  to  make  good  the  agreement,  and  not  permitted  to  de- 
feat it  by  pleading  the  statute." 

This,  we  think,  is  a  correct  statement  of  the  law. 

It  is  argued,  however,  that  the  plaintiff  knew  nothing  of  the  fraud, 
and  therefore  is  not  affected  by  it.  But  it  is  very  clear  that  a  mere 
volunteer,  however  innocent,  cannot  retain  the  fruits  of  the  fraud,  and 
we  think  that  with  reference  to  at  least  a  portion  of  the  property  the 
plaintiff  was  a  mere  volunteer.  There  are  two  grounds  upon  which  it  is 
urged  that  he  was  a  purchaser  for  valuable  consideration.  In  the  first 
place,  it  is  said  that  his  father  was  his  guardian,  and  as  such  owed 
the  plaintiff  a  balance  of  $14S,  and  that  this  sum  was  part  of  the  con- 
sideration of  the  deed.  But  there  was  no  consent  of  the  ward  to  such 
an  application  of  the  sum  due  him.    His  testimony  is  as  follows : 

"I  never  paid  my  papa  any  money  for  the  deed  that  tie  showed  me.  I  do 
not  know  anything  about  how  much  money  was  mentioned  in  the  deed  as  be 
Ins  the  consideration  for  it.     I  never  knew  anything  about  that.     Nothing  of 


Sec.  7)  STATUTE   OF   FRAUDS ORAL  CONTRACTS  403 

that  kind  passed  between  us.     No  property  or  money  or  anything.     I  did  not 
have  any  property  at  that  time  to  give  him.    If  I  had  any,  I  didn't  know  it." 

So  that,  even  if  the  ward  could  have  consented  to  such  an  appro- 
priation of  his  funds  without  the  sanction  of  the  probate  court,  there 
was  no  such  consent.  Nor  was  there  any  sanction  of  the  probate  court. 
It  may  be  that  upon  a  proper  settlement  of  the  guardian's  accounts 
a  much  larger  sum  will  be  found  to  be  due  from  him.  He  cannot  get 
rid  of  liability  to  his  ward  in  that  way.  In  the  next  place,  it  is  said 
that  L.  R.  Peek  promised  his  first  wife  upon  her  deathbed  that  the 
son  should  have  the  property.  But  it  is  clear  that  such  promise  was 
a  mere  moral,  and  not  a  valuable,  consideration.  It  did  not  prevent  the 
plaintiff  from  being  a  volunteer.  See,  generally,  Lloyd  v.  Fulton,  91 
U.  S.  484,  485,  23  L.  Ed.  363.  Finally,  it  is  argued  that  the  first  wife 
furnished  half  of  the  money  with  which  the  property  was  purchased, 
and  that  a  trust  resulted  to  her  in  consequence.  This  was  the  view 
taken  by  the  trial  court.  But,  conceding  that  a  trust  did  result,  it  did 
not  affect  the  whole  property,  but  at  most  only  a  portion  corresponding 
to  the  proportion  of  the  price  which  she  furnished;  and  the  portion 
which  it  did  affect  was  in  no  sense  a  consideration  for  the  deed  which 
is  involved  here.  Upon  the  theory  that  a  trust  resulted  to  the  first  wife, 
the  plaintiff  must  claim  as  her  successor  in  interest.  It  does  not  appear 
that  she  left  a  valid  will  in  his  favor,  and  if  not  he  could  succeed  to  a 
portion  only  of  her  interest.  Furthermore,  it  might  become  a  question 
as  to  whether  the  defendant  took  with  notice  of  the  son's  equitable 
interest,  and  as  to  how  she  would  be  affected  thereby.  These  latter 
questions  have  not  been  argued,  and  we  think  they  should  be  left  open 
upon  the  retrial.  It  is  deserving  of  serious  consideration  whether  L. 
R.  Peek,  who'  was  a  party  to  the  contract  which  the  defendant  relies 
upon,  should  not  have  been  joined  as  a  party  to  the  cross-suit.  But 
the  objection  as  to  his  non-joinder  as  a  defendant  to  the  cross-complaint 
was  not  taken  by  demurrer,  and  is  not  argued  in  the  respondent's 
brief,  and  for  these  reasons  we  express  no  opinion  concerning  it.  We 
therefore  advise  that  the  judgment  and  order  denying  a  new  trial  be 
reversed,  and  the  cause  remanded  for  a  new  trial. 

We  concur:   Belcher,  C.  C. ;  Foots,  C. 

Per  Curiam.  For  the  reasons  given  in  the  foregoing  opinion  the 
judgment  and  order  are  reversed,  and  the  cause  remanded  for  a  new 
trial. 


BRITAIN  v.  ROSSITER. 

(Court  of  Appeal,  1S79.    11  Q.  B.  Div.  123.) 

Action  for  wrongful  dismissal. 

At  the  trial  it  appeared  that  the  plaintiff  entered  into  the  defend- 
ant's service  as  clerk  and  accountant  for  one  year. 

The  plaintiff  and  the  defendant  had  interviews  upon  the  17th,  19th, 
and  21st  of  April,  1877.     The  21st  was  a  Saturday,  and  the  plaintiff 


404  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

entered  upon  the  defendant's  service  upon  Monday  the  23d.  The  final 
arrangement  between  the  parties  was  arrived  at  upon  the  Saturday. 

The  plaintiff  remained  some  months  in  the  defendant's  service  and 
was  then  dismissed  without  a  three  months'  notice.  The  defendant 
relied  upon  the  Statute  of  Frauds,  §  4.  At  the  trial  before  Hawkins, 
J.,  the  verdict  was  entered  for  the  defendant  upon  the  ground,  first, 
that  the  contract  was  made  finally  upon  Saturday,  the  21st  of  April, 
and  being  made  upon  that  day  was  within  the  Statute  of  Frauds,  § 
4;  secondly,  that  there  was  no  evidence  of  a  new  contract  on  Monday, 
April  the  23d,  it  not  being  proved  that  the  contract  made  on  the 
previous  Saturday  was  altered  or  rescinded. 

The  Exchequer  Division  having  refused  a  new  trial  on  the  ground 
of  misdirection — 

1878.  May  29.  Firth  moved  in  this  Court,  by  way  of  appeal ;  he 
contended  first,  that  the  contract  of  service  for  one  year  was  to  begin 
from  Monday,  the  23d  of  April,  and  therefore  that  it  was  a  contract 
to  be  performed  within  a  year ;  secondly,  that  the  plaintiff  could  not  be 
dismissed  without  notice,  a  verbal  contract  being  in  existence ;  thirdly, 
that  the  contract  having  been  partly  performed,  was  taken  out  of  the 
Statute  of  Frauds,.  §  4.     *     *     * 

Brett,  L.  J.24  *  *  *  No  rule  will  be  granted  as  to  the  point 
whether  the  contract  is  within  the  statute ;  but  the  plaintiff  may  take 
a  rule  upon  the  questions  whether  the  operation  of  the  Statute  of 
Frauds,  §  4,  may  be  defeated  by  part  performance,  and  also  whether 
the  plaintiff  was  entitled  to  any  notice  of  dismissal,  a  verbal  contract 
being  in  existence. 

Cotton  and  Thesigf,r,  L.  JJ.,  concurred. 

1879.  March  4.  J.  C.  Lawrance,  0.  C,  and  P.  B.  Hutchins,  shewed 
cause.     *     *     * 

As  to  the  doctrine  of  part  performance,  it  is  true  that  the  Court 
of  Chancery  formerly  applied  it  only  to  contracts  for  the  sale  of  land, 
and  there  may  have  been  a  difficulty  in  decreeing  specific  performance 
of  a  contract  for  personal  services.  Pickering  v.  Bishop  of  Ely,  2  Y. 
&  C.  (Ch.)  249;  Johnson  v.  Shrewsbury  &  Birmingham  Ry.  Co.,  3  D. 
M.  &  G.  914.  But  the  Court  of  Chancery  would  not  allow  the  provi- 
sions of  a  statute  to  defeat  a  claim,  which  good  conscience  required 
to  be  carried  out.  Bond  v.  Hopkins,  1  Sch.  &  Lef .  413 ;  Morphett  v. 
Jones,  1  Swan.  172.  The  defence  set  up  by  the  defendant  is  wholly 
against  good  conscience.  And  now  by  the  Judicature  Act,  1873  (36 
&  37  Vict.  c.  66),  §  25,  subd.  7,  the  doctrines  of  equity  may  be  applied 
to  cases  decided  in  the  Common  Law  Divisions. 

Brett,  L.  J.  Upon  the  best  consideration  which  I  can  give  to  this 
case,  it  seems  to  me  that  this  rule  should  be  discharged.  I  think  that 
Hawkins,  J.,  was  right,  and  that  the  Exchequer  Division  was  also  right. 

24  Part  of  the  statement  of  facts  and  parts  of  the  opinions  of  Brett,  Cotton, 
and  Thesiger,  L.  JJ.,  are  omitted. 


SeC.  7)  STATUTE   OF   FRAUDS ORAL   CONTRACTS  405 

It  was  clearly  established  that  on  Saturday,  the  21st  of  April,  a  con- 
tract of  service  was  in  express  terms  entered  into  between  the  plain- 
tiff and  the  defendant  that  the  plaintiff  should  serve  the  defendant 
for  one  year,  the  contract  to  commence  the  Monday  following.  It 
cannot  be  disputed  that  a  contract  of  that  kind  is  within  the  4th  sec- 
tion of  the  Statute  of  Frauds,  that  is  to  say,  it  is  a  promise  founded 
upon  a  sufficient  consideration,  but  it  being  only  verbal  neither  party 
can  bring  an  action  upon  it  so  as  to  charge  the  other.     *     *     * 

It  has  been  further  contended  that  as  the  contract  of  the  21st  of 
April  has  been  partly  performed,  it  may  be  enforced,  notwithstanding 
the  Statute  of  Frauds,  and  that  the  equitable  doctrine  as  to  part  per- 
formance may  be  applied  to  it.  It  is  well  known  that  where  a  contract 
for  the  sale  of  land  had  been  partly  performed,  Courts  of  Equity  did 
in  certain  cases  recognize  and  enforce  it ;  but  this  doctrine  was  exer- 
cised only  as  to  cases  concerning  land,  and  was  never  extended  to  con- 
tracts like  that  before  us,  because  they  could  not  be  brought  within  the 
jurisdiction  of  Courts  of  Equity.  Those  Courts  could  not  entertain 
suits  for  specific  performance  of  contracts  of  service,  and  therefore 
a  case  like  the  present  could  not  come  before  them.  As  to  the  applica- 
tion of  the  doctrine  of  part  performance  to  suits  concerning  land,  I  will 
merely  say  that  the  cases  in  the  Court  of  Chancery  were  bold  decisions 
on  the  words  of  the  statute.  The  doctrine  was  not  extended  to  any 
other  kind  of  contract  before  the  Judicature  Acts :  can  we  so  ex- 
tend it  now  ?  I  think  that  the  true  construction  of  the  Judicature  Acts 
is  that  they  confer  no  new  rights ;  they  only  confirm  the  rights  which 
previously  were  to  be  found  existing  in  the  Courts  either  of  Law  or 
of*  Equity ;  if  they  did  more,  they  would  alter  the  rights  of  parties, 
whereas  in  truth  they  only  change  the  procedure.  Before  the  pass- 
ing of  the  Judicature  Acts  no  one  could  be  charged  on  this  contract 
either  at  law  or  in  equity ;  and  if  the  plaintiff  could  now  enforce  this 
contract,  it  would  be  an  alteration  of  the  law.  I  am  of  opinion  that 
the  law  remains  as  it  was,  and  that  the  plaintiff  cannot  maintain  this 
action  for  breach  of  contract. 

Cotton,  L.  J.  *  *  *  It  has  been  further  argued  that  the  con- 
tract may  be  enforced,  because  it  has  been  in  part  performed.  Let 
me  consider  what  is  the  nature  of  the  doctrine  as  to  part  performance. 
It  has  been  said  that  the  principle  of  that  doctrine  is  that  the  Court  will 
not  allow  one  party  to  a  contract  to  take  advantage  of  part  performance 
of  the  contract,  and  to  permit  the  other  party  to  change  his  position 
or  incur  expense  or  risk  under  the  contract,  and  then  to  allege  that  the 
contract  does  not  exist ;  for  this  would  be  contrary  to  conscience.  It 
is  true  that  some  dicta  of  judges  may  be  found  to  support  this  view, 
but  it  is  not  the  real  explanation  of  the  doctrine,  for  if  it  were,  part- 
payment  of  the  purchase-money  would  defeat  the  operation  of  the 
statute.  But  it  is  well-established  and  cannot  be  denied  that  the  re- 
ceipt of  any  sum,  however  large,  by  one  party  under  the  contract,  will 
not  entitle  the  other  to  enforce  a  contract  which  comes  within  the  4th 


406  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

section.  What  can  be  more  contrary  to  conscience  than  that  after  a 
man  has  received  a  large  sum  of  money  in  pursuance  of  a  contract,  he 
should  allege  that  it  was  never  entered  into?  The  true  ground  of  the 
doctrine  in  equity  is  that  if  the  Court  found  a  man  in  occupation  of 
land,  or  doing  such  acts  with  regard  to  it  as  would,  prima  facie,  make 
him  liable  at  law  to  an  action  of  trespass,  the  Court  would  hold  that 
there  was  strong  evidence  from  the  nature  of  the  user  of  the  land  that 
a  contract  existed,  and  would  therefore  allow  verbal  evidence  to  be 
given  to  show  the  real  circumstances  under  which  possession  was 
taken.  Does  this  doctrine,  when  so  explained,  apply  to  the  present  case? 
I  will  first  mention  the  provisions  of  the  Judicature  Act,  1873,  §  24. 
subds.  4,  7.  These  provisions  enable  the  Courts  of  Common  Law  to  deal 
with  equitable  rights  and  to  give  relief  upon  equitable  grounds :  but 
they  do  not  confer  new  rights :  the  different  divisions  of  the  High  Court 
may  dispose  of  matters  within  the  jurisdiction  of  the  Chancery  and  the 
Common  Law  Courts ;  but  they  cannot  proceed  upon  novel  principles. 
Could  the  present  plaintiff  have  obtained  any  relief  in  equity  before 
the  passing  of  the  Judicature  Acts?  I  think  that  he  could  not.  The 
doctrine  as  to  part  performance  has  always  been  confined  to  questions 
relating  to  land ;  it  has  never  been  applied  to  contracts  of  service,  and 
it  ought  not  now  to  be  extended  to  cases  in  which  the  Court  of  Chan- 
cery never  interfered. 

Thesiger,  L.  J.  *  *  *  If  we  turn  to  equity,  we  find  that  it  has 
been  held  as  regards  a  sale  of  land,  that  when  there  has  been  an  entry 
by  one  party  to  the  contract,  that  is  an  overt  act  apparently  done  under 
a  contract  which  entitles  the  Court  to  look  at  the  contract  to  see  to  what 
contract  the  overt  act  is  really  referable.  I  confess  that  on  principle 
I  do  not  see  why  a  similar  doctrine  should  not  be  applied  to  the  case 
of  a  contract  of  service,  and  as  the  doctrine  of  Equity  is  based  upon 
the  theory  that  the  Court  will  not  allow  a  fraud  on  the  part  of  one 
party  to  a  contract  on  the  faith  of  which  the  other  party  has  altered 
his  position,  I  do  not  see  why  a  similar  doctrine  should  not  compre- 
hend a  contract  of  service.  At  the  same  time  I  feel  that  doctrines  of 
this  nature  are  not  to  be  unwarrantably  extended,  and  that  we  ought 
not  to  go  further  than  the  decisions  of  Courts  of  Equity  as  to  the  prin- 
ciples of  relief,  and  as  to  the  instances  to  which  the  doctrine  of  part 
performance  is  to  be  applied.  Therefore,  as  we  cannot  clearly  see  that 
the  equitable  doctrine  of  part  performance  ought  to  be  extended  to 
contracts  of  service,  I  think  that  we  ought  to  keep  within  the  limits 
observed  by  the  Court  of  Chancery  before  the  passing  of  the  Judicature 
Acts,  1873,  1875. 

Rule  discharged. 


Sec.  8)  EQUITABLE   DEFENSES  407 

SECTION  8.— EQUITABLE  DEFENSES  TO  PRIMA  FACIE 
CLAIM  TO  SPECIFIC  PERFORMANCE 

I.  Delay  Causing  Loss  of  Equity's  Interposition 

(A)  Delay  in  Performance 


BARNARD  v.  LEE. 
(Supreme  Judicial  Court  of  Massachusetts,  1867.     97  Mass.  92.) 

Bill  in  equity  alleging  that  the  respondent,  being  seised  in  fee  of  a 
certain  tract  of  land  in  Deerfield,  entered  into  an  agreement  with  the 
complainant  for  the  sale  to  him  thereof,  and  executed  and  delivered 
to  him  a  bond,  dated  August  2,  1865,  which  was  fully  recited  in  the 
bill.  The  condition  of  this  bond  was,  that  if  the  complainant  should 
"on  or  before  the  first  day  of  April,  A.  D.  1866,  pay  or  cause  to  be  paid 
the  full  sum  of  six  hundred  dollars  and  the  interest  accruing  upon  the 
same,"  and,  ''upon  request,"  the  respondent  should  "make  and  deliver 
to  said  Barnard  a  good  and  valid  deed  in  fee"  of  the  land,  then  the  ob- 
ligation should  be  void.  The  bill  further  alleged  that  the  complainant, 
after  the  execution  of  this  bond,  was  in  possession  of  the  land  with 
the  knowledge  and  consent  of  the  respondent,  and  cultivated  and  im- 
proved it;  that  the  respondent  made  no  tender  of  a  deed  on  April  1, 
1866;  that  on  May  25,  1866,  the  complainant  tendered  to  him  six  hun- 
dred dollars,  with  interest  thereon,  "according  to  the  tenor  of  the  bond," 
and  demanded  of  him  a  conveyance  of  the  land,  which  he  thereupon 
refused  to  give ;  and  that  since  the  latter  day  the  complainant  has  al- 
ways been  and  is  ready  and  willing  to  pay  the  price,  but  that  the  re- 
spondent still  refuses  to  convey  the  land.  The  prayer  of  the  bill  was 
for  a  decree  to  compel  such  a  conveyance.  The  respondent  filed  a  gen- 
eral demurrer,  and  the  case  was  reserved  by  Chapman,  J.,  for  deter- 
mination by  the  full  court. 

Gray,  J.  The  doctrine  that  time  is  not  of  the  essence  of  a  contract 
is  generally  applied  in  equity  to  stipulations  for  the  payment  of  money 
upon  an  agreement  for  the  sale  and  purchase  of  real  estate.  The  prin- 
cipal grounds  of  the  doctrine  are  that  the  rule  of  the  common  law, 
requiring  performance  of  every  contract  at  the  appointed  day,  is 
often  harsh  and  unjust  in  its  operation;  that  although  some  time  of 
performance  by  each  party  is  usually  named  in  any  agreement  for  the 
sale  of  land,  it  is  often  not  regarded  by  the  parties  as  one  of  the  es- 
sential terms  of  their  contract;  and  that  a  court  of  chancery  has  the 
power  of  moulding  the  remedy  according  to  the  circumstances  of  each 
case,  and  of  making  due  compensation  for  delay,  without  punishing  it 
by  a  forfeiture  of  all  right  to  relief.    This  equitable  doctrine  was  for- 


40S  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

merly  carried  to  an  unreasonable  extent,  and  the  specific  performance 
of  contracts  enforced  after  such  a  lapse  of  time  and  change  of  cir- 
cumstances as  to  produce  as  much  injustice  as  it  avoided.  In  modern 
times,  the  doctrine  has  been  more  guardedly  applied ;  and  it  is  now  held 
that  time,  although  not  ordinarily  of  the  essence  of  a  contract  in  equity, 
yet  may  be  made  so  by  clear  manifestation  of  the  intent  of  the  parties 
in  the  contract  itself,  by  subsequent  notice  from  one  party  to  the  other, 
by  laches  in  the  party  seeking  to  enforce  it,  or  by  change  in  the  value 
of  the  land  or  other  circumstances  which  would  make  a  decree  for 
the  specific  performance  inequitable. 

The  best  statements,  in  the  English  books,  of  the  rule  and  its  reasons 
and  limitations  are  perhaps  to  be  found  in  the  opinions  of  those  judges 
whose  practical  experience  in  the  common  law  enabled  them  more  in- 
telligently to  restrain  the  application  of  the  rule  within  proper  limits ; 
as,  for  instance,  by  Lord  Eldon  in  the  leading  case  of  Seton  v.  Slade, 
7  Ves.  273,  274,  by  Lord  Erskine  in  Hearne  v.  Tenant,  13  Ves.  288, 
and  by  Baron  Alderson  in  Hipwell  v.  Knight,  1  Y.  &  Col.  Exch.  411, 
415,  416.  In  this  age  and  country,  as  suggested  by  Mr.  Justice  Liv- 
ingston in  his  dissenting  opinion  in  Hepburn  v.  Auld,  5  Cranch,  279,  3 
L.  Ed.  96,  by  Mr.  Justice  Chapman,  in  Richmond  v.  Gray,  3  Allen,  30, 
31,  and  Goldsmith  v.  Guild,  10  Allen,  241,  242,  and  by  many  judges  in 
other  states,  the  more  frequent  fluctuations  in  the  value  of  land,  and  in 
the  business  and  circumstances  of  men,  than  in  England  when  the 
doctrine  was  established,  are  important  to  be  considered  in  each  case, 
and  especially  when  the  vendor  sues  to  compel  the  specific  performance 
of  a  contract  for  the  purchase  of  land  to  which  he  is  unable  to  make 
a  good  title  at  the  time  of  bringing  his  suit.  But  the  general  doc- 
trine has  been  adopted  by  American  courts  of  chancery,  and  has  been 
repeatedly  recognized  and  affirmed  by  the  supreme  court  of  the  United 
States  and  by  this  court.  Hepburn  v.  Dunlop,  1  Wheat.  196,  4  L.  Ed. 
65 ;  Brashier  v.  Gratz,  6  Wheat.  533,  5  L.  Ed.  322 ;  Taylor  v.  Long- 
worth,  14  Pet.  174,  175,  10  L.  Ed.  405 ;  Fuller  v.  Hovey,  2  Allen,  325, 
79  Am.  Dec.  782;  Goldsmith  v.  Guild,  10  Allen,  241. 

Although  the  parties  may  make  time  of  the  essence  of  their  contract 
by  express  stipulations  to  that  effect,  it  is  not  -sufficient  that  they  should 
name  the  time  of  performance  in  the  contract,  and  thus  manifest  their 
intention  distinctly  enough  for  the  purposes  of  a  court  of  law.  But  it 
must  appear  that  they  really  intended  to  make  such  time  an  essential 
element  of  their  agreement;  in  the  words  of  Lord  Erskine  in  13  Yes. 
289,  "a  material  object  to  which  they  looked  in  the  first  conception  of 
it;"  or  as  Baron  Alderson,  in  1  Y.  &  Col.  Exch.  415,  stated  the  result 
of  the  previous  authorities : 

"A  court  of  equity  is  to  lie  governed  by  this  principle:  It  is  to  examine  the 
contract,  not  merely  as  a  court  of  law  does,  to  ascertain  what  the  parties  have 
in  terms  expressed  to  lie  the  contract,  but  what  is  in  truth  the  real  intention 
of  the  parties,  and  to  carry  that  into  effect." 

The  mere  circumstance  therefore  that  the  instrument  is  in  the  ordi- 
nary form  of  a  bond,  concluding  with  the  clause  that  it  shall  be  void 


Sec.  8)  EQUITABLE   DEFENSES  409 

in  case  of  a  breach  of  the  condition,  otherwise  remain  in  full  force, 
does  not  necessarily  make  time  of  the  essence  of  the  the  contract.  Mol- 
loy  v.  Egan,  7  Irish  Eq.  592;  Jones  v.  Robbins,  29  Me.  351,  50  Am. 
Dec.  593. 

It  is  doubtless  for  the  party  who,  having  failed  to  perform  his  part 
of  the  contract  according  to  its  terms,  yet  asks  to  have  the  agreement  of 
the  other  party  specifically  performed,  to  satisfy  the  court  that  he  is 
entitled  to  the  relief  which  he  seeks.  Hipwell  v.  Knight,  1  Y.  &  Col. 
Exch.  415;  Taylor  v.  Eongworth,  14  Pet.  175,  10  L.  Ed.  405;  Todd  v. 
Taft,  7  Allen,  377.  But  the  fact  that  the  obligee,  with  the  knowledge 
and  consent  of  the  obligor,  has  entered  upon  and  occupied  the  premises 
and  made  improvements  thereon,  is  ordinarily  decisive  to  entitle  him 
to  the  favorable  interposition  of  a  court  of  equity,  when  it  does  not 
appear  that  there  has  been  any  other  change  in  the  value  of  the  land, 
when  time  was  not  originally  of  the  essence  of  the  contract  and  has 
not  been  made  so  by  notice,  and  he  has  been  guilty  of  no  laches  in  ap- 
plying for  relief.  Gibson  v.  Patterson,  cited  4  Ves.  690,  note;  West 
Ch.  235,  and  note;  Waters  v.  Travis,  9  Johns.  (N.  Y.)  457,  466,  467; 
Edgerton  v.  Peckham,  11  Paige  (N.  Y.)  352. 

The  decisions  of  this  court  afford  no  precedent  for  sustaining  the  de- 
murrer. In  Richmond  v.  Gray,  3  Allen,  25,  the  suit  was  by  the  ob- 
ligor; it  was  one  of  the  terms  of  the  contract  that  the  title  should  be 
examined ;  the  defendant,  who  had  entered  by  agreement  before  such 
examination,  and  removed  a  cellar  wall,  cut  trees,  and  done  other 
similar  acts  upon  the  premises,  abandoned  the  possession,  upon  dis- 
covering that  the  title  was  defective,  and,  after  vain  attempts  to  make 
arrangements  with  the  plaintiff  to  perfect  the  title,  gave  him  notice 
that  he  should  not  accept  a  conveyance ;  and  the  plaintiff  was  unable 
to  make  a  title  until  six  months  after  such  notice,  and  even  then  sub- 
ject to  a  liability  for  debts  which  continued  when  the  suit  was  brought. 
In  Fuller  v.  Hovey,  2  Allen,  324,  79  Am.  Dec.  782,  the  plaintiff,  after 
requesting  and  being  refused  an  extension  of  the  time  of  payment  of 
a  sum  already  due  by  the  terms  of  his  agreement,  neglected  for  more 
than  three  years  to  make  any  payment  or  bring  his  suit.  In  Goldsmith 
v.  Guild,  10  Allen,  239,  the  land  was  in  Boston,  and  there  was  evidence 
that  it  was  subject  to>  frequent  fluctuations  and  had  actually  altered 
in  value. 

The  land  described  in  this  bill  is  in  the  country,  and  there  is  nothing 
in  the  case  as  now  presented  to  show  that  its  value  was  subject  to 
fluctuation  or  had  in  fact  changed  between  the  dates  of  the  agreement 
and  of  the  tender  of  payment ;  and  it  is  alleged  in  the  bill  and  admitted 
by  the  demurrer,  that  the  price  agreed,  with  interest,  was  tendered  by 
the  plaintiff  within  two  months  after  the  time  stipulated,  and  before 
any  demand  or  notice  by  the  defendant ;  and  that  the  plaintiff  from  the 
date  of  the  agreement,  with  the  knowledge  and  consent  of  the  defend- 
ant, was  in  possession  of  the  premises  and  cultivated  and  improved  the 


410  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

same.  Upon  proof  of  such  a  state  of  facts,  unqualified  by  other  evi- 
dence, time  could  not  be  held  to  be  of  the  essence  of  the  agreement. 

The  question  whether  time  is  to  be  deemed  of  the  essence  of  the 
contract  depends  upon  all  the  circumstances  of  the  case,  and  is  not 
ordinarily  to  be  decided  until  the  hearing.  Levy  v.  Lindo,  3  Meriv. 
81;  Foxlowe  v.  Amcoats,  3  Beav.  496;  Verplank  v.  Caines,  1  Johns. 
Ch.  (N.  Y.)  59.  If  indeed  it  were  clear  upon  the  face  of  the  bill  that 
proof  of  all  its  allegations  exactly  as  stated  would  not  support  it,  the 
defendant  might  take  the  objection  by  demurrer,  without  being  put  to 
the  trouble  and  expense  of  further  proceedings.  Foster  v.  Hodgson, 
19  Ves.  184;  Hovenden  v.  Annesley,  2  Sch.  &  Lef.  638.  But  as  upon 
the  case  set  forth  in  this  bill  the  plaintiff  shows  himself  to  be  entitled  to 
the  specific  performance  for  which  he  prays,  the  order  must  be 

Demurrer  overruled. 


JONES  v.  ROBBINS. 

(Supreme  Judicial  Court  of  Maine,  1S49.     29  Me.  351,  50  Am.  Dec.  593.) 

This  was  a  bill  in  equity,  praying  that  the  defendants  might  be  de- 
creed to  convey  certain  specified  real  estate,  according  to  their  bond 
to  the  plaintiff. 

The  opinion  of  the  Court  (Howard,  J.,  dissenting)  was  delivered  by 
Si-ieplEy,  C.  J.  By  this  bill  the  specific  performance  of  a  written 
contract,  for  the  conveyance  of  real  estate  is  sought.  The  defendants 
by  their  bond  made  on  October  28,  1845,  engaged  to  convey  to  the 
plaintiff,  certain  premises  therein  described  upon  condition,  that  he 
should  pay  to  them  two  promissory  notes  made  by  him  on  that  day, 
and  payable  to  the  defendants  with  interest  annually,  one  payable  in 
one  year  and  the  other  in  two  years  from  that  time.  The  notes  were 
for  one  hundred  dollars  each,  and  one  hundred  dollars  had  already 
been  paid  as  part  of  the  purchase  money.  The  condition  of  the  bond 
contained  the  following  clause: 

"In  case  said  Jones  shall  neglect  or  refuse  to  pay  the  above  described  notes 
according  to  their  tenor  or  any  part  thereof,  then  this  bond  shall  be  void,  oth- 
erwise to  remain  in  full  force  and  effect." 

The  plaintiff  did  not  pay  the  first  note,  when  it  became  payable,  and 
did  not  make  any  tender  or  offer  of  payment  until  December  17,  1846, 
when  he  tendered  an  amount  sufficient  to  pay  that  note,  but  not  suffi- 
cient to  pay  it  together  with  the  interest,  which  had  accrued  on  the 
second  note  during  the  first  year.  When  the  second  note  became  pay- 
able, an  amount  sufficient  to  pay  both  notes  was  tendered. 

The  plaintiff  presents  proof  of  certain  circumstances  in  excuse  for 
the  delay  of  payment ;  and  the  question  presented  for  decision  is, 
whether  according  to  the  established  principles  of  equity  jurisprudence 
they  can  be  regarded  as  sufficient. 


Sec.  8)  EQUITABLE    DEFENSES 


411 


It  becomes  necessary  in  the  first  place,  to  disencumber  the  case  of 
certain  other  matters,  introduced  by  each  party. 

The  plaintiff  alleges,  that  he  placed  confidence  in  the  defendant  Rob- 
bins,  that  being  a  lawyer  he  would  make  the  bond  correctly,  that  it 
did  not  exhibit  the  contract  fairly,  and  that  he  received  it  without  read- 
ing it. 

These  allegations  are  denied,  and  they  are  wholly  unsupported. 
There  does  not  appear  to  have  been  any  just  cause  for  their  insertion. 

He  further  alleges,  that  having  taken  possession  of  the  premises,  he 
expended  about  five  hundred  dollars  in  making  improvements  upon 
them.  The  parties  have  taken  testimony  to  prove  and  to  disprove  the 
amount  alleged  to  have  been  expended,  all  of  which  is  of  no  further 
importance  than  to  exhibit  the  expenditure  of  some  money  as  an  indi- 
cation, that  the  plaintiff  intended  to  complete  the  purchase. 

The  defendants  in  their  answers  allege,  that  the  plaintiff  committed 
trespasses  upon  their  adjoining  lands.  If  he  had,  the  law  would  af- 
ford them  protection,  and  compensation,  and  his  right  to  have  a  con- 
veyance will  not  thereby  be  affected. 

They  further  allege,  that  he  unexpectedly  changed  his  business  and 
occupied  the  premises. for  purposes,  for  which  they  had  not  before  been 
occupied.  The  premises  do  not  appear  to  have  been  sold  subject  to 
any  restriction  respecting  their  use,  and  the  rights  of  the  parties  will 
not  be  changed  by  their  application  to  a  different  use. 

Courts  of  equity  have  frequently  decreed  the  specific  performance 
of  contracts  for  the  conveyance  of  estates,  when  there  had  been  a  fail- 
ure to  comply  with  the  terms  of  the  contract,  in  point  of  time.  That 
is  not  considered  to  be  of  the  essence  of  the  contract,  unless  the  par- 
ties have  expressly  agreed,  that  it  should  be  so  regarded,  or  unless  it 
follows  from  the  nature  of  and  purposes  of  the  contract.  A  reason- 
able regard  is  to  be  had  to  the  convenience  of  man,  and  to  the  acci- 
dents and  infirmities  incident  to  all  the  transactions  of  business.  The 
effect  of  neglect  to  make  punctual  payment  upon  a  contract  for  the 
purchase  of  lands  was  considered  by  this  Court  in  the  case  of  Rogers 
v.  Saunders,  16  Me.  92,  33  Am.  Dec.  635,  and  it  has  found  no  occasion 
to  change  the  opinions  then  expressed.  In  the  ordinary  cases  of  sales 
of  estates,  the  general  object  being  to  make  a  sale  for  an  agreed  sum, 
the  time  of  payment  is  regarded  in  equity  as  formal  and  as  meaning 
only,  that  the  purchase  shall  be  completed  within  a  reasonable  time, 
and  substantially  according  to  the  contract,  regard  being  had  to  all  the 
circumstances. 

The  party  seeking  relief  from  a  forfeiture  must  show,  that  circum- 
stances, which  exclude  the  idea  of  willful  neglect  or  of  gross  careless- 
ness, have  prevented  a  strict  compliance,  or  that  it  has  been  occasioned 
by  the  fault  of  the  other  party,  or  that  a  strict  compliance  has  been 
waived.  Hepwill  v.  Knight,  1  Younge  &  Collier,  415;  Brashier  v. 
Gratz,  6  Wheat.  533,  5  L.  Ed.  322 ;  Wells  v.  Smith,  2  Edw.  Ch.  (N.  Y.) 
78 ;  Dumond  v.  Sharts,  2  Paige  (N.  Y.)  182. 


412  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

The  excuse  presented  by  the  plaintiff,  for  his  neglect  to  pay  at  ma- 
turity the  note,  which  first  became  due  is,  that  he  was  at  that  time 
unable  to  attend  to  business  on  account  of  illness. 

The  testimony  shows,  that  he  was  quite  unwell,  occasioned  by  a 
severe  attack  of  influenza,  from  October  23,  to  the  very  last  of  the 
month  of  November,  1846.  He  was  found  walking  out  on  a  pleasant 
day,  October  29,  by  a  physician,  who  observed  to  him,  that  he  looked 
very  sick.  He  replied  that  he  was,  and  requested  the  physician  to  visit 
him  that  day.  The  physician  states,  that  he  did  so,  and  after  examina- 
tion concluded  that  he  had  been  sick  some  time,  that  his  symptoms 
were  alarming,  that  he  considered  his  case  a  critical  one,  and  that  he 
attended  upon  him  through  the  month  of  November.  The  testimony 
of  the  physician  was  introduced  by  the  defendants.  The  testimony 
would  seem  to  be  sufficient  to  show,  that  he  ought  not  to  be  subjected 
to  a  forfeiture  of  a  right  for  not  attending  to  the  transaction  of  busi- 
ness of  no  more  importance  to  others  than  the  payment  of  a  small  sum 
of  money,  a  month  or  two  earlier  or  later. 

The  bill  states,  that  he  had  made  an  arrangement  with  Samuel 
Thompson  before  the  middle  of  October,  to  obtain  the  money  to  pay 
the  note  becoming  due  on  the  28th  of  that  month.  This  is  proved  by 
the  testimony  of  Thompson. 

It  further  states,  that  about  the  first  of  December,  and  on  the  first 
occasion  of  his  being  able  to  ride  out,  the  plaintiff  met  Robbins  and 
stated  to  him,  that  he  wished  to  take  up  the  note  which  had  become 
due  during  his  illness,  and  would  also  take  up  the  note  becoming  pay- 
able the  following  year,  and  that  Robbins  replied,  that  he  would  see 
Mr.  Parshley  and  let  him  know  about  it.  The  answer  of  Robbins  ad- 
mits, that  he  met  the  plaintiff  walking  in  the  street  about  that  time,  but 
it  denies,  that  the  conversation  is  correctly  stated  in  the  bill ;  and  as- 
serts that  the  plaintiff  said  to  him,  my  first  note  is  out,  if  you  will  wait 
about  three  weeks,  I  will  pay  you  that,  and  also  the  other,  which  be- 
comes due  next  year,  and  that  he  made  no  answer  to  that  proposal. 
The  conversation  as  stated  by  the  plaintiff  is  not  proved,  and  that 
stated  in  that  answer  must  be  regarded  as  correct.  From  this  silence, 
so  noticeable,  and  from  the  conduct  and  observations  made  by  the  de- 
fendants, when  the  tenders  were  subsequently  made,  a  fair  inference 
arises,  that  the  defendants  did  not  intend  to  waive  the  strict  perform- 
ance for  a  day  on  account  of  the  plaintiff's  illness,  but  intended  to  in- 
sist upon  a  forfeiture.  If  this  be  so,  they  cannot  have  been  injured  by 
the  delay  to  tender  until  the  17th  of  December,  for  if  that  tender  had 
been  made  on  the  first  day  of  that  month,  it  would  not  have  been  ac- 
cepted. The  omission  to  tender  the  interest,  which  had  accrued  during 
the  first  year  upon  the  note  last  payable,  rests  upon  the  same  position. 

There  is  no  reason  to  believe,  that  the  defendants  would  have  varied 
their  course  in  any  degree,  if  it  had  been  tendered.  If  the  defendants 
had  intended  to  overlook  the  omission  to  perforin  during  his  illness, 
and  to  insist  upon  an  immediate  performance  on  his  recovery,  and  to 


Sec.  8)  EQUITABLE   DEFENSES  413 

set  up  an  omission  to  do  that  as  a  cause  of  forfeiture,  fair  dealing 
would  seem  to  require  that  an  answer  should  have  been  given  to  his 
proposal,  and  that  he  should  have  been  informed,  that  any  further  de- 
lay would  be  considered  as  a  forfeiture  of  his  rights.  The  conclusion 
seems  unavoidable  that  the  defendants  have  not  refused  to  perform  on 
account  of  the  delay,  which  occurred  after  the  plaintiff's  health  was  so 
far  restored,  that  he  could  attend  to  business,  or  on  account  of  the  in- 
sufficiency of  the  amount  tendered.  The  hostile  feelings,  which  had 
existed  between  the  parties  before  the  first  note  became  payable,  and 
the  conduct  and  remarks  made  by  the  defendants  show,  that  they  in- 
tended to  avail  themselves  of  the  first  omission  to  perform.  The  for- 
feiture was  occasioned  only  by  that  omission,  not  by  any  subsequent 
delay.  Upon  the  principle  already  stated,  that  omission  having  been 
occasioned  or  accounted  for  by  occurrences  not  within  the  power  of 
the  plaintiff  to  avert,  and  for  the  happening  of  which  he  was  not  in 
fault,  should  not  be  allowed  to  prevent  a  decree  for  specific  perform- 
ance. The  plaintiff  had  failed  to  perform  in  time.  No  exertion  to 
make  immediate  payment  after  his  discovery,  could  restore  him  to  his 
former  position,  without  the  consent  of  the  defendants  or  the  inter- 
position of  the  Court.  He  appears  to  have  sought  their  favor  and  to 
have  been  met  by  silence.  Subsequent  delay  could  only  be  evidence  of 
laches  or  abandonment,  which  would  prevent  a  court  of  equity  from 
preserving  his  rights  from  forfeiture  by  the  first  omission.  That  he 
had  no  intention  to  forfeit  those  rights  by  laches  or  by  abandonment 
may  be  inferred  from  the  facts,  that  he  had  paid  one  third  part  of  the 
purchase  money,  that  he  had  expended  money  to  improve  the  estate, 
that  he  had  before  his  illness  made  an  arrangement  to  obtain  the  mon- 
ey to  pay,  that  on  his  recovery  he  endeavored  to  obtain  time  to  per- 
form and  offered  to  make  compensation  for  the  delay  in  payment  of 
the  first  note  by  paying  the  second  before  it  was  payable.  The  defend- 
ants have  suffered  no  loss,  which  the  law  does  not  presume  to  be  com- 
pensated by  the  interest,  which  accrued.  The  estate  was  not  of  a  char- 
acter to  be  subject  to  unusual  rise  or  fall  in  value. 

A  decree  for  specific  performance,  is  to  be  entered,  with  costs. 


BROWN  v.  REICHLING  et  a? 

(Supreme  Court  of  Kansas,  1912.     86  Kan.  640,  121  Pac.  1127.) 

Mason,  J.  On  September  13,  1909,  John  C.  Brown  entered  into  a 
written  contract  with  Pete,  Jake,  and  Mary  Reichling,  by  the  terms  of 
which  they  were  to  sell  to  him  200  acres  of  land  for  $7,000,  of  which 
$500  was  paid  at  the  time.  He  was  to  pay  the  remainder  on  or  before 
February  20,  1910.  Upon  receiving  this  payment,  they  were  to  exe- 
cute a  deed  conveying  to  him  a  good  title.  They  also  agreed  to  give 
him  an  abstract  showing  a  clear  title.     The  contract  contained  a  pro- 


414  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

vision  that  if  he  made  default  the  agreement  should  be  forfeited  at 
their  option ;  they  to  retain  the  payment  made,  in  satisfaction  of  dam- 
ages. A  controversy  arose  over  the  matter,  and  on  April  9,  1910,  he 
began  an  action,  asking  for  the  specific  performance  of  the  contract. 
A  demurrer  to  his  evidence  was  sustained,  and  he  appeals. 

The  evidence  tended  to  show  these  facts :  The  contract  was  left  at 
a  bank.  Shortly  after  its  execution,  the  Reichlings  placed  with  it  an 
abstract  of  title  to  the  land.  On  February  12,  1909,  Brown  called  for 
and  received  the  abstract.  He  noticed  that  the  description  of  a  40- 
acre  tract  in  one  conveyance  appeared  as  the  northwest  quarter  of  a 
quarter  section,  instead  of  the  northeast  quarter,  the  correct  descrip- 
tion. The  next  day  he  called  upon  the  Reichlings  and  called  their  at- 
tention to  the  defect,  and  asked  to  have  it  remedied.  They  refused  to 
do  anything  about  it,  and  told  him  to  return  the  abstract  to  the  bank. 
The  next  day  he  did  so,  and  called  the  attention  of  the  banker  to  the 
matter.  The  banker  discovered  that  in  a  deed  made  in  January,  1907, 
to  the  Reichlings  by  some  of  their  relatives,  which  he  had  himself 
drawn,  he  had  by  inadvertence  written  the  word  "west"  in  place  of 
"east,"  and  that  the  erroneous  description  had  been  followed  in  the 
record  and  transferred  to  the  abstract.  Upon  his  own  responsibility, 
and  without  conference  with  the  parties  to  the  deed,  he  changed  the 
erroneous  description  therein,  and  caused  corresponding  changes  to  be 
made  in  the  record  by  the  register  of  deeds  and  in  the  abstract  of  title 
by  the  abstractor.  Brown  was  informed  by  the  banker  of  these  chang- 
es before  the  .20th.  He  told  the  banker  he  was  not  satisfied  with  the 
title ;  that  he  desired  a  quitclaim  deed  to  be  made  by  the  grantors  in 
the  defective  conveyance.  February  20th  was  Sunday.  On  Saturday, 
the  19th,  Brown  went  to  the  bank,  expecting  that  the  Reichlings  would 
come  there,  and  that  some  adjustment  of  the  matter  could  be  had;  but 
they  did  not  appear.  On  Monday  he  went  to  their  home,  talked  over 
the  situation  with  them,  and  asked  them  to  procure  the  quitclaim  deed. 
They  refused  to  do  so,  saying  that  it  was  too  late;  that  the  time  was 
past.  A  week  later  Brown  was  told  that  the  $500  would  be  returned 
to  him  if  he  would  accept  it;  but  he  refused  to  do  so.  On  April  6, 
1909,  Brown  made  a  formal  tender  of  $6,500  to  the  Reichlings  and  de- 
manded a  deed.  The  tender  was  made  with  money  he  had  borrowed 
for  the  purpose.  He  had  never  previously  made  a  tender ;  nor  had 
he  had  sufficient  money  to  enable  him  to  do  so.  He  had  made  arrange- 
ments to  borrow  the  money  by  using  the  land  he  was  buying  and  an 
80-acre  tract  that  he  already  owned  as  security.  He  also  had  some 
hogs,  worth  $1,100,  which  he  could  have  sold  at  any  time.  He  had  no 
property  from  which  he  could  have  raised  the  $6,500,  except  as  stated. 

The  argument  in  behalf  of  the  defendants  is  substantially  this :  The 
contract  was  that  the  payment  of  the  purchase  price  should  be  com- 
pleted on  February  20th  ;  the  plaintiff  made  no  offer  to  pay,  and  was 
unable  to  pay  until  after  that  time,  and  until  after  the  defendants  had 
notified  him  that  the  deal  was  off,  and  had  offered  to  return  the  amount 


Sec.  8)  EQUITABLE   DEFENSES  415 

he  had  paid;  therefore  his  right  to  specific  performance  had  been 
lost.  We  think  the  conclusion  unsound,  for  these  reasons :  Ordinarily 
the  time  of  payment  is  not  regarded  as  of  the  essence  of  such  a  con- 
tract. 26  A.  &  E.  Encycl.  of  L.  73 ;  36  Cyc.  707.  There  was  nothing 
in  the  terms  of  the  contract  here  involved,  or  in  the  circumstances  of 
the  transaction,  to  take  this  case  out  of  the  general  rule.  The  plain- 
tiff had  a  right  to  require  that  upon  his  payment  of  the  $6,500  the  de- 
fendants should  deliver  him  a  deed  conveying  a  good  and  marketable 
title,  as  well  as  an  abstract  showing  the  state  of  the  title.  There  was 
no  occasion  for  his  making  a  formal  tender  of  the  money  until  the  de- 
fendants were  prepared  to  comply  with  the  terms  of  the  agreement  on 
their  part. 

Under  the  evidence,  the  defendants  were  the  actual  owners  of  the 
property ;  but  the  misdescription  in  one  of  their  deeds  made  their  pa- 
per and  record  title  defective.  The  changes  procured  by  the  draftsman 
of  the  deed,  without  the  knowledge  of  the  grantors,  did  not  cure  the 
defect.  True  the  record  and  abstract  had  been  made  to  show  a  good 
title ;  but  they  did  not  show  its  actual  condition.  They  showed  a  deed 
to  the  defendants,  not  in  the  condition  in  which  it  had  been  signed,  but 
in  a  condition  that  resulted  from  a  change  which  was  unauthorized,  and 
therefore  ineffective  in  law,  although  made  in  good  faith  and  with  the 
best  intentions.  It  was  entirely  reasonable  that  the  purchaser,  know- 
ing of  the  fact,  should  ask  that,  if  possible,  the  flaw  be  remedied  by  a 
deed  from  the  grantors  in  the  altered  conveyance,  or  in  some  other 
suitable  manner.  "A  reasonable  objection  to  the  vendor's  title  is  a 
good  excuse  for  the  vendee's  delay."  36  Cyc.  731.  It  seems  proba- 
ble that  a  quitclaim  could  have  been  procured.  Fair  dealing  required 
that  the  Reichlings  should  procure  such  a  deed,  if  able  to  do  so.  They 
apparently  made  no  attempt,  basing  their  action,  not  on  the  ground  of 
inability,  but  upon  the  contention  that  the  plaintiff  had  lost  the  right  to 
enforce  the  contract. 

That  the  plaintiff  did  not  have  the  money  with  which  to  complete 
the  payment  is  not  a  bar  to  his  recovery,  if  he  had,  as  he  testified,  made 
arrangements  to  obtain  it.  The  fact  that  this  arrangement  contem- 
plated the  use,  as  security,  of  the  property  he  was  buying  is  not  a  bar, 
if  by  this  means  he  was  able  to  procure  the  money  at  the  time  it  was 
needed  to  complete  the  transaction  according  to  the  terms  of  the  con- 
tract; and  after  he  had  made  a  reasonable  requirement  with  respect 
to  the  completion  of  the  title  and  the  abstract  it  was  not  incumbent 
upon  him  to  produce  the  money  until  the  requirement  had  been  met, 
if  that  were  practicable,  or,  in  case  of  a  refusal  to  attempt  to  meet  it, 
until  the  lapse  of  a  reasonable  time  in  which  to  determine  upon  his 
course.  It  cannot  be  said,  as  a  matter  of  law,  that,  under  the  circum- 
stances indicated  by  the  evidence,  the  delay  on  his  part  forfeited  his 
rights  under  the  contract. 

The  judgment  is  reversed,  and  a  new  trial  ordered.  All  the  Justices 
concurring. 


416  SrECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

GREY  et  al.  v.  TUBBS. 
(Supreme  Court  of  California.  1872.    43  Cal.  359.) 

Appeal  from  the  District  Court  of  the  Fourth  Judicial  District.  City 
and  County  of  San  Francisco. 

Action  was  commenced  on  the  4th  day  of  January,  1869,  to  enforce 
specific  performance  of  the  contract.  Wright  assigned  the  contract 
to  the  plaintiffs  on  the  27th  day  of  November,  1868. 

The  court  below  gave  judgment  in  favor  of  the  plaintiff  and  the 
defendant  appealed. 

The  facts  are  found  in  the  opinion  of  the  court.25 

By  the  Court — Rhodes,  J.  The  contract  of  sale  which  the  plain- 
tiffs, who  are  the  assignees  of  the  purchaser,  seek  to  have  specifically 
enforced,  provides  that  the  interest  on  the  purchase  money  shall  be 
paid  quarterly  in  advance,  on  the  first  days  of  January,  April,  July,  and 
October.  The  principal  sum  was  to  be  paid  on  or  before  July  1st,  1870 
— three  years  from  the  date  of  the  contract.  The  interest  up  to  Janu- 
ary 1st,  1868,  was  paid  in  advance,  but  the  interest  for  the  next  quar- 
ter was  not  tendered  until  the  last  day  of  February,  1868.  The  defend- 
ant refused  to  receive  the  money  and  stated  to  the  purchaser  that  he 
had  forfeited  his  contract.  The  plaintiff,  in  December,  1868,  before 
the  commencement  of  the  action,  tendered  to  the  defendant  the  prin- 
cipal sum  and  all  the  interest  then  due,  according  to  the  terms  of  the 
contract. 

The  fact  that  the  purchaser  did  not  tender  the  amount  which  became 
due  on  the  first  of  the  two  quarters  succeeding  January  1st,  1868,  is 
not  material ;  for  if  a  Court  of  equity  can  excuse  the  delay  in  tendering 
the  money  which  became  due  on  the  last  mentioned  day,  the  failure  to 
tender  the  interest  for  the  next  two  quarters  at  the  times  mentioned 
in  the  contract  is,  under  the  circumstances,  readily  excusable. 

The  contract  contains  the  following  covenant:  "In  the  event  of 
failure  to  comply  with  the  terms  hereof  by  the  party  of  the  second 
part  [the  purchaser]  the  party  of  the  first  part  shall  be  released  from 
all  obligations,  in  law  or  equity,  to  convey  said  property,  and  said  par- 
ty of  the  second  part  shall  forfeit  all  right  thereto."  The  plaintiffs 
rely  upon  the  rule  which  has  so  frequently  been  applied  by  Courts  of 
equity,  that  time  is  not  of  the  essence  of  the  contract,  or  as  it  is  better 
expressed  by  Parsons  in  his  excellent  work  on  Contracts,  that  time 
is  not  necessarily  of  the  essence  of  a  contract.  The  defendant,  while 
denying  the  applicability  of  the  rule  to  contracts  for  the  sale  of  proper- 
ty of  the  character  of  that  in  controversy — city  or  town  lots — particu- 
larly in  this  State,  where  such  property  is  as  marketable  and  as  subject 
to  fluctuations  in  value,  and  is  bought  and  sold  with  the  same  facility 
as  personal  property,  yet  he  relies  more  upon  a  necessary  qualification 

26  The  statement  of  facts  is  abridged. 


Sec.  8)  EQUITABLE   DEFENSES  417 

of  the  rule:  which  is  that  time  is  of  the  essence  of  a  contract,  if  it  be 
made  so  by  the  parties  themselves,  or  by  the  circumstances  of  the  case. 
He  insists  that  the  clause  of  the  contract  above  cited,  shows  that  the 
parties  intended  that  the  time  for  the  performance  of  the  contract  on 
the  part  of  the  purchaser  should  be  material,  and  of  the  essence  of 
the  contract.  The  parties  agreed  that  a  failure  on  the  part  of  the  pur- 
chaser "to  comply  with  the  terms  hereof" — that  is  to  say,  to  pay  the 
money  according-  to  the  ferms  of  the  contract — should  operate  as  a 
release  of  the  vendor  from  all  obligation  to  convey  the  premises  to 
the  purchaser  or  his  assignees ;  and  to  make  the  matter  still  clearer, 
and  to  show  that  the  parties  intended  to  make  time  essential,  it  was 
agreed  that  such  failure  should  release  him  from  all  obligation  "in  law 
or  equity"  to  convey  the  premises.  The  parties  further  agreed — as  if 
to  place  the  matter  beyond  all  doubt — that  in  case  of  such  failure  on 
the  part  of  the  purchaser  he  should  forfeit  all  right  to  a  conveyance. 
It  would  be  difficult  to  express  with  greater  clearness  and  certainty, 
than  the  parties  did  in  this  contract,  that  time  is  of  the  essence  of  the 
contract,  except  it  were  done  by  the  insertion  of  those  very  words  in 
the  instrument.  Courts  of  equity  have  not  the  power  to  make  con- 
tracts for  parties,  nor  to  alter  those  which  the  parties  have  deliberate- 
ly made ;  and  whenever  it  appears  that  the  parties  have  in  fact  con- 
tracted, that  if  the  purchaser  make  default  in  the  payments,  as  agreed 
upon,  he  shall  not  be  entitled  to  a  conveyance,  and  shall  lose  the  benefit 
of  his  purchase ;  and  when  it  also  appears  that  the  purchaser  is  without 
excuse  for  his  delay,  the  Courts  will  not  relieve  him  from  the  conse- 
quences of  his  default.  They  will  not  inquire  into  the  motive  or  the 
sufficiency  of  the  motive  that  induced  the  parties  to  contract,  that  time 
should  be  essential  in  the  performance  of  any  of  the  agreements  con- 
tained in  the  contract  of  purchase;  but  if  it  appears  that  the  parties 
have  thus  contracted,  the  Courts  of  equity  will  not  disregard  the  con- 
tract in  order  to  give  effect  to  some  vague  surmise,  that  all  that  the 
vendor  intended  to  secure  by  the  contract,  was  the  payment  of  the 
purchase  money,  with  interest,  at  some  indefinite  time. 
Judgment  reversed,  and  cause  remanded  for  a  new  trial. 


CROSS  v.  MAYO. 

(Supreme  Court  of  California,  1913.    167  Cal.  504,  140  Pac.  283.) 

Angelxotti,  J.26  We  have  in  this  case  an  appeal  from  what  is  de- 
clared by  defendant  to  be  the  final  judgment  in  an  action  brought  by 
plaintiff  to  obtain  a  decree  declaring  and  adjudging  that  defendant  had 
failed  to  perform  his  part  of  a  contract  for  the  purchase  by  him  from 
plaintiff  of  certain  real  property  of  plaintiff,  fixing  a  time  within  which 

2  6  Parts  of  the  opinion  are  omitted. 
Boke  Eq—  27 


418  SPECIFIC   PERFORMANCE    OF   CONTRACTS  (Cll.  2 

he  should  so  comply,  and  decreeing  that  if  he  did  not  so  comply  within 
said  time  he  should  be  forever  foreclosed  of  all  right  or  interest  in  the 
property  or  to  a  conveyance  thereof.  We  have  also  an  appeal  from 
an  order  denying  defendant's  motion  for  a  new  trial.  The  written  de- 
cision of  the  trial  judge,  findings  of  fact,  and  conclusions  of  law  were 
signed  by  the  trial  judge  on  April  8,  1911,  and  filed  April  10,  1911. 
These  findings  of  fact  fully  disposed  of  all  the  issues  made  by  the 
pleadings.  By  the  conclusions  of  law  it  was  declared  that  defend- 
ant has  failed  to  perform  his  part  of  the  contract ;  that  plaintiff  is  en- 
titled to  a  decree  adjudging  defendant  to  be  in  default  in  the  sum  of 
$1,000  for  interest  unpaid,  $8,160  for  cattle  sold  without  the  permis- 
sion or  consent  of  plaintiff  and  unaccounted  for,  and  $2,923.68  for 
taxes  unpaid,  in  all  $12,083.68;  that  plaintiff  is  entitled  to  a  decree  di- 
recting defendant  to  pay  to  him  said  sum  of  $12,0S3.68  with  interest 
from  certain  specified  dates,  within  ten  days  from  the  signing,  serving 
and  filing  "of  this  decree  and  the  judgment  herein,"  or  that,  failing 
so  to  pay  said  sums,  he  shall  be  immediately  foreclosed  of  all  his  rights 
under  the  contract,  and  plaintiff  shall,  upon  such  failure,  be  entitled 
to  the  possession  of  the  land  described  in  the  contract,  and  to  receive 
back  from  the  Stockton  Savings  Bank  the  deed  placed  in  escrow  there- 
in ;  that  defendant  is  not  entitled  to  a  rescission  of  said  contract,  nor 
a  reconveyance  from  plaintiff  of  all  or  any  of  the  real  estate  convey- 
ed to  him  by  virtue  of  the  agreement,  nor  the  return  of  any  money 
paid  plaintiff  by  defendant  or  expended  by  him  on  the  property,  nor 
any  sum  of  money,  or  property  or  thing,  nor  to  any  reformation  of  the 
contract;  that  defendant  is  entitled  to  nothing  under  his  cross-com- 
plaint, and  that  plaintiff  is  entitled  to  recover  his  costs.     *     *     * 

The  contract  between  the  parties  was  one  for  the  purchase  and  sale 
of  a  large  tract  of  land,  described  therein  as  being  "all  land  in  Swamp 
Land  survey  No.  589  in  Solano  county,  and  all  land  in  Swamp  Land 
survey  No.  115  in  Napa  county,  which  lies  south  of  the  center  line  of 
South  Slough,  so-called ;  the  said  lands  containing  about  sixty-five  hun- 
dred acres,  more  or  less."  The  contract  was  executed  on  March  3, 
1909,  the  day  it  bore  date.  Cross  agreed  that  upon  the  payment  of  the 
stipulated  purchase  price,  with  interest,  within  the  time  designated,  he 
would  transfer  this  property,  free  and  clear  of  liens  and  incumbrances, 
to  Mayo,  together  with  all  the  personal  property  thereon.  The  stipu- 
lated purchase  price  was  $350,000,  of  which  $50,000  was  recited  to  be 
paid  by  the  transfer  by  Mayo  to  Cross  of  320  acres  of  land  in  Sutter 
county  and  a  lot  in  the  city  of  Oakland,  which  transfer  was  made  as 
agreed  upon.  Mayo  was  to  have  until  March  3,  1914,  within  which  to 
pay  the  remaining  $300,000,  with  interest  thereon  at  the  rate  of  4  per 
cent,  per  annum  from  January  1,  1910,  which  was  payable  semiannual- 
ly from  said  January  1,  1910.  Mayo  was  to  enter  into  possession  of 
all  the  property,  real  and  personal,  at  once,  and  to  remain  in  possession 
during  the  life  of  the  agreement.  Mayo  agreed  to  pay  on  account  of 
the  interest  for  1910,  $2,000  on  or  before  June  15,  1909,  and  $3,000 


Sec.  8)  EQUITABLE   DEFENSES  419 

on  or  before  December  15,  1909.  He  further  agreed  to  pay  all  state, 
county,  or  other  taxes  levied  or  assessed  upon  said  lands  during  the 
life  of  the  agreement.  It  was  further  agreed  that  upon  obtaining  the 
written  consent  of  Cross,  Mayo  might  sell  any  of  the  cattle  on  the  land, 
or  the  increase  thereof,  but  that  the  entire  proceeds  of  any  such  sale 
or  sales  shall  be  paid  to  Cross  immediately  upon  the  same  being  made, 
and  the  amount  thereof  applied  upon  the  unpaid  purchase  price.  Mayo 
was  to  farm  the  lands  for  his  own  benefit,  and  he  agreed  to  keep  the 
levees  and  other  reclamation  works  thereon  in  a  state  of  efficiency,  and 
repair  any  breaks  therein.  Cross  was  to  place  a  deed  of  the  property 
in  escrow  with  the  Stockton  Savings  Bank,  to  be  delivered  upon  the 
payment  by  Mayo  of  the  full  purchase  price.  It  was  agreed  that  if 
Mayo  failed  to  perform  the  terms  of  the  agreement  on  his  part,  or  failed 
to  make  the  payments  therein  provided  to  be  made,  Cross  might  end 
and  determine  the  agreement.  It  was  further  provided  that  in  the 
event  of  any  such  failure,  "any  and  all  payments  made"  to  Cross  by 
Mayo  "shall  be  and  belong"  to  Cross  "as  compensation  for  the  use  of 
said  land"  by  Mayo,  and  that  Mayo  "shall  have  no  claim,  either  at  law 
or  in  equity"  against  Cross  "or  said  lands"  because  of  any  of  such  pay- 
ments, and  that  the  $50,000  paid  by  the  conveyance  of  said  land  in 
Sutter  county  and  in  the  city  of  Oakland  "shall  be  and  belong"  to 
Cross,  and  that  Mayo  "shall  have  no  claim  either  at  law  or  in  equity 
thereto." 

In  his  complaint  in  this  action,  filed  August  11,  1910,  plaintiff  al- 
leged the  failure  of  defendant  to  perforin  his  contract  in  three  partic- 
ulars, viz.:  Failure  to  pay  interest  due  July  1,  1910,  amounting  to 
$1,000:  failure  to  pay  state  and  county  taxes  amounting  to  $2,923.68, 
which  plaintiff  had  been  obliged  to  pay  to  save  his  land  from  sale ;  the 
sale  without  the  consent  of  plaintiff  of  the  cattle  on  said  property;  and 
the  failure  to  account  to  plaintiff  for  the  proceeds  of  such  sales,  or  any 
part  thereof.  The  value  of  such  cattle  was  alleged  in  the  complaint  to 
be  $5,590,  but  this  was  changed  by  amendment  on  the  trial  to  $8,160. 
It  was  further  alleged  that  on  August  2,  1910,  plaintiff  had  made  a 
written  demand  on  defendant  that  he  comply  with  these  conditions  of 
his  contract  within  one  wyeek,  but  that  defendant  had  failed  to  do  so. 
*     *     * 

The  trial  court  followed  the  practice  suggested  in  Keller  v.  Lewis, 
53  Cal.  113,  and  followed  in  Kornblum  v.  Arthurs,  154  Cal.  246,  97 
Pac.  420,  and  many  other  cases,  of  fixing  a  time  within  which  defend- 
ant should  pay  the  amounts  due  upon  said  contract,  or  be  foreclosed 
of  all  his  rights  under  the  contract.  As  was  said  in  the  case  last 
cited,  "this  was  in  consonance  with  equity."  We  cannot  say  that  the 
time  fixed,  10  days,  was,  under  all  the  circumstances,  "an  unjustly  short 
limit  of  time."  We  are  further  satisfied  that  it  cannot  be  held  that  the 
trial  court  was  guilty  of  any  abuse  of  discretion  in  subsequently  refus- 
ing to  grant  an  extension  of  time,  even  if  we  assume  that  it  had  the 


420  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

power  thus  to  change  the  provision  as  to  time  contained  in  the  judg- 
ment of  April  8th. 

While  the  point  is  not  available  on  the  appeal  from  the  order  deny- 
ing a  new  trial,  there  is  no  force  in  defendant's  claim  that  he  is,  in  any 
event,  entitled  to  a  return  of  the  payments  already  made  by  him  under 
the  contract.  The  authorities  relied  on  by  him  state  the  rule  in  cases 
where  there  is  a  rescission,  or  abandonment  by  consent.  There  was 
no  rescission  or  abandonment  by  consent  in  this  case,  defendant's 
claim  for  a  rescission  being  denied  by  the  judgment.  Plaintiff  has  not 
attempted  to  rescind,  but  has  always  insisted  on  the  contract  and  is 
standing  on  its  terms.  His  right  to  retain  the  purchase  price  already 
paid,  including  the  property  deeded  to  him  in  part  payment  thereof,  is 
fully  sustained  by  many  decisions  in  this  state.  See  Glock  v.  Howard, 
etc.,  Co.,  123  Cal.  1,  55  Pac.  713,  43  L.  R.  A.  199,  69  Am.  St.  Rep.  17 ; 
Odd  Fellows'  Savings  Bank  v.  Brander,  124  Cal.  255,  56  Pac.  1109:, 
Oursler  v.  Thacher,  152  Cal.  739,  93  Pac.  1007. 

There  is  unquestionably  a  sufficient'  appeal  from  the  judgment  or 
order  of  April  21,  1911.  Whether  the  latter  be  considered  the  judg- 
ment, or  a  special  order  made  after  judgment,  it  is  undoubtedly  er- 
roneous in  decreeing  the  recovery  by  plaintiff  from  defendant  of  the 
sum  of  $12,083.68  and  interest,  in  addition  to  decreeing  a  foreclosure 
of  all  his  rights  under  the  contract.  If  it  be  an  order  after  judgment, 
this  portion  thereof  is  erroneous,  in  that  it  finds  no  support  in  the 
judgment  of  April  8th,  which  simply  required  defendant  to  pay  this 
amount  within  a  specified  time  or  be  foreclosed  of  all  rights  under 
the  contract.  There  is  no  provision  therein  for  any  money  recovery, 
except  costs,  in  the  event  of  foreclosure  of  defendant's  rights  because 
of  nonpayment  of  such  money  within  the  specified  time.  If  it  be  con- 
sidered as  the  judgment  in  the  action,  this  portion  is  erroneous  in 
that  it  is  without  support  in  the  pleadings  and  findings.  It  is  to  be 
borne  in  mind  that  this  action  was  not  one  for  the  recovery  of  any 
money,  but  simply  one  to  require  defendant  to  pay  the  moneys  due 
under  the  contract  or  be  foreclosed  of  all  rights  under  the  contract. 
Manifestly  defendant  cannot  properly  be  required  to  pay  the  amount 
for  failure  to  pay  which  his  rights  under  the  contract  are  declared  for- 
feited, or,  to  state  it  in  different  words,  plaintiff  cannot  have  both 
a  forfeiture  and  enforcement  of  the  contract  at  the  same  time.  To 
sustain  such  a  recovery  here  would  be  in  effect  to  require  defendant 
to  partially  perform  his  agreement  of  purchase,  and  at  the  same  time 
foreclose  all  his  rights  under  such  agreement.  No  authority  is  cited 
by  plaintiff  to  sustain  any  such  claim. 

In  view  of  our  conclusion  upon  the  matters  already  discussed,  cer- 
tain other  claims  made  in  the  briefs  of  learned  counsel  for  defendant 
are  immaterial  and  need  not  be  considered. 

The  order  denying  a  new  trial  is  affirmed.  The  judgment  or  order 
of  April  21,  1911,  is  modified  by  striking  therefrom  the  following: 
"It  is  further  ordered,  adjudged,  and  decreed  that  plaintiff  have  judg- 


Sec.  8)  EQUITABLE   DEFENSES  421 

ment  for  $12,083.68,  with  interest  thereon  at  the  rate  of  7  per  cent,  as 
follows:  On  the  sum  of  $1,000,  being  a  part  thereof,  from  July  1, 
1910;  on  the  sum  of  $8,160,  being  a  part  thereof,  from  January  1, 
1910,  and  on  the  sum  of  $2,923.68,  being  the  balance  thereof,  from 
April,  8,  1910,"  and  as  so  modified  is  affirmed. 

Bf,atty,  C.  J.,  does  not  participate  in  the  foregoing. 


In  re  HECKMAN'S  ESTATE. 
(Supreme  Court  of  Pennsylvania,  1912.    236  Pa.  193,  84  Atl.  689.) 

Appeal  from  Orphans'  Court,  Berks  County. 

In  the  matter  of  the  estate  of  William  A.  Heckman,  deceased.  From 
a  decree  enforcing  specific  performance  of  a  contract  to  sell  real  es- 
tate, George  A.  Heckman,  executor,  appeals. 

Argued  before  Fell,  C.  J.,  and  Brown,  Mestrezat,  Elkin,  and 
Stewart,  JJ. 

Stewart,  J.  This  was  a  proceeding  in  the  orphans'  court  begun  by 
the  appellee  here,  John  Witman,  a  vendee,  to  compel  specific  perform- 
ance of  a  written  contract  entered  into  between  himself  and  one  Wil- 
liam A.  Heckman,  whereby  the  latter  covenanted  to  sell  and  convey 
to  the  former  a  certain  tract  of  land  in  Robeson  township,  Berks  coun- 
ty. Heckman  having  died,  his  personal  representative  was  the  party 
proceeded  against.  A  decree  for  the  specific  performance  of  the  con- 
tract followed,  from  which  decree  this  appeal  is  taken.  The  case 
presents  a  single  question,  and  it  is  only  necessary  to  indicate  the  par- 
ticular features  of  the  contract,  which,  are  important  in  connection 
therewith.  The  contract  was  executed  the  21st  October,  1910.  It 
provides  that  the  deed  was  to  be  delivered  and  possession  given  on  or 
before  the  11th  January,  1911.  The  consideration  to  be  paid  by  Wit- 
man  was  $2,800,  in  manner  following :  Two  hundred  dollars  on  the 
execution  of  the  contract,  acknowledged  to  have  been  paid,  $1,300  on 
delivery  of  the  deed,  and  the  balance  on  the  1st  April,  1911,  to  be  se- 
cured by  mortgage  on  the  premises.     Then  follows  this  provision : 

"And  in  the  event  of  the  second  party  refusing  to  comply  with  the  terms  of 
this  agreement  the  sum  paid  down  shall  be  retained  by  the  said  William  A. 
Heckman  as  liquidated  damages  for  the  breach;  and  all  other  rights  under 
this  agreement  shall  be  at  an  end  and  the  said  William  A.  Heckman,  for  the 
true  performance  of  all  the  covenants  of  this  agreement,  acknowledges  him- 
self to  be  bound  to  the  said  party  of  the  second  part  in  the  sum  of  two  hun- 
dred dollars  to  be  recovered  as  liquidated  damages  for  his  failure  to  perform 
the  covenants  herein." 

With  this  provision  in  the  contract,  could  Heckman  or  his  represen- 
tative, Heckman  having  died,  have  required  specific  performance 
against  Witman,  had  the  latter  defaulted  ? 

If  in  that  case  specific  performance  must  have  been  denied,  it  neces- 
sarily follows  that  it  must  be  denied  here ;  for  nothing  is  better  settled 


422  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

than  the  rule  that,  where  a  contract  is  incapable  of  being  specifically 

enforced  against  one  party  to  it,  that  party  is  incapable  of  enforcing 

it  against  the  other.     A  contract  to  be  enforced  specifically  must  be 

mutual  both  as  to  remedy  and  obligation.     Bodine  v.  Glading,  21  Pa. 

50,  59  Am.  Dec.  749. 

Had  the  contract  in  this  case  provided  simply  for  the  forfeiture  of 

the  hand  money  paid  by  the  vendee  in  case  of  the  latter's  failure  to 

keep  his  covenants,  the  question  then  would  have  been  whether  the 

provision  for  the  forfeiture  for  the  $200  was  intended  to  secure  the 

performance  of  the  contract,  or  whether  it   was   one  of  two  things 

over  which  the  vendee  had  the  right  of  election,  the  performance  of 

his  covenants  or  the  loss  of  the  money  paid.    If  the  former,  the  right 

of  the  vendor  to  enforce  performance  would  remain ;  otherwise,  if  the 

latter.    But,  in  view  of  the  provision  in  the  clause  above  quoted,  that  in 

case  forfeiture  occurs,   "all   rights  under  this  agreement  shall  be  at 

an  end,"  no  such  question  can  here  arise.     Had  the  default  been  that  of 

the  vendee,  and  the  vendor  had  undertaken  to  specifically  enforce,  he 

would  at  once  have  been  met  with  the  answer  from  the  vendee. 

"All  rights  under  the  contract  are  at  an  end.  I  cannot  recover  back  the 
money  I  paid  you.  No  more  can  you  demand  anything  further  of  me.  Our 
contract  has  been  fully  executed  in  one  of  two  ways  expressly  provided  for." 

What  reply  could  be  made  to  this,  or  what  possible  ground  for  con- 
tention could  remain  ?  There  can  be  no  other  conclusion  than  that  the 
parties  to  this  contract  mutually  waived  their  right  to  a  specific  per- 
formance of  it,  and  limited  the  remedy  to  recovery  of  damages. 

It  should  be  said  in  justice  to  the  learned  judge  of  the  orphans'  court 
that  this  feature  of  the  case  was  suggested  for  the  first  time  on  the 
hearing  of  this  appeal.  The  point  was  neither  discussed  nor  raised 
in  the  court  below.  We  have  considered  it  here  only  because  the  law 
requires  it  of  us.  Act  June  16,  1836  (P.  L.  682),  makes  it  our  duty  in 
all  cases  of  appeal  from  the  several  orphans'  courts  to  hear,  try,  and 
determine  the  merits  of  such  cases,  and  to  decree  according  to  the  jus- 
tice and  equity  thereof.  The  enforcing  of  specific  performance  of  a 
contract  is  a  matter  resting  exclusively  in  equity,  and  is  allowed  only 
when  the  equitable  right  to  it  has  been  made  to  appear.  In  this  case  it 
is  evident  that  no  such  right  existed,  and  the  petition  should  have  been 
dismissed.  The  first  assignment  of  error  complains  of  the  decree  it- 
self. 

It  is  sustained,  and  the  decree  accordingly  reversed,  at  cost  of  appel- 
lant. 


Sec.  8)  EQUITABLE   DEFENSES  423 


(B)  Delay  in  Bringing  Suit;  Laches;  Statute  of  Limitations 
LEWIS  v.  LORD  LECHMERE. 

(In  Chancery  before  Lord  Parker,  Chancellor,  1721.    10  Mod.  503,  88  E.  R.  828.) 

This  was  a  bill  brought  by  the  plaintiff  for  a  specific  performance  of 
articles,  bearing  date  the  thirtieth  day  of  August  1720,  whereby  Lord 
Lechmere  had  covenanted  to  purchase  such  an  estate  at  forty  years 
purchase;  provided  the  plaintiff  did,  on  or  before  the  tenth  day  of 
November  following,  lay  such  an  abstract  of  the  title  before  Lord 
Lechmere's  counsel,  as  they  should  approve. 

The  bill  was  dismissed  with  costs ;  because  the  plaintiff  had  not  laid 
his  title  before  Lord  Lechmere's  counsel  within  the  time  limited  by 
the  articles ;  which  time,  the  Lord  Chancellor  was  pleased  to  say,  was 
very  material ;  the  price  of  South-Sea  stock,  from  whence  the  money 
for  the  purchase  was  to  be  raised,  being  upon  the  tenth  of  November 
two  hundred  and  sixty  per  cent,  and  at  the  time  of  the  hearing  the 
cause,  but  ninety-two  per  cent.27     *     *     * 


GUEST  v.  HOMFRAY. 

(In  Chancery  before  Sir  Richard  Pepper  Arden,  1S01.    5  Ves.  81S.) 

Upon  the  31st  of  January,  1798,  the  plaintiff  entered  into  an  agree- 
ment in  writing  to  sell  to  the  defendant  an  unfinished  house  in  Car- 
diff in  fee  for  the  sum  of  £800  payable  by  instalments.  At  the  execu- 
tion of  the  agreement  the  keys  were  delivered  to  the  defendant :  and  he 
looked  over  the  house.  On  the  1st  of  February  he  went  to  Bath ; 
where  he  staid  till  April.  Then  finding,  that  no  abstract  had  been  de- 
livered, he  called  for  an  abstract;  which  was  delivered  upon  the  18th 

27  For  other  parts  of  this  case,  here  omitted,  see  pages  447  and  480,  infra. 

"A  mistaken  and  very  injurious  practice  long  prevailed,  from  tbe  courts  of 
equity  considering  time  as  of  no  cousequence,  and  delay  as  affording  no  im- 
pediment to  decreeing  specific  performance  of  agreements.  This  was  supposed 
to  originate  in  a  dictum  attributed  to  Lord  Hardwicke  in  the  case  of  Gibson 
v.  Patterson  (1737)  1  Atk.  12,  which  is  now  proved  to  be  totally  erroneous." 
Manuscript  note  of  Mr.  Campbell  (afterward  Lord  Chancellor  Campbell),  to 
Llovd  v.  Collett,  4  Bro.  C.  C.  469,  29  E.  R.  993. 

"In  Milward  v.  Earl  Thanet,  at  the  Rolls,  March  24,  1801,  the  bill  for  a 
specific  performance  was  dismissed.  The  parties  differed  as  to  the  construc- 
tion of  the  agreement;  and  the  bill  was  delayed  for  seven  years.  Lord  Al- 
vanley,  then  Master  of  the  Rolls,  observed,  that  Lord  Kenyon  was  the  first  who 
set  himself  against  the  idea  that  had  prevailed,  that,  when  an  agreement  was 
entered  into,  either  party  might  come  at  any  time:  but  that  it  is  now  per- 
fectly known,  that  a  party  cannot  call  upon  a  Court  of  Equity  for  a  specific 
performance,  unless  he  has  shown  himself  ready,  desirous,  prompt,  and  eager." 
(1801)  5  Ves.  Jr.  702,  note. 


424  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

of  April.  Objections  were  taken  to  the  title  upon  that  abstract:  1st; 
that  no  title  appeared  farther  back  than  1782:  2dly;  it  did  not  appear, 
what  estates  two  persons  of  the  name  of  Richards  had :  3dly ;  a  person 
named  Priest,  stated  to  have  conveyed  in  1790,  was  at  that  time  an 
infant:  4thty;  several  married  women  were  stated  to  have  conveyed 
in  1796;  and  there  ought  to  have  been  fines'.  The  defendant  took 
another  house  in  Landaff ;  and  refusing  to  perform  his  agreement  with 
the  plaintiff,  the  bill  was  filed ;  praying  a  specific  performance ;  charg- 
ing, that  the  defendant's  reason  for  refusing  to  perform  the  agreement 
was,  that  he  had  taken  the  other  house. 

The  answer  stated  the  defendant's  reason  for  declining  to  complete 
the  agreement  to  be,  the  plaintiff's  neglecting  to  make  a  title. 

In  support  of  the  bill  it  was  proved,  that  upon  the  5th  of  April, 
1798,  the  defendant  went  to  look  over  the  house  at  Landaff ;  and  upon 
the  2d  of  April  he  told  the  landlord,  he  should  like  to  become  his  ten- 
ant, provided  he  could  get  rid  of  Guest's  house ;  and  on  the  2d  of 
June  he  entered  into  the  contract  for  that  house,  to  take  place  from 
Midsummer  following. 

The  solicitor  for  the  plaintiff  by  his  deposition  stated,  that  soon  after 
the  delivery  of  the  abstract  the  defendant  and  his  solicitor  called  on 
the  deponent.  A  conversation  upon  the  objections  ensued;  and  they 
were  informed,  the  deponent  was  not  then  prepared  to  give  a  farther 
abstract  on  account  of  the  absence  of  his  partner ;  but  it  should  be  fur- 
nished. The  abstract  was  taken  away  by  the  defendant's  solicitor  a 
few  days  afterwards.  Some  written  observations  and  queries  were 
some  time  afterwards  delivered  to  the  deponent.  The  deponent  applied 
for  the  abstract  again,  in  order  to  complete  it;  but  did  not  receive  it 
till  August.  A  fine  was  levied,  as  required,  at  the  Autumn  Great  Ses- 
sions. A  second  abstract  was  left  at  the  defendant's  lodging  at  Bath 
upon  the  23d  of  April,  1799:  but  the  defendant  said  he  would  not  take 
it  as  considering  himself  bound  to  have  any  thing  to  do  with  the  pur- 
chase ;  and  afterwards  wrote  a  letter  to  that  effect.  The  deponent  un- 
derstood from  his  conversation  with  the  defendant,  when  the  first  ab- 
stract was  returned,  that  he  would  not  fulfil  the  agreement,  unless  com- 
pelled.28    *     *     * 

Master  of  thf,  Rolls.  No  one  can  doubt  the  motives  of  the  par- 
ties in  this  cause.  The  only  question  is,  whether  the  plaintiff  has 
done  enough  to  show,  he  took  all  the  pains  he  could  to  be  ready  to  car- 
ry into  execution  the  agreement ;  which,  it  is  perfectly  clear,  the  de- 
fendant meant  to  get  rid  of,  if  he  could.  The  plaintiff  does  not  seem 
to  me  to  have  done  all  he  ought  to  have  done.  It  rests  entirely  upon 
that  point ;  without  balancing  the  evidence  of  the  two  solicitors ;  which 
it  is  not  very  easy  to  reconcile.  By  the  contract  immediate  possession 
was  to  be  given ;  and  was  given  without  doubt ;  though  the  defendant 
says  in  his  answer,  he  never  took  possession:  but  the  keys  being  in 

as  The' statement  of  facts  is  abridged. 


Sec.  8)  EQUITABLE   DEFENSES  425 

his  possession,  it  must  be  considered,  that  he  was  in  possession.  With- 
out doubt  by  the  delivery  of  the  keys  the  possession  was  ready  for 
him ;  and  indeed  he  had  it.  I  do  not  like  his  answer  in  that  respect. 
Having  the  keys  in  his  possession,  that  is  possession,  if  he  chose  to 
take  it.  Neither  the  defendant  demanded,  nor  the  plaintiff  tendered, 
the  abstract  immediately.  I  do  not  agree,  that  it  is  solely  incumbent 
upon  the  vendor  to  move  by  making  a  tender  of  the  abstract.  Some- 
thing is  also  incumbent  upon  the  purchaser,  to  ask  for  it.  But  neither 
the  one  asked  for,  nor  the  other  tendered  it.  Then  what  happened? 
Before  the  5th  of  April  the  defendant  had  determined  to  get  rid  of  the 
bargain,  if  he  could ;  and  was  looking  out  for  another  house.  I  do  not 
know  what  his  reasons  were :  but  he  had  no  right  to  make  use  of  those 
reasons,  whatever  they  were,  in  order  to  make  improper  objections, 
or  to  expect  any  thing  unreasonable  from  the  vendor.  Finding  he 
could  make  a  bargain  for  a  house  at  Landaff,  he  throws  up  the  nego- 
tiation with  Mr.  Kay  for  the  other  premises,  to  be  held  with  this  house ; 
and  then  without  doubt  he  asked  for  the  abstract  with  a  view  to  make 
objections  to  the  title.  Objections  were  made;  and  I  think,  it  is  fair- 
ly put  in  issue  by  the  answer,  that  the  defendant  had  stated,  that  the 
contract  was  at  an  end.  I  think,  that  called  upon  the  plaintiff's  solicitor 
to  state,  that  the  conversation  was  not  so.  The  plaintiff's  own  attorney 
does  not  deny  that  he  saw,  the  defendant  meant  to  abandon  the  pur- 
chase, if  he  could.  That  should  have  made  them  more  ready  to  cure 
the  objections;  and  I  should  have  expected  the  most  decisive  evidence 
from  the  plaintiff's  solicitor,  that  he  never  had  an  intention  not  to  give 
another  abstract ;  and  he  should  have  apprised  the  defendant  of  that. 
There  is  no  evidence,  that,  even  when  the  abstract  was  sent  back,  he 
said,  the  defendant  was  to  be  still  bound,  and  was  not  released ;  and  de- 
sired him  to  take  notice  of  that.  There  is  nothing  to  show,  that  he  was 
proceeding  with  due  diligence  ;  and  meant  to  proceed  with  the  contract ; 
nor  that  he  was  even  holding  the  purchaser  to  it.  It  is  clear,  there- 
fore, the  plaintiff  was  called  upon  to  be  more  quick  than  he  has  been ; 
and  has  not  done  all  he  ought.  It  happened,  that  he  met  with  an  un- 
willing purchaser.  I  think  he  has  not  entitled  himself  to  a  specific 
performance ;  but  I  do  not  at  all  like  the  defendant's  answer ;  for  he 
pretends,  he  wished  to  go  on  with  the  purchase.  It  would  have  been 
better  for  him  to  have  said,  he  did  not  wish  to  go  on  with  it;  and 
therefore  wished  to  come  to  a  determination  upon  it;  that  the  objections 
were  fair  objections ;  and  he  thought  himself  entitled  to  take  them.  If 
he  had  done  that,  I  should  have  dismissed  the  bill  with  costs.  On  the 
other  hand,  they  should  have  cautioned  him ;  and  have  told  him,  they 
were  going  on  to  make  out  the  title;  and  that  they  were  in  hopes  of 
doing  it.  If  they  had  done  all  that,  and  shown  a  probable  ground  to 
him,  that  they  might  make  a  good  title,  I  should  perhaps  not  have 
thought  a  year  too  long. 

Upon  the  whole,  the  bill  must  be  dismissed ;  but,  under  the  circum- 
stances, without  costs. 


426  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

ALLEY  v.  DESCHAMPS. 

(In  Chancery  before  Lord  Erskine,  1806.    13  Yes.  225.) 

Crichton  Home,  being  in  1794  possessed  of  leasehold  premises  in 
London  for  the  residue  of  a  term  of  99  years,  commencing  in  1792, 
with  a  view  to  a  partnership,  to  be  entered  into  between  him  and  John 
Deschamps,  junior,  one  undivided  moiety  of  the  premises,  consisting 
of  a  glass-house,  with  the  fixtures,  utensils,  &c.  was  in  consideration 
of  £1,430  assigned  to  John  Deschamps,  senior,  for  the  residue  of  the 
term;  and  he  and  Home  demised  all  the  premises  to  Peter  Mellish 
for  14  years,  at  the  yearly  rent  of  £50;  upon  trust  to  assign  to  Home 
and  Deschamps,  junior,  for  the  purpose  of  carrying  on  the  partner- 
ship; and  Mellish  assigned  to  them  accordingly. 

In  January,  1796,  Home  and  Deschamps,  junior,  borrowed  from 
Deschamps,  senior,  £800  upon  mortgage  of  the  whole  of  the  premises. 
In  November,  1797,  Home  and  Deschamps,  junior,  dissolved  their 
partnership,  and  assigned  all  their  stock  in  trade,  debts,  &c.  for  the 
benefit  of  their  creditors;  and  by  an  agreement,  dated  the  21st  of 
November,  1797,  Deschamps,  senior  and  junior,  agreed,  that  upon  pay- 
ment by  Home,  his  executors,  &c.  to  Deschamps,  senior,  his  executors, 
&c.  of  £2,000,  in  part  satisfaction  of  the  sum  of  £2,230,  by  equal  instal- 
ments, at  2,  4,  and  6  years,  with  interest  payable  half-yearly,  Des- 
champs, senior  and  junior,  would  after  the  expiration  of  the  six  years, 
and  after  full  payment  and  satisfaction  of  the  said  sum  of  £2,000,  and 
interest  as  aforesaid,  assign  all  their  respective  interests  in  the  prem- 
ises, fixtures,  utensils,  &c.  to  Home. 

Home  was  upon  the  execution  of  the  agreement  put  in  possession, 
and  carried  on  the  business  on  his  own  account  until  his  bankruptcy ; 
which  took  place  upon  the  19th  of  April,  1800.  The  only  payment  he 
made  to  Deschamps,  senior,  was  £100.  The  premises  were  purchased 
by  the  directors  of  the  London  Dock  Company,  under  the  act  of  parlia- 
ment, for  the  sum  of  £3,500 ;  and  the  different  parties  claiming  having 
executed  the  conveyance  without  prejudice,  the  bill  was  filed  in  July, 
1802,  by  the  assignees  under  the  commission  of  bankruptcy  against 
Home;  praying  that  the  plaintiffs  may  be  declared  to  have  been  en- 
titled to  a  specific  performance  of  the  agreement  of  November,  1797; 
and  therefore  to  be  entitled  to  the  residue  of  the  money,  paid  by  the 
London  Dock  Company,  or  to  a  moiety  thereof. 

The  defendants,  Deschamps,  senior  and  junior,  by  their  answer  stat- 
ed, that,  Home  becoming  soon  after  the  agreement  very  much  embar- 
rassed, and  wholly  unable  to  comply  with  the  terms,  it  was  considered 
as  relinquished :  and  was  in  fact  made  void  by  his  non-compliance ; 
but  he  was  suffered  to  continue  in  possession  as  lessee  of  Deschamps, 
senior,  at  the  rent  of  £100  a  year;  and  as  such  lessee,  about  two  years 
after  the  agreement,  Home  paid  to  Deschamps,  senior,  £100  being  one 


Sec.  8)  EQUITABLE   DEFENSES  427 

year's  rent ;  which  was  the  only  payment  he  ever  made  as  lessee,  or 
otherwise. 

The  Lord  Chancellor.  I  have  upon  another  occasion  stated  my 
opinion  upon  the  doctrine  of  specific  performance.  This  Court  assum- 
ed the  jurisdiction  upon  this  simple  principle;  that  the  party  had  a 
legal  right  to  the  performance  of  the  contract,  to  which  right  the  Courts 
of  Law,  whose  jurisdiction  did  not  extend  beyond  damages,  had  not 
the  means  of  giving  effect.  Even  that  was  considered  by  the  Courts 
of  Common  Law  to  be  a  great  usurpation.  Afterwards,  however,  the 
Court  went  much  farther ;  and  the  doctrine  of  compensation  has  been 
carried  to  an  extent,  not  justified  by  the  ancient  course,  and  which  I 
never  will  follow ;  as  upon  the  contract  for  the  house  and  the  wharf, 
and  the  other  cases,  that  have  been  noticed  with  disapprobation  by 
Lord  Eldon.  This  Court  ought  not  to  interfere,  unless  it  is  clear  that 
the  party  will  substantially  have  that  for  which  he  contracted.  With 
regard  to  this  particular  case,  it  would  be  very  dangerous  to  permit 
parties  to  lie  by,  with  a  view  to  see,  whether  the  contract  will  prove 
a  gaining  or  losing  bargain,  and,  according  to  the  event,  either  to 
abandon  it,  or,  considering  the  lapse  of  time  as  nothing,  to  claim  a 
specific  performance,  which  is  always  the  subject  of  discretion. 

December  18.     The  Lord  Chancellor. 

Under  the  circumstances  of  this  case  there  is  not  a  colour  for  de- 
creeing a  specific  performance  of  this  agreement.  Lord  Hardwicke 
could  not  have  stated  what  is  supposed  to  have  been  laid  down  in  the 
case  of  Gibson  v.  Patterson,  1  Atk.  12,  that,  as  a  general  proposition, 
time  is  in  equity  perfectly  immaterial ;  a  proposition,  very  extraordi- 
nary, when  the  origin  of  this  jurisdiction  to  grant  a  specific  perform- 
ance is  considered.  This  relief,  I  have  formerly  observed,  was  first 
given  upon  a  legal  right,  instead  of  damages ;  which  was  followed  by 
another  class  of  cases  equally  clear,  that  where  a  party  was  not  able  to 
perform  his  engagement,  according  to  the  strict  letter,  if  the  failure 
was  not  substantial,  the  other  should  not  be  permitted  to  take  advantage 
of  the  strict  form.  But  the  relief  was  never  given  in  the  extravagant 
manner,  which  the  circumstances  of  this  case  would  require;  that  a 
man,  having  done  nothing,  having  broken  his  contract,  may  at  any 
distance  of  time  claim  all  the  advantage,  as  if  he  had  fulfilled  it. 

In  the  case  of  Harrington  v.  Wheeler,  4  Ves.  686,  which  is  not  un- 
like this  case,  particularly  in  the  circumstance  that  money  was  paid, 
Lord  Roslyn  dismissed  the  bill  with  costs ;  the  plaintiff  not  having 
done  any  act.  The  same  principle  is  laid  down  in  Lloyd  v.  Collet,  4 
Bro.  C.'C.  469,  4  Ves.  689,  690,  note  (b),  and  the  report  of  Gibson 
v.  Patterson,  1  Atk.  12,  in  which  the  lapse  of  time  appears  to  have 
been  considered  as  perfectly  immaterial,  is  in  those  cases  corrected. 
This  is  a  most  extravagant  case. 

I  take  it  upon  the  evidence,  that  possession  was  given  upon  the  faith 
of  the  agreement ;  and  that  the  sum  of  £100  was  paid,  not,  as  it  has  been 
strongly  contended,  as  rent,  but  in  part  satisfaction  of  the  contract. 


428  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

I  will  also  take  it,  that  the  agreement  was  not  abandoned ;  that  the 
bankrupt  did  not  by  his  own  act  consent  to  rescind  it;  though  there 
is  evidence  for  that.  But  my  judgment  proceeds  upon  a  plain  principle, 
that  a  bill  for  specific  performance  of  an  agreement  will  not  be  endur- 
ed under  such  circumstances :  nothing  farther  having  been  done  to- 
wards performance  when  the  purchaser  became  bankrupt  nor  after- 
wards, until  these  premises  by  a  subsequent  event  proved  to  be  much 
more  valuable,  than  they  were  at  the  time  the  contract  took  place. 
Where  then,  as  Lord  Roslyn  says,  is  the  equity,  placing  him  in  the 
same  situation,  as  if  he  had  in  due  time  availed  himself  of  the  con- 
tract ? 

The  bill,  as  far  as  it  prayed  a  specific  performance  of  the  agreement, 
was  dismissed  with  costs. 


HEARNE  v.  TENANT. 

(In  Chancery  before  Lord  Erskine,  1807.     13  Ves.  2SG.) 

A  motion  was  made,  upon  the  answer,  for  an  injunction  to  restrain 
an  ejectment,  under  the  following  circumstances: 

The  plaintiff  was  assignee  of  the  lease  of  a  house,  demised  by  the 
defendant.  Upon  the  expiration  of  that  lease  a  treaty  for  a  new  one 
took  place,  the  defendant  insisting  upon  a  rent  of  £84  and  the  sum  of 
1,000  guineas.  The  plaintiff,  after  some  fruitless  endeavours  to  pro- 
cure an  abatement,  consented  to  give  that  renfand  premium ;  and,  the 
plaintiff  requesting  the  defendant  to  put  down  the  negotiation  upon 
paper,  a  memorandum  was  put  down  by  the  defendant  in  writing,  dated 
the  23d  of  October,  expressing  that  the  lease  was  to  be  granted  for 
21  years,  to  commence  upon  the  expiration  of  the  old  lease,  "upon 
condition''  of  the  plaintiff's  paying  on  or  before  the  end  of  the  month, 
1,000  guineas.  Of  that  memorandum  two  copies  were  signed  ;  the  plain- 
tiff taking  one,  the  defendant  the  other.  After  the  expiration  of  the 
time  mentioned  in  the  memorandum  for  payment  of  the  1,000  guineas, 
the  plaintiff  calling  upon  the  defendant,  apologized  for  not  bringing 
the  money:  the  defendant  asked,  if  he  had  the  memorandum  with 
him:  the  plaintiff  produced  it;  the  defendant  taking  it,  observed,  that 
the  time  for  payment  was  expired,  and  therefore  the  memorandums 
were  of  no  use,  and  it  was  better  to  destroy  them ;  and  he  then  took 
the  other  out  of  a  bureau,  and  tore  them  both. 

The  answer,  as  to  that  transaction,  stated,  that  the  plaintiff  did  not 
express  disapprobation,  nor  did  he  say  he  agreed  to  it,  but  he  entreated 
a  week  or  a  fortnight  farther  time :  but  whether  the  plaintiff  had  any 
suspicion  of  the  defendant's  views  in  making  such  request,  or  why  he 
acceded  to  it,  the  defendant  cannot  set  forth. 

The  Solicitor-General  and  Mr.  Trower,  in  support  of  the  motion, 
cited  Williams  v.  Thompson,  from  Mr.  Newland's  Treatise  on  Con- 


Sec.  8)  EQUITABLE   DEFENSES  429 

tracts  (Newland,  on  Contracts,  238),  and  referred  generally  to  Greg- 
son  v.  Riddle  (Id.  239)  and  the  other  cases  upon  lapse  of  time. 

The;  Lord  Chancellor.  The  question  is,  whether  under  the  cir- 
cumstances appearing  upon  this  answer,  the  injunction  should  be  con- 
tinued to  the  hearing.  The  impression  upon  my  mind  is,  that  the  Court 
has  gone  farther  than  it  ought  to  go  in  these  cases.  Upon  looking  into 
the  whole  of  this  case  as  it  now  stands,  my  opinion  is,  that  I  ought  to 
continue  the  injunction  to  the  hearing.  The  principle,  upon  which  the 
Court  acts,  is  now  upon  all  the  authorities  brought  to  the  true  stand- 
ard ;  that  though  the  party  has  not  a  title  in  law,  as  he  has  not  com- 
plied with  the  terms,  so  as  to  entitle  him  to  an  action,  as  to  the  time, 
for  instance,  yet,  if  the  time,  though  introduced,  as  some  time  must  be 
fixed,  where  something  is  to  be  done  on  one  side,  as  a  consideration  for 
something  to  be  done  on  the  other,  is  not  the  essence  of  the  contract, 
a  material  object,  to  which  they  looked  in  the  first  conception  of  it, 
even  though  the  lapse  of  time  has  not  arisen  from  accident,  a  Court  of 
Equity  will  compel  the  execution  of  the  contract,  upon  this  ground, 
that  the  one  party  is  ready  to  perform,  and  the  other  may  have  a  per- 
formance, in  substance,  if  he  will  permit  it. 

In  the  course  of  the  negotiation  between  these  parties,  previous  to 
the  memorandum,  nothing  was  in  difference  but  the  amount  of  the 
sum,  the  premium  upon  renewal ;  nothing  as  to  time  appears  to  have 
been  in  contemplation ;  nothing  to  shew  that  payment  at  a  particular 
day  was  the  object.  It  would  be  rash  in  this  stage  of  the  cause  upon 
the  words  of  the  memorandum,  as  represented  by  the  answer,  the  de- 
fendant stating,  that  he  cannot  set  it  forth  more  particularly,  the  mem- 
orandum being  destroyed,  to  decide,  that  the  payment  must  be  taken 
to  be  a  condition  precedent,  as  it  might  be,  if  that  stipulation  was  in- 
serted by  the  consent  of  both  parties,  the  consequence  of  previous  ne- 
gotiation. It  does  not  appear  that  the  defendant,  who  made  this  mem- 
orandum himself,  had  any  authority  to  put  down  any  time;  and  the 
nature  of  the  transaction  does  not  look  like  it.  It  does  not  appear  that 
he  had  any  pressing  occasion  for  the  money  at  a  particular  time. 
Then,  his  conduct  in  destroying  the  papers  was  not  such  as  will  entitle 
me  to  say  in  the  middle  of  the  cause,  that  this  is  a  fair  proceeding. 

Combining  all  the  circumstances,  I  think  this  injunction  must  be 
granted  until  the  hearing.29 

as  Iu  Davis  v.  Hone  (1805)  2  Schoales  &  Lefroy,  341,  at  347,  Lord  Redesdale, 
L.  C,  said:  "A  court  of  equity  frequently  decrees  specific  performance,  where 
the  action  at  law  has  been  lost  by  the  default  of  the  very  party  seeking  the 
.specific  performance,  if  it  be  notwithstanding  conscientious  that  the  agree- 
ment should  be  performed,  as  in  cases  where  the  terms  of  the  agreement  have 
not  been  strictly  performed  on  the  part  of  the  person  seeking  specific  perform- 
ance, and  to  sustain  an  action  at  law  performance  must  be  averred  according 
to  the  very  terms  of  the  contract.  Nothing  but  specific  execution  of  the  con- 
tract, so  far  as  it  can  be  executed,  will  do  justice  in  such  a  case." 


430  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

SETON  v.  SLADE. 
HUNTER  v.  SETON. 

(In  Chancery  before  Lord  Eldon,  1802.     7  Yes.  265,  32  E.  R.  108.) 

The  plaintiff  in  the  first  of  these  causes,  heing  entitled  to  an  estate, 

called  Kilorough,  in  the  comity  of  Glamorgan,  under  a  contract  entered 

into  in  1799,  by  the  trustees  of  the  Marquis  De  Choiseul,  to  convey  to 

him  and  his  heirs  in  consideration  of  £8500  employed  Josiah  Phipps 

to  sell  the  estate  by  auction  or  private  contract;    and  the  following 

memorandum  in  writing,  dated  the  12th  of  April,  1800,  was  signed  by 

the  defendant  Robert  Slade,  but  not  by  the  plaintiff  or  any  one  on  his 

behalf : 

"I  Robert  .Slade  of  Doctors  Commons  in  the  city  of  London  Esquire  have 
this  day  purchased  of  Josiah  Phipps  the  estate  described  in  the  within  par- 
ticular at  and  for  the  sum  of  £10,000  including  the  timber  and  underwood 
growing  thereon  have  paid  a  deposit  of  £1000  do  hereby  undertake  and  agree 
to  pay  the  remainder  of  the  purchase  money  and  complete  my  purchase  within 
two  months  from  the  date  hereof  the  proprietor  making  a  good  title  thereto 
at  his  own  expense  and  executing  a  proper  conveyance  to  be  prepared  at  my 
expense.  And  I  do  further  agree  to  pay  for  the  fixtures  household  furniture 
at  a  fair  valuation  and  for  the  growing  crops  seeds  fallows  &c.  in  the  same 
way  according  to  the  custom  of  the  country  and  possession  to  be  given  upon 
the  completion  of  the  contract  to  which  time  all  out-goings  are  to  be  cleared 
up  and  I  am  entitled  to  the  rents  and  profits.  Upon  failure  of  my  complying 
with  the  terms  and  conditions  before-mentioned  the  deposit  money  shall  be 
forfeited  the  proprietor  shall  be  at  full  liberty  to  resell  the  estate  and  the  de- 
ficiency if  any  there  shall  1  e  by  such  second  sale  together  with  all  charges 
attending  the  same  shall  be  made  good  at  my  expense." 

The  bill  in  the  first  cause  prayed  a  specific  performance  of  this  agree- 
ment ;  which  was  resisted  under  the  following  circumstances  appear- 
ing by  the  answer  and  the  evidence. 

The   defendant  the   day   after   he  signed   the   agreement   wrote   to 

Phipps  from  Brighthelmstone ;   stating  objections  to  the  title,  and  that 

if  the  title  should  not  be  made  out  and  possession  delivered  to  him  by 

the  12th  of  June  then  next,  he  should  insist  upon  having  the  deposit 

money  returned  to  him  with  interest.     Phipps'  letter  in  answer,  dated 

the  19th  of  April,  stated  the  plaintiff's  answer,  as  given  verbally  by  his 

solicitor,  thus : 

"Mr.  Seton  desired  I  would  inform  you,  that  he  accedes  to  your  request  re- 
specting the  interest  as  a  matter  of  course." 

The  defendant  about  the  beginning  of  May  informed  Phipps,  he  had 
sold  out  stock  for  the  purpose  of  being  ready  with  his  purchase  mon- 
ey ;  and  expressed  his  surprise,  that  no  abstract  had  been  delivered. 
He  afterwards  pressed  Phipps  for  the  abstract ;  and  proposed  that 
Phipps  should  copy  and  send  in  his  name  to  the  plaintiff  a  note  written 
by  the  defendant,  expressing  that  finding  no  progress  made  in  the  de- 
livery of  the  title,  he  called  to  remind  Phipps,  that  in  the  event  of  its 
not  being  completed  at  the  expiration  of  the  two  months  he  expects 
in  compliance  with  the  promise  the  plaintiff  made  in  answer  to  his  let- 


Sec.  8)  EQUITABLE   DEFENSES  431 

ter  from  Brighthelmstone  to  have  his  deposit  money  returned  with  in- 
terest; and  requesting  authority  to  fulfil  the  engagement  on  the  plain- 
tiff's part.  Phipps  declined  writing  that  letter.  On  Saturday  the  7th 
of  June  the  abstract  was  left  at  the  defendant's  solicitors,  with  a  note ; 
stating,  that  the  plaintiff  had  only  a  title  under  an'  agreement;  but  all 
necessary  parties  were  ready  to  convey ;  and  making  a  proposal  for 
that  purpose.  On  Monday  the  9th  the  plaintiff's  solicitor  called  there, 
to  say,  that  he  would  not  vouch  for  the  authenticity  of  the  abstract ; 
as  it  was  not  prepared  by  him,  but  by  the  solicitors,  for  the  trustees 
of  the  Marquis  De  Choiseul.  Nothing  further  passed  till  the  13th  of 
June ;  on  which  day  the  defendant  wrote  to  Phipps ;  demanding  his 
deposit  with  interest ;  and  stating  his  reasons ;  that  the  two  months, 
within  which  the  plaintiff  agreed  to  complete  the  contract,  were  ex- 
pired; and  the  defendant's  solicitors  had  not  received  an  abstract  till 
within  these  few  days ;  and,  so  far  from  showing  a  right  in  the  plain- 
tiff to  convey,  it  states  merely  a  contract  for  purchase  by  him  without 
noticing  a  suit  in  Chancery  against  the  trustees  of  the  Marquis  and 
Marchioness  De  Choiseul,  previous  to  the  contract  for  purchase  by  the 
plaintiff,  which  renders  it  impossible  for  the  plaintiff  to  carry  into  ef- 
fect his  agreement  with  the  defendant  within  the  time  limited 

The  defendant  afterwards  recovered  his  deposit  with  interest  in  an 
action.  Several  objections  were  taken  to  the  abstract;  the  principal 
of  which,  (mentioned  in  the  defendant's  letter  of  the  13th  of  April,) 
were  the  suit  instituted  by  the  Marquis  De  Choiseul,  and  his  creditors, 
to  remove  his  trustees  and  for  an  account  of  their  conduct ;  and  a 
prior  contract  with  a  person,  named  Darby ;  who  gave  notice  of  his 
claim.  He  was  made  a  defendant ;  and  put  in  an  answer  amounting 
on  the  whole  to  a  disclaimer.  Afterwards  being  examined  as  a  witness 
by  his  depositions  he  renewed  his  claim.  The  Lord  Chancellor  held, 
that  he  could  not  get  rid  of  the  disclaimer  upon  the  record  without  a 
strong  case  upon  affidavit ;  and  therefore  he  was  a  good  witness ;  but 
the  defendant  reading  his  depositions  must  admit,  that  he  has  no  in- 
terest.    The  defendant  then  declined  reading  his  evidence. 

The  second  cause  was  instituted  upon  a  bill  by  the  trustees  of  the 
Marquis  De  Choiseul;  praying  a  specific  performance  of  their  con- 
tract with  Seton.     *     *     * 

The;  Lord  Chancellor.30  If  it  were  necessary  for  the  decision  of 
this  case,  to  express  myself  with  great  accuracy  upon  the  principle  of 
the  Court  as  to  suits  for  specific  performance,  as  far  as  objections  are 
to  be  founded  upon  what  the  Court  has  done,  and  has  forborne  to  do, 
in  a  great  variety  of  cases,  in  which  the  objection  has  been  taken,  that 
the  agreement  was  not  carried  into  execution  within  the  time  stipulated 
upon  the  face  of  it,  I  should  think  it  my  duty  to  look  through  a  great 
number  of  cases.  But,  in  the  view  I  have  of  this  case,  I  incur  no  haz- 
ard of  making  a  decree  in  its  principle  inconsistent  with  any  authority 
that  can  be  stated. 

so  Part  of  the  opinion  is  omitted. 


432  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

To  say  time  is  regarded  in  this  Court  as  at  law,  is  quite  impossible. 
The  case  mentioned  of  a  mortgage  is  very  strong :  an  express  contract 
under  hand  and  seal.  At  law  the  mortgagee  is  under  no  obligation  to 
re-convey  at  that  particular  day ;  and  yet  this  Court  says,  that  though 
the  money  is  not  paid  at  the  time  stipulated,  if  paid  with  interest  at 
the  time  a  re-conveyance  is  demanded,  there  shall  be  a  re-conveyance ; 
upon  this  ground ;  that  the  contract  is  in  this  Court  considered  a  mere 
loan  of  money,  secured  by  a  pledge  of  the  estate.  But  that  is  a  doc- 
trine upon  which  this  Court  acts  against  what  is  the  prima  facie  im- 
port of  the  terms  of  the  agreement  itself ;  which  does  not  import  at 
law,  that,  once  a  mortgage  always  a  mortgage ;  but  equity  says  that ; 
and  the  doctrine  of  this  Court  as  to  redemption  does  give  countenance 
to  that  strong  declaration  of  Lord  Thurlow,  that  the  agreement  of  the 
parties  will  not  alter  it ;  for  I  take  it  to  be  so  in  the  case  of  a  mort- 
gage ;  that  you  shall  not  by  special  terms  alter  what  this  Court  says 
are  the  special  terms  of  that  contract.  Whether  that  is  to  be  applied  to 
the  case  of  a  purchase  is  a  different  consideration.  I  only  say,  time  is 
not  regarded  here  as  at  law.  So  in  the  instance  of  a  mortgage  with 
interest  at  5  per  cent,  and  a  condition  to  take  4,  if  regularly  paid ;  or 
at  4  per  cent,  with  a  condition  for  5,  if  not  regularly  paid.  At  law  you 
might  in  that  case  recover  the  5  per  cent,  for  it  is  the  legal  interest. 
But  this  Court  regards  the  5  per  cent,  as  a  penalty  for  securing  the  4 ; 
and  time  is  no  further  the  essence,  than  that  if  it  is  not  paid  at  the 
time,  the  party  may  be  relieved  from  paying  the  5  per  cent,  by  paying 
the  4  per  cent,  and  putting  the  other  party  in  the  same  condition  as  if 
the  4  per  cent,  had  been  paid :  that  is,  by  paying  him  interest  upon  the 
4  per  cent,  as  if  it  had  been  received  at  the  time.  So  in  this  Court 
before  Courts  of  Law  dealt  with  a  bond,  under  a  penalty,  as  they  do 
now.  Time  was  of  the  essence  there :  but  this  Court  relieved  against 
the  penalty  long  before  a  Court  of  Law ;  and  there  are  many  other  in- 
stances. 

But  there  is  another  circumstance.  The  effect  of  a  contract  for  pur- 
chase is  very  different  at  law  and  in  equity.  At  law  the  estate  remains 
the  estate  of  the  vendor ;  and  the  money  that  of  the  vendee.  It  is  not 
so  here.  The  estate  from  the  sealing  of  the  contract  is  the  real  property 
of  the  vendee.  It  descends  to  his  heirs.  It  is  devisable  by  his  will ; 
and  the  question,  whose  it  is,  is  not  to  be  discussed  merely  between  the 
vendor  and  vendee ;  but  may  be  to  be  discussed  between  the  represen- 
tatives of  the  vendee.  Therefore  I  do  not  take  a  full  view  of  the  sub- 
ject upon  the  question  of  time,  unless  that  is  taken  into  consideration; 
and  many  very  nice  and  difficult  cases  may  be  put,  in  which  the  ques- 
tion would  be  to  be  discussed  between  the  representatives,  founded 
upon  the  conduct  between  the  vendor  and  vendee.  It  is  obvious,  that 
a  due  consideration  of  the  value  of  the  objections  will  embrace  that 
consideration  also. 

The  cases  seem  to  have  varied  a  good  deal.  The  cases  before  Lord 
Thurlow  proceed  upon  this ;   that  in  the  nature  of  the  thing  there  must 


Sec.  8)  EQUITABLE   DEFENSES  433 

be  a  degree  of  good  faith  between  the  parties,  not  to  turn  round  the 
contract  upon  frivolous  objections.  As  to  the  contract  of  the  party 
the  slightest  objection  is  an  answer  at  law.  But  the  title  to  an  estate 
requires  so  much  clearing  and  inquiry,  that  unless  substantial  objec- 
tions appear,  not  merely  as  to  the  time,  but  an  alteration  of  circum- 
stances affecting  the  value  of  the  thing,  or  objections  arising  out  of 
circumstances,  not  merely  as  to  time,  but  the  conduct  of  the  parties 
during  the  time,  unless  the  objection  can  be  so  sustained,  many  of  the 
cases  go  the  length  of  establishing,  that  the  objection  cannot  be  main- 
tained :  even  the  later  cases ;  which  have  given  great  weight  to  the 
objection;  particularly  Harrington  v.  Wheeler,  4  Ves.  686,  referring 
to  older  cases,  particularly  two  in  the  House  of  Lords.  The  objection 
was  not  put  merely  upon  the  conduct  in  not  making  the  title  in  time, 
but  upon  the  circumstances,  connected  with  the  thing  and  the  value 
of  it. 

But  I  need  not  address  myself  to  the  consideration  of  what  is  the 
precise  principle  with  much  industry ;  for  no  authority  would  support 
me  in  saying,  that  under  the  particular  circumstances  of  this  case  the 
defendant  can  resist  a  decree,  if  a  good  title  can  be  made.     *     *     * 

This  case  is  not  like  Lloyd  v.  Collett,  4  Bro.  C.  C.  469,  4  Ves.  689, 
in  the  note,  in  which  the  defendant  immediately  sent  the  abstract  back, 
and  would  not  look  at  it.  What  right  had  this  defendant  to  read  the 
abstract,  if  it  came  too  late?  He  had  either  an  intention  to  execute 
the  contract,  or  a  hope,  that  he  had  time  to  get  through  the  abstract, 
in  order  to  carry  it  into  execution :  but  the  evidence  in  this  respect  is 
totally  silent;  and  it  is  clear  upon  the  objection  stated  in  the  solicitor's 
depositions,  that  at  some  period  or  other  he  had  gone  into  the  abstract. 

As  to  the  other  circumstances,  stated  by  the  defendant,  his  selling 
out  stock,  &c.  there  is  no  evidence  whatsoever.  As  to  his  intention  of 
making  this  place  his  residence,  there  is  nothing  in  the  contract,  having 
the  least  reference  to  that ;  and  upon  an  intention,  not  disclosed  in 
the  contract  or  afterwards,  as  essential,  this  Court  has  never  been 
in  the  habit  of  acting. 

Under  the  circumstances  therefore,  whether  the  time  is  or  is  not  an 
objection,  founded  upon  the  authorities  the  reports  of  this  Court  fur- 
nish, which  I  will  not  discuss,  let  the  authorities  upon  that  point  turn 
the  scale  either  for  the  defendant  or  the  plaintiff,  there  is  no  authority, 
that  has  not  some  reference  to  the  conduct  of  the  party  in  the  mean 
time;  and  upon  the  conduct  this  defendant  has  no  right  under  the  cir- 
cumstances to  say,  this  contract  was  not  performed  within  the  two 
months.  There  must  therefore  be  a  decree  for  a  specific  performance ; 
and,  as  to  all  the  rest,  a  reference  to  the  Master  to  see  whether  a  good 
title  can  be  made.  Where  the  party  has  not  been  able  to  make  his  title 
before  the  decree,  it  is  always  a  question  very  important  as  to  the  costs, 
but  not,  whether  he  shall  take  the  title  or  not.  According  to  old  cases 
it  was  sufficient,  if  the  title  was  made  by  the  time  of  the  report. 
Boke  Eq—  28 


434  SPECIFIC   PERFORMANCE   OF  'CONTRACTS  (Ch.  2 

ELLISON  v.  MOFFATT  et  al. 
(Court  of  Chancery  of  New  York  before  James  Kent,  1814.     1  Johns.  Ch.  46.) 

The  plaintiff  filed  a  bill,  in  1809,  against  the  defendants,  as  the  exec- 
utors, heirs  and  devisees  of  Thomas  Moffat,  deceased,  for  an  account, 
stating  an  agreement,  under  seal,  dated  in  April,  1769,  between  John 
and  William  Ellison  and  the  testator,  by  which  they  agreed  to  furnish 
the  testator  with  a  store  of  goods,  which  he  was  to  sell  on  certain 
terms  ;  and  the  agreement  was  to  continue  for  three  years.  In  April, 
1772,  the  agreement  was  renewed  for  six  years,  and  it  was  unexpired 
when  the  American  revolutionary  war  broke  out,  in  1775,  and  inter- 
rupted the  business.  The  parties  lived  in  the  county  of  Orange.  J.  & 
W.  Ellison  took  the  goods  remaining  unsold,  and  the  books.  The  ob- 
ject in  taking  the  books  was  said  to  be,  to  prevent  the  debts  being  paid 
in  continental  money.  They  returned  them  to  Moffat,  at  the  end  of 
the  war,  and  after  some  of  the  debts  had  been  collected  by  J.  &  W.  El- 
lison. Moffat  died  in  1805,  and  in  October,  1808,  the  books  were  re- 
delivered to  the  plaintiffs,  by  the  executors.  By  the  books,  it  appeared 
that  the  testator  had  received  debts  as  late  as  in  the  year  1791.  The 
bill  charged  that  the  executors  had  offered  to  pay  $2,500  which  was 
refused. 

The  answer  stated  that  executors  were  unable  to  state  an  account, 
having  no  books  nor  vouchers  for  that  purpose ;  that  they  were  ready 
to  deliver  over  the  bonds,  notes,  &c,  which  were  in  their  hands,  when 
required ;  that  the  executors  did  make  such  an  offer  of  payment  in  sat- 
isfaction of  the  plaintiff's  demand ;  but  that  it  was  made  under  a  be- 
lief that  nothing  was  due,  and  with  a  view  to  purchase  peace,  and  to 
avoid  the  expense  of  litigation  with  rich  men,  which  the  estate  of  the 
testator  was  unable  to  bear;  and  they  insisted  on  the  staleness  of  the 
demand,  and  that  it  was  barred  by  lapse  of  time. 

The  Chancellor.  The  parties  lived  in  the  same  county,  and,  with- 
out accounting  for  the  delay,  the  plaintiff  suffered  a  period  of  26  years 
to  elapse,  from  the  termination  of  the  American  war,  to  the  time  of 
filing  his  bill.  The  offer  made  by  the  executors  being  for  peace,  and 
without  any  recognition  of  the  justness  of  the  demand,  and  being  re- 
jected by  the  plaintiff,  cannot  affect  the  question. 

It  would  not  be  sound  discretion  to  overhale  accounts,  in  favour  of 
a  party  who  has  slept  on  his  rights  for  such  a  length  of  time ;  espe- 
cially, against  the  representatives  of  the  other  party,  who  have  no 
knowledge  of  the  original  transactions.  It  is  against  the  principles  of 
public  policy,  to  require  an  account,  after  the  plaintiff  has  been  guilty 
of  so  great  laches. 

The  bill  must  be  dismissed,  on  the  ground  of  the  staleness  of  the 
demand ;   but  without  costs. 


Sec.  8)  EQUITABLE    DEFENSES  435 

MOORE  v.  BLAKE. 
(In  Chancery  in  Ireland,  before  Lord  Manners,  1S0S.     1  Ball  &  B.  62.) 

The  Lord  Chancellor.31  This  cause  comes  before  the  Court 
upon  a  petition  for  a  re-hearing  by  the  defendant,  who  complains  of 
Lord  Chancellor  Ponsonby's  decree,  in  directing  a  specific  execution 
of  the  article  of  1769. 

The  material  facts  of  the  case  are,  that  the  plaintiff,  in  1769,  being 
possessed  of  an  interest  for  years  under  the  see  of  Tuam,  and  being 
then  much  embarrassed  in  his  circumstances,  in  order  to  satisfy  his 
creditors  and  exonerate  himself,  enters  into  a  treaty  with  Darcy  for 
the  sale  of  his  interest;  and  an  article  is  accordingly  executed,  where- 
by Darcy  covenants  to  make  a  lease  at  the  reasonable  request  of  Moore, 
of  a  moiety  of  those  lands,  subject  to  the  rent  of  £5.  5s.  and  half  the 
renewal  fines.  Richard  Moore  thereby  also  covenanting,  to  exonerate 
Darcy  from  all  incumbrances,  affecting  the  lands ;  the  plaintiff  then 
continued  in  possession  of  one  moiety  of  the  lands,  and  Darcy  having 
entered  into  possession  of  the  other  moiety,  in  1777,  sells  his  interest 
to  Richard  Blake,  subject  to  plaintiff's  equitable  interest,  and  at  the 
same  time  assigns  to  him  the  judgments  he  had  obtained  against  the 
plaintiff,  on  the  bonds  passed  by  him ;  during  all  this  period  the  plain- 
tiff remained  in  possession  of  the  moiety.  Blake  afterwards  became 
pressing  for  payment  of  the  judgments,  and  in  1781,  issued  execu- 
tions on  foot  of  them,  and  plaintiff's  equitable  interest  under  the  ar- 
ticle was  taken  and  sold  by  the  sheriff  to  Blake's  brother ;  the  sale 
was  in  fact  to  Blake  himself,  who  immediately  afterwards  brought  an 
ejectment  to  recover  the  possession.  Blake  having  succeeded  therein, 
the  plaintiff  in  1782,  filed  his  original  bill  for  a  specific  execution  of 
the  article  of  1769,  and  obtained  an  answer  before  Blake  executed  the 
habere. 

If  this  suit  had  been  prosecuted  with  reasonable  diligence,  I  am  not 
prepared  to  say,  that  the  equitable  title  of  the  plaintiff,  would  have 
been  more  affected  by  the  sale  in  equity,  than  it  could  have  been  at 
law,  if  the  being  present  at  it  could  have  no  effect.  But  if  any  relief 
would  have  been  given,  it  must  have  been  on  the  terms  of  paying  all 
that  was  due  on  the  foot  of  those  judgments;  for  by  the  article  of 
1769  it  appears,  that  the  equitable  interest  in  these  lands,  was  to  be 
made  a  security  for  the  judgment  of  £200,  and  the  Court  could  never 
have  restrained  Darcy,  or  Blake  his  assignee,  from  issuing  execution  on 
the  judgments ;  there  being  no  principle  either  in  law  or  equity,  to 
prevent  the  conusee  of  a  judgment,  from  levying  the  amount  thereof. 

It  has  been  stated  that  the  sale  by  the  sheriff  was  held  under  circum- 
stances that  were  fraudulent ;  of  that  there  has  been  no  proof ;  and  in 
the  view  I  take  of  the  proceedings,  I  shall  put  the  sale  entirely  out  of 
my  consideration.     The  plaintiff  then  was  in  possession,  judgment  is 

3i  Tbe  statement  of  facts  and  part  of  the  opinion  are  omitted. 


436  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

obtained  on  the  ejectment,  and  in  1782,  the  bill  is  filed,  the  relief  sought 
by  it  was,  in  the  answer  of  the  defendant,  traversed ;  and  in  that  year 
he  was  put  out  of  possession,  to  which  he  submits,  never  making  any 
application  to  restrain  the  proceedings;  he  might  have  applied  for 
an  injunction,  which  probably  would  have  been  granted  upon  the 
terms  of  his  paying  the  money  he  then  owed,  on  the  foot  of  the  judg- 
ments; but  he  neither  does  that,  nor  does  he  proceed  on  his  bill  till 
1801.  Where  is  the  case  or  principle  to  be  found,  which  decides,  that 
a  party  having  an  equitable  title,  and  being  dispossessed,  has,  after  a 
lapse  of  19  years  unaccounted  for,  obtained,  or  is  entitled  to  relief? 
A  bill  of  this  description  (that  is,  for  the  specific  performance  of  an 
agreement)  is  an  application  to  the  discretion,  or  rather  to  the  extraor- 
dinary jurisdiction  of  this  Court,  which  I  apprehend  cannot  be  exer- 
cised in  favour  of  persons,  who  have  so  long  slept  upon  their  rights, 
and  acquiesced  in  a  title  and  possession  adverse  to  their  claim.  Due 
diligence  is  necessary  to  call  this  Court  into  activity,  and  where  it 
does  not  exist,  a  Court  of  Equity  will  not  lend  its  assistance,  it  always 
discountenances  laches  and  neglect ;  and  here  the  plaintiff  does  not 
offer  by  his  bill  to  pay  the  money  he  owes,  he  only  seeks  to  set  off  his 
debts  against  the  rents  and  profits.  Is  a  plaintiff  so  conducting  himself 
entitled  to  call  on  this  Court,  to  exercise  its  discretion,  using  that  dis- 
cretion according  to  the  facts  and  circumstances  of  the  case?  Upon 
the  principles  adopted  by  Courts  of  Equity  in  respect  to  cases  seeking 
a  specific  execution,  I  think  the  laches  equally  as  strong  against  a 
plaintiff  in  not  prosecuting,  as  in  not  commencing  a  suit.     *     *     * 

I  therefore  think  it  inconsistent  with  every  principle  of  equity,  to 
give  relief  to  a  person,  who  has  been  guilty  of  such  laches  in  not  prose- 
cuting his  suit.  A  party  so  conducting  himself  has  lost  his  equity; 
whatever  title  the  plaintiff  may  have  had  in  1782,  must  now  be  so 
materially  varied,  that  I  do  not  feel  myself  authorized,  by  any  prin- 
ciple of  equity,  to  give  him  assistance :  on  these  grounds  I  differ  from 
Lord  Chancellor  Ponsonby. 

The  decree  pronounced  must  be  reversed,*  and  the  bill  dismissed.32 

*  An  appeal  to  the  House  of  Lords  was  taken  from  the  decision  of  Lord 
Manners,  and  there  the  latter  was  reversed.  See  Moore  v.  Blake,  4  Pow.  230, 
246,  247  (1S15-1(>).  There  Lord  Redesdale  said:  "Then  the  only  question  is  as 
to  the  delay.  The  bill  was  filed  the  moment  Blake  executed  this  contrivance, 
and  therefore  there  was  no  undue  delay  in  filing  the  bill,  as  it  was  filed  before 
Moore  was  turned  out  of  possession  under  the  ejectment,  and  before  Blake 
not  possession.  There  was  delay  in  prosecuting  the  suit,  but  then  Blake  might 
have  moved  to  dismiss  the  bill  for  want  of  prosecution.  He  suffered  the  mat- 
ter to  rest  however  until  Moore  proceeded  with  it  and  obtained  a  decree,  from 
which  it  appears  that  the  Lord  Chancellor  acted  upon  somewhat  of  a  mistaken 
notion  of  the  nature  of  the  case.  He  decrees  a  lease  of  a  moiety  to  be  ex- 
ecuted ;  but  it  was  not  a  moiety,  but  a  distinct  portion.  When  the  cause  came 
on  for  a  rehearing  Lord  Manners  dismissed  the  bill,  and  it  was  stated  that  the 
ground  of  that  decision  was  the  delay  in  prosecuting  the  suit.  If  there  was 
no  other  ground,  that  ground  did  not  apply.  Whether  that  was  the  ground 
or  not  I  do  not  know,  but  I  have  heard  of  no  other,  except  the  alleged  practice 

3-  See  footnote  32  on  following  page. 


Sec.  8)  EQUITABLE   DEFENSES  437 

in  Ireland  of  selling  interests  of  this  nature  under  writs  of  fi.  fa.,  and  even 
that  is  stated  to  have  been  the  practice  only  in  1781,  for  I  do  not  understand 
it  to  be  said  that  it  is  the  practice  now.  The  judgment  must  be  somewhat 
special,  as  allowance  must  be  made  to  Blake  for  improvements,  and  the  first 
decree  has  not  provided  for  the  application  of  the  rents  to  the  reduction  of 
the  fines  and  rent  to  tbe  Archbishop,  after  which  they  must  be  applied  to  the 
reduction  of  the  principal  and  interest  of  the  mortgage  money.  This  requires 
further  consideration,  but  the  contract  must  be  held  to  be  still  binding.  On 
the  26th  of  March,  1S16,  the  formal  judgment  was  delivered  in  by  Lord  Redes- 
dale,  reversing  the  decree  of  1808,  and  affirming  that  of  1801  with  alterations 
and  additions  as  above;  Lord  Kedesdale  stating  (Lord  Eldon,  C,  concurring) 
that  the  costs  were  calculated  on  the  principle  that  the  landlord  might  refuse 
to  execute  the  lease  till  paid  his  debt,  interest,  and  costs." 

32  in  Findley  et  al.  v.  Koch  et  al.  (1904)  126  Iowa,  131,  101  N.  W.  766, 
McClain,  J.,  said:  "Without  elaboration,  we  think  the  real  question  before  us 
is  this:  Did  the  plaintiffs  negligently  fail  to  take  such  steps  as  they  should 
have  taken  toward  the  carrying  out  of  the  contract  until  they  found  that 
the  value  of  the  land  had  materially  increased,  and  then  attempt  to  enforce 
specific  performance  merely  because  of  this  increase  in  value,  and  not  on  ac- 
count of  the  continuing  purpose  to  carry  out  the  original  contract?  If  so, 
they  are  not  entitled  to  relief,  for  the  purchaser  has  no  right  to  speculate 
with  the  seller,  practically  abandoning  the  contract  so  far  as  its  performance 
is  concerned,  until  he  finds  that  to  insist  upon  performance  will  be  of  material 
advantage,  and  then,  against  the  interests  of  the  seller  and  to  his  prejudice, 
insist  that  the  contract  shall  be  performed.  A  court  of  equity,  in  the  matter 
of  specifically  enforcing  a  contract  to  convey,  will  insist  on  a  showing  of  the 
utmost  good  faith  on  the  part  of  the  purchaser,  and  require  that  he  make  it 
appear  that  he  has  been  ready,  willing,  able,  and  even  eager  throughout  to 
have  the  contract  enforced,  and  will  refuse  relief  if,  on  account  of  his  negli- 
gence or  unwillingness  at  any  time  to  perform  his  part,  the  performance  has 
been  delayed,  especially  if  such  delay  renders  performance  inequitable  and 
unjust  as  to  the  seller.  *  *  *  Counsel  for  appellants  seem  to  take  the  posi- 
tion, however,  that,  even  though  they  are  not  entitled  to  specific  performance 
or  damages  for  breach,  they  nevertheless  are  entitled  in  this  action  to  recover 
the  purchase  money  paid.  We  do  not  feel  called  upon  to  discuss  the  question 
whether  in  any  event  they  can  be  entitled  to  have  back  the  money  paid,  where 
the  failure  of  vendor  to  carry  out  the  contract  has  been  due  to  their  own 
fault.  If  there  is  any  such  right  of  recovery,  it  is  subject  to  a  counterclaim 
for  any  proximate  damages  resulting  to  defendant  Koch  from  the  breach  of 
the  contract  on  the  part  of  plaintiffs.  But  these  questions  are  not  for  deter- 
mination in  this  action.  Of  course,  in  an  action  for  specific  performance,  the 
plaintiff  may  have  relief  by  way  of  damages,  if,  on  account,  of  any  fault  or 
wrong  on  the  part  of  defendant,  or  any  change  of  condition  not  due  to  the 
plaintiff's  fault,  equitable  relief  by  way  of  decree  for  specific  performance 
cannot  be  effectually  afforded.  But  certainly  a  court  of  equity  in  an  action 
for  specific  performance  cannot  render  damages  on  account  of  the  refusal  of 
the  defendant  to  return  the  purchase  money  paid.  Such  relief  cannot  be 
predicated  on  breach  of  contract  to  convey,  but,  if  available  under  any  cir- 
cumstances, is  to  be  secured  in  an  action  sounding  in  quasi  contract.  The  trial 
court  was  right,  therefore,  in  dismissing  plaintiffs'  bill,  saving  to  the  plain- 
tiffs the  right  to  sue  at  law  by  way  of  original  action,  and  to  defendants  the 
right  to  interpose  by  counterclaim,  or  to  prosecute  in  an  original  action  any 
claim  which  may  exist  on  account  of  plaintiffs'  breach  of  contract." 


438  SPECIFIC    PERFORMANCE    OF    CONTRACTS  (Ch.  2 

SOUTHERN  PAC.  R.  CO.  v.  ALLEN. 

(Supreme  Court  of  California.  1896.     112  Cal.  435,  44  Pae.  798.) 

Appeal  from  a  judgment  of  the  Superior  Court  of  the  City  and  Coun- 
ty of  San  Francisco;  John  M.  Seawell,  Judge.  The  facts  are  stated 
in  the  opinion  of  the  court. 

Van  Fleet,  J.33  This  is  an  appeal  from  the  judgment,  upon  the 
judgment  roll.  The  action  is  to  compel  the  payment  of  moneys  al- 
leged to  be  due  under  contracts  for  the  purchase  of  lands,  and,  in  de- 
fault of  payment,  to  foreclose  defendant's  rights  under  the  contracts, 
and  for  general  relief.  The  action  is  on  more  than  one  contract,  but 
they  are  alike  in  terms,  and  one  will  serve  as  a  type  of  all.  Plaintiff 
agreed  to  sell,  and  defendant  to  buy,  a  certain  piece  of  land.  At  the 
date  of  the  contract,  defendant  paid  one-fifth  of  the  purchase  price,  and 
one  year's  interest  upon  the  unpaid  portion,  and  agreed  to  pay  the 
same  interest  annually  in  advance  until  the  completion  of  the  purchase, 
or  the  termination  of  the  contract,  together  with  all  taxes  and  assess- 
ments levied  upon  the  land,  and  to  pay  the  remainder  of  the  purchase 
price  "on  or  before  the  1st  day  of  February,  1893."  Defendant  is 
given  the  right  of  immediate  possession  of  the  land,  and,  upon  the 
performance  of  all  the  conditions  of  his  contract,  is  to  receive  a  deed 
for  the  land,  which  deed  plaintiff  agrees  to  make,  upon  demand,  "after 
the  receipt  of  a  patent  therefor  from  the  United  States."     *     *     * 

This  action  was  brought  upon  default  of  defendant  in  paying  the 
second,  third,  and  fourth  years'  installments  of  interest.  It  was  com- 
menced before  the  expiration  of  the  five-years  limitation  for  the  pay- 
ment of  the  balance  of  the  purchase  money,  but  was  brought  to  trial 
and  decided  after  the  lapse  of  that  period.  Defendant,  by  answer,  de- 
nied title  in  plaintiff,  and,  by  cross  complaint,  alleged  false  representa- 
tions by  plaintiff  of  its  title,  injury  to  himself  therefrom,  and  con- 
cluded with  an  offer  of  rescission,  and  demand  for  a  return  of  the 
moneys  paid  by  him.  The  findings  are  in  favor  of  plaintiff,  except  as 
to  the  fact  of  possession  by  defendant  of  the  lands  described  in  the 
complaint,  and  against  the  answer  and  cross  complaint ;  and  the  decree 
requires  defendant  to  pay  within  six  months  the  amount  found  due 
as  unpaid  interest,  or  be  debarred  and  foreclosed  of  all  right  and  inter- 
est in  and  to  said  lands,  and  in  and  under  the  contracts.     *     *     * 

The  whole  framework  of  the  contracts  shows  that  both  parties 
understood  that  the  question  whether  or  not  patents  would  issue  was 
one  of  uncertainty,  and  that  it  was  impossible  to  know  in  advance  when 
that  question  would  be  "finally  determined."  Defendant,  with  full 
knowledge  of  that  fact,  contracted  to  make  his  payments  at  all  events, 
and  within  certain  specified  times ;  merely  reserving  the  right  to  a  re- 
payment of  the  money  in  case  the  particular  title  contracted  for  should 

'■■'■'•  I 'arts  of  the  opinion  of  Van  Fleet,  J.,  and  the  dissenting  opinion  of  llen- 
shaw,  J.,  are  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  439 

fail.  Under  these  circumstances,  the  obtaining  of  patents  could  not 
be  a  condition  precedent  to  his  obligation  to  make  the  deferred  pay- 
ments.    *     *     * 

The  decree  gave  the  defendant  the  alternative  of  paying  within  six 
months,  or  suffering  foreclosure,  and  this  was  in  accordance  with 
equity.  It  may  be,  in  view  of  the  fact  that  the  action  was  tried  after 
the  expiration  of  the  time  for  the  payment  of  the  last  installment  of 
the  purchase  price,  that  the  decree  should  have  required  the  defendant 
to  pay  the  balance  of  the  principal,  as  well  as  the  unpaid  installments 
of  interest;  but  the  error,  if  any,  in  that  particular,  is  in  favor  of  de- 
fendant, and  cannot  be  considered  on  his  appeal.  It  follows  from 
these  considerations  that  plaintiff  is  entitled  to  the  relief  granted  by 
the  court  below,  and  that  the  judgment  must  be  affirmed.  It  is  so  or- 
dered. 

We  concur:   McFarlaxd,  J. ;   Garoutte,  J. ;   Harrison,  J.34 

34  See  Turn  Yerein  FAc-he  v.  Kionka  (1912)  255  111.  392,  99  N.  E.  684,  43 
L.  R.  A.  (X.  S.)  44,  in  which  the  court  said:  "We  think  the  i<roof  warrants  the 
conclusion  that  the  real  reason  for  the  failure  of  appellant  to  perform  its  part 
of  the  agreement  within  the  time  limited  was  that  it  did  not  have  the  money. 
It  had  some  negotiations  with  an  officer  of  the  Pullman  Bank  and  certain 
officers  of  a  brewing  company ;  and  witnesses  testified  they  had  received  prom- 
ises of  the  money,  and  the  presiuent  of  the  brewing  company  testified  he  was 
ready,  on  24  hours'  notice,  to  furnish  the  balance  of  the  money  to  pay  for  the 
property.  Nevertheless,  the  money  was  not  forthcoming  during  the  lifetime 
of  the  contract,  and,  as  we  have  seen,  on  the  13th  of  April  a  committee  was 
appointed  to  secure  an  extension  of  time.  Appellee  offered  to  extend  the  time 
upon  the  payment  of  .$2,000  in  cash.  This  sum  was  not  paid,  and  he  was  un- 
der no  obligation  to  extend  the  time,  and  was  under  no  obligation  to  offer  to 
fulfill  his  part  of  the  agreement  after  the  time  fixed  by  the  written  agree- 
ment expired.  In  our  view  appellant's  proof  entirely  fails  to  meet  the  re- 
quirement necessary  to  authorize  a  decree  for  the  specific  performance  of  a 
contract  to  convey  real  estate.  The  rule  is  that  specific  performance  can 
never  be  demanded  as  a  matter  of  absolute  right.  It  rests  in  sound  judicial 
discretion ;  but,  where  all  the  necessary-  incidents  and  conditions  are  proven 
by  satisfactory  evidence,  the  relief  should  be  decreed  as  a  matter  of  right, 
and  not  as  a  mere  favor.  Evans  v.  Gerry  (1S9S)  174  111.  595,  51  X.  E.  615. 
The  party  seeking  to  enforce  specific  performance  must  prove  he  has  com- 
plied with,  or  that  he  was  able,  ready,  and  willing  to  comply  with,  the  terms 
of  the  contract,  but  was  prevented  from  doing  so  by  the  refusal  of  the  other 
party  to  perforin  it  on  his  part.  The  proof  in  such  cases  must  be  clear  and 
satisfactory.  Ralls  v.  Ralls  (1876)  82  111.  243;  Rutherford  v.  Sargent  (1874) 
71  111.  339 ;  Hatch  v.  Kizer  (1892)  140  111.  583,  30  N.  E.  005,  33  Am.  St.  Rep. 
25S.  Where  the  parties  have  made  the  time  of  performance  material,  a  court 
of  equity  has  no  power  to  enforce  performance  contrary  to  the  expressed  in- 
tentiou  of  the  parties  (Skeen  v.  Patterson,  180  111.  289,  54  N.  E.  190),  and 
courts  'will  indulge  no  presumptions  in  favor  of  a  waiver  or  abandonment  of 
the  contract,  nor  will  they  infer  waiver  or  abandonment  from  slight  proof 
(Evans  v.  CJerry,  supra).  It  seems  very  clear  that  appellant  did  not  make  a 
case  entitling  it  to  have  the  contract  specifically  performed." 


440  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

PEGG  v.  WISDEN. 

(Ill  Chancery,  1S52.     16  Beav.  239,  51  E.  R.  770.) 

On  the  21st  of  April,  1846,  the  Plaintiff  entered  into  a  contract  with 
the  Defendant,  which  was  expressed  in  a  letter  addressed  by  the 
Plaintiff  to  the  Defendant  in  the  following  terms : 

''Deal'  Sir:  I  undertake  and  agree  to  hire  of  you  the  house  and  buildings 
called  New  England  farm,  at  a  rental  of  £100  per  annum,  from  the  24th  June 
now  next  ensuing,  together  with  the  land,  being  about  five  acres,  and  I  agree 
to  pay  down  to  you,  on  that  day,  the  sum  of  £050,  and  it  is  understood  and 
agreed,  that  I  am  to  have  a  purchasing  clause  of  the  said  estate,  at  any  time 
witbin  nine  years,  by  giving  you  three  months'  notice,  for  the  sum  of  £2500  in 
addition  to  tbe  sum  of  £650." 

The  Plaintiff  paid  the  £650,  entered  into  possession,  and  made  alter- 
ations and  improvements  on  the  property. 

On  the  14th  of  May,  1850,  the  Plaintiff  gave  the  Defendant  notice 
to  purchase  and  required  an  abstract  of  title,  which  was  not  sent  until 
the  4th  of  July-  The  three  months  expired  on  the  14th  of  August, 
after  which,  on  the  4th  of  September,  the  Defendant's  solicitor  wrote 
as  follows : 

''It  is  now  more  tban  three  months  since  Mr.  Pegg  gave  notice  of  his  inten- 
tion to  purchase,  and  our  client  is  very  urgent.  We  should  be  very  sorry  to 
take  any  hostile  measures,  but  sball  be  obliged  to  do  so,  if  there  be  any  fur- 
ther delay,  and  hope  to  hear  from  you  without  loss  of  time." 

On  the  2d  of  November  the  Defendant  gave  the  Plaintiff  notice  that, 
unless  he  completed  his  purchase  on  or  before  the  14th  of  December, 
1850,  he  should  treat  the  notice  of  purchase  void,  and  the  right  of 
purchase  as  forfeited.  On  the  5th  of  December  the  Plaintiff's  solicitor 
applied  to  know  where  the  deeds  might  be  examined,  which  applica- 
tion was  answered  on  the  6th  of  December,  and  disputes  then  arose 
as  to  the  costs  to  be  borne  by  the  Defendant,  and  some  profitless  cor- 
respondence took  place  on  the  subject. 

The  six  weeks  having  expired  on  the  14th  of  December,  the  De- 
fendant refused  to  complete,  and  the  Plaintiff  filed  his  bill  for  a  specif- 
ic performance  on  the  10th  of  January,  1851.  The  cause  now  came 
on  for  hearing.     *     *     * 

The  Master  of  the  Rolls  [Sir  John  Romilly].35  I  have  no 
doubt  as  to  some  portion  of  the  decree  which  the  Plaintiff  is  entitled 
to.  I  fully  concur  in  the  observations  as  to  the  law  of  the  Court ;  but 
the  only  question  is  as  to  its  application. 

The  first  point  was,  whether  under  the  contract  I  was  to  read  the 
following  words  in  this  contract : 

"I  am  to  have  a  purchasing  clause  of  the  estate,  at  any  time  witbin  nine 
years,  by  giving  you  three  months'  notice,  for  the  sum  of  £2500  in  addition 
to  the  sum  of  £650" 

35  Part  of  the  opinion  is  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  441 

to  mean  this : 

"I  am  to  have,  &c. ;  but  if,  at  the  expiration  or  end  of  three  months,  the 
purchase  is  not  completed,  the  option  shall  be  gone,  and  you  shall  not  be  en- 
titled to  purchase  the  estate  at  all." 

I  am  of  opinion  that  to  introduce  such  a  clause  would  be  not  only 
straining  the  words  of  the  contract,  but  be  introducing  something 
totally  foreign  to  the  intention  of  the  parties. 

I  concur  in  this :  that  this  case  must  be  looked  at  as  an  ordinary 
case  of  a  purchase  by  a  tenant  from  his  landlord ;  and  that  if  a  land- 
lord lets  property  to  a  tenant,  and  says,  "You  shall  have  the  opportuni- 
ty of  purchasing  within  a  given  time,"  the  condition  is  to  be  construed 
strictly.  Here  three  months'  notice  was  to  be  given,  and  I  am  of  opin- 
ion that  at  the  expiration  of  the  three  months  from  the  14th  of  May, 
the  relation  of  vendor  and  purchaser  was  constituted  between  the  par- 
ties, and  that  the  Plaintiff  had  ceased  to  be  tenant,  and  in  equity,  be- 
came owner  of  the  estate. 

Is  time  of  the  essence  of  the  contract?  In  terms  it  is  not,  and  it  can- 
not be  said,  that  if  the  contract  be  not  completed  at  the  end  of  three 
months,  the  contract  is  determined.  But  if  time  had  originally  been 
of  the  essence  of  the  contract,  I  think  it  was  waived.  The  vendor  was 
fifty-one  days  before  he  delivered  the  abstract,  and  after  the  three 
months  had  expired,  he  insisted  on  the  contract ;  for  on  the  4th  of  Sep- 
tember he  writes,  in  effect,  "if  there  be  any  further  delay  in  completing, 
I  must  take  hostile  measures  to  compel  you."  I  think,  therefore,  that 
the  three  months  did  not  limit  any  time,  and  that  if  it  did,  it  was  waived 
by  that  letter. 

The  argument  rested  on  the  notice  on  the  2d  of  November,  1850,  in 
which  the  Defendant  said,  if  you  do  not  complete  within  six  weeks,  I 
shall  insist  that  the  contract  is  at  an  end.  There  is  a  great  peculiarity 
in  this  case,  arising  out  of  the  relation  of  the  parties.  The  purchaser 
was  in  possession,  interest  was  paid  either  in  the  shape  of  rent  or  as 
interest,  and  the  Defendant  peremptorily  fixes  six  weeks  for  the  com- 
pletion of  the  purchase.  What  takes  place?  The  Defendant  has  never 
waived  the  six  weeks;  but  he  has  given  the  Plaintiff  a  shorter  time  to 
complete  than  he  himself  took  for  the  delivery  of  the  abstract.  In  the 
meantime,  the  purchaser  goes  on  to  complete,  and  during  the  interval, 
takes  steps  to  satisfy  himself  of  the  title,  and  proceeds  to  examine 
whether  the  abstract  corresponded  with  the  deeds.  This  goes  on  down 
to  the  10th  of  December,  1850,  when  a  foolish  squabble  arose  as  to  the 
expenses,  which  seems  to  have  been  settled.  This  occasioned  some 
delay  in  the  verification  of  the  abstract,  and  five  more  days  having 
elapsed,  the  Defendant  says,  "I  bind  you  to  the  six  weeks,  and  will 
not  complete  the  purchase,"  and  he  obliges  the  Plaintiff  to  file  his  bill 
on  the  10th  of  January,  1851. 

In  this  state  of  things,  I  am  of  opinion  that  time  was  not  of  the 
essence  of  the  contract,  and  was  not  made  so,  and  that  the  Plaintiff  is 
entitled  to  have  a  specific  performance  of  the  contract. 


442  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

I  concur  with  the  authorities  that  where  a  condition  is  necessary  to 
be  performed  by  one  to  entitle  him  to  become  a  purchaser,  it  must  be 
strictly  performed.  I  concur  also  in  the  decisions,  that  where  time  is 
not  originally  the  essence  of  the  contract,  it  may,  in  the  case  of  im- 
proper delay,  be  made  so  by  notice;  but  I  think  the  relation  between 
these  parties  was  such  that  six  weeks  was  not  a  reasonable  time  within 
which  the  Defendant  was  entitled  to  insist  on  having  it  performed. 

Mr.  R.  Palmer.  There  is  no  allegation  in  the  pleadings  that  the  title 
has  been  accepted. 

The  Master  of  the,  Roees.  Then  as  I  cannot  say  that  there  has 
been  an  acceptance  of  the  title,  I  will,  if  the  Defendant  asks  it,  give 
him  a  week  to  bring  his  objections  into  my  chambers,  and  they  will 
then  be  argued  in  open  Court.  I  shall  not  follow  the  rule  as  to  inquir- 
ing when  a  good  title  was  first  shewn,  for  the  Plaintiff  having  succeed- 
ed is  entitled  to  the  costs  down  to  the  hearing. 


WRIGHT  v.  BROOKS  et  al. 
(Supreme  Court  of  Montana,  1913.    47  Mont.  99,  130  Pac.  968.) 

Sanner,  J.36  The  amended  complaint  alleges,  substantially,  that  in 
July,  1898,  the  respondent  bought  two  certain  lots  in  the  city  of  Lewis- 
town  at  the  price  of  $200  from  Henry  P.  Brooks,  who  was  then  the 
owner;  that  the  respondent  immediately  went  into  possession,  and 
has  since  been  in  the  "actual,  quiet,  open,  notorious,  undisturbed,  and 
exclusive  possession"  of  said  lots,  and  has  placed  valuable  improve- 
ments thereon ;  that  Henry  P.  Brooks  died  leaving  a  will,  under  which 
the  appellant,  John  Brooks,  was  made  residuary  legatee,  and  by  judi- 
cial decree  the  said  lots  have  been  distributed  to  John  Brooks  as  residu- 
ary legatee ;  that  John  Brooks  lias  sold  said  lots  to  appellant  Kettleson ; 
that  prior  to  the  death  of  Henry  P.  Brooks,  and  when  the  distribution 
occurred,  the  appellant  John  Brooks  had  actual  notice  of  the  rights  and 
claims  of  respondent  and  of  the  existence  of  said  agreement,  and  that 
the  appellant  Kettleson,  prior  to  his  purchase,  had  actual  notice  of 
the  rights  and  claims  of  respondent;  that  respondent  has  always  been 
ready  and  willing  to  pay  for  the  lots  upon  conveyance  of  the  same  to 
him;  that  at  divers  times  he  demanded  a  conveyance  of  Henry  P. 
Brooks,  and  also  of  John  Brooks,  and  offered  to  pay  the  purchase  price, 
but  acceptance  of  payment  and  issuance  of  deed  have  been  refused ; 
that  about  August  30,  1911,  the  appellant  Kettleson,  without  the  con- 
sent and  against  the  instructions  of  respondent,  went  upon  the  said 
lots  and  tore  down  the  fence  inclosing  the  same,  and  tore  down  the 
fence  inclosing  his  poultry  yard,  and  is  making  preparations  to  erect 

3G  Parts  of  the  opinion  are  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  443 

a  house  upon  said  lots.  It  is  prayed,  among  other  things,  that  re- 
spondent be  adjudged  the  owner  of  said  lots;  that  a  decree  be  entered 
requiring  appellant  to  convey  upon  payment  of  $200;  and  that  appel- 
lants be  enjoined  from  asserting  any  interest  or  title  in  the  lots  or  in- 
terfering with  the  same. 

This  pleading  was  attacked  by  a  demurrer  on  three  grounds,  two  of 
which  are  that  it  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action,  and  that  there  is  improperly  united  therein  a  cause  of  action  bas- 
ed upon  adverse  possession  for  more  than  10  years  with  a  cause  of  action 
for  the  specific  performance  of  an  alleged  contract  of  sale.     *     *     * 

The  point  of  the  general  demurrer  is  that  the  agreement  was  made 
in  July,  1898,  and  the  suit  was  commenced  in  September,  1911,  thus 
disclosing  a  period  of  over  13  years  in  which  respondent  did  nothing 
in  assertion  of  his  rights ;  that,  in  the  absence  of  excusatory  averments, 
this  is  laches  appearing  upon  the  face  of  the  pleading  by  which  equity 
is  negatived,  and  therefore  a  general  demurrer  will  lie.  The  argument 
is  plausible,  but  ineffective.  Assuming  that,  where  laches  appears  on 
the  face  of  the  complaint,  advantage  thereof  may  be  taken  by  demur- 
rer for  substance,  and  conceding  that,  following  the  maxim,  "Equity 
aids  the  vigilant,"  laches  may  arise  from  an  unexplained  delay  short 
of  the  period  fixed  by  the  statute  of  limitation  (American  Mining  Co. 
v.  Basin  &  Bay  State  Min.  Co.,  39  Mont.  483,  104  Pac.  525,  24  L,  R. 
A.  [N.  S.]  305;  Wolf  v.  Great  Falls  W.  P.  &  T.  Co.,  15  Mont.  49,  38 
Pac.  115)  still  laches  wTill  not  be  presumed  from  such  a  delay  alone. 
16  Cyc.  179;  Lux  v.  Haggin,  69  Cal.  267,  4  Pac.  919,  10  Pac.  674; 
Marsh  v.  Lott,  156  Cal.  647,  105  Pac.  968.  Now,  the  statute  invoked 
here  is  section  6451,  Revised  Codes,  and  whether  we  apply  it  as  in  it- 
self a  bar,  or  as  a  test  for  laches,  the  question  arises :  When,  as  to 
this  case,  did  it  commence  to  run  ?     *     *     * 

Much  space  is  devoted  in  the  brief  of  appellants  to  the  statute  of 
limitations  and  to  the  question  of  laches.  We  have  discussed  these 
matters,  so  far  as  raised  by  the  demurrer  to  the  amended  complaint, 
and  the  question  now  is  whether  limitation  or  laches  is  disclosed  by 
the  evidence.  According  to  the  evidence  respondent  made  several  de- 
mands on  Henry  P.  Brooks  for  a  deed,  which  was  promised,  but  de- 
ferred; in  the  year  of,  or  the  year  before,  the  death  of  Henry  P. 
Brooks,  respondent  made  a  final  demand  upon  him,  as  well  as  upon 
John  Brooks,  and  then  occurred  the  first  refusal  to  complete  the 
agreement ;  Henry  P.  Brooks  died  in  February,  1909 ;  the  first  hostile 
invasion  of  respondent's  possession  occurred  August  30,  1911,  and  this 
action  was  commenced  on  September  9,  1911.  We  fail  to  see  how 
this  action  can  be  held  barred  by  the  provision  argued  in  the  brief 
(Rev.  Codes,  §  6451),  or  by  any  of  the  statutes  pleaded  in  the  answers. 
And  if  it  is  borne  in  mind  that,  where  payment,  which  is  to  be  con- 
current with  the  conveyance,  is  prevented  by  the  vendor's  fault,  the 
case  is  the  same  as  though  payment  were  made,  it  can  be  readily  seen 
that  the  authorities  cited  in  support  of  the  contention  of  appellants  do, 


444  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

when  rightly  understood,  make  for  the  very  opposite  conclusion.  See 
Edwards  v.  Beck,  57  Wash.  80,  106  Pac.  492 ;  Love  v.  Watkins,  supra ; 
Brennan  v.  Ford,  46  Cal.  14;  Gerdes  v.  Moody,  41  Cal.  350. 

As  to  laches,  we  have  already  indicated  that  the  weight  of  author- 
ity denies  the  application  of  this  doctrine  to  the  vendee  in  possession 
prior  to  challenge  of  his  title  or  right  of  possession.  But  the  appel- 
lants cite,  among  others,  three  decisions  of  this  court :  Wolf  v.  Great 
Falls  W.  P.  &  T.  Co.,  supra,  American  Min.  Co.  v.  Basin  &  Bay  State 
Min.  Co.,  supra,  and  Streicher  v.  Murray,  36  Mont.  45,  92  Pac.  36, 
upon  which  we  are  asked  to  decide  that  laches  did,  as  a  matter  of  fact, 
appear  upon  the  trial  of  this  case.  These  citations  are  not  in  point ; 
the  last  two  are  not  even  suggestive,  except  as  to  certain  general  state- 
ments, to  the  effect  that  laches  may  or  may  not  exist  independently  of 
the  statute  of  limitations,  but  depending  upon  the  circumstances  of 
the  individual  case. 

In  Wolf  v.  Great  Falls  W.  P.  &  T.  Co.,  however,  a  case  of  laches 
was  held  established  in  an  action  for  specific  performance,  upon  the 
theory  that  abandonment  of  his  claim  by  the  vendee  was  shown  by  the 
following  circumstances  :  A  written  agreement  was  made  for  the  sale 
of  a  town  lot  in  Great  Falls  for  the  purchase  price  of  $350,  payable 
in  installments  at  fixed  times ;  it  was  expressly  stipulated  that  "the 
above  premises  are  sold  to  said  second  party  for  improvement,  and  the 
said  party  of  the  second  part  agrees  and  obligated  himself,  heirs  and 
assigns,  that  he  or  they  will  on  or  before  the  first  day  of  August,  1887, 
build  and  construct  a  frame  building  of  the  value  not  less  than  $500;" 
the  vendee  was  also  to  pay  the  taxes ;  the  execution  and  delivery  of 
the  deed  was  made  contingent  upon  the  prior  performance  of  the  con- 
ditions imposed  upon  the  vendee,  and  the  vendee  was  given  possession 
under  the  agreement;  the  vendee  did  not  pay  the  installments  of  the 
purchase  price,  nor  the  taxes ;  nor  did  he  construct  to  completion  the 
improvement  as  agreed ;  the  successor  in  interest  of  the  vendor  took 
possession  after  default  in  these  matters ;  later,  and  on  October  22, 
1887,  the  vendee  tendered  the  balance  of  the  purchase  price,  which 
was  refused;  on  April  29,  1891,  he  commenced  his  action  for  specific 
performance,  and  no  explanation  was  offered  in  the  pleadings  or  at 
the  trial  for  the  delay.  The  above  not  only  shows  how  divergent  was 
the  situation  from  the  case  at  bar,  but  illuminates  the  following  lan- 
guage of  the  decision : 

"We  have  confined  the  consideration  to  the  question  as  to  whether  the 
plaintiff  was  guilty  of  inexcusable  laches  in  commencing  his  suit  for  specific 
performance  after  he  was  ousted  from  the  possession  of  the  real  estate  in 
question,  and  knew  that  the  defendant  would  not  comply  with  the  contract 
of  sale  thereof,  unless  compelled  to  do  so." 

Equally  inept,  for  appellants'  purposes,  is  the  decision  in  Marsh  v. 

Lott,  supra,  in  which  the  Supreme  Court  of  California  said : 

"Of  course,  notwithstanding  the  delay  in  moving  to  enforce  the  alleged  con . 
tract,  the  circumstances  may  be  such  as  to  prevent  any  presumption  of  ac- 
quiescence or  abandonment,  as,  for  instance,  where  a  vendee  is  in  possession 


Sec.  8)  EQUITABLE   DEFENSES  445 

of  the  property  under  the  alleged  contract  and  continues  in  such  possession, 
claiming  under  the  contract,  notwithstanding  the  attempted  repudiation." 

We  think  that  all  the  findings  are  sufficiently  supported  by  the  evi- 
dence, and  that  the  case,  taken  as  a  whole,  authorizes  the  decree. 
The  judgment  and  order  appealed  from  are  affirmed. 
Affirmed. 
Brantly,  C.  J.,  and  Holloway,  J.,  concur.37 


TALMASH  v.  MUGLESTON. 
(In  Chancery  before  Sir  John  Leach,  1826.    4  Law  J.  Ch.  200.) 

The  bill  was  filed  for  the  specific  performance  of  an  agreement, 
dated  in  1806,  by  which  the  defendants  agreed  to  sell  certain  premises 
to  the  plaintiff:  £100  had  been  paid  as  a  deposit.  Great  mutual  de- 
lays had  taken  place ;  and  the  bill  stated  a  correspondence  between  the 
solicitors  of  the  parties,  which  continued  at  intervals  throughout  sev- 
eral years.  The  last  letter  was  dated  in  1815,  and  was  written  on  the 
subject  of  the  title,  by  the  solicitor  of  the  plaintiff  to  the  solicitor  for 
the  defendants.  The  bill  averred  that  the  contract  had  not  been  re- 
scinded or  abandoned.38     *     *     * 

The  defendants  pleaded  the  statute  of  limitations. 

Mr.  Koe  appeared  in  support  of  the  plea. 

The  contract  was  made  nearly  twenty  years  ago;  and  the  last  trans- 
action, mentioned  in  the  bill,  precedes  the  institution  of  the  suit  by 
much  more  than  six  years.  If  the  plaintiff  brought  an  action  of  dam- 
ages for  non-performance  of  the  contract,  the  statute  would  be  a  bar 

37  "The  fourth  and  last  question  is,  are  plaintiffs  barred  by  laches,  or  lapse 
of  time?  Our  decisions  say  no.  They  hold  that  the  defense  of  laches  will  not 
avail  a  defendant  in  a  suit  for  specific  performance  of  a  contract,  where  the 
vendee,  his  heirs  or  assigns,  are  in  possession,  acquired  under  the  contract, 
though  many  years  may  have  elapsed  between  the  date  of  the  contract  and 
the  time  of  the  suit  for  specific  performance."  Mills  et  al.  v.  McLanahan  et  al. 
(1912)  70  W.  Va.  288,  73  S.  E.  927. 

In  Redgrave  v.  Hurd  (1881)  L.  R.  20  Ch.  Div.  13,  Jessel,  M.  R.,  said:  "There 
is  another  proposition  of  law  of  very  great  importance  which  I  think  it  is 
necessary  for  me  to  state,  because,  with  great  deference  to  the  very  learned 
Judge  from  whom  this  appeal  comes,  I  think  it  is  not  quite  accurately  stated 
in  his  judgment.  If  a  man  is  induced  to  enter  into  a  contract  by  a  false  rep- 
resentation it  is  not  a  sufficient  answer  to  him  to  say,  'If  you  had  used  due 
diligence  you  would  have  found  out  that  the  statement  was  untrue.  You  had 
the  means  afforded  you  of  discovering  its  falsity,  and  did  not  choose  to  avail 
yourself  of  them.'  I  take  it  to  be  a  settled  doctrine  of  equity,  not  only  as  re- 
gards specific  performance  but  also  as  regards  rescission,  that  tbis  is  not  an 
answer  unless  there  is  such  delay  as  constitutes  a  defence  under  the  statute  of 
limitations.  That,  of  course,  is  quite  a  different  thing.  Under  the  statute  de- 
lay deprives  a  man  of  his  right  to  rescind  on  the  ground  of  fraud,  and  the 
only  question  to  be  considered  is  from  what  time  the  delay  is  to  be  reckoned. 
It  had  been  decided,  and  the  rule  was  adopted  by  the  statute,  that  the  de- 
lay counts  from  the  time  when  by  due  diligence  the  fraud  might  have  been 
discovered." 

3  3  The  statement  of  facts  is  abridged. 


446  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

to  him  :  and,  by  analogy,  it  will  be  a  defence  to  a  suit  in  equity.  It  is 
not  the  practice  of  the  court  to  decree  a  specific  performance,  if  the 
party  has  lain  by  for  more  than  six  years.     *     *     * 

Mr.  Shadwell  contra. 

The  plea  of  the  statute  of  limitations  cannot  by  itself  be  a  good  plea : 
it  must  always  be  supported  by  averments  bringing  the  case  within  the 
statute.  In  this  plea  there  is  nothing  which  meets  the  allegation  in  the 
bill,  that  the  contract  has  never  been  abandoned  or  rescinded. 

The  only  averment  in  it  is,  that  the  bill  was  filed  on  a  certain  day. 

Yice-CiiancEllor.  It  was  not  necessary  to  plead  on  what  day  the 
bill  was  filed ;  that  is  apparent  on  the  record.  But  what  has  the  stat- 
ute of  limitations  to  do  with  the  specific  performance  of  a  contract? 
The  rule  of  this  court,  which  refuses  to  enforce  the  specific  perform- 
ance of  a  contract  after  a  certain  interval,  does  not  result  from  the 
statute  of  limitations.  Suppose  the  rule  to  be  adopted  by  analogy  to 
the  statute,  that  would  not  enable  a  defendant  to  plead  the  statute. 

The  statute  of  limitations  never  can  be  made  available  in  any  court, 
unless  pleaded ;  for  a  party  may  abandon  the  protection  which  it  throws 
around  him.  But  this  court,  like  every  other,  is  bound  to  take  notice 
of  every  public  statute  for  the  purposes  of  analogy,  and  of  the  statute 
of  limitations  among  the  rest.  Where  a  court  of  equity  proceeds  by 
analogy  to  the  statute,  it  is  bound  to  know  the  statute,  in  order  to 
apply  the  analogy.  It  is  not  necessary,  therefore,  to  plead  the  statute ; 
nor  can  the  rule  of  the  court,  and  the  analogy  on  which  it  is  founded, 
enable  the  party  to  protect  himself  by  such  a  plea.  If  the  case  stated 
in  the  bill  is  of  such  a  kind,  that  the  Court,  according  to  its  known 
rules,  will  refuse  to  decree  specific  performance,  the  defendant  ought 
to  demur.  It  can  serve  no  end  for  him  to  put  in  a  plea,  which  only 
states  an  act  of  parliament,  to  which  the  Court,  in  applying  its  rules 
by  analog}-  to  that  statute,  would  be  bound  to  advert.  It  is  impossible 
that  the  statute  can  be  a  bar  to  a  species  of  suit  to  which  it  has  no  ref- 
erence. 

If  the  case  appears  sufficiently  on  the  bill  to  lay  a  proper  foundation 
for  the  application  of  the  principle  alluded  to  in  the  cases  which  have 
been  cited,  the  defendant  ought  to  have  demurred ;  and,  in  support  of 
that  demurrer,  the  argument  would  have  been,  that  it  appears  by  the 
plaintiff's  own  showing,  that,  if  he  were  to  proceed  at  law,  he  could 
not  recover  damages,  and  consequently  the  Court,  adopting  by  analogy 
the  legal  rule,  will  refuse  to  assist  him. 

If  the  circumstances  did  not  appear  on  the  bill  so  as  to  warrant  the 
application  of  the  rule,  it  would  then  be  necessary  to  plead  the  facts, 
which  were  suppressed  by  the  bill,  and  which  were  supposed  to  bring 
the  case  within  the  range  of  the  equitable  principle. 

Mr.  Koe  submitted,  that,  in  Hony  v.  Hony,  1  S.  &  S.  568,  where 
that  which  might  have  been  the  subject  of  an  action  was  made  matter 
of  complaint  in  a  bill  in  equity,  it  was  not  even  attempted  to  be  argued 
that  the  plea,  though  bad  for  another  reason,  was  bad  on  the  ground 


Sec.  8)  EQUITABLE   DEFENSES  447 

now  suggested ;  namely,  that  the  statute  of  limitations,  which  would 
have  been  a  bar  at  law,  would  not  be  a  bar  also  to  the  equitable  relief. 

Vice-Chancellor.  In  that  case,  this  court  had  a  concurrent  juris- 
diction with  a  court  of  law ;  and,  consequently  what  would  be  a  good 
plea  at  law  would  be  a  good  plea  in  equity.  But  the  jurisdiction  of 
compelling  specific  performance  is  not  a  concurrent  jurisdiction;  and 
a  suit  for  specific  performance  is  within  neither  the  words  nor  the  pur- 
view of  the  statute  of  limitations.  In  Hony  v.  Hony,  an  action  might 
have  been  sustained  for  the  produce  of  the  timber;  but,  under  the  cir- 
cumstances, this  court  had  a  concurrent  jurisdiction  in  the  way  of  ac- 
count. If  the  value  of  the  timber  had  been  sought  to  be  recovered  in 
the  shape  of  damages  in  an  action,  the  statute  of  limitations  would 
have  been  a  good  plea  at  law ;  and,  consequently,  the  same  plea  would 
be  good  here :  for  a  man  cannot  escape  from  the  statute  by  coming 
into  a  court  of  concurrent  jurisdiction.  That  has  nothing  to  do  with 
a  suit  for  specific  performance. 

The  plea  was  over-ruled. 


II.  Lack  of  Mutuality 
LEWIS  v.  LORD  LECHMERE. 

(In  Chancery  before  Lord  Parker,  Chancellor,  1721.    10  Mod.  503,  88  E.  R.  S28.) 

This  was  a  bill  brought  by  the  plaintiff  for  a  specific  performance  of 
articles,  bearing  date  the  thirtieth  day  of  August,  1720,  whereby  Lord 
Lechmere  had  covenanted  to  purchase  such  an  estate  at  forty  years 
purchase;  provided  the  plaintiff  did,  on  or  before  the  tenth  day  of 
November  following,  lay  such  an  abstract  of  the  title  before  Lord  Lech- 
mere's  counsel,  as  they  should  approve. 

The  bill  was  dismissed  with  costs ;  because  the  plaintiff  had  not  laid 
his  title  before  Lord  Lechmere's  counsel  within  the  time  limited  by 
the  articles ;  which  time,  the  Lord  Chancellor  was  pleased  to  say,  was 
very  material ;  the  price  of  South-Sea  stock,  from  whence  the  money 
for  the  purchase  was  to  be  raised,  being  upon  the  tenth  of  November 
two  hundred  and  sixty  per  cent,  and  at  the  time  of  the  hearing  the 
cause,  but  ninety-two  per  cent. 

Though  this  was  that,  upon  which  the  Chancellor  was  pleased  to 
found  his  decree ;  yet  there  were  several  other  things  in  the  cause. 
*     *     * 

It  was  said  by  the  counsel  for  the  defendant,  that  though  in  case 
of  articles  entered  into  for  the  purchase  of  lands,  the  vendee  may  un- 
doubtedly exhibit  his  bill  in  equity  for  the  specific  performance  of 
these  articles ;  yet  it  might  admit  of  a  doubt,  whether  the  vendor  might 
do  the  same.  As  to  the  vendee,  though  he  has  an  action  at  law  upon 
the  articles,  yet  that  sounds  only  in  damages ;  and  therefore  he  may 


448  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

come  into  equity  for  the  land,  which  on  several  accounts  may  possibly 
be  more  desirable  to  him  than  any  pecuniary  compensation.  But  for 
the  vendor,  he  only  desires  to  have  the  money ;  and  that,  whether  it  be 
recovered  at  law  in  damages,  or  in  equity,  is  but  money  still.  If  it  be 
said,  that  at  law  the  jury  may  at  their  own  liberty  and  discretion,  give 
him  what  damages  they  upon  all  the  circumstances  of  the  case  think 
reasonable ;  whereas  upon  a  bill  in  equity,  your  Lordship  has  no  power 
to  vary  from  the  sum  contracted  for  in  the  articles,  be  the  circum- 
stances of  the  case  what  they  will ;  this  seems  to  be  a  very  odd  reason 
for  coming  into  a  Court  of  Equity,  and  the  reverse  of  what  generally 
intitles  people  to  relief  in  equity. 

But  to  this  it  was  answered,  that  upon  mutual  articles  there  ought 
to  be  mutual  remedies :  that  if  the  vendee  had  a  remedy  both  in  lav/ 
and  equity,  the  vendor  would  not  be  upon  a  par  with  him,  unless  he 
had  so  too :  that  the  remedy  the  vendor  had  at  law,  was  not  a  remedy 
adequate  to  what  he  had  in  this  Court ;  for  at  law  they  only  could  give 
him  the  difference  in  damages,  whereas  he  might  for  particular  reasons 
stand  in  need  of  the  whole  sum.  Besides,  by  the  articles  the  land  is 
bound,  and  the  vendor  is  in  nature  of  a  trustee  for  the  vendee ;  and 
whether  a  recovery  in  an  action  of  law  upon  the  articles,  may  make 
him  cease  to  be  so,  is  not  entirely  clear. 

The  Lord  Chancellor  was  of  opinion,  that  the  remedy  the  vendor  had 
at  law  upon  the  articles  was  not  adequate  to  that  of  a  bill  in  equity  for 
a  specific  performance. 

However  he  dismissed  the  bill,  upon  the  point  above  mentioned  at  the 
beginning:  of  the  case.39 


FLIGHT  v.  BOLLAND. 
(In  Chancery  before  Sir  John  Leach,  1828.    4  Russ.  298.) 

The  bill  was  filed  by  the  plaintiff,  as  an  adult,  for  the  specific  per- 
formance of  the  contract.  After  the  suit  was  ready  for  hearing,  the 
defendant,  having  discovered  that  the  plaintiff  was,  at  the  time  of 
the  filing  of  the  bill,  and  still  continued,  an  infant,  moved  the  court, 
that  the  bill  might  be  dismissed  with  costs  to  be  paid  by  the  plaintiff's 
solicitor.  Upon  that  occasion  the  Vice-Chancellor  made  an  order, 
that  the  plaintiff  should  be  at  liberty  to  amend  his  bill,  by  inserting  a 
next  friend  for  the  plaintiff;   and  the  bill  was  amended  accordingly. 

Upon  the  opening  of  the  case,  a  preliminary  objection  was  taken, 
that  a  bill  on  the  part  of  an  infant  for  the  specific  performance  of  a 
contract  made  by  him  could  not  be  sustained. 

The  Master  of  the  Rolls.  No  case  of  a  bill  filed  by  an  infant 
for  the  specific  performance  of  a  contract  made  by  him  has  been 
found   in  the   books.     It  is  not   disputed,   that  it   is   a  general  prin- 

3o  The  omitted  parts  of  this  case  are  printed  at  page  4S0,  infra. 


Sec.  8)  EQUITABLE   DEFENSES  449 

ciple  of  courts  of  equity  to  interpose  only  when  the  remedy  is 
mutual.  The  plaintiff's  counsel  principally  rely  upon  a  supposed  an- 
alogy afforded  by  cases  under  the  statute  of  frauds,  where  the  plain- 
tiff may  obtain  a  decree  for  specific  performance  of  a  contract  signed 
by  the  defendant,  although  not  signed  by  the  plaintiff.  It  must  be  ad- 
mitted that  such  now  is  the  settled  rule  of  the  court,  although  serious- 
ly questioned  by  Lord  Redesdale  upon  the  ground  of  want  of  mutuality. 
But  these  cases  are  supported,  first,  because  the  statute  of  frauds  only 
requires  the  agreement  to  be  signed  by  the  party  to  be  charged ;  and 
next,  it  is  said  that  the  plaintiff,  by  the  act  of  filing  the  bill,  has  made 
the  remedy  mutual.  Neither  of  these  reasons  apply  to  the  case  of  an 
infant.  The  act  of  filing  the  bill  by  his  next  friend  cannot  bind  him ; 
and  my  opinion  therefore  is,  that  the  bill  must  be  dismissed  with  costs, 
to  be  paid  by  the  next  friend. 


HATTON  v.  GRAY. 

(In  Chancery,  1684.     2  Ch.  Cas.  164.) 

Hatton  sold  houses  to  Gray  for  £2000.  Note  was  made  by  Hatton 
of  the  agreement,  signed  by  Gray,  but  not  by  Hatton. 

Mr.  Solicitor.  The  Note  binds  not  him  who  signed  it  not,  for  the 
Statute  of  Frauds  and  Perjuries  etc.,  and  therefore  in  Equity  cannot 
bind  the  other  party,  for  both  must  be  bound,  or  neither  of  them  in 
Equity. 

But  decreed  contrary.40 

40  in  Lawrenson  v.  Butler  (Ir.  Ch.  1S02)  1  Sch.  &  Lef.  13,  the  defendant 
was  an  equitable  tenant  for  life  under  a  settlement  with  power  to  make  leases 
for  thirty  one  years  or  for  their  lives  and  with  the  further  power,  subject  to 
the  consent  of  the  trustees  of  the  settlement,  to  make  leases  with  a  covenant 
of  perpetual  renewal.  The  defendant  contracted  to  lease  to  the  plaintiff  with 
a  perpetual  renewal  clause  representing  that  he  would  procure  the  consent  of 
the  trustees.  The  trustees  refusing  their  consent  the  plaintiff  sought  specific 
performance  of  such  a  lease  as  defendant  was  able  to  give.  Lord  Redesdale, 
L.  C,  said  in  part:  "It  is  conceded  now  that  Lawrenson  was  not  bound,  but 
it  is  contended  that  Butler  was ;  now,  was  that  the  intention  of  the  parties 
in  the  transaction?  I  think  clearly  not;  and  therefore  it  is  an  agreement 
founded  on  a  mistake;  an  agreement  entered  into  by  Mr.  Butler  under  a  sup- 
position that  he  was  capable  of  enforcing  it  as  much  as  Mr.  Lawrenson  was. 
It  is  said  that  courts  of  equity  have  decreed  performance  in  cases  where  one 
party  only  was  bound  by  the  agreement:  I  believe  it  would  be  difficult  to  find 
a  case  where  that  has  been  done,  particularly  a  late  case.  In  the  case  of 
Hatton  v.  Gray  (1684)  2  Ch.  Cas.  164,  it  was  considered  as  sufficient  that  the 
agreement  should  be  signed  by  the  party  against  whom  the  performance  was 
sought,  because  such  are  the  words  of  the  statute  of  frauds:  now,  such  cer- 
tainly is  the  import,  that  no  agreement  shall  be  in  force  but  when  it  is  signed 
by  the  party  to  be  charged :  but  the  statute  does  not  say  that  every  agreement 
so  signed  shall  be  enforced ;  the  statute  is  in  the  negative.  To  give  it  this 
construction  would,  as  I  have  heard  it  urged,  make  the  statute  really  a  stat- 
ute of  frauds,  for  it  would  enable  any  person  who  had  procured  another  to 
sign  an  agreement  to  make  it  depend  on  his  own  will  and  pleasure  whether  it 
should  be  an  agreement  or  not.    No  man  signs  an  agreement  but  under  a  sup- 

Boke  Eq. — 29 


450  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

WESTERN  v.  RUSSELL. 

(Id  Chancery  before  Sir  William  Grant,  1814.    3  Yes.  &  B.  1S7,  35  E.  R.  450.) 

The  Object  of  this  Suit  was  to  obtain  the  specific  Performance  of  a 

Contract  to  purchase  an  Estate,  and  a  Conveyance  from  the  Heir  of 

William  Russell,  the  Vendor.     The  Bill  stated,  that  Russell  in   the 

Course  of  a  Treaty  with  the  Plaintiff,  Harvey,  informed  him,  that  the 

Plaintiff  Western  must  have   the  first   Offer;    and   accordingly   sent 

Western  by  Harvey  a  Note  in  the  following  Words : 

"Mr.  Russell  presents  his  Compliments  to  Mr.  Western ;  begs  leave  to  in- 
form him,  Mr.  Harvey  of  Freering  has  applied  to  him  for  the  Purchase  of  the 
Watering  Farm  at  Kelvedon,  for  which  Mr.  Russell  is  to  receive  £4700:  but 
if  Mr.  Western  chooses  to  have  the  Farm  at  the  Price  mentioned,  Mr.  Harvey 
will  decline  the  Purchase  in  his  Favour.    July  5,  1S09." 

The  Bill  farther  stated,  that  WTestern,  having  by  a  Letter  to  Russell 
accepted  the  Terms,  received  from  him  the  following  Letter : 

"July  11.  Dear  Sir:  I  have  just  received  yours;  and  am  glad  you  have  de- 
termined to  purchase  the  Watering  Farm,  as  I  think  it  will  be  an  Accommoda- 
tion to  you.  I  fear  you  will  find  but  little  Timber  upon  the  Estate ;  what- 
ever there  may  be  is  at  your  Service  included  in  the  Purchase  Money.  I 
have  written  to  Mr.  Boulton ;  who  will  confer  with  Mr.  Arnold  respecting 
the  Title ;  and  I  will  write  to  Mr.  Harvey  to  inform  him  you  have  agreed  to 
purchase  the  Estate.     I  remain,  &c,  William  Russell." 

Russell  died  a  Year  and  a  Half  afterwards.  The  alleged  Letter  of 
the  Plaintiff,  accepting  the  Proposal,  not  being  proved,  the  Defence 
was  the  Statute  of  Frauds,  Inadequacy  of  Consideration,  and  the  De- 
fendant's Inability  to  make  a  Title  to  a  considerable  Part  of  the  Estate. 

The,  Master  of  the  Rolls.41  As  it  is  of  great  Consequence  to 
preserve  an  Uniformity  of  Decision  upon  the  Statute  of  Frauds,  I 
shall  consider,  how  far  these  Letters  can  be  said  in  Conformity  to  the 
Cases,  that  have  been  decided,  to  constitute  an  Agreement. 

Nov.  21.  The  Master  of  the  Roles.  The  first  Question  in  this 
Cause,  and  the  only  one,  on  which  any  Doubt  can  be  entertained,  is, 
whether  the  Letter  of  the  11th  of  July  from  Russell  can  be  coupled 
with  the  Proposal  to  him  of  the  5th ;  so  as  to  enable  the  Court  to  say, 
it  was  upon  the  Terms  contained  in  such  Proposal  that  Russell  agreed 
to  sell  the  Estate.  I  think,  his  Letter  plainly  implies,  that  he  had  of- 
fered to  sell  upon  some  Terms,  in  which  he  understood  the  Plaintiff 
to  have  acquiesced  ;  for  it  is  evidently  not  an  Assent  to  any  Terms  then 
first  proposed  to  him.     It  begins,  thus :    'T  am  glad,  you  have  deter- 

position  that  the  other  party  is  bound  as  well  as  himself;  and  therefore  if 
the  other  party  is  not  bound,  he  signs  it  under  a  mistake:  that  mistake  might 
be  a  ground  for  relief  in  equity,  but  is  surely  not  ground  for  a  specific  per- 
formance. Under  these  circumstances,  the  impression  upon  my  mind  is,  that 
I  must  dismiss  this  bill.  This  agreement  was  signed  in  mistake:  it  is  mani- 
fest that  Butler  could  not  have  executed  a  lease  in  compliance  with  it,  and 
as  he  could  not,  it  is  manifest  that  this  is  not  the  agreement  which  he  meant 
to  sign." 

*i  Part  of  the  opinion  is  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  451 

mined  to  purchase  the  Watering  Farm ;"  and  concludes :  "I  will  write 
to  Mr.  Harvey  to  inform  him  you  have  agreed  to  purchase  the  Estate." 

Determination  and  Agreement  upon  the  Part  of  the  Plaintiff  to  pur- 
chase do  seem  necessarily  to  presuppose  some  Proposal  to  sell ;  for  it 
would  be  absurd  to  speak  of  an  original  Proposal  from  the  plaintiff  as 
a  Determination  and  Agreement,  bringing  the  Business  to  such  a  Close, 
as  that  it  only  remained  to  the  Solicitors  to  confer  upon  the  Title. 
This  Letter  therefore  clearly  implies  an  antecedent  Proposal  to  which 
it  is  an  Assent.  As  to  the  Nature  of  the  Proposal  there  is  no  Contro- 
versy. It  is  in  Russell's  Handwriting ;  and,  coupling  that  with  the  Let- 
ter, they  amount  to  an  Agreement,  signed  by  the  Party  to  be  charged 
within  the  4th  Section  of  the  Statute  of  Frauds. 

After  the  Cases,  that  have  been  determined,  I  should  hardly  be  at 
liberty,  notwithstanding  the  considerable  Doubt,  thrown  upon  that 
Point  by  Lord  Redesdale  (Sch.  &  Le  Froy,  34), 42  to  refuse  a  specific 
Performance  upon  the  Ground,  that  there  was  no  Agreement  signed  by 
the  Party,  seeking  a  Performance ;  even  if  that  were  the  Case  here ; 
which  it  is  not.  Independent  of  the  Admission  in  the  Answer  there 
is  an  Acknowledgment,  signed  by  the  Defendant,  that  the  Plaintiff's 
Letter  to  him  contained  an  Agreement  for  the  Purchase.  Then  can 
the  Defendant  contend,  that  there  is  no  Evidence  of  the  Existence  of 
such  an  Agreement  on  the  Plaintiff's  part?     *     *     * 

As  to  the  Lapse  of  Time,  it  is  clear,  the  Parties  continued  to  treat 
long  after  the  Expiration  of  the  Period  first  fixed  upon,  and  very  near 
up  to  Russell's  Death.  ■  That  therefore  affords  no  Ground  for  refusing 
the  Decree,  which  the  Plaintiff  prays. 


CARSKADDON  v.  KENNEDY. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1885.     40  N.  J.  Eq.  259.) 

On  appeal  from  a  decree  advised  by  Vice-Chancellor  Bird,  who  filed 
the  following  conclusions : 

The  complainant  exhibits  a  written  contract  executed  by  the  defend- 
ant only,  bearing  date  the  17th  of  September,  1880,  in  and  by  which 
he  agreed,  in  consideration  of  $250  in  hand  paid,  and  the  further  sum 
of  $7,250,  to  be  paid  by  the  complainant  upon  the  execution  and  deliv- 
ery of  a  conveyance  as  thereinafter  named,  within  thirty  days  from  the 
date  of  said  agreement,  to  execute  and  deliver  to  the  complainant,  his 
heirs  and  assigns,  a  proper  deed  of  conveyance  in  fee  simple,  clear  of 
all  encumbrances,  to  a  tract  of  land  in  the  township  of  Berkley,  in  the 
county  of  Ocean,  containing  one  hundred  and  fifty  acres  or  more,  not 
less,  bounded  on  the  south  by  lands  of  Samuel  Shreve,  on  the  east  by 

42  For  Lord  Redesdale's  view,  see  quotation  from  Lawrenson  v.  Butler,  in 
the  note,  p.  449,  supra. 


452  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

the  low-water  mark  of  the  Atlantic  ocean,  on  the  west  by  the  low- 
water  mark  of  Barnegat  bay,  and  on  the  north  by  the  remaining  lands 
of  defendant.     *     *     * 

The  answer  sets  up  that  a  railroad  is  to  be  built  through  these  lands, 
whereby  the  land  has  become  much  more  valuable,  and  that  nothing 
was  done  by  said  complainant  in  regard  to  said  agreement  until  after 
the  fact  that  said  railroad  would  be  built  was  established. 

The  answer  insists  that  there  is  a  want  of  mutuality  because  the 
complainant  did  not  join  the  execution  of  the  agreement,  and  that  his 
excuse  for  not  doing  so  at  the  time  was  because  of  the  late  hour  in  the 
day,  but  that  he  promised  the  defendant  that  he  would  sign  it;  that 
he,  the  defendant,  would  make  a  copy,  and  sign  a  memorandum,  at  the 
bottom,  acknowledging  his  obligations,  and  that  this  he  never  did. 

I  conclude  that  the  complainant  made  a  reasonable  effort  on  his  part 
to  effect  a  performance  of  the  contract  within  the  thirty  days.  The 
last  day,  numerically  speaking,  for  performance,  was  Sunday ;  but  the 
law  would  not  notice  anything  as  lawfully  done  that  might  be  attempted 
on  that  day.  On  Saturday  the  complainant  went  to  the  place  of  busi- 
ness, and  to  the  house  of  the  defendant,  with  a  deed  for  the  premises 
in  blank,  and  the  balance  of  the  purchase-money,  inquired  for  the  de- 
fendant, and  tendered  himself  ready  and  willing  to  perform  the  agree- 
ment. The  defendant  was  not  at  home,  nor  in  the  city.  Being  home 
on  Monday,  the  18th,  a  deed  was  tendered  to  the  defendant  for  him 
to  execute,  and  also,  were  the  $7,250  tendered.  I  think  that  the  law 
demands  nothing  more  of  the  complainant.     *     *     * 

The  opinion  of  the  court  was  delivered  by  Dixon,  J.43 

The  complainant  in  this  case  seeks  the  specific  performance  of  a 
contract  dated  September  7th,  1880,  by  which  the  defendant  agreed  to 
convey  to  him,  for  $50  an  acre,  about  one  hundred  and  fifty  acres  of 
land  lying  in  Ocean  county  between  Barnegat  bay  and  the  sea. 

The  defendant  resists  the  prayer  of  the  bill  on  three  grounds  :  First. 
Because  the  contract  was  not  completely  made,  being  signed  by  the  de- 
fendant only.  Second.  Because  the  contract  was  obtained  by  fraudu- 
lent representations  of  the  complainant,  to  the  effect  that  he  was  act- 
ing for  wealthy  New  York  capitalists,  who  would  immediately  make 
extensive  and  expensive  improvements  upon  the  property,  costing  in 
the  neighborhood  of  $500,000,  to  the  great  advantage  of  adjoining 
land  owned  by  the  defendant.  Third.  Because  the  complainant  did  not 
offer  to  perform  his  own  part  of  the  contract. 

The  first  ground  is  not  tenable.  The  signature  of  the  complainant 
was  not  legally  necessary.  Browne  on  Stat,  of  Frauds,  §§  365,  366. 
The  filing  of  the  bill  made  the  contract  and  the  right  to  specific  per- 
formance mutual.  Richards  v.  Green,  23  N.  J.  Eq.  536.  And  the  evi- 
dence satisfies  us  that  it  was  not  intended  by  the  parties  that  signature 
of  the  contract  by  the  complainant  should  be  a  condition  precedent  to 

o  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  453 

its  obligation.  *  *  *  The  complainant  is  entitled  to  specific  per- 
formance of  the  written  contract.  *  *  *  Decree  unanimously  af- 
firmed. 


WITHY  v.  COTTLE. 

(In  Chancery,  before  Sir  John  Leach,  1822.    1  Sim.  &  S.  174.) 

This  was  a  bill  filed  by  the  vendor  of  an  annuity,  payable  out  of  the 
dividends  of  stock,  standing  in  the  name  of  the  accountant-general  of 
this  court,  for  the  specific  performance  of  an  agreement  for  the  pur- 
chase of  this  annuity. 

The  defendant  demurred  to  the  bill. 

The  Vice-Chancellor.  There  can  be  no  doubt  that  the  defend- 
ant, who  is  the  purchaser  of  this  annuity,  might  have  filed  a  bill  for 
the  specific  performance  of  the  agreement  for  sale  to  him;  because  a 
court  of  law  could  not  give  him  the  subject  of  his  contract,  and  the 
remedy  here  must  be  mutual  for  purchaser  and  vendor. 

Demurrer  overruled.44     *     *     * 


WINSLOW  v.  WHITE. 
(Supreme  Court  of  North  Carolina,  1913.    163  N.  C.  29,  79  S.  E.  25S.) 

Appeal  from  Superior  Court,  Perquimans  County ;  Whedbee,  Judge. 

Action  by  W.  O.  Winslow  against  T.  W.  White.  Judgment  for 
plaintiff,  and  defendant  appeals. 

The  suit,  instituted  in  1912,  was  to  enforce  the  specific  performance 

of  an  agreement  to  convey  a  tract  of  land ;    the  instrument  being  in 

terms  as  follows : 

"State  of  North  Carolina,  Perquimans  County.  February  10th,  1904.  This 
is  to  certify  that,  if  Oscar  Winslow  will  marry  my  daughter,  Lily,  and  be 
good  and  kind  to  her,  1  hereby  agree  to  give  him  all  that  strip  of  land  lying 
between  the  lane  running  through  the  farm  and  the  lead  ditch  running  through 
the  J.  P.  Winslow  farm,  known  as  the  middle  slipe,  beginning  at  the  main 
road  and  running  parallel  lines  to  the  back  line,  estimated  at  valuation  of 
2,000  (two  thousand).    To  have  and  to  hold.     Witness  my  hand. 

"T.  W.  White.     [Seal.]" 

Plaintiff,  a  witness  in  his  own  behalf,  testified  as  follows : 
"That  he  married  the  daughter  of  the  defendant  in  1904;  that  the  agree- 
ment set  out  in  the  complaint  was  made  before  the  marriage  in  1904,  but  that 
the  paper  writing  was  actually  written  and  delivered  in  the  spring  of  1912 ; 
that  the  parol  bargain  was  that  the  defendant  would  give  the  plaintiff  $1,500 
if  he  would  marry  his  daughter,  and  later  it  was  changed,  plaintiff  saying  he 
would  give  defendant  the  middle  slipe  of  land  and  build  a  house  on  it.  The 
marriage  took  place  about  three  or  four  weeks  after  the  bargain  was  made, 
and  after  the  marriage  a  house  was  built  upon  the  piece  of  land.  That  since 
the  marriage  plaintiff  and  his  wife  have  lived  together  as  man  and  wife,  and 
that  he  has  always  been  kind  to  her." 

44  Part  of  the  case  relating  to  another  point  is  omitted. 


454  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

Upon  this,  the  evidence  chiefly  relevant,  the  court  charged  the  jury, 
if  they  believed  the  evidence,  they  would  answer  the  first  issue,  "Yes," 
and  the  second  issue,  "Yes,  by  marrying  the  daughter  of  defendant 
and  living  with  her  and  treating  her  good  and  kind."  Defendant  ex- 
cepted. 

Verdict  was  rendered  as  follows: 

"(1)  Did  the  defendant  the  day  of  April,  1912,  execute  and  deliver 

to  plaintiff  the  paper  writing,  dated  February  10,  1904,  marked  'Exhibit  A,' 
in  accordance  with  a  parol  contract  made  in  1904.  as  alleged?  Ans.  Yes.  (2) 
Has  the  plaintiff  complied  with  the  terms  of  said  contract?  Ans.  Yes,  by 
marrying  the  daughter  of  defendant  and  living  with  her  and  treating  her 
good  and  kind  up  to  the  present  date.  <•".)  What  damages  is  plaintiff  entitled 
to  recover  of  defendant  for  rent  of  said  land?  Ans.  Nothing,  for  that  plain- 
tiff admits  that  he  is  indebted  to  defendant  in  a  sum  equal  to  the  rent  of 
said  land  for  the  year  1912." 

Judgment  on  verdict  that  defendant  convey  the  land  subject  to  con- 
dition that  plaintiff  will  support  the  wife  and  always  be  good  and  kind 
to  her,  etc. 

Hokf,,  J.  (after  stating  the  facts  as  above).  It  is  well  recognized 
that  marriage  is  to  be  regarded  and  dealt  with  as  a  valuable  consid- 
eration. Gurvin  v.  Cromartie,  33  N.  C.  174,  53  Am.  Dec.  406;  Page 
on  Contracts,  §  299 ;  1  Bishop  on  the  Law  of  Married  Women,  §  775. 
In  this  last  citation  the  author  quotes  from  Johnston  v.  Dilliard,  1  Bay 
(S.  C.)  232,  in  which  marriage  was  said  to  be  "the  highest  considera- 
tion known  in  law,"  and  in  the  case  it  was  further  said  to  be  '"a  con- 
sideration good  against  creditors  unless  done  with  fraudulent  intent." 
And  also  from  my  Lord  Coke  as  follows : 

"If  a  man  had  given  land  to  a  man  with  his  daughter  in  frank  marriage, 
generally  a  fee  simple  would  pass  without  the  word  "heirs,'  for  there  is  no  con- 
sideration so  much  respected  in  law  as  the  consideration  of  marriage  in  re- 
spect of  alliance  and  posterity." 

2.  The  instrument  contains  an  agreement  on  such  a  consideration 
to  convey  a  tract  of  land  sufficiently  described. 

3.  The  written  agreement  though  executed  long  after  the  contract 
between  the  parties,  which  had  been  made  by  parol,  is  a  sufficient 
memorandum  to  meet  the  provisions  of  our  statute  of  frauds  requiring 
contracts  concerning  land  to  be  in  writing.  Magee  v.  Blankenship,  95 
N.  C.  563 ;  29  A.  &  E.  p.  854.  On  the  verdict,  therefore,  and  under 
our  decisions,  the  record  presents  a  case  calling  for  a  decree  for  spe- 
cific performance,  the  judgment  entered  in  the  cause.  Combes  v.  Ad- 
ams, 150  X.  C.  64,  63  S.  E.  186;  Whitted  v.  Fuquay,  127  X.  C.  68, 
37  S.  E.  141 ;  Price  v.  Price,  133  X.  C.  494,  45  S.  E.  855 ;  Boles  v. 
Caudle,  133  X.  C.  528,  45  S.  E.  835. 

It  was  chiefly  objected  for  defendant  that  this  relief  was  not  open 
to  plaintiff  by  reason  of  the  stipulation  also  appearing  in  the  instru- 
ment that  plaintiff,  the  obligee,  should  be  good  and  kind  to  the  daugh- 
ter. The  position  being  that  this  stipulation  rendered  the  agreement 
too  indefinite  and  uncertain  to  permit  the  remedy  sought  in  this  case 
and  in  any  court ;  second,  that  the  same  should  be  construed  as  a  con- 


Sec.  8)  EQUITABLE   DEFENSES  455 

dition  precedent  covering  the  entire  period  of  the  married  life  of  the 
parties.  We  would  be  most  reluctant  to  adopt  either  of  these  views, 
tending  as  they  do  in  the  one  case  to  invalidate  the  instrument  and  in 
the  other  to  defeat  its  evident  and  controlling  purpose,  and  having  due 
regard  to  the  language  of  this  stipulation,  the  relationship  and  evi- 
dent purpose  of  the  obligor,  to  provide  for  the  support  and  kind  treat- 
ment of  his  daughter  in  her  married  life,  and  the  attendant  circum- 
stances of  the  transaction,  all  of  them  proper  to  be  considered  in  ar- 
riving at  the  intent  of  the  parties  as  expressed  in  the  entire  instru- 
ment. R.  R.  v.  R.  R.,  147  N.  C.  368-382,  61  S.  E.  185,  23  L.  R.  A. 
(N.  S.)  223,  125  Am.  St.  Rep.  550,  15  Ann.  Cas.  363;  Merriam  v.  U. 
S.,  107  U.  S.  441,  2  Sup.  Ct.  536,  27  L.  Ed.  531.  We  are  of  opinion 
that  the  learned  judge  who  tried  the  cause  has  given  the  correct  con- 
struction to  the  agreement  in  holding  this  feature  of  it  to  be  a  condi- 
tion subsequent,  and  as  such  directing  that  the  same  be  incorporated 
in  the  deed  to  be  made  by  defendant.  Such  an  interpretation  suffi- 
ciently satisfies  the  language  of  the  provision,  will  best  effectuate  the 
purpose  of  the  parties,  and  is  in  accord  with  our  decisions  more  direct- 
ly relevant  to  the  question  presented.  Helms  v.  Helms,  137  N.  C.  206, 
49  S.  E.  110. 

We  find  no  reversible  error  in  the  record,  and  the  judgment  as  en- 
tered is  affirmed.45 

No  error. 

45  See  Walton  v.  Coulson  (1831)  1  McLean,  120,  29  Fed.  Cas.  133,  Case  No. 
17,132.  The  following  is  from  the  opinion  of  McLean,  Circuit  Justice:  "This 
controversy  arises  out  of  a  bond  purporting  to  have  been  given  by  Isaac  Coul- 
son, the  ancestor  of  the  defendant,  to  Josiah  Payne  in  which  he  bound  him- 
self, his  heirs  and  assigns,  to  pay  to  the  said  Josiah  Payne,  one  hundred 
pounds,  Virginia  currency,  in  payment  for  a  certain  horse,  twelve  months 
after  the  date,  with  lawful  interest ;  otherwise,  in  lieu  thereof,  he  bound 
himself  to  make  over  all  his  right  and  interest  of  a  certain  warrant  and  entry 
of  land  of  six  hundred  and  forty  acres,  lying  on  the  north  side  of  Cumberland 
river,  on  said  river,  &c.  The  bond  was  dated  the  2d  January,  17S7.  As  the 
money  was  not  paid,  a  bill  was  filed  by  the  heirs  of  Payne  and  Walton,  the 
latter  of  whom  claim  to  have  purchased  the  land  from  the  heirs' of  Payne, 
and  they  pray  that  the  defendant  may  be  enjoined  from  prosecuting  a  judg- 
ment in  ejectment  which  he  has  obtained  for  the  possession  of  the  land,  and 
that  he  be  decreed  to  convey  the  legal  title  to  the  complainants.  *  *  *  But 
it  is  objected  that  there  is  a  want  of  mutuality  in  this  contract  for  the  land, 
and  consequently  a  specific  execution  of  it  cannot  be  decreed.  The  doctrine  on 
this  head  is  admitted,  but  its  application  is  not  perceived.  In  this  case  the 
consideration  has  been  paid,  and  if  it  be  admitted  that  by  the  laches  of  Coul- 
son, if  living,  he  could  not  compel  Payne  to  receive  a  conveyance  of  the  land 
in  discharge  of  the  bond,  is  that  any  reason  why  chancery  should  refuse  a 
specific  execution  of  the  contract  when  claimed  by  the  vendee?  This  would 
enable  a  vendor  to  defeat  any  contract,  by  taking  advantage  of  his  own  neg- 
ligence. And  this  plea  might  be  urged  in,  perhaps,  a  majority  of  the  cases 
where  a  specific  execution  is  asked.  No  matter  how  much  the  land  may  be 
deteriorated  in  value — though  half  of  it  be  sunk  by  an  earthquake — after  de- 
fault has  been  made  by  the  vendor,  and  in  consequence  of  which  it  would  be 
an  insuperable  objection  to  a  specific  execution,  if  made  by  the  vendee,  still 
he  may  waive  this  objection  and  demand  a  conveyance.  If  mutuality  exist  at 
the  inception  of  the  contract,  or  at  the  time  the  contingency  happens  on  which 
the  condition  to  convey  becomes  absolute,  no  subsequent  changes  can  destroy 


456  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

MASTIN  v.  HALLEY  et  al. 
(Supreme  Court  of  Missouri,  1875.    61  Mo.  196.) 

Shfrwood,  Judge,46  delivered  the  opinion  of  the  court. 

In  1855,  one  Chester  Hubbard,  being  the  owner  of  lots  6  and  7,  in 
block  Xo.  2,  of  Hubbard's  addition  to  the  town  of  Kansas,  (now  Kan- 
sas City)  in  consideration  of  the  sum  of  $200,  the  receipt  of  which  was 
acknowledged,  "and  in  consideration  of  the  agreement  of  the  said  par- 
ty of  the  second  part  [one  Asa  Lawton]  to  erect  or  cause  to  be  erected 
one  certain  building  on  the  lots,"  conveyed  them  to  Lawton  by  an  in- 
strument which,  but  for  its  lack  of  seal,  would  have  been  a  deed,  with 
the  usual  covenants  of  warranty,  and  perfect  in  all  its  parts.     *     *     * 

The  plaintiff  was  successor  in  title  to  Lawton,  and  the  defendants 
were  successors  in  title  to  Hubbard. 

This  proceeding  was  instituted  in  1871,  for  the  purpose  of  divesting 
the  legal  title  out  of  the  defendants  and  vesting  it  in  plaintiff,  on  the 
ground  of  mistake  made  by  Hubbard  in  failing  to  affix  a  seal  to  the 
conveyance  to  Lawton,  and  that  Halley  bought  with  full  notice  of  the 
mistake  and  with  the  desire  to  cheat  and  defraud  plaintiffs,  with  whose 
rights  he  was  well  acquainted  at  the  time  of  his  purchase.  The  chief 
allegations  of  the  petition,  as  to  notice,  etc.,  were  denied  in  the  answer 
of  the  defendant  (Halley),  and  the  usual  answer  was  made  by  the 
guardian  ad  litem  of  the  minor  heir.     *     *     * 

It  is  obvious  from  previous  statements  that  the  plaintiff,  as  his  title 
at  best  is  but  an  equitable  one,  in  effect,  although  not  praying  for  it  in 
direct  terms,  seeks  a  decree  for  specific  performance.  This  being  the 
case,  he  will  be  held  amenable  to  those  rules  which  govern  when  re- 
lief of  that  character  is  asked.     Among  those  rules  are : 

That  the  contract  whose  specific  enforcement  is  sought,  should  be 
certain,  mutual,  and  capable  of  being  performed.  Sto.  Eq.  Tur.  §§  723, 
736,  751;    Fry,  Spef.  Perf.  133. 

And  the  certainty  requisite  in  a  contract  which  is  the  subject  of  ad- 
judication in  a  court  of  equity,  is  necessarily  greater  than  if  in  a  suit 
at  law  damages  were  demanded  for  its  breach,  for  in  the  latter  forum  it 
is  in  general,  sufficient  for  a  recovery  to  establish  the  negative  proposi- 
tion of  non-performance,  while  in  a  court  of  equity  it  is  an  indispensa- 
ble requisite  that  the  contract  should  possess  terms  of  such  reasonable 
certainty  as  to  enable  that  court,  by  having  regard  to  the  subject  mat- 

the  contract  or  prevent  the  vendee  from  demanding  a  specific  execution  of  it, 
if  he  has  performed  the  condition  of  it  on  his  part.  Sugd.  Vend.  104:  At- 
torney General  v.  Day,  1  Yes.  Sr.  218;  10  Yes.  315,  316;  1  Schoales  &  L. 
I'.t,  note  'a.'  *  *  *  A  decree  may  be  entered  to  invest  the  complainants 
Waltons  with  the  legal  title  to  the  interest  of  the  heirs  of  Payne  who  are  of 
full  age,  and  to  invest  the  legal  title  in  the  infant  heirs,  subject  to  any  equity 
whii  ii  may  arise  under  the  contract  with  Waltons."  (Affirmed  in  9  Pet.  [34 
U.  S.]  62,  0  L.  Ed.  51). 

^,;  Parts  of  the  opinion  are  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  457 

ter  and  attendant  circumstances  of  the  contract,  to  determine  the  force 
and  effect  of  the  terms  employed,  in  order  to  decree  their  specific  exe- 
cution. Now,  it  is  obviously  impossible  to  comprehend  the  meaning  of 
the  agreement  incorporated  in  the  deed  from  Hubbard  to  Lawton,  and 
in  the  deed  of  the  latter  to  Coates.  "A  certain  building"  is  to  be 
erected  upon  the  lots,  but  the  dimensions,  quality  and  material  thereof 
are  altogether  conjectural.  Nor  is  that  contract  mutual;  that  is,  it 
is  not  such  as  might  at  the  time  of  its  formation  have  been  enforced 
by  either  of  the  contracting  parties  against  the  others.  And  it  is  en- 
tirely immaterial  what  constitutes  this  lack  of  mutuality,  whether  re- 
sulting from  personal  incapacity,  the  nature  of  the  contract,  or  any 
other  cause ;  whenever  the  absence  of  the  essential  element  is  ascer- 
tained to  exist  on  the  part  of  one  party,  and  for  that  reason  is  incapa- 
ble of  being  enforced  against  him,  that  party  is  equally  incapable  of 
enforcing  the  contract  against  the  other,  although  no  difficulty  should 
attend  its  execution  in  the  latter  way.  And  this  is  plainly  the  state  of 
the  case  here.  Though  Lawton  or  Coates  would  have  no  obstacles  in 
their  way  as  to  the  part  Hubbard  was  to  perform,  yet  he  on  his  part 
could  never  have  obtained  against  either  of  them  the  equitable  relief 
or  specific  execution,  by  reason  of  the  great  uncertainty  of  the  terms 
of  agreement  on  their  part.  The  doctrine  here  asserted  is  as  thoroughly 
settled  as  any  in  equity  jurisprudence.  Fry,  Spef.  Perf.  133,  and  cases 
cited. 

But  the  contract  before  us  could  not  be  enforced  for  another  very 
sufficient  reason.  A  court  of  equity  will  not  enforce  "building  con- 
tracts," because  it  is  said,  "If  one  will  not  build  another  may." 

And  although  in  the  earlier  cases  a  different  view  obtained,  yet  in 
the  later  ones  that  doctrine  is  expressly  denied.  Sto.  Eq.  Jur.  §§  725, 
726.  And  though  Mr.  Justice  Story  does  not  yield  assent  to  what  he 
admits  is  the  current  of  modern  adjudication,  and  offers  much  inge- 
nious reasoning  in  support  of  his  views,  still  even  he  insists  that  the 
contract  to  build  should  possess  "sufficient  definiteness  and  certainty." 
Id.  §  728.  And  Lord  Rosslyn,  whose  views  meet  Judge  Story's  cordial 
approbation,  held  that  where  "the  contract  to  build  or  re-build  had  a 
definite  certainty  as  to  size,  materials,  etc.,  it  ought  to  be  decreed  in 
equity  to  be  specifically  performed.  But  if  it  was  loose,  general  or  un- 
certain, then  it  ought  to  be  left  to  a  suit  for  damages  at  law."  Mos- 
ley  v.  Virgin,  3  Ves.  Jr.  185  But  since,  as  already  seen,  the  present 
contract  is  of  such  a  vague  and  indefinite  nature,  it  is  a  matter  of  no 
moment,  so  far  as  the  case  at  bar  is  concerned,  whether  we  adhere  to 
the  earlier  or  later  authorities ;  in  either  event  specific  enforcement 
must  be  denied,  and  our  refusal  in  this  regard  will,  for  the  reasons 
stated,  find  ample  support  both  in  the  elder  and  more  recent  adjudica- 
tions.    ~r~     *     * 

The  judgment  is  reversed  and  the  cause  remanded.  Judge  Hough 
not  sitting.     The  other  judges  concur. 


458  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

AVERY  v.  GRIFFIN. 
(In  Chancery,  1868.    L.  R.  6  Eq.  GOG.) 

This  was  a  suit  for  specific  performance  of  a  contract  for  the  sale 
to  the  plaintiff  of  the  Windmill  Hill  estate. 

The  estate  was  put  up  for  sale  by  public  auction,  by  the  trustees  of 
the  will  of  the  Rev.  John  Griffin,  and  the  question  was,  whether  the 
contract  was  invalidated  by  the  fact  that  one  of  the  trustees  had  be- 
come, since  her  appointment,  a  married  woman.47     *     *     * 

Sir  G.  M.  Giffard,  V.  C.  I  am  of  opinion  that  the  defendant,  Mrs. 
Hulton,  could  not,  by  contract,  bind  herself  to  convey  the  estate  de- 
vised to  her  in  trust  for  sale,  and  therefore  the  bill  must  be  dismissed, 
but  without  costs,  and  without  prejudice  to  any  action. 


LEE  et  al.  v.  CHICAGO  LEAGUE  BALL  CLUB. 
(Appellate  Court  of  Illinois,  1012.     160  111.  App.  523.) 

Bill  in  equity  Appeal  from  the  Circuit  Court  of  Cook  County ;  the 
Hon.  Julian  W.  Mack,  Judge,  presiding.  Heard  in  the  Branch  Appel- 
late Court  at  the  March  term,  1910.  Affirmed.  Opinion  filed  April 
19,  1912.     Certiorari  denied  by  Supreme  Court  (making  opinion  final). 

Mr.  Presiding  Justice  Baldwin  delivered  the  opinion  of  the 
court. 

This  appeal  brings  before  us  for  review  a  final  decree  of  the  Circuit 
Court  of  Cook  County,  dismissing  appellants'  bill  for  want  of  equi- 
table jurisdiction. 

The  bill  alleges  that  on  the  12th  of  March,  1906,  appellee,  being 
then  in  possession  of  certain  baseball  premises  in  Chicago,  under  a 
long  term  lease,  entered  into  a  written  contract  with  one  Barrett,  grant- 
ing to  him  and  his  assigns  the  right  to  place  in  certain  seating  space  in 
said  premises,  certain  cushion  seats  to  be  equipped  with  coin  or  slug 
operated  control  boxes,  the  income  from  which  was  to  be  divided  in 
a  fixed  porportion  between  the  parties.  Barrett  was  to  install  3600  the 
first  year,  and  thereafter  as  fast  as  conditions  warranted,  was  to  fix  the 
price  of  the  use  of  the  cushions  and  was  to  have  free  access  at  all 
times  for  the  purpose  of  installing,  maintaining  and  selling  said  seats 
and  collecting  from  the  coin  boxes,  etc.  Appellee  agreed  to  co-operate 
in  promoting  the  use  of  the  seats  by  the  public.  The  agreement  was 
in  terms  to  continue  in  force  for  a  period  of  ten  years  and  contained 
a  clause  stating  "that  said  seats  shall  be  kept  in  use  and  not  replaced, 
removed  or  in  any  wise  obstructed''  by  appellee  during  the  period  of 
the  agreement.  Barrett's  interest  in  the  contract  subsequently  became 
vested  in  appellants. 

*'  The  statement  of  facts  is  abridged. 


Sec.  8)  EQUITABLE   DEFENSES  459 

The  bill  then  avers  the  installation  by  appellants  of  about  3000  seats 
during  the  first  year  of  the  contract  at  an  expense  of  about  $10,000; 
that  the  seats  were  used  during  the  seasons  of  1906  and  1907  without 
any  complaint  as  tp  being  satisfactory,  and,  in  fact  were  during  that 
period  highly  commended  by  the  president  of  appellee ;  that  on  Satur- 
day and  Sunday  June  4th  and  5th,  1908,  without  consent  of  appellants 
and  without  giving  them  any  notice,  appellee  removed  a  large  part  of  the 
seats  and  threatened  the  removal  of  the  others,  making  then  for  the 
first  time  the  claim  that  the  seats  were  not  satisfactory,  and  that  under 
the  contract  it  had  the  right  to  remove  them  and  terminate  the  con- 
tract. 

The  bill  alleges  that  the  receipts  from  the  sale  of  the  seats  varied 
greatly,  and  that  it  is  impossible  to  accurately  ascertain  the  damages 
appellants  would  suffer  from  the  removal  of  the  seats,  and  that  they 
have  no  adequate  remedy  at  law.  The  bill  was  prayed  for  an  account- 
ing and  an  injunction  against  the  removal  of  any  more  seats. 

Upon  the  issues  being  made  up,  the  cause  was  referred  to  a  master, 
who  took  proofs,  and  who  found  and  reported  that  appellee's  conduct 
was  unjustifiable,  and  that  the  real  reason  for  its  action  was  to  make 
more  money  for  itself  by  a  new  arrangement  of  the  seating  system,  in 
which  appellants  were  not  to  share,  and  that  in  removing  the  seats, 
appellee  committed  an  unjustifiable  breach  of  the  contract.  The  mas- 
ter, however,  reported  as  conclusions  of  law : 

"(A)  Under  the  decisions  of  the  Supreme  Court  of  Illinois  the  complainants 
should  be  remitted  to  their  remedy  at  law. 

"(B)  Complainant's  damages,  while  difficult  of  ascertainment,  are  not  suffi- 
ciently so  to  warrant  the  interposition  of  a  court  of  equity. 

"(C)  A  court  of  equity  cannot  grant  the  complainants  the  injunctive  relief, 
or  any  part  of  it,  prayed  for,  for  the  following  reasons:  Said  contract  relates 
only  to  personal  property,  and  requires  the  continuous  rendition  by  complain- 
ants of  personal  services  for  a  period  of  years,  and  there  is,  under  the  terms 
of  said  contract,  no  mutuality  of  remedy. 

"I,  therefore,  recommend  that  the  temporary  injunction  heretofore  issued 
herein  be  dissolved,  and  that  the  bill  of  complaint  herein  be  dismissed  at  com- 
plainant's  cost." 

After  hearing  the  parties  upon  these  conclusions  of  law  only,  the 
court  sustained  the  conclusions  and  entered  a  decree  in  conformity 
therewith. 

There  is  no  substantial  controversy  between  the  parties  as  to  the 
facts.  It  is  not  contested  that  the  contract  was  made  between  the 
club  and  Barrett,  and  that  his  rights  and  obligations  thereunder  were 
duly  assigned  to  and  assumed  by  appellants;  that  pursuant  to  the 
terms  of  the  contract,  about  3000  of  the  seats  were  duly  installed  and 
were  operated  by  appellants  for  two  years  without  complaint  on  the 
part  of  appellee ;  and  that,  at  the  expiration  of  two  years  of  the  life 
of  the  contract,  which  in  terms  provided  that  it  should  be  in  force 
for  ten  years,  appellee  removed  a  large  part  of  the  seats  and  threatened 
the  removal  of  the  remainder  in  apparent  disregard  of  the  rights  of 
appellants  under  the  contract ;  but  appellee  insists  that  no  relief  can  be 


460  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

granted  in  equity,  and  that  appellants  must  seek  their  remedy  in  a 
court  of  law.    And  this  is  practically  the  only  question  before  us. 

A  proper  decision  of  this  question  necessitates  a  careful  examination 
of  the  rights  and  duties  of  the  respective  parties  under  the  contract. 
It  provides  that  Barrett  shall  install  3600  seats,  using  every  endeavor 
to  do  so  as  soon  as  possible,  and  thereafter  to  continue  to  install  such 
seats  as  fast  as  conditions  may  warrant,  equipped  with  coin-operated  or 
slug-operated  control  boxes,  he  to  have  a  percentage  of  the  proceeds 
from  the  use  of  the  cushion  seats,  which  vary  with  the  conditions 
named, — Barrett  to  have  the  right  to  enter  upon  the  premises  at  all 
times  to  install,  maintain  and  inspect  the  seats,  and  for  the  purpose  of 
selling  said  seats  and  making  collections  from  the  coin  boxes,  or  doing 
any  other  work  or  duty  in  connection  with  said  seats,  Barrett  to  fix  the 
price  for  the  use  of  the  cushions  and  to  make  reports  to  the  club  of 
the  sums  collected.  Both  parties  agreed  to  co-operate  to  promote  the 
use  of  the  seats  by  the  public.     The  contract  further  provides  that : 

"It  is  further  understood  that  said  seats  shall  be  kept  in  use  and  not  re- 
placed, removed,  or  in  any  wise  obstructed  by  the  second  party,  or  its  agents, 
during  the  period  of  this  arrangement,  *  *  *  which  shall  remain  in  force 
for  a  period  of  ten  years." 

In  the  event  of  the  bankruptcy  of  the  club  during  the  period,  Bar- 
rett shall  have  and  be  entitled  to  the  full  ownership  and  control  of  the 
seats,  with  privilege  of  removal  from  premises ;  both  parties  are  to 
share  equally  in  net  proceeds  from  any  advertisements  on  the  backs 
of  cushions  or  seats  furnished  by  Barrett  in  the  future. 

Appellants  do  not  claim  that  equity  would  have  jurisdiction  to  en- 
force this  part  of  the  agreement,  except  that  it  constitutes  a  "negative 
covenant,"  which,  it  is  said,  courts  of  equity  often  enforce  by  injunc- 
tion. But  does  the  clause  constitute  a  "negative  covenant"  in  the  sense 
in  which  that  expression  is  used  as  a  basis  of  equitable  relief?  It 
reads  as  follows : 

"It  is  further  understood  that  said  seats  shall  be  kept  in  use  and  not  re- 
placed, removed  or  in  any  wise  obstructed  by  the  second  party  or  its  agents 
during  the  period  of  this  agreement." 

YYe  think  the  words  "and  not  replaced,  removed,"  etc.,  are  but  a 
negative  form  of  expressing  the  preceding  positive  averment  in  the 
same  sentence,  "that  said  seats  shall  be  kept  in  use,"  and  that,  in  legal 
contemplation,  they  add  nothing  to  the  affirmative  covenant, — "that 
said  seats  shall  be  kept  in  use."  To  entitle  one  to  an  injunction  upon 
the  ground  that  it  is  to  enforce  merely  a  "negative  covenant,"  the  cove- 
nant must  be  one  standing  out  by  itself, — a  special  stipulation,  separated 
from  the  rest  of  the  contract,  and  the  enforcement  of  which  would  not 
involve  the  specific  performance  of  the  entire  contract. 

In  this  case  to  enforce  the  so-called  "negative  covenant"  is  to  enforce 
the  affirmative  statement  of  it,  and,  as  that  is  all  the  relief  which  would 
be  given  by  decree  for  specific  performance  of  the  contract,  it  cannot 
be  done.     The  court  clearly  could  not  decree  specific  performance  of 


Sec.  8)  EQUITABLE   DEFENSES  461 

the  covenants  of  appellant  "to  continue  to  install  seats  as  fast  as  pos- 
sible, and  as  fast  as  conditions  may  warrant;"  to  "sell  the  seats;"  to 
"fix  the  price ;"  to  make  "collections  from  the  coin  boxes ;"  continu- 
ously operate  and  maintain  the  seats  for  the  remainder  of  the  ten 
year  period  of  the  contract. 

Contracts  which  relate  to  personal  property  only  and  those  requiring 
continuing  personal  services  extending  through  a  series  of  years,  will 
not  be  specifically  enforced.  Harley  v.  Sanitary  District  of  Chicago, 
54  111.  App.  337 ;  Grape  Creek  Coal  Co.  v.  Spellman,  39  111.  App.  630. 

Whatever  may  be  the  law  elsewhere,  it  is  the  law  in  Illinois  that  be- 
fore a  contract  will  be  specifically  enforced,  there  must  be  mutuality 
in  the  contract  so  that  it  may  be  enforced  by  either,  and  as  this  con- 
tract could  not  have  been  specifically  enforced  by  appellee,  the  Chicago 
League  Ball  Club,  it  cannot  be  so  enforced  by  appellants.  Ulrey  v. 
Keith,  237  111.  284,  86  N.  E.  696;  Welty  v.  Jacobs,  171  111.  624,  630, 
49  N.  E.  723,  40  L.  R.  A.  98. 

Moreover,  if  an  injunction  were  to  be  issued  in  this  case,  it  would 
necessarily  be  upon  condition  that  appellants  continue  to  perform 
their  contract,  and  it  would  be  enforcing  a  contract  concerning  only 
personal  property  and  personal  property  rights.  This  is  not  the  proper 
function  of  a  court  of  equity. 

The  decree  of  the  lower  court  must  be  affirmed. 

Decree  affirmed. 


OGDEN  v.  FOSSICK. 

(In  Chancery,  1862.     4  De  Gex,  F.  &  J.  426,  45  E.  R.  1249.) 

This  was  an  appeal  from  a  decree  of  Vice-Chancellor  Wood. 

The  bill  was  filed  by  John  Maude  Ogden  against  Samuel  Fossick 
and  George  Fossick  for  the  specific  performance  of  an  agreement  on 
the  part  of  the  Defendant  Samuel  Fossick  to  grant  a  lease  to  the  Plain- 
tiff of  a  coal  wharf  called  Ashton's  Wharf,  and  for  compelling  the 
Defendant  George  Fossick,  who  was  a  mortgagee  of  the  Defendant 
Samuel  Fossick,  to  concur  in  the  lease. 

The  agreement  of  which  specific  performance  was  sought  was  in 

the  following  terms : 

"Memorandum  of  agreement  made  and  entered  into  this  13th  day  of  Oc- 
tober, 1858,  between  Samuel  Fossick,  coal  merchant,  of  Ashton  Wharf,  Black- 
wall,  and  John  Maude  Ogden  of  Sunderland.  The  said  Samuel  Fossick  agrees 
to  let  and  the  said  J.  M.  Ogden  agrees  to  take  the  wharf  and  premises  known 
as  Ashton's  Wharf  aforesaid,  \\yith  the  use  of  the  engine,  machinery  and  build- 
ings, at  the  yearly  rent  of  £230,  the  said  J.  M.  Ogden  to  pay  all  rates,  taxes 
and  outgoings  in  respect  of  the  said  premises  for  the  time  he  so  is  in  pos- 
session, under  the  following  restrictions,  that  is  to  say,  that  the  said  J.  M. 
Ogden  may  give  up  possession  of  the  said  premises  on  giving  one  month's  no- 
tice during  the  first  year,  or  at  any  subsequent  year  at  one  month's  notice ; 
and  if  after  the  first  twelve  months  of  the  said  term  the  said  J.  M.  Ogden 
should  feel  disposed  to  take  a  lease  of  the  said  premises,  he  the  said  Samuel 
Fossick  hereby  agrees  to  grant  unto  the  said  J.  M.  Ogden  a  lease  of  the  said 


402  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

premises  at  the  yearly  rental  aforesaid  for  fourteen  years,  and  a  further  term 
at  the  expiration  thereof  for  ten  years  at  the  yearly  rental  of  £250  per  annum, 
free  of  all  costs,  charges  and  deductions,  the  said  lease  to  contain  all  the 
usual  covenants  for  repairs  and  the  privilege  of  abandoning  the  same  after 
six  months'  previous  notice.  And  the  said  Samuel  Fossick  engages  his  serv- 
ices to  the  said  J.  M.  Ogden  for  the  sale  of  the  coals  and  landing  and  shipping 
goods  and  generally,  in  consideration  of  his  receiving  the  sum  of  £200  per  an- 
num, to  be  paid  weekly,  for  such  services,  and  in  addition  to  such  salary  a 
guarantee  commission  of  10s,  per  cent  on  the  amount  of  sales  when  re- 
mitted."    *     *     * 

The  Plaintiff  was  let  into  possession  of  the  wharf  under  the  agree- 
ment, and  it  appeared  that  he  laid  out  some  money  in  improving  it. 
He  had  ever  since  he  was  let  into  possession  carried  on  the  coal  trade 
at  the  wharf,  and  he  employed  the  Defendant  Samuel  Fossick  in  the 
business ;  but  some  disputes  having  arisen  between  them,  he  filed  his 
bill  for  the  specific  performance  of  the  agreement  for  the  lease. 

Upon  the  hearing  of  the  cause,  the  Vice-Chancellor  decreed  specific 
performance  of  the  agreement  for  the  lease,  and  directed  the  lease  to 
be  settled  in  Chamhers  in  case  the  parties  differed.  The  Defendants 
appealed  from  this  decree.     *     *     * 

Lord  Justice  Turner,48  after  stating  the  facts,  proceeded  as  fol- 
lows :  The  first  question  must  of  course  be  whether  the  appeal  is  well 
founded,  whether  the  Plaintiff  was  entitled  to  the  decree  for  specific 
performance  which  has  been  made  in  his  favour.  It  is  objected  to  this 
decree  that  the  agreement  of  which  the  specific  performance  is  de- 
creed, so  far  as  respects  the  lease,  contains  other  terms  and  provisions 
as  to  the  service  and  employment  of  the  Defendant  Samuel  Fossick, 
the  specific  performance  of  which  cannot  be  enforced  by  this  Court, 
and  that  the  Court  being  unable  to  carry  into  effect  the  whole  agreement 
ought  not  to  have  decreed  the  specific  performance  of  part  of  it.  That 
there  are  terms  and  provisions  in  this  agreement  which  the  Court  can- 
not enforce  is  clear  beyond  all  doubt.  The  Court  agreement  which 
the  Court  cannot  enforce  is  clear  beyond  all  doubt.  The  Court  cannot 
for  instance,  decree  the  Plaintiff  to  carry  on  the  business,  the  carrying 
on  of  which  is  essential  to  the  complete  performance  of  the  entire  agree- 
ment. It  is  scarcely  less  clear,  that  it  is  not  according  to  the  general 
course  of  the  Court  to  decree  the  specific  performance  of  part  of  an 
agreement  when  there  are  other  terms  of  the  same  agreement  which 
it  is  beyond  its  power  to  enforce.  The  cases  cited  for  the  Respond- 
ents are  decisive  upon  this  point,  following  the  ordinary  principle  that 
the  aim  and  object  of  the  Court  is  to  do  complete  justice.  Cases,  how- 
ever, were  cited  in  the  course  of  the  argument  on  the  part  of  the  Plain- 
tiff in  which  the  Court  has  decreed  the  specific  performance  of  part  of 
an  agreement,  although  the  specific  performance  of  other  parts  of 
the  same  agreement,  could  not  be  decreed.  All  those  cases,  however, 
were  cases  in  which  the  parts  of  the  agreement  which  were  enforced 
were,  or  at  all  events  were  considered  by  the  Court  to  be,  independent 

48  Tho  statement  of  facts  is  abridged  and  the  concurring  opinion  of  Lord 
Justice  Knight  Brute  is  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  4G3 

of  the  other  parts  of  the  agreement  which  could  not  be  enforced.  The 
cases  of  injunctions  upon  negative  covenants  in  executory  agreements 
were  also  referred  to  in  the  course  of  the  argument  on  the  part  of  the 
Plaintiff  as  instances  of  the  Court  enforcing  part  of  an  agreement  when 
it  had  no  power  to  enforce  the  other  parts  of  the  same  agreement; 
but  those  cases  rest  upon  the  jurisdiction  of  the  Court  by  way  of  in- 
junction founded  in  irreparable  injury,  and  it  is  one  thing  for  the  Court 
to  interfere  in  such  a  case  by  way  of  injunction  upon  an  agreement 
whether  executed  or  executory,  and  another  thing  for  the  Court  to 
proceed  in  the  same  manner  or  to  the  same  extent  when  acting  in 
the  exercise  of  a  jurisdiction  resting  on  wholly  different  considera- 
tions. The  cases  therefore  which  were  cited  and  referred  to  on  the 
part  of  the  Plaintiff  do  not  seem  to  me  to  affect  the  present  case  or 
the  cases  which  were  relied  on  upon  the  part  of  the  Respondents,  ex- 
cept to  this  extent :  that  the  Court,  when  called  upon  specifically  to 
perform  part  of  an  agreement  the  whole  of  which  cannot  be  specific- 
ally performed,  is  bound  to  see  that  the  part  which  cannot  be  specific- 
ally performed  is  independent  of  that  which  it  is  called  upon  to  per- 
form. It  is  by  this  test  the  case  before  us  must,  in  my  opinion,  be 
tried,  and  trying  it  by  that  test  I  am  of  the  opinion  that  a  specific  per- 
formance of  the  agreement  for  a  lease  ought  not  in  this  case  to  have 
been  decreed.  I  think  that  by  this  agreement  the  lease  and  the  em- 
ployment of  the  Defendant  Samuel  Fossick  are  and  were  meant  to  be 
wedded  together,  that  the  obligations  on  the  one  side  and  on  the  other 
are  and  were  meant  to  be,  as  expressed  by  Lord  St.  Leonards  in  Lun- 
ley  v.  Wagner,  correlative  obligations.  Both  the  terms  of  the  agree- 
ment and  the  circumstances  of  the  case  seem  to  me  to  prove  this.  It 
may  be  said  that  the  purpose  of  the  agreement  may  be  effected  by  cove- 
nants to  be  contained  in  the  lease  for  the  employment  of  the  Defendant 
Samuel  Fossick  according  to  the  agreement  and  by  a  general  proviso 
for  re-entry;  but  looking  to  the  terms  of  the  agreement  and  the  facts 
of  the  case,  I  cannot  doubt  that  one  purpose  of  this  agreement,  as  to 
the  employment  of  the  Defendant  Samuel  Fossick,  was  this  :  that  he 
might  continue  his  connection  with  the  business  and  be  in  a  condition 
to  resume  it  upon  the  determination  of  the  lease  without  being  exposed 
to  the  peril  of  its  having  been  in  the  meantime  diverted  into  other  chan- 
nels; and  in  this  respect  at  least,  if  not  in  other  respects,  this  mode 
of  carrying  the  agreement  into  effect  would  not  avail  for  the  benefit  of 
the  Defendant  Samuel  Fossick.  Pie  would  be  driven  to  his  remedy  at 
law  for  recovering  the  possession,  and  in  the  meantime  the  business 
might  be  broken  up  or  diverted.  It  was  contended  for  the  Plaintiff 
that  the  Defendants  ought  to  be  left  to  their  remedy  at  law  for  breach 
of  the  agreement  or  of  the  covenants  to  be  contained  in  the  lease,  but 
what  has  been  already  said  applies  also  to  this  view  of  the  case.  Re- 
liance was  placed  on  the  part  of  the  Plaintiff  on  the  expenditure  upon 
and  improvement  of  the  wharf,  but  we  cannot  alter  the  agreement  upon 
those  grounds.     It  is  asked  by  the  bill  that  this  Court  should  award 


464  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

the  damages,  but,  having  regard  to  the  nature  of  the  case  and  the  pos- 
sibility of  there  being  cross  actions,  I  think  this  matter  had  better  be 
left  to  a  Court  of  law.  For  these  reasons  my  opinion  is  that  this  bill 
must  be  dismissed,  but  I  fully  agree  that  it  ought  to  be  dismissed  with- 
out costs. 


KENNEY  v.  WEXHAM. 

(In  Chancery,  1S22.    6  Madd.  355,  56  E.  R.  1126.) 

The  Plaintiff  being  in  right  of  his  wife  entitled  to  an  annuity  for  the 
life  of  a  Mr.  McDonald,  issuing  out  of  the  estate  of  the  Defendant, 
entered  into  a  written  agreement,  dated  the  18th  April,  1818,  which 
was  signed  by  the  Plaintiff  and  Defendant,  to  sell  the  said  annuity  to 
the  Defendant  for  the  sum  of  £280,  which  was  to  be  paid  on  or  before 
the  1st  January,  1819;  a  first  instalment  of  £200  was  to  be  paid  in  the 
October  preceding:  there  was  no  express  stipulation  as  to  the  time 
when  the  purchaser  was  to  become  entitled  to  the  annuity. 

The  Vice-Chancellor  [Sir  John  Leach]  held  the  purchaser  en- 
titled to  the  annuity  from  the  time  of  payment  of  the  last,  and  not 
from  that  of  the  first,  instalment  of  the  price. 

It  appeared  that  a  difference  having  arisen  upon  the  point,  as  to  the 
time  when  the  purchaser  would  be  entitled  to  the  annuity,  the  perform- 
ance of  the  contract  was  delayed.  And  in  the  month  of  October,  1820, 
the  purchaser  wrote  a  letter  to  the  Plaintiff,  stating  his  claim  to  the  ar- 
rears from  the  time  of  the  agreement,  and  expressing  his  readiness  im- 
mediately to  complete  upon  those  terms.  Mr.  McDonald  the  annuitant 
died  a  few  days  after  the  date  of  this  letter. 

The  Vice-Chancellor  held  this  letter  conclusive  evidence  of  a 
contract  depending,  and  not  abandoned. 

It  was  next  urged  for  the  Defendant  that  there  could  in  this  be  no 
decree  for  specific  performance  of  the  contract,  because  the  subject 
of  the  contract  was  gone ;  that  the  Plaintiff's  claim  was  for  the  price 
only,  and  that  he  might  have  recovered  this  at  law  :  and  therefore  no 
bill  in  equity  would  lie  for  it.  And  it  was  said  that  the  Court  refused 
to  make  a  decree  in  a  bill  for  the  specific  performance  of  an  agreement 
for  a  lease,  where  the  extended  term  had  expired  before  the  cause 
came  to  a  hearing.     *     *     * 

May  14.  The  Vice-Chancellor  [Sir  John  Leach].  It  may  now 
be  considered  as  the  settled  law  of  the  Court,  by  the  cases  of  Morti- 
mer v.  Capper,  and  Jackson  v.  Lever,  and  the  reported  dicta  of  Lord 
Eldon,  especially  in  the  case  of  Coles  v.  Trecothick,  that  if  the  price  of 
property  be  an  annuity  for  the  life  of  the  vendor,  his  death  before  the 
conveyance  will  form  no  objection  to  the  specific  performance  of  the 
contract.  The  vendor  agrees  to  sell  for  a  contingent  price,  and  those 
who  represent  him  cannot  complain  that  the  contingency  has  turned 
out  unfavourably.     The  same  principle  necessarily  applies  to  a  case 


Sec.  8)  EQUITABLE   DEFENSES  465 

where  the  life  annuity  is  not  the  price  but  is  the  subject  of  the  sale. 
If  the  annuitant  happens  to  die  before  the  annuity  is  legally  transfer- 
red to  the  purchaser,  the  death  of  the  annuitant  can  form  no  objection 
to  the  specific  performance  of  the  contract.  The  purchaser  agrees  to 
buy  an  interest  of  uncertain  duration,  and  he  cannot  complain  that 
the  contingency  is  unfavourable  to  him.  But  it  is  said  that,  by  the 
death  of  the  annuitant  a  legal  transfer  of  the  annuity  is  no  longer  nec- 
essary to  the  Defendant ;  and  the  only  act  to  be  done  is  the  payment  of 
a  sum  of  money  by  the  Defendant  to  the  Plaintiff ;  and  that  the  Plain- 
tiff ought  therefore  to  have  proceeded  at  law  and  not  in  equity. 

A  court  of  Equity  entertains  a  suit  for  specific  performance  by  a 
purchaser,  in  order  to  give  him  the  very  subject  of  his  contract.  And 
although  the  demand  of  a  vendor  be  merely  for  a  sum  of  money,  it 
will  entertain  a  similar  suit  for  him  upon  the  principle  that  the  reme- 
dies ought  to  be  mutual.  If  the  death  of  a  life  annuitant  were  to  hap- 
pen at  such  a  time  that  a  purchaser  in  effect  took  no  benefit  under  his 
contract,  which  might  well  happen  where  his  title  was  to  commence 
at  a  future  time ;  there  it  might  be  made  a  question  whether,  as  at  the 
time  of  the  bill  filed  a  purchaser  could  file  no  bill  in  equity,  the  princi- 
ple of  mutual  remedy  could  enable  the  vendor  to  file  such  a  bill.  But 
that  is  not  this  case,  here  the  purchaser  has  an  equitable  title  to  the  ar- 
rears of  the  annuity  between  the  time  of  his  purchase  and  the  death 
of  the  annuitant,  which  would,  in  principle,  now  support  a  bill  on  his 
part  for  specific  performance,  although  the  facts  of  the  case  would  not 
make  such  a  bill  advantageous  to  him.  I  consider  this  case,  therefore, 
strictly  a  case  of  mutual  remedy  so  as  to  entitle  the  vendor  to  a  bill 
for  specific  performance.  And  it  appears  to  me  to  make  no  difference 
in  principle,  that  the  annuity  being  charged  upon  the  estate  of  the  pur- 
chaser himself,  he  could  practically  satisfy  his  demand  for  arrears  by 
retainer  without  the  necessity  of  a  legal  grant. 


IRON  AGE  PUB.  CO.  v.  WESTERN  UNION  TELEGRAPH  CO. 

(Supreme  Court  of  Alabama,  18S7.     83  Ala.  498,  3  South.  449, 
3  Am.  St.  Rep.  758.) 

Bill  for  specific  performance  and  for  injunction.  The  opinion  states 
the  facts. 

SomerviixE,  J.49  The  bill  is  one  in  the  nature  of  specific  perform- 
ance, seeking,  by  the  auxiliary  force  of  an  injunction,  to  prevent  the 
breach  of  an  alleged  contract  by  the  New  York  Associated  Press,  sell- 
ing, as  is  insisted,  to  the  complainant,  the  Iron  Age  Publishing  Com- 
pany, an  exclusive  right  to  receive  and  publish,  at  Birmingham,  Ala- 

48  Part  of  the  opinion  is  omitted. 
Boke  Eq.— 30 


466  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

bama,  all  of  the  Associated  Press  dispatches  gathered  and  prepared 
for  the  press  by  the  New  York  company,  and  transmitted  over  the  lines 
of  the  Western  Union  Telegraph  Company,  which  body  corporate  is 
also  made  a  party  defendant  to  the  bill.  The  breach  complained  of  is 
averred  to  be  the  delivery  of  these  dispatches  for  publication  to  the 
Morning  Herald  Publishing  Company  and  the  News  Publishing  Com- 
pany, whcih  companies  publish  a  daily  paper  in  the  city  of  Birming- 
ham, and  are  also  made  parties  defendant  to  the  present  suit.  The 
chancellor  sustained  a  demurrer  to  the  bill,  and  the  complainant  brings 
this  appeal.     *     *     * 

There  seems  to  us  to  be  one  feature  about  the  present  contract,  how- 
ever, which  renders  it  impracticable  to  be  specifically  enforced  with 
justice  to  both  parties.  This  is  its  want  of  mutuality,  both  as  to  the  ob- 
ligation and  the  remedy,  as  to  one  of  its  features.  From  the  averments 
of  the  bill  it  is  made  to  appear  that  the  contract  in  question  is  to  re- 
main in  force  only  so  long  as  the  complainant  shall  continue  to  act  as 
agent  and  correspondent  of  the  Associated  Press  at  EJirmingham.  It 
is  not  shown  whether  this  duty  was  assumed  forever,  for  any  definite 
period,  or  might  terminate  at  will.  In  either  contingency,  we  are  un- 
able to  see  how  the  court  is  to  compel  performance  on  the  part  of  com- 
plainant. The  general  rule,  to  which,  it  is  true,  there  are  many  excep- 
tions, seems  to  be  that  contracts,  in  order  to  be  enforced  by  specific 
performance,  must  be  mutual  in  obligation  as  well  as  in  remedy.  Mr. 
Pomeroy  says,  and  such,  we  think,  is  the  general  rule,  that : 

"It  is  a  familiar  doctrine  that  if  the  right  to  the  specific  performance  of  a 
contract  exists  at  all  it  must  be  mutual ;  the  remedy  must  be  alike  attainable 
by  both  parties  to  the  agreement."     Pom.  Cont.  §§  162-165. 

With  some  established  exceptions,  it  may  be  stated  that  equity  will 
decline  to  enforce  a  contract  against  a  defendant  when  the  case  is  of 
such  a  nature  that  the  court  has  no  power  to  compel  the  complainant 
to  perform  this  part  of  it.  Moon  v.  Crowder,  72  Ala.  79;  Irwin  v. 
Bailey,  72  Ala.  467;  3  Brick.  Dig.  p.  361,  ,§§  421,  422;  Fry,  Spec. 
Perf.  286;  Cooper  v.  Pena,  21  Cal.  404;  Duvall  v.  Myers,  2  Md.  Ch. 
401 ;  Richmond  v.  Railroad  Co.,  33  Iowa,  423 ;  Marble  Co.  v.  Ripley, 
10  Wall.  339,  19  L.  Ed.  955;  Meason  v.  Kaine,  63  Pa.  335;  Rogers 
v.  Saunders,  16  Me.  92,  33  Am.  Dec.  635.  There  are  many  unilateral 
contracts  which  constitute  an  exception  to  this  rule,  including  the  right 
to  exercise  options,  and  cases  affected  by  the  statute  of  frauds,  to  say 
nothing  of  others  which  stand  on  peculiar  principles.  This  case  is  not 
of  that  class.  Richards  v.  Green,  23  N.  J.  Eq.  536;  Heflin  v.  Milton, 
69  Ala.  354;  Pom.  Cont.  §§  167,  174;  2  Lead.  Cas.  Eq.  1077.  How, 
it  may  be  asked,  is  it  practicable  for  the  court  to  compel  the  complain- 
ant to  perform  personal  services  as  agent  and  correspondent  of  the 
Associated  Press  at  Birmingham,  which  it  has  contracted  to  perform 
from  year  to  year  under  this  agreement  ?  We  have  seen  that  the  duty 
involves  the  exercise  of  special  skill,  judgment,  and  discretion,  being 


Sec.  S)  EQUITABLE   DEFENSES  4G7 

intellectual  as  well  as  mechanical  in  its  character.  These  duties  are 
also  continuous  in  their  nature,  and  of  indefinite  duration.  There  can 
be,  as  we  have  shown,  no  specific  performance  affirmatively  of  such 
duties  by  a  court  of  equity.  The  most  that  could  be  done  is  to  nega- 
tively enforce  them  by  injunction,  by  prohibiting  their  breach ;  and 
this,  only,  on  bill  filed  praying  such  particular  relief.  It  is  clear  that 
but  one  of  two  decrees  can  be  rendered  in  this  case:  (1)  We  can  tie 
the  hands  of  the  Associated  Press  and  the  other  defendants  by  injunc- 
tion, forbidding  the  delivery  of  the  press  dispatches  to  any  one  else 
than  the  complainant,  as  prayed  for,  and  leave  the  complainant  free  to 
terminate  the  contract  at  its  will,  without  limitation  of  time  or  circum- 
stances, or  to  perform  its  duties  as  correspondent  as  negligently  or  dil- 
igently as  discretion  may  dictate;  or  (2)  to  keep  the  injunction  in 
force  so  long  as  the  duties  imposed  by  the  contract  shall  be  faithfully 
performed  by  complainant,  which  may  be  for  all  time  to  come,  in  view 
of  the  possible  perpetuity  of  complainant's  corporate  existence. 

The  first  decree  suggested  would  be  entirely  opposed  to  all  equity 
precedents  and  practice ;  the  settled  rule  being  that  the  courts  will  not 
interfere  by  injunction  in  cases  of  this  kind,  if,  indeed,  in  any  case, 
where  defendant  cannot  be  made  secure  in  his  rights  and  remedies  for 
violation  of  the  duties  imposed  on  the  complainant  by  the  contract 
sought  to  be  enforced.  Bromley  v.  Jefreries,  2  Vern.  415;  Richmond 
v.  Railroad  Co.,  33  Iowa,  422,  and  cases  cited  on  page  486. 

The  second  decree  above  suggested  would  also  be  impracticable,  not 
only  for  the  reason  that  the  court  cannot  compel  the  performance  of 
the  personal  services  assumed  to  be  undertaken  by  the  complainant, 
involving,  as  they  do.  the  exercise  of  special  skill,  judgment,  and  dis- 
cretion, but  it  would  be  out  of  the  question  for  the  chancery  court  to 
keep  this  case  open  for  all  time,  or  even  for  an  indefinite  term  of  years, 
to  superintend  the  continuous  performance  of  these  duties  by  the  com- 
plainant. This  might  invite  the  frequent  necessity  on  the  part  of  the 
court  of  hearing  complaints  from  the  defendant  charging  the  complain- 
ant with  a  breach  of  its  duties,  or  from  the  complainant  arraigning  the 
defendant  for  contempt,  for  a  violation  of  the  injunction.  There 
would  thus  be  no  end  to  the  number  of  occasions  when  the  court  might 
be  called  on  from  year  to  year  to  say  whether  the  complainant  has  per- 
formed the  duties  in  question  faithfully  and  efficiently,  so  as  to  have 
kept  the  injunction  in  force  ;  or  negligently  and  unskillfully,  so  as  to  jus- 
tify its  breach.  For  these  reasons  the  rule  is  that  equity  will  not  enforce 
the  performance  of  continuous  duties  involving  personal  labor  and  care 
of  a  particular  kind,  which  the  court  cannot  superintend.  Wat.  Spec. 
Perf.  §  49;  Richmond  v.  Railroad  Co.,  33  Iowa,  422;  Caswell  v. 
Gibbs,  33  Mich.  331;  Railroad  Co.  v.  Railroad  Co.,  13  Ohio  St.  544; 
Railroad  Co.  v.  Speer,  32  Ga.  550,  79  Am.  Dec.  305 ;  Blanchard  v. 
Railroad  Co.,  31  Mich.  43,  18  Am.  Rep.  142;  Marble  Co.  v.  Ripley,  10 
Wall.  339,  19  h.  Ed.  955. 


468  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

The  contract  being  one  which  cannot  be  specifically  enforced  in  a 
court  of  equity  against  the  complainant,  we  deem  it  inequitable  to  en- 
force it  against  the  defendants.  The  demurrer  to  the  bill  was  properly 
sustained,  and  the  decree  is  affirmed. 


LEAR  v.  CHOUTEAU  et  al. 
(Supreme  Court  of  Illinois,  1S59.    23  111.  37.) 

Error  to  Circuit  Court,  St.  Clair  County;  W.  H.  Underwood,  Judge. 

This  was  a  bill  in  chancery,  by  Pierre  Chouteau,  Jr.,  James  Harrison 
and  Felix  Valle  against  Ferdinand  Lear,  to  compel  a  conveyance  to  the 
complainants  of  certain  coal  and  coal  lands,  and  privileges  connected 
therewith,  purchased  by  the  defendant,  as  was  alleged,  in  trust  for  the 
complainants. 

The  attorney  for  the  complainants  testified  that  he  took  down  the 
notes  from  which  the  exhibit  was  drawn  from  the  directions  of  Charles 
P.  Chouteau  and  the  defendant,  when  together  in  his  office ;  that  he 
read  the  same  to  the  defendant,  and  said  he  believed  it  embodied  the 
whole  agreement,  and  all  that  was  necessary;  that  the  defendant  re- 
plied, he  believed  it  did ;  that  the  defendant  was  slightly  deaf ;  that 
when  the  agreement  was  drawn,  the — 

"defendant  expressly  desired  that  some  time  should  be  limited  in  it,  in  which 
he  should  he  required  to  commence  operations,  and  they  fixed  upon  a  month, 
that  is  to  say,  this  is  what  I  understood  Lear's  wish  at  the  time." 

The  agreement  or  exhibit  contained  the  following  clause :   That  it — 

"should  not  take  effect  until  after  one  month's  notice  given  to  said  Lear,  by 
Chouteau,  Harrison  and  Valle,  to  that  effect,  unless  the  parties  should  mu- 
tually consent  to  a  shorter  time  for  the  commencement  of  operations." 

Lear  never  signed  this  agreement.  The  opinion  states  the  other  ma- 
terial facts. 

Mr.  Chiff  JusTTcf,  Caton  delivered  the  opinion  of  the  Court: 

There  is  no  pretense  for  a  resulting  trust  in  this  case.  The  inter- 
ests in  the  lands  in  controversy  were  purchased  by  Lear  not  for  cash 
down,  but  on  time,  to  be  paid  for  as  the  coal  should  be  taken  out,  and 
Lear  gave  his  personal  obligations  for  the  payment  of  the  purchase 
money,  and  took  whatever  title  was  taken  to  himself.  The  agreement 
under  which  these  purchases  were  made  could  not  create  a  resulting 
trust,  which  can  alone  arise  from  the  fact,  that  a  purchase  is  made  in 
the  name  of  one,  while  the  purchase  money  belongs  to  another.  Here 
no  part  of  the  purchase  money  has  been  paid,  and  hence  it  is  impossi- 
ble that  a  resulting  trust  could  arise. 

The  subject  matter  of  this  controversy  is  coal  in  lands,  with  the  right 
to  take  and  remove  it  therefrom.  This  is  an  interest  in  lands,  and  by 
the  statute  of  frauds  all  contracts  concerning  it  are  required  to  be  in 
writing,  in  order  to  be  binding  on  the  parties,  yet  the  well  settled  rules 


Sec.  8)  EQUITABLE   DEFENSES  469 

of  both  law  and  equity  require  that  those  who  would  avoid  the  obli- 
gations of  such  parol  contracts  by  reason  of  the  statute,  must  set  up 
the  statute  by  way  of  defense,  or  rely  upon  it  by  pleading  in  some  way, 
and  if  they  will  not  do  this,  they  thereby  impliedly  waive  the  objec- 
tion, that  the  contract  was  not  in  writing.  Here  the  defendant  has  not 
relied  upon  the  statute  in  his  answer,  and  it  is  now  too  late  for  him  to 
say  that  it  was  not  in  writing.  We  must  now  consider  this  case  as  if 
no  such  statute  existed. 

We  shall  assume,  for  the  purposes  of  this  decision,  that  the  testi- 
mony of  Mr.  Hill  shows  that  Lear  assented  to  the  paper  exhibit  A,  as 
containing  the  terms  of  the  agreement  between  the  parties  under  which 
these  lands  were  purchased,  and  for  which  he  agreed  to  assign  the 
contracts  to  the  complainants,  while  we  confess  that  we  are  by  no 
means  satisfied  that  such  admission  was  understandingly  made,  or  that 
Mr.  Lear  fully  understood  the  effect  of  the  paper.  But  we  shall  place 
our  decision  upon  the  terms  and  provisions  of  the  paper  as  exhibited. 
It  shows  such  an  agreement  as  no  court  of  chancery  ever  ought  to  en- 
force specifically,  even  though  the  defendant  agreed  to  all  its  terms. 
It  is  not  every  contract,  although  fairly  and  even  understandingly 
made,  which  a  court  of  chancery  will  decree  to  be  specifically  per- 
formed. Shall  we  compel  Lear  to  assign  these  purchases  for  the  con- 
sideration of  the  covenants  and  obligations  which  the  complainants 
propose  to  assume  by  the  execution  of  this  paper?  It  is  a  paper  by 
which  Lear  agrees  to  superintend  the  opening  and  working  these  mines 
and  to  devote  all  his  time  thereto,  for  which  services  the  complainants 
are  to  pay  him  seventy  dollars  per  month  till  the  mines  are  open,  and 
after  that,  two  mills  per  bushel  for  the  coal  which  shall  be  taken  out 
and  marketed.  Even  if  the  contract  stopped  here,  we  cannot  say  that 
it  should  be  specifically  performed.  This  contract  makes  no  provision 
for  the  payment  of  the  purchase  money.  By  the  original  contracts  to 
be  assigned  by  Lear  to  the  complainants,  Lear  had  bound  himself  in 
personal  covenants  to  pay  fifteen  dollars  per  acre  for  all  the  coal  in  all 
these  lands,  and  this  paper  leaves  him  still  obliged  to  pay  this  rent  or 
purchase  money.  Was  such  the  intention  of  the  parties?  Did  Lear 
intend  to  bind  himself  still  to  pay  this  money?  Probably  not,  although 
such  is  the  effect  of  the  papers  which  we  are  called  upon  to  compel  him 
to  execute.  But  the  last  clause  in  this  exhibit  A  leaves  it  without  the 
least  particle  of  value  to  Lear,  and  places  him  entirely  at  the  mercy  of 
the  complainants.     It  is  this : 

'This  agreement  is  not  to  take  effect  until  after  one  month's  notice  given 
to  said  Lear  by  Chouteau,  Harrison  &  Valle  to  that  effect,  unless  the  parties 
hereto  shall  mutually  consent  to  a  shorter  time  for  the  beginning  of  opera- 
tions." 

Here  then  the  contract  which  constitutes  the  sole  consideration  for 
these  assignments  is  to  remain  a  dead  letter,  till  the  complainants 
choose  to  impart  to  it  vitality  by  giving  the  notice  specified.  Till  then, 
it  is  not  to  take  effect ;    it  is  to  have  no  existence ;    it  is  as  if  it  had 


470  SFECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

never  been  written,  except  that  Lear  is  forever  bound  to  hold  himself 
in  readiness  on  one  month's  notice  to  enter  into  the  service  of  the  com- 
plainants on  the  terms  specified.  Of  what  worth  is  such  a  paper  to 
Lear — what  consideration  is  it  for  the  assignment  of  these  purchases, 
which  had  cost  him,  no  doubt,  considerable  labor  and  scientific  skill 
as  a  collier,  as  the  case  shows,  and  also  for  which  he  had  executed  his 
obligations  amounting  in  the  aggregate  to  a  very  large  sum?  Noth- 
ing; absolutely  nothing,  and  even  worse  than  nothing,  for  by  it  his 
bands  would  be  tied  up  so  that  he  could  not  engage  in  other  enterpris- 
es of  a  permanent  character,  but  must  ever  stand  with  his  hands 
folded,  awaiting  the  pleasure  of  these  gentlemen.  In  such  a  contract 
as  this  there  is  neither  reciprocity,  fairness  nor  good  conscience,  and 
if  the  defendant  was  simple  enough  to  consent  to  such  an  agreement, 
a  court  of  equity  will  not  compel  him  to  execute  it  specifically,  but 
leave  the  parties  to  their  remedies  at  law,  which  has  no  conscience 
and  knows  no  mercy. 

In  order  to  induce  a  court  of  equity  to  enforce  specifically  a  con- 
tract, it  must  be  founded  on  a  good  consideration,  it  must  be  reason- 
able, fair  and  just.  If  its  terms  are  such  as  our  sense  of  justice  re- 
volts at,  this  court  will  not  enforce  it,  though  admitted  to  be  binding 
at  law.  Such  is  the  character  of  this  agreement — there  is  not  one  re- 
ciprocal feature  in  it.  Lear  is  required  to  perform  everything  on  his 
part,  and  binds  himself  to  the  performance  of  future  acts  uncon- 
ditionally, while  the  complainants  are  absolutely  bound  to  nothing. 
Some  men  delight  in  holding  all  the  strings  in  their  own  hands — hold- 
ing others  entirely  at  their  mercy,  that  they  may  make  a  merit  of  jus- 
tice and  call  it  generosity,  or  crush  down  their  victim  with  a  heavy 
hand  and  plead  the  letter  of  the  bond  for  a  justification.  Such  traits 
of  character  and  such  transactions  are  as  abhorrent  to  equity  as  they 
are  detestable  to  the  common  appreciation  of  mankind,  and  will  look 
in  vain  for  favor  at  the  hands  of  this  court.  We  will  not  say  that 
these  complainants  are  fully  obnoxious  to  this  censure,  but  this  trans- 
action looks  very  like  it  if  they  fully  comprehend  the  scope  of  the 
agreement  which  they  propose  to  give  the  defendant,  and  the  position 
in  which  they  are  seeking  to  place  him. 

The  decree  is  reversed  and  the  bill  dismissed.    Decree  reversed. 


Sec.  8)  EQUITABLE   DEFENSES  471 

SCHROEDER  et  al.  v.  GEMEINDER. 

(Supreme  Court  of  Nevada,  1875.     10  Nev.  355.) 

Appeal  from  the  District  Court  of  the  First  Judicial  District,  Storey 
County. 

The  facts  are  stated  in  the  opinion. 

By  the  Court,  HawlEy,  C.  J.50  On  the  6th  day  of  March,  1871,  re- 
spondent leased,  to  appellants — ■ 

"all  that  certain  brick  building  numbered  one  hundred  and  thirty-six  South 
C  street,  in  the  city  of  Virginia,  and  State  of  Nevada,  said  building  being 
forty-four  feet  in  depth  westwardly,  with  the  appurtenances,  for  the  term  of 
two  years,  with  privilege  of  two  more,  from  the  first  day  of  April,  A.  D.  1871, 
at  the  monthly  rent  or  sum  of  fifty  dollars." 

It  was  agreed  that  the  lessees  might  make  any  improvements  upon 

said  premises  which  they  might  choose,  the  same  to  be  made  at  their 

own   expense.      The   lessor   also    covenanted  that   the  lessees   should 

have — 

'•the  first  privilege  of  buying  the  said  premises  at  any  time  they  may  wish 
to  do  so,  at  the  price  of  one  thousand  dollars,  gold  coin." 

The  lessees  entered  into  the  possession  of  said  premises,  under  said 
lease,  on  the  first  day  of  April,  1871,  and  regularly  paid  the  monthly 
rent  therefor,  up  to  the  second  day  of  April,  1874,  when  they  tendered 
to  the  lessor  the  sum  of  one  thousand  dollars,  gold  coin,  and  presented 
a  draft  of  a  deed  for  the  property,  and  demanded  its  execution.  Re- 
spondent refused  to  accept  the  money  or  to  execute  the  deed.  No  rea- 
son was  given  for  the  refusal.     *     *     * 

During  the  time  appellants  were  in  possession,  under  the  lease,  they 
erected  at  their  own  expense  a  frame  building  twenty-eight  feet  in 
length,  in  the  rear  of  the  brick,  at  a  cost  of  over  one  thousand  dol- 
lars ;  built  a  furnace  therein  and  made  other  improvements  in  order 
to  carry  on  the  brewery  business.  No  additional  rent  was  ever  de- 
manded for  the  use  of  the  premises  upon  which  the  frame  building 
was  erected,  and  none  was  ever  paid  by  the  appellants. 

The  brick  building,  with  the  land  upon  which  it  stood,  was  wrorth  at 
the  time  of  the  execution  of  the  lease  one  thousand  dollars ;  at  the  time 
of  the  tender  of  the  money  its  value,  as  testified  by  witnesses,  was 
from  fifteen  hundred  to  two  thousand  dollars. 

This  action  was  commenced  to  compel  a  specific  performance  of  the 
covenant  in  said  lease  giving  the  first  privilege  of  purchasing  to  ap- 
pellants. In  the  complaint  the  premises  are  described  substantially 
the  same  as  in  the  deed  tendered  to  respondent  for  execution. 

The  first  question  in  this  case  involves  a  construction  of  the  covenant 
giving  appellants  the  first  privilege  of  purchasing  the  leased  premises. 
What  does  this  covenant  mean?  It  must  be  so  construed  as  to  carry 
out  the  real  intention  of  the  parties  at  the  time  of  signing  the  lease. 
We  think  that,  from  the  language  used,  it  is  susceptible  of  but  one  con- 
s'1 Parts  of  the  opinion  are  omitted. 


472  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

struction.  If  respondent  wished  to  sell  said  premises  he  must  first 
give  appellants  the  privilege  of  buying  the  same  at  the  stated  price  of 
one  thousand  dollars,  and  if  they  refused  to  purchase  at  that  price  then 
respondent  might  sell  to  others  at  any  price  he  saw  fit.  The  privilege 
was  not  absolute ;  that  is,  it  was  not  a  privilege  binding  upon  respond- 
ent not  to  sell  to  anybody  but  appellants ;  but  he  was  bound  to  give 
them  the  first  privilege,  and  could  not  sell  to  others  without  appellants 
refused  to  purchase.  Upon  the  other  side,  until  such  notice  was  given 
it  would  be  at  the  option  of  the  appellants  at  any  time  during  the  exis- 
tence of  the  lease  to  purchase  the  property  for  the  sum  of  one  thou- 
sand dollars,  and  whenever  the  money  was  tendered  by  them,  respond- 
ent was  bound  to  execute  a  deed  therefor.  Is  this  covenant,  thus  con- 
strued, such  a  one  as  can  be  enforced  in  a  court  of  equity? 

It  is  argued  by  respondent  that  the  covenant  is  void  because  the  time 
within  which  the  purchase  might  be  made  is  not  stated.  The  language 
of  the  covenant  is,  "at  any  time  they  may  wish  to  do  so."  Whatever 
construction  might  be  placed  upon  these  words  in  a  general  sense,  it 
seems  to  us  that  from  the  peculiar  wording  of  the  entire  clause  in 
question,  they  mean  that  appellants  could  at  any  time  purchase  when 
respondent  gave  them  the  first  privilege,  as  he  was  bound  to  do,  be- 
fore selling  to  others,  and  if  he  did  not  give  them  notice  of  his  inten- 
tion to  sell  to  others  then  they  could,  at  any  time  they  wished  to  do  so. 
certainly  during  the  existence  of  the  lease,  elect  to  make  the  purchase. 
The  time  was  thus  indefinitely  stated  so  as  to  give  effect  to  the  cove- 
nant and  to  carry  out  the  real  intention  of  the  parties.  But  counsel 
argue  that  the  lease  was  only  for  two  years,  and  therefore  claim  that 
the  tender  was  not  made  during  the  term  of  the  lease.  The  answer 
to  this  is  too  plain  to  admit  of  any  doubt.  After  the  expiration  of  the 
two  years  mentioned  as  the  term  of  the  lease,  appellants  continued  to 
pay,  and  respondent  continued  to  receive,  the  rent ;  no  extension  of 
privilege  was  asked  for  by  appellants,  and  no  objections  were  made  by 
respondent  to  their  remaining  in  possession  of  the  premises.  By  an  ex- 
press covenant  in  the  lease,  appellants  had  the  privilege  of  leasing  the 
premises  for  two  years  more,  and  under  this  covenant  the  payment  of 
rent  upon  the  part  of  appellants  and  acceptance  of  it  upon  the  part  of 
respondent  amounted  to  a  renewal  of  the  lease.  Moreover,  it  is  well 
settled  that  in  such  covenants  time  is  not  of  the  essence  of  the  contract, 
unless  the  parties  themselves  in  agreeing  upon  the  terms  have  clearly 
considered  time  an  important  part  thereof,  or  unless  it  necessarily 
follows  from  the  nature  and  circumstances  of  the  contract.  1  Story, 
Eq.  Jur.  §  776,  and  authorities  there  cited. 

In  Maughlin  v.  Perry  and  Warren,  the  lessor  covenanted  to  sell 
certain  property  to  his  lessee  for  a  stated  sum,  "at  any  time  during 
the  existence  of  the  lease,"  and  the  court  held  that: 

"This  was  a  continued  obligation  running  with  the  lease  on  the  part  of  the 
lessor,  with  the  option  in  the  tenant  to  accept  the  same  or  nut,  within  that 
time."     35  Aid.  357.     *     *     * 


Sec.  8)  EQUITABLE   DEFENSES  473 

It  is  next  insisted  that  a  court  of  equity  should  not  decree  a  specific 
performance,  because  the  obligation  of  the  parties  is  not  mutual,  and 
several  authorities  have  been  cited  to  the  effect  that  when  the  contract 
is  of  such  a  nature  that  it  cannot  be  specifically  enforced  as  to  one  of 
the  parties,  equity  will  not  enforce  it  against  the  other.  The  case  of 
Parkhurst  v.  Van  Cortland  was  reversed  on  appeal  in  the  court  of 
errors.  14  Johns.  [N.  Y.]  15,  7  Am.  Dec.  427.  Some  of  the  other 
cases  have  but  little  applicability  to  the  facts  of  this  case,  and  several 
of  them  have  been  reviewed  and  expressly  overruled  by  the  decisions 
in  other  States.  There  are  many  exceptions  to  the  general  rule  stated 
in  said  cases,  and  without  attempting  to  review  the  authorities  relied 
upon  by  respondent,  we  think  it  may  now  be  considered  as  well  settled 
by  all,  or  nearly  all  the  modern  authorities,  that  a  court  of  equity,  in 
actions  for  the  specific  performance  of  optional  contracts  and  covenants 
to  lease  or  convey  lands,  will  enforce  the  covenant,  although  the  remedy 
is  not  mutual,  provided  it  is  shown  to  have  been  made  upon  a  fair 
consideration,  and  where  it  forms  part  of  a  contract,  lease  or  agree- 
ment that  may  be  the  true  consideration  for  it.     *     *     * 

It  may  be  well  to  state  in  this  connection,  that  Chancellor  Kent,  who 
delivered  the  opinions  in  Parkhurst  v.  Van  Cortlant,  1  Johns.  Ch. 
[N.  Y.l  275,  in  1814,  and  in  Benedict  v.  Lynch,  1  Johns.  Ch.  [N.  Y.] 
370,  7  Am.  Dec.  484,  in  1815  (both  cited  and  relied  upon  by  respond- 
ent's counsel),  afterwards,  in  1817,  in  Clawson  v.  Bailey,  in  passing 
upon  this  question,  after  referring  to  the  observations  of  Lord  Ch. 
Redesdale,  in  Lawrenson  v.  Butler,  1  Sch.  &  Lef.  13  (also  cited  by  re- 
spondent), who  thought  that  the  contract  ought  to  be  mutual  to  be 
binding,  and  that  if  one  party  could  not  enforce  it  the  other  ought  not, 
said : 

"I  have  thought,  and  have  often  intimated,  that  the  weight  of  argument 
was  in  favor  of  the  construction  that  the  agreement  concerning  lands,  to  be 
enforced  in  equity,  should  be  mutually  binding,  and  that  the  one  party  ought 
not  to  be  at  liberty  to  enforce,  at  his  pleasure,  an  agreement  which  the  other 
was  not  entitled  to  claim.  *  *  *  But,  notwithstanding  this  objection,  it 
appears,  from  the  review  of  the  cases,  that  the  point  is  too  well  settled  to  be 
now  questioned."     *     *     * 

The  price  stated  was  a  fair  one  for  the  property  at  the  time  of  the 
contract,  and  it  is  certainly  reasonable  to  presume  that  both  parties, 
in  making  the  contract,  took  into  consideration  the  probabilities  of 
its  increasing  in  value  within  the  term  of  the  lease.  The  fact  that  the 
brick  building  is  not  large  enough  to  enable  appellants  to  carry  on 
the  brewery  business,  does  not  justify  the  refusal  of  the  decree. 

If  appellants  are  willing  to  take  the  property  and  pay  the  price 
agreed  upon,  it  surely  does  not  lie  in  the  mouth  of  respondent  to  say 
that  they  ought  not  to  have  it  because  it  is  of  but  little  value  to  them 
in  the  business  in  which  they  are  engaged,  and  that  it  would  be  of  more 
value  to  him  as  a  homestead.  In  this  connection,  it  is  proper  to  state 
that  the  complaint  contains  an  allegation  that  by  mistake  the  prem- 
ises in  the  rear  of  the  brick,  upon  which  appellants  erected  the  frame 


474  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

building,  was  omitted  from  the  description  of  the  premises  in  the 
lease,  and  it  also  prays  to  have  the  lease  reformed  so  as  to  include 
said  premises.  This  presents  a  question  of  fact  to  be  determined  upon 
a  new  trial. 

The  judgment  of  the  district  court  is  reversed,  and  cause  remanded 
for  a  new  trial. 


COPPLE  v.  AIGELTINGER  et  al. 
(Court  of  Appeal,  First  District,  California,  1913.    17  Cal.  App.  469.) 

Richards,  J.  This  is  in  substance  and  effect  an  appeal  from  a  judg- 
ment in  favor  of  plaintiff  in  an  action  for  the  specific  performance  of 
an  agreement  for  the  sale  of  real  estate. 

The  lower  court,  upon  the  trial  of  the  cause,  first  made  its  findings 
and  entered  its  judgment  in  favor  of  the  defendants;  but  later,  and 
upon  motion  of  the  plaintiff  for  amendments  to  the  conclusions  of  law 
and  for  a  judgment  based  thereon  in  his  favor,  the  court  made  an  or- 
der granting  such  motion,  vacating  the  prior  judgment,  and  directing 
a  new  judgment  in  plaintiff's  favor,  which  was  accordingly  entered. 
From  this  order  the  defendants  appeal. 

No  point  is  made  upon  the  propriety  in  point  of  procedure  of  the  or- 
der appealed  from  and  hence  the  case  stands  as  though  the  appeal  had 
been  taken  from  an  original  judgment  in  plaintiff's  favor. 

The  facts  of  the  case  are  presented  in  the  findings  of  the  court,  and 
are  in  substance  as  follows:  On  the  17th  day  of  September,  1910,  the 
defendant  E.  H.  Aigeltinger  was  the  owner  of  an  undivided  one-half 
interest  in  a  tract  of  land  near  Hopland,  and  on  that  day  made,  exe- 
cuted and  delivered  to  one  A.  H.  Pape,  acting  as  an  agent  for  the  plain- 
tiff, an  option  to  purchase  said  real  estate  in  the  following  words : 

"San  Francisco,  September  17,  1910. 
"Rec'd  from  A.  H.  Pape  as  deposit  of  $10  for  William  Copple  on  sale  of  y2 
piece  of  land  known  as  Lowe  place  at  Hopland.    Balance  of  five  hundred  and 
ninety  ($590)  dollars  to  be  paid  on  delivery  of  deed. 

"[Signed]     E.  H.  Aigeltinger." 

The  purchase  price  of  the  land  named  in  this  option  was  reasonable, 
and  the  sum  of  ten  dollars  was  actually  received  by  said  Aigeltinger 
upon  the  date  thereof.  On  September  23,  1910,  said  Aigeltinger  re- 
quested William  Copple,  the  principal  of  said  Pape  and  plaintiff  herein, 
to  return  said  writing,  and  offered  to  repay  to  him  the  ten  dollars 
which  he  had  received  thereunder.  The  option  was  not  returned  nor 
the  offer  of  repayment  accepted ;  but  on  the  28th  of  September,  1910, 
Aigeltinger,  for  a  valuable  and  sufficient  consideration,  conveyed  the 
property  to  his  co-defendants  Spencer  Beasley  and  Isaphene  Beasley, 
his  wife,  who  took  such  conveyance  with  full  knowledge  of  the  execu- 


Sec.  8)  EQUITABLE   DEFENSES  475 

tion  and  terms  of  said  option.  On  October  25,  1910,  the  plaintiff  noti- 
fied the  defendant  Aigeltinger  that  he  was  ready,  able  and  willing  to 
take  said  property  under  the  terms  of  said  option,  and  offered  to  pay 
the  balance  of  the  purchase  price,  which  offer  Aigeltinger  refused,  but 
on  his  part  offered  to  return  the  ten  dollars  which  he  had  theretofore 
received.  The  plaintiff  then  brought  this  action  for  specific  perform- 
ance. 

It  has  been  settled  beyond  further  question  by  several  recent  deci- 
sions of  the  supreme  court  that  a  writing  in  the  form  and  terms  of  the 
foregoing  option  is  such  an  agreement  as,  under  the  provisions  of  sec- 
tions 3386  and  3388  of  the  Civil  Code,  may  be  specifically  enforced 
against  the  party  signing  the  same  although  such  writing  has  not  been 
signed  by  the  other  party  beneficially  interested  therein,  and  although 
it  cannot  be  specifically  enforced  against  such  other  party  who  has  not 
signed  it.  Harper  v.  Goldschmidt,  156  Cal.  245,  104  Pac.  451,  28  L. 
R.  A.  (N.  S.)  689,  134  Am.  St.  Rep.  124 ;  Bird  v.  Potter,  146  Cal.  286, 
79  Pac.  970;   Hay  v.  Mason,  141  Cal.  722,  75  Pac.  300. 

It  is  equally  well  settled  by  the  foregoing  authorities  that  the  holder 
of  such  an  option  is  only  entitled  to  insist  upon  the  specific  perform- 
ance thereof  when,  within  the  time  mentioned  therein,  or  within  a  rea- 
sonable time  when  no  specified  time  is  fixed,  he  offers  full  performance 
of  its  terms  in  accordance  with  section  3388  of  the  Civil  Code. 

It  has  also  been  held  in  the  case  of  Harper  v.  Goldschmidt,  supra, 
that  the  payment  of  a  small  sum  of  money  by  the  non-signing  vendee, 
and  the  acceptance  of  a  receipt  therefor,  is  not  sufficient  part  perform- 
ance to  take  the  transaction  out  of  the  statute  of  frauds. 

The  sole  question,  therefore,  presented  in  this  case  is  whether  the 
party  signing  such  an  option  has  the  right,  between  the  date  of  its  exe- 
cution and  the  time  when  the  offer  of  performance  is  made,  to  with- 
draw and  revoke  such  option  so  as  to  cut  off  the  right  of  the  holder  to 
enforce  its  specific  performance  upon  an  offer  of  full  performance  on 
his  part. 

This  question  would  seem  to  be  settled  adversely  to  the  contention 
of  the  respondent  here  in  Leuschner  v.  Duff,  7  Cal.  App.  721,  95  Pac. 
914,  where,  in  a  case  in  every  material  respect  identical  with  the  case 
at  bar,  the  court  says : 

"We  are  not  aware  of  any  rule  which  requires  the  signer  of  a  unilateral 
agreement  to  maintain  the  status  of  the  property  affected  in  order  that  the 
other  party  thereto  may  offer  to  perform  at  his  pleasure,  and  thereby  compel 
specific  performance.  A  construction  of  section  3388  which  would  bring  about 
this  result  would  work  a  repeal  of  section  3386,  and  neither  mutuality  of  rem- 
edy nor  mutuality  of  obligation  be  a  prerequisite  to  the  specific  performance  of 
a  contract.  The  offer  having  been  withdrawn  by  the  defendant  before  the  of- 
fer of  performance  by  plaintiff,  the  latter  was  not  entitled  to  a  decree  com- 
pelling defendant  to  execute  the  contract,  and  was  left  to  his  action  at  law 
for  any  relief  to  which  he  was  entitled."  Leuschner  v.  Duff,  supra ;  Brown 
v.  San  Francisco  Savings  Union,  134  Cal.  448,  452,  66  Pac.  592. 

The  order  is  reversed  and  the  cause  remanded,  with  instructions  to 
the  trial  court  to  vacate  said  order  and  the  judgment  in  favor  of  the 


476  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

plaintiff  based  thereon,  and  to  make  and  enter  its  judgment  in  favor  of 
the  defendants  in  accordance  with  the  views  of  this  court  as  expressed 
in  this  opinion. 
We  concur:   Lenxon,  P.  J. ;   Kerrigan,  J. 


COPPLE  v.  AIGELTIXGER. 

(Supreme  Court  of  California,  1914.    107  Cal.  700,  140  Pac.  1073.) 

Appeal  from  Superior  Court,  Mendocino  County;  J.  Q.  White, 
Judge. 

Action  by  William  Copple  against  E.  H.  Aigeltinger  and  others.  A 
judgment  in  favor  of  the  defendants  was  vacated  by  the  trial  court, 
and  a  new  judgment  rendered  in  favor  of  plaintiff,  and  defendants 
appeal. 

Angellotti,  J.  This  is  an  action  for  the  specific  performance  of 
an  agreement  for  the  sale  of  real  estate.  The  lower  court  first  made 
its  findings  and  entered  its  judgment  in  favor  of  defendants.  Later, 
upon  motion  of  plaintiff  for  amendments  to  the  conclusions  of  law  and 
for  a  judgment  based  thereon  in  his  favor,  the  court  made  an  order 
granting  such  motion,  vacating  the  prior  judgment,  and  directing  a 
new  judgment  in  plaintiff's  favor,  which  was  accordingly  entered. 
From  this  order  the  defendants  appeal. 

The  statute  expressly  provides  for  an  appeal  from  such  an  order. 
Code  Civ.  Proc.  §  663a. 

The  facts  of  the  case  are  presented  in  the  findings  of  the  court, 
and  are,  in  substance,  as  follows  :  On  the  17th  day  of  September,  1910, 
the  defendant  E.  H.  Aigeltinger  was  the  owner  of  an  undivided  one- 
half  interest  in  a  tract  of  land  near  Hopland,  and  on  that  day  made, 
executed,  and  delivered  to  one  A.  H.  Pape,  acting  as  agent  for  the 
plaintiff,  an  instrument  in  writing  relative  to  the  purchase  of  said  real 
estate  by  plaintiff  in  the  following  words : 

"San  Francisco.  September  17,  1910. 
"Rec'd.  from  A.  H.  Pape  as  deposit  of  $10  for  William  Copple  on  sab'  of 
i.,  piece  of  land  known  as  Lowe  place  at  Hopland.     Balance  of  five  hundred 
and  ninetv  ($590)  dollars  to  be  paid  on  delivery  of  deed. 

"[Signed]     E.  H.  Aigeltinger."' 

The  purchase  price  of  the  land  named  in  this  instrument  was  reason- 
able, and  the  sum  of  $10  was  actually  received  by  said  Aigeltinger  upon 
the  date  thereof.  On  September  23,  1910,  said  Aigeltinger  requested 
William  Copple,  the  principal  of  said  Pape  and  plaintiff  herein,  to  re- 
turn said  writing,  and  offered  to  repay  to  him  the  $10  which  he 
had  received  thereunder.  The  instrument  was  not  returned  nor 
the   offer    of    repayment   accepted;   but   on   the   28th   of    September, 


Sec.  8)  EQUITABLE   DEFENSES  477 

1910,  Aigeltinger,  for  a  valuable  and  sufficient  consideration  con- 
veyed the  property  to  his  co-defendants  Spencer  Beasley  and  Isa- 
phene  Beasley,  his  wife,  who  took  such  conveyance  with  full  knowledge 
of  the  execution  and  terms  of  said  instrument.  On  October  25,  1910, 
the  plaintiff  notified  the  defendant  Aigeltinger  that  he  was  ready,  able, 
and  willing  to  take  said  property  under  the  terms  of  said  instrument, 
and  offered  to  pay  the  balance  of  the  purchase  price,  which  offer  Aigel- 
tinger refused,  but  on  his  part  offered  to  return  the  $10  which  he  had 
theretofore  received.  The  plaintiff  then  brought  this  action  for  specific 
performance. 

By  the  instrument  above  set  forth,  Mr.  Aigeltinger,  in  consideration 
of  the  payment  to  him  of  a  part  of  the  purchase  price,  bound  himself 
in  writing  to  convey  the  land  involved  to  plaintiff,  upon  payment  of  the 
further  sum  of  $590,  the  same  being  the  balance  of  the  purchase  price 
agreed  on.  No  time  being  specified  therein  within  which  plaintiff  must 
make  such  payment,  he  certainly  had  the  right,  in  the  absence  of  any 
tender  of  a  deed  by  Aigeltinger  and  demand  for  payment,  to  defer 
such  payment  for  a  reasonable  time.  In  view  of  the  language  used,  it 
may  well  be  held  that  his  right  to  take  the  land  upon  payment  of  $590 
would  continue  until  a  demand  by  Aigeltinger  of  payment  and  a  tender 
of  deed,  but,  as  there  never  was  any  such  demand  or  tender  of  deed, 
it  is  unnecessary  to  determine  this  question,  for  it  could  hardly  be  con- 
tended, upon  the  facts  found,  that  plaintiff  did  not  make  his  tender 
within  a  reasonable  time.  Clearly  there  was  no  default  on  his  part. 
While,  owing  to  the  fact  that  plaintiff  had  not  signed  this  writing,  the 
agreement  could  not  originally  have  been  specifically  enforced  against 
him  (Harper  v.  Goldschmidt,  156  Cal.  251,  104  Pac.  451,  28  L.  R.  A. 
[N.  S.]  689,  134  Am.  St.  Rep.  124),  it  was  nevertheless  binding  upon 
Aigeltinger  and  those  acquiring  from  him  with  notice  of  plaintiff's 
right,  so  long  as  it  remained  unrevoked,  and  there  was  no  failure  on 
the  part  of  plaintiff  to  comply  with  its  terms,  for  the  simple  reason 
that  it  was  based  upon  a  valuable  consideration  moving  from  plaintiff 
to  him,  the  payment  of  a  portion  of  the  purchase  price,  and  thus  con- 
stituted a  contract  binding  on  him.  So  far  as  Aigeltinger  was  con- 
cerned, in  the  absence  of  default  by  plaintiff,  it  was  a  binding,  irrevo- 
cable contract  for  the  sale  of  the  property ;  something  which  was,  of 
course,  entirely  different  from  a  mere  offer,  unsupported  by  any  con- 
sideration, which  might  be  revoked  at  any  time  before  acceptance. 

It  is  settled  in  this  state,  as  to  a  mere  option  for  the  purchase  of  real 
estate,  that,  where  there  is  a  consideration  therefor,  the  option  cannot 
be  withdrawn  during  the  time  agreed  upon  for  its  duration,  and  that, 
when  accepted  according  to  its  terms,  it  vests  in  the  vendee  the  right 
of  acquiring  the  land,  which  right,  when  exercised,  relates  back  to  the 
time  of  giving  the  option,  so  as  to  cut  off  intervening  rights  acquired 
with  knowledge  of  the  existence  of  the  option.     See  Smith  v.  Bang- 


478  srECinc  performance  of  contracts  (Ch.  2 

ham,  156  Cal.  359,  364,  104  Pac.  689,  28  L,  R.  A.  (N.  S.)  522 ;  Reese  Co. 
v.  House,  162  Cal.  740,  745,  124  Pac.  442.  This  rule  is  necessarily 
equally  applicable  in  favor  of  the  vendee  under  such  a  contract  of 
sale  as  we  have  here,  notwithstanding  he  has  not  signed  the  contract. 

It  is  settled  that  such  an  agreement  of  sale  as  the  one  here  involved 
may  be  specifically  enforced  by  the  vendee  against  the  vendor,  al- 
though the  former  has  not  signed  the  same,  and  although  it  could  not 
originally  have  been  specifically  enforced  against  him  by  reason  of  the 
fact  that  he  had  not  signed.  Section  3388,  Civ.  Code ;  Harper  v.  Gold- 
schmidt,  156  Cal.  251,  104  Pac.  451,  28  L.  R.  A.  (N.  S.)  689,  134  Am. 
St.  Rep.  124;  Bird  v.  Potter,  146  Cal.  286,  79  Pac.  970. 

Where  there  is  no  written  acceptance  by  the  vendee  of  the  proposi- 
tion of  the  vendor  prior  to  suit,  as  said  in  Harper  v.  Goldschmidt, 
supra : 

"In  equitable  theory  the  requirement  of  mutuality  of  remedy  is  satisfied 
when  the  nonsigning  plaintiff  enters  suit,  since  by  the  very  bringing  of  his 
action  he  binds  himself  to  abide  by  the  decree  of  the  court  in  chancery,  and 
so  empowers  that  court  to  decree  specific  performance  against  him." 

Not  being  in  default,  plaintiff  was  therefore  entitled  to  specific  per- 
formance of  the  contract. 

The  conveyance  by  the  vendor  to  the  Beasleys,  who  took  with  full 
notice  of  his  rights,  could  not  operate  to  preclude  him  from  this  relief. 
As  said  in  Smith  v.  Bangham,  supra,  as  to  an  option : 

"A  subsequent  purchaser  with  notice  of  a  valid  and  irrevocable  option 
would  certainly  take  subject  to  the  right  of  the  option  holder  to  complete  his 
purchase." 

See,  also,  Reese  Co.  v.  House,  supra. 

This  is  necessarily  true  as  to  such  a  contract  as  we  have  here. 

In  so  far  as  Leuschner  v.  Duff,  7  Cal.  App.  721,  95  Pac.  914,  may 
be  held  to  express  views  contrary  to  what  we  have  said,  we  cannot 
follow  it,  in  view  of  our  decisions.  The  case  of  Nason  v.  Lingle,  143 
Cal.  363,  77  Pac.  71,  is  clearly  not  in  point:  There  was  in  that  case  no 
consideration  for  Lingle's  proposition,  and  he  effectually  revoked  such 
proposition  prior  to  the  action  on  the  part  of  the  plaintiffs,  which,  in 
the  absence  of  such  revocation,  would  have  created  a  binding  contract. 

It  is  the  absence  of  any  consideration  that  distinguishes  that  case 
from  this. 

The  order  appealed  from  is  affirmed. 

We  concur :    Shaw,  J. ;   Sloss,  J. ;   Lorigan,  J. ;  Hf,nshaw,  J. 

Mflvin,  J.  I  concur ;  but  in  approving  the  quotation  from  Smith 
v.  Bangham  I  am  not  indorsing  all  of  the  doctrines  of  that  case.  The 
rule  with  reference  to  "subsequent  purchasers  with  notice,"  was  cor- 
rectly expressed  in  the  opinion,  but  I  do  not  think  Mrs.  Bangham  was 
properly  classified  as  such  a  subsequent  purchaser  or  as  a  person  sub- 
ject to  the  same  rule.    I  adhere  to  the  convictions  expressed  in  the  dis- 


Sec.  8)  EQUITABLE   DEFENSES  479 

senting  opinion  in  that  case  of  which  Mr.  Chief  Justice  Beatty  was 
the  author,  and  in  the  one  written  by  me,  in  which  Air.  Justice  Lorigan 
concurred.51 

si  It  is  held  in  some  jurisdictions  that  when  the  defendant  is  the  vendee  in 
a  contract  for  the  sale  of  lands,  it  is  not  necessary  for  him  to  have  signed  a 
written  contract ;  that  the  words  "party  to  be  charged"  refer  only  to  the  vendor. 
Thus  in  Wren  v.  Cooksey  (1912)  147  Ky.  825, 145  S.  W.  1117,  the  court  said  in  part: 
"According  to  the  evidence  for  defendant,  the  only  contract  she  made  with  plain- 
tiffs was  that  she  was  to  pay  $100  for  an  option  on  the  property  until  November 
1st,  and  that  she  was  to  take  the  property  only  on  the  condition  that  she  could 
dispose  of  her  Edmonton  property  at  a  price  satisfactory  to  her.  She  did  not 
authorize  her  son  to  make  any  other  contract.  The  contract  was  never  signed 
by  her,  or  by  her  son  for  her ;  nor  was  it  ever  delivered  to  or  accepted  by 
her,  although  she  admits  that  the  contract  was  sent  to  and  retained  by  her 
for  several  weeks.  Her  son  testifies  that,  although  he  stated  tbe  terms  of  the 
contract  to  Mr.  Ellis,  Ellis  did  not  draw  up  the  contract  in  accordance  with 
the  terms  so  stated.  Mrs.  Wren  tried  repeatedly  to  sell  her  property  at  Ed- 
monton, but  was  unable  to  do  so.  Ajnong  the  defenses  interposed  by  the  de- 
fendant is  that  her  son  was  not  authorized  to  make  the  contract  in  question. 
The  evidence  shows  that  the  initiative  in  the  matter  was  taken  by  the  son. 
He  advised  his  mother  that  the  property  could  be  bought.  She  came  to  Glas- 
gow and  agreed  to  buy  the  property.  She  left  the  matter  in  her  son's  hands. 
While  she  says  that  she  authorized  him  only  to  take  an  option  on  the  prop- 
erty, we  have  no  doubt,  after  considering  the  entire  record,  that  he  had  full 
authority  to  act  for  her  in  tbe  matter.  He  made  the  first  payment  recited  in 
the  contract  by  check  on  his  mother's  bank  account.  This  check  was  paid. 
The  contract  was  delivered  to  him.  He  then  turned  it  over  to  his  mother. 
She  not  only  accepted  it,  but  retained  it  in  her  possession.  Moreover,  even 
though  he  did  not  have  authority  to  make  the  contract,  her  acceptance  and 
the  retention  of  the  contract  constituted  a  ratification  of  what  he  had  done. 
There  is  no  merit  in  defendant's  contention  that  the  contract  in  question  is 
not  binding  on  her,  because  not  signed  by  her,  or  by  her  son  as  her  lawful 
agent.  Under  the  uniform  decisions  of  this  court,  the  'party  to  be  charged,' 
under  our  statute  of  frauds  (Ky.  St.  §  470),  in  the  case  of  real  estate,  is  the 
vendor.  In  order  to  charge  the  purchaser,  or  vendee,  no  writing  is  necessary. 
City  of  Murray  v.  Crawford  (1910)  13S  Ky.  25,  127  S.  W.  494,  2S  L.  R.  A. 
(N.  S.)  6S0.  Delivery  to  and  acceptance  by  the  purchaser  is  all  that  is  neces- 
sary. In  this  case,  the  contract  was  delivered  to  and  accepted  by  Mrs.  Wren. 
From  that  moment,  she  could  have  enforced  specific  performance  on  the  part 
of  the  plaintiffs,  while  they  had  the  same  rights,  so  far  as  she  was  concerned." 

In  Pollock  v.  Brookover  (1906)  60  W.  Va.  75,  53  S.  E.  795,  6  L.  R.  A.  (X.  S.) 
403,  Sanders,  J.,  discussing  an  option  contract,  said:  "The  relief  sought  be- 
ing the  specific  execution  of  a  contract,  it  is  important  to  determine  the  true 
character  of  the  writing  sought  to  be  enforced,  as  it  forms  the  basis  of  the 
plaintiff's  suit.  A  writing  of  this  character,  based  upon  a  valid  considera- 
tion,, falls  within  one  of  the  various  classes  of  a  unilateral  contract.  It  is 
not  a  contract  to  sell,  nor  an  agreement  to  sell,  real  estate,  because  tbere  is 
no  mutuality  of  obligation  and  remedy ;  but  it  is  a  contract  by  which  the 
owner  agrees  with  another  person  that  he  sball  have  the  right  to  buy,  within 
a  certain  time,  at  a  stipulated  price.  It  is  a  continuing  offer  to  sell,  which 
may,  or  may  not,  within  the  time  specified,  at  the  election  of  the  optionee,  be 
accepted.  The  owner  parts  with  his  right  to  sell  to  another  for  such  time, 
and  gives  to  the  optionee  this  exclusive  privilege.  It  is  the  right  of  elec- 
tion to  purchase,  which  has  been  bought  and  paid  for,  and  which  forms  the 
basis  of  the  contract  between  the  parties.  Upon  the  payment  of  the  considera- 
tion, and  the  signing  of  the  option,  it  becomes  an  executed  contract — not,  how- 
ever, an  executed  contract  selling  the  land,  but  the  sale  of  the  option,  which 
is  irrevocable  by  the  optionor,  and  which  is  capable  of  being  converted  into 
a  valid  executory  contract  for  the  sale  of  land  by  the  tender  of  the  purchase 
money,  or  his  performance  of  its  conditions,  whatever  they  may  be,  within 
the  time  to  which  such  offer  has  been  limited.  When  such  option  is  thus  ac- 
cepted, it  becomes  an  executory  contract  for  the  sale  of  the  land,  with  mu- 


ISO  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 


III.  Inadequacy  of  Consideration 
LEWIS  v.  LORD  LECHMERE. 

(Iu  Chancery,  1721.    10  Mod.  503,  8S  E.  R.  828.) 

Lord  Parker,  Chancellor.52  *  *  *  It  was  insisted  for  the  de- 
fendant, that  the  greatness  of  the  price,  double  the  value  of  the  land, 
was  reason  enough  for  a  Court  of  Equity  not  to  interpose,  so  as  to  in- 
force  a  specific  performance ;  that  being  entirely  a  discretionary  pow- 
er, and  what  the  Court  ex  debito  justitiae  is  not  bound  to  do.  It  was 
acknowledged,  that  no  decree  had  been  made  purely  upon  this  point ; 
but  it  was  said,  there  were  several  cases  where  this  circumstance  had 
great  weight  with  the  Court.  In  the  case  of  Hanger  v.  Eyles,  2  Eq. 
Abr.  20,  689,  of  the  last  term,  where  the  vendor  brought  his  bill  for 
the  money,  though  the  decree  was  founded  upon  the  vendor's  not  being 
able  to  convey  a  manor,  according  to  his  covenant;  yet  it  being  ac- 
knowledged, that  this  manor  was  of  little  or  no  value,  it  is  evident, 
that  the  other  circumstance  in  the  cause,  the  unreasonableness  of  the 
price,  was  that  which  really  inclined  the  Court  to  lay  hold  upon  a 
point,  too  inconsiderable  otherwise  to  have  been  taken  notice  of.  In 
the  case  likewise  of  Hick  v.  Phillips,  Prec.  ch.  575,  2  Eq.  Abr.  18,  688. 
of  the  last  term,  which  was  a  bill  brought  by  the  vendor  for  a  specific 
performance  of  articles,  the  bill  was  dismissed ;  because  the  vendor  had 
covenanted  to  convey  freehold,  and  one  acre  or  two  proved  copyhold ; 
even  though  the  vendor  offered  to  procure  an  enfranchisement  of  this 
land,  or  make  any  compensation  in  the  price ;  which  shews  the  regard 
had  by  the  Court  to  this  other  circumstance  attending  the  case,  viz.  the 
unreasonableness  of  the  price. 

As  to  this  point  it  was  answered  by  the  counsel  for  the  plaintiff, 
that  if  a  Court  of  Equity  were  to  set  aside  agreements  upon  this  ac- 
count, it  would  make  all  transactions  precarious  and  uncertain,  and 
invest  a  Court  of  Equity  with  a  very  arbitrary  power;  the  value  of 
money  and  land  being  always  various  and  uncertain.  That  if  any 
measure  was  to  be  laid  down  in  this  case,  the  point  to  be  considered 

tuality  of  obligation  and  remedy.  Rease  v.  Kittle  (1004)  56  W.  Va.  269,  49 
S.  E.  150 ;  Ide  v.  Leiser  (1890)  10  Mont.  5,  24  Pac.  695,  24  Am.  St.  Rep.  17 ; 
Gordon  v.  Darnell  (18S0)  5  Colo.  301;  De  Rutte  v.  Muldrow  (1S60)  16  Cal. 
505;  Goodpaster  v.  Porter  (I860)  11  Iowa,  161;  Woodruff  v.  Woodruff  (1888) 
44  N.  J.  Eq.  349,  16  Atl.  4,  1  L.  R.  A.  380;  Perkins  v.  Iladsell  (1S69)  50  111. 
216;  Warren  v.  Costello  (1891)  109  Mo.  338,  19  S.  W.  29,  32  Am.  St.  Rep.  009; 
Corson  v.  Mulvany  (1865)  49  Pa.  88,  SS  Am.  Dec.  485.  The  offer  must  have 
been  fully  and  completely  accepted,  in  all  its  parts,  and  its  provisions  strictly 
complied  with,  before  it  became  an  executory  contract.  It  is  the  complete 
acceptance  of  the  option,  by  complying  with  all  its  provisions  in  that  respect, 
that  concludes  the  contract  between  the  parties." 

52  Parts  of  the  case  are  omittetl.  For  statement  of  facts  and  the  rest  of  the 
opinion,  see  same  case  under  Lack  of  Mutuality,  page  447,  supra,  where  it  ap- 
pears that  the  bill  was  dismissed  because  of  plaintiff's  laches. 


Sec.  8)  EQUITABLE   DEFENSES  481 

must  be,  whether  the  contract  was  an  unreasonable  one  at  the  time  it 
was  made.  And  accordingly  upon  this  ground,  it  was  lately  determined 
in  the  Court  of  Exchequer,  in  this  case  of  Keen  v.  Stuckley,  Gilb.  E.  R. 
155,  that  they  would  inforce  a  specific  performance  of  these  contracts, 
if  the  price  was  reasonable  at  the  time  the  contract  was  made,  how 
disproportionable  soever  after  accidents  might  make  it.53     *     * 

53  Falcke  v.  Gray  (1859)  20  L.  J.  Ch.  28,  contains  a  valuable  opinion  by 
Vice  Chancellor  Kindersley.  The  facts  of  this  case,  as  well  as  a  part  of  the 
opinion,  are  printed  on  page  91,  supra.  On  the  matter  of  inadequacy  of  con- 
sideration the  Vice  Chancellor  said  (pages  30-32):  "The  next  ground  of  de- 
fence is,  that  this  was,  in  fact,  a  hard  bargain,  on  the  ground  of  the  inadp- 
quacy  of  the  price,  between  the  plaintiff  and  Mrs.  Gray,  and  that  if  she  still 
had  the  article  the  court  would  not  enforce  the  agreement,  as  between  the 
plaintiff  and  Mrs.  Gray.  The  price  was  £40 — now  what  was  the  value?  These 
are  articles  of  a  very  peculiar  kind.  Their  value  is  not  only  fluctuating,  but 
very  capricious,  depending  on  tbe  whims  and  wishes  of  a  luxurious  com- 
munity. For  any  real  use  they  might  be  capable  of  affording  to  the  possessor, 
possibly  40s.  might  be  a  fair  price;  but  their  rarity  gives  them  extreme 
value.  The  value  of  such  thincs  is  known  to  the  trade,  and  there  are  per- 
sons who  deal  in  such  articles.  The  plaintiff  admits  that  they  are  worth  £100 
to  the  trade,  and  as  between  persons  not  dealers  £125.  That  is  his  estimate. 
But  it  is  of  no  use  to  go  into  this  question,  because  a  dealer  has  actually 
given  £200  for  them.  Therefore,  the  smallest  price  must  be  taken  to  be  £200. 
I  by  no  means  assume,  however,  that  that  is  the  whole  value ;  and  I  cannot 
help  thinking  that  Messrs.  Watson  mean  to  get  a  great  deal  more.  But  as- 
suming the  value  to  be  £200,  £40  was  one-fifth — two-fifths  according  to  the 
plaintiff's  view.  That  that  was  a  hard  bargain,  so  far  as  the  price  is  con- 
cerned, nobody  can  question ;  but  the  plaintiff's  counsel,  admitting  it  to  be 
a  hard  bargain,  still  contended  that  inadequacy  of  price  was  not  a  sufficient 
ground  for  the  court  to  refuse  specific  performance ;  and  that  is  the  question 
I  have  now  to  consider.  The  general  rule  as  to  hard  bargains  is,  that  the 
court  will  not  decree  specific  performance  in  such  cases,  on  the  ground  that, 
after  all,  specific  performance  is  a  matter  of  discretion,  and  is  to  be  used  to 
advance  justice,  not  to  gratify  caprice.  Lord  Eldon,  in  White  v.  Damon  (1S00) 
7  Ves.  30,  observed  that  this  discretion  must  not  be  capriciously  used ;  but 
only  upon  settled  rules  of  justice  and  equity.  *  *  *  The  cases  are  not 
very  numerous  where  inadequacy  of  price  alone  has  come  into  consideration. 
But  I  refer  to  those  in  which  specific  performance  has  been  refused  on  the 
ground  of  inadequacy  of  price.  *  *  *  There  is  a  wide  difference  between 
the  cases  where  the  court  is  called  upon  to  set  aside  an  agreement,  and  those 
where  it  is  called  upon  to  enforce  an  agreement.  I  do  not  say  that  these  are 
all  the  authorities  on  the  simple  question  of  inadequacy  of  price.  [His  Honour 
then  referred  to  Southwell  v.  Nicholas  (1732)  1  Madd.  9,  note ;  How  v.  Weldon 
(1754)  2  Ves.  516;  Heathcote  v.  Paignon  (1786)  2  Bro.  C.  C.  167,  and  Day  v. 
Newman  (1788)  2  Cox  77,  the  latter  of  which  was  the  converse  of  the  present 
case,  and  was  decided  upon  exorbitancy  of  price,  instead  of  inadequacy.]  In 
Heathcote  v.  Paignon  the  contract  was  set  aside  for  inadequacy.  The  case 
of  White  v.  Damon  was  a  distinct  authority  upon  the  principle.  There  Lord 
Rosslyn  refused  specific  performance  on  the  ground  of  inadequacy ;  but 
Lord  Eldon,  not  differing  upon  that  ground,  put  the  case  upon  the  fact  of 
there  being  a  sale  by  auction ;  where  the  party  was  not  insisting  upon  a  fair 
price,  but  held  out  his  intention  to  all  the  world  to  sell  the  article  for  what- 
ever it  would  fetch.  These  cases  appear  to  be  conclusive  upon  the  subject; 
but  if  the  matter  were  res  integra,  and  there  were  no  authority  to  guide  me 
but  those  principles  which  ought  to  govern  a  court  of  equity,  it  appears  to  me 
that  I  ought  to  refuse  specific  performance.  *  *  *  On  the  whole  case, 
therefore,  the  bill  must  be  dismissed,  without  costs  against  Mrs.  Gray;  but 
with  costs  against  Messrs.  Watson." 

Boke  Eq—  31 


4S2  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

BOWER  v.  COOPER. 

(In  Chancery  before  Sir  James  Wigram,  1843.    2  Hare,  408,  67  E.  R.  168.) 

The  bill  was  brought  for  the  specific  performance  of  the  following 

agreement : 

••Memorandum  of  an  agreement  made  this  22nd  day  of  January,  1841,  be- 
tween Reuben  Cooper,  of  Hinton,  of  the  one  part,  and  Charles  Bower,  of  High 
Cliff,  both  in  the  parish  of  Christchurch,  in  the  county  of  Southampton,  of  the 
other  part.  The  said  R.  Cooper  hereby  agrees  to  sell  to  the  said  Charles 
Bower  the  following:  A  certain  cottage  and  land  recently  purchased  by  the 
said  R.  Cooper  of  J.  Lane ;  two  cottages  and  land  purchased  of  W.  Lane : 
both  in  the  parish  of  Christchurch, — the  cottage  and  garden  purchased  by  the 
said  R.  Cooper  of  T.  Burt,  in  the  parish  of  Milton,  in  the  said  county,  which 
premises  were  lately  in  the  respective  occupations  of  J.  Davy,  the  said  R. 
Cooper,  T.  Cratchley,  and  W.  Church,  and  one  of  the  said  cottages  purchased 
of  W.  Lane,  being  now  or  lately  void. — together  with  the  crop  in  the  ground 
thereof,  for  an  annuity  of  £30,  payable  during  the  life  of  the  said  R.  Cooper ; 
and  the  said  C.  Bower  hereby  agrees  to  purchase  the  said  premises  for  the 
annuity:  and  it  is  hereby  agreed  that  the  said  annuity  shall  be  charged  on 
the  said  premises  by  an  instrument  giving  the  said  R,  Cooper  power,  upon  non- 
payment of  the  same,  to  sell  such  premises  for  the  purpose  of  raising  the  ar- 
rears thereof:  and  it  is  further  agreed  that  the  said  annuity  shall  be  payable 
quarterly  from  the  5th  day  of  January,  and  that  the  first  payment  thereof 
shall  be  made  in  advance,  and  that  the  said  C.  Bower  shall  be  entitled  to  the 
possession  and  rents  and  profits  of  the  same  premises  from  the  said  5th  day 
of  January,  and  that  all  expenses  incurred  in  or  about  the  said  sale  shall  be 
borne  by  the  said  C.  Bower,  and  that  the  deeds  of  the  said  premises  shall  be 
deposited  with  M.  Drutt  of  Christchurch,  solicitor,  on  behalf  of  both  parties. 
[Signed]     Reuben  Cooper,  Charles  Bower.-' 

The  first  quarterly  payment  of  the  annuity  was  made  in  advance  on 
the  execution  of  agreement. 

The  performance  was  resisted  on  four  grounds.     *     *     * 

The'  Vice-chancellor.54  *  *  *  On  the  fourth  ground, — the 
inadequacy  of  the  price, — after  adverting  to  the  effect  which  the  Court 
formerly  gave  to  evidence  of  inadequacy  of  price  in  contracts  gen- 
erally, independently  of  uncertainty  of  consideration ;  Underwood  v. 
Hitchcox,  1  Yes.  279,  Day  v.  Newman,  2  Cox,  77 ,  Young  v.  Clark, 
Prec.  in  Cha.  528;  and  also  adverting  to  the  fact,  that,  in  all  the 
cases  cited  as  authorities  with  reference  to  the  inadequacy  of  the 
amount  of  a  life  annuity  as  a  consideration,  the  life  had  dropped 
before  the  bill  was  filed, — and  that  all  these  cases  had  been  decided  be- 
fore the  modern  rule,  of  treating  inadequacy  of  price  in  contracts  for 
the  purchase  of  interests  in  possession  as  nothing  more  than  an  ingredi- 
ent in  evidence,  was  perfectly  established,  Lowther  v.  Lowther,  T.  &  R. 
366;  the  Vice-Chancellor  said  that  there  did  not  appear,  upon  the  evi- 
dence, to  be  in  fact  any  inadequacy  of  price ;  but  if  the  Defendant  re- 
quired it,  he  would  direct  a  reference  on  that  question.  Parken  v. 
Whitby,  13  Yes.  103;    Mortimer  v.  Capper,  1  Bro.  C.  C.  156. 

This  Court  doth  order  and  decree,  that  it  be  referred  to  the  Master 
to  inquire  and  state  to  the  Court  what  was  the  value  to  sell  of  the  prop- 

s*  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Sec.  S)  EQUITABLE   DEFENSES  483 

erty  in  the  contract,  dated  the  22nd  day  of  January,  1841,  in  the  &c, 
and  therein  described  as  &c,  at  the  date  of  the  said  contract,  and  what 
was  the  value  of  an  annuity  of  £30.  per  annum  on  the  life  of  a  party 
of  the  age  of  the  Defendant  at  the  same  time,  and  for  the  better  &c. 
And  this  Court  doth  declare,  that  the  Plaintiff  is  entitled  to  so  much 
of  the  costs  of  this  suit  as  were  occasioned  by  the  defence  set  up  by 
the  said  Defendant,  that  he  was  intoxicated  at  the  time  of  making  the 
said  contract.  Reserve  the  consideration  of  all  further  directions,  and 
of  the  payment  of  the  costs  above  mentioned,  and  all  the  other  costs  of 
this  suit.    Liberty  to  apply. 

The  Master  found  that  the  value  to  sell  of  the  premises  and  crop, 
at  the  date  of  the  contract,  was  £302.  10s. ;  and  that  the  value  at  the 
same  time  of  an  annuity  of  £30  per  annum,  on  the  life  of  a  party 
of  the  age  of  the  Defendant,  was  £278.  18s.  2d. 

Decree  for  specific  performance,  with  costs. 


ERWIN  v.  PARHAM. 

(Supreme  Court  of  the  United  States.  1851.     12  How.  [53  U.  S.]  107, 
13  L.  Ed.  952.) 

Mr.  Justice  Catron  55  delivered  the  opinion  of  the  Court.  *  *  * 
And  as  the  bill  stands  on  demurrer,  and  nothing  beyond  its  allega- 
tions can  be  considered,  it  is  not  possible  for  us  to  say  that  the  com- 
plainant is  entitled  to  no  relief  at  all,  and  therefore  dismiss  his  bill. 
He  paid  only  six  hundred  dollars  for  these  thirteen  notes,  calling,  in 
the  aggregate,  for  $260,000;  but  this  was  paid  on  an  execution  sale, 
admitted  by  the  demurrer  to  have  been  open  to  competition,  regular, 
and  fair.  The  payer,  Parham,  may  have  been  insolvent,  and  the  mort- 
gage of  no  value  for  want  of  title  in  the  mortgagor.  In  such  event  no 
startling  inadequacy  of  price  could  be  predicated  of  the  enormous  dis- 
parity between  the  nominal  amount  of  the  notes,  and  the  price  paid 
for  them.  Complainant  is  entitled  to  relief  as  the  case  now  stands, 
certainly  to  the  extent  of  the  six  hundred  dollars,  and  interest  on  it ; 
and  he  having  a  right  of  possession,  and  owning  the  judgment,  it  is  not 
perceived  how  he  could  be  deprived  of  the  notes  until  -his  whole  judg- 
ment was  satisfied.  Or,  his  rights  may  extend  to  an  enforcement  of  the 
mortgage  and  all  the  notes.  We  deem  it  useless  further  to  speculate 
on  these  matters  at  present. 

On  the  other  hand,  the  execution  sale  may  be  void  for  reasons  that 
can  be  brought  out  in  evidence,  but  which  are  not  now  open  to  contro- 
versy, because  the  bill  alleges  that  the  proceeding  under  which  com- 
plainant purchased  was  regular  and  bona  fide.  Or  again,  because  of 
want  of  title  in  Wall  to  the  notes  and  mortgaged  property  at  the  date 
of  the  levy  and  sale.     These  matters,  or  any  others  set  up  in  defense, 

ss  Parts  of  the  opinions  are  omitted. 


48-1  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

respondents  may  bring  forth  by  their  answer  if  they  think  proper  to 
do  so. 

All  we  mean  now  to  say  is,  that  complainant  has  made  a  prima  facie 
case  for  answer  and  for  relief ;  and  it  is  the  duty  of  respondents,  if 
they  mean  to  defend,  to  meet  that  case  by  answer,  and  to  show,  if 
they  can,  that  no  relief  should  be  granted ;  or,  if  any,  to  what  modified 
extent  compared  with  the  entire  relief  prayed.  We  therefore  feel  our- 
selves bound  to  reverse  the  decree,  and  to  overrule  the  demurrer,  with 
leave  to  respondents  to  answer  in  the  Circuit  Court,  when  this  cause 
is  returned  there  on  our  mandate. 

Mr.  Justice  Nelson  dissented. 

I  am  unable  to  assent  to  the  decision  of  a  majority  of  the  court  in 
this  case. 

The  complainant  has  purchased,  at  sheriff's  sale,  thirteen  promissory 
notes,  given  as  part  of  the  purchase  money  upon  a  sale  of  a  large  plan- 
tation and  slaves ;  and  secured  by  mortgage  on  the  same  to  an  amount 
exceeding  $260,000  for  the  small  sum  of  $600 ;  and  asks  the  interposi- 
tion of  the  extraordinary  powers  of  this  court  on  the  equity  side  to  aid 
him  in  realizing  this  enormous  speculation. 

I  think  he  should  be  .left  to  his  remedy  at  law,  and  this,  upon  the 

established  course  of  proceeding  of  a  court  of  chancery  in  these  cases. 

*     *     * 

The  strong  ground  against  enforcing  a  contract,  where  the  consid- 
eration is  so  inadequate  as  to  render  it  a  hard  bargain,  and  an  unequal 
and  unreasonable  bargain,  is  that,  if  a  court  of  equity  acts  at  all,  it  must 
act  ex  vigore,  and  carry  the  contract  into  execution  with  unmitigated 
severity ;  whereas,  if  the  party  be  sent  to  law,  to  submit  his  case  to  a 
jury,  relief  can  be  afforded  in  damages,  with  a  moderation  agreeable 
to  equity  and  good  conscience,  and  when  the  claims  and  pretensions  of 
each  party  can  be  duly  attended  to,  and  be  permitted  to  govern  the  as- 
sessment. 

In  the  case  before  us,  if  the  court  undertakes  to  give  relief,  it  would 
seem,  from  the  established  rules  of  proceeding  in  equity,  that  it  will 
be  bound  to  award  to  the  complainant  the  full  amount  of  the  notes  in 
question;  and  thus  enable  him  to  realize  upwards  of  $260,000  upon  a 
purchase  at  the  price  of  $600;  in  other  words,  virtually  awarding  to 
him,  for  this  small  consideration,  an  estate,  which  Wall,  one  of  the 
defendants,  had  sold  for  a  sum  exceeding  $260,000,  as  the  notes  in 
question  constitute  part  of  the  purchase-money  and  the  payment  secur- 
ed upon  this  estate. 

The  inadequacy  of  the  consideration  is  far  beyond  that  of  any  case 
that  has  come  under  my  observation  in  the  course  of  this  examination, 
and  is  such  as  to  shock  the  common  sense  of  mankind. 

In  many  of  the  cases  in  which  the  court  has  refused  to  interfere, 
mainly  on  the  ground  of  inadequacy  of  price,  only  half  the  value  had 
been  agreed  to  be  given.  That  was  considered  as  sufficient  evidence  of 
a  hard  and  unconscionable  bargain,  to  induce  the  court  to  pause,  when 


Sec.  8)  EQUITABLE  DEFENSES  485 

its  extraordinary  powers  were  invoked  to  the  aid  of  the  party  seeking 
to  realize  the  advantage  of  the  contract,  and  turn  him  over  to  a  court 
of  law. 

The  complainant  in  this  case  is  not  without  a  remedy.  If  he  has  got 
a  legal  right,  he  can  go  into  a  court  of  law  and  enforce  it.  But  I  do 
not  think  it  a  fit  case  for  the  interposition  of  a  court  of  equity. 
*     *     * 

For  these  reasons,  thus  briefly  given,  I  am  obliged  to  dissent  from 
the  decision  in  this  case.56 

Order. 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record  from 
the  Circuit  Court  of  the  United  States  for  the  Eastern  District  of 
Louisiana,  and  was  argued  by  counsel.  On  consideration  whereof,  it 
is  now  here  ordered,  adjudged,  and  decreed  by  this  court,  that  the  de- 
cree of  the  said  Circuit  Court  in  this  cause  be,  and  the  same  is  hereby, 
reversed,  with  costs ;  and  that  this  cause  be,  and  the  same  is  hereby,  re- 
manded to  the  said  Circuit  Court,  with  directions  to  overrule  the  de- 
murrer of  the  defendants  with  leave  to  them  to  answer,  and  for  such 
further  proceedings,  in  conformity  to  the  opinion  of  this  court,  as  to 
law  and  justice  may  appertain. 


WORTH  v.  WATTS. 

(Court  of  Chancery  of  New  Jersey,  1908.    74  N.  J.  Eq.  609,  70  Atl.  357.) 

Bill  for  specific  performance  by  Nathan  Worth  against  Ernest  Watts, 
executor,  etc.,  of  Firman  Dubel,  deceased.  Decree  advised  pursuant 
to  prayer  of  the  bill. 

The  bill  is  filed  by  complainant  to  procure  the  specific  performance  of 
an  agreement  for  the  sale  of  land,  made  by  Firman  Dubel  in  his  life- 
time. The  following  is  a  copy  of  a  receipt  embodying  the  agreement 
which  complainant  seeks  to  enforce : 

so  In  Columbus  &  Xenia  Ry.  Co.  et  al.  v.  Ohio  Southern  Ry.  Co.  (1885)  1 
O.  C.  D.  275,  specific  performance  was  refused  on  the  ground  of  mere  inade- 
quacy of  consideration  as  evidence  of  an  inequitable  bargain.  The  court  said: 
"Another  equally  safe  ground  of  decision  is  found  in  the  unconscionable  char- 
acter of  this  contract.  While  we  have  sought  to  abstain  from  the  expression 
of  an  opinion  as  to  whether  anything  passes  to  the  junior  company  by  this 
agreement,  it  is  determined  by  the  Supreme  Court  in  30  Ohio  State,  that  the 
senior  company  had  nothing  to  give  except  what,  according  to  that  case,  was 
found  to  be  worth  only  $60,  and  what  in  this  case  would  certainly  be  worth 
but  little,  if  any  more.  We  are  asked  to  decree,  as  compensation  for  this,  the 
payment  and  expenditure  of  the  one-half  of  from  $1,200  to  $1,500,  in  the  first 
year,  and  thereafter  of  the  one-half  of  from  $650  to  $1,000,  annually  during 
the  joint  use  of  the  crossing.  We  are  not  advised  of  any  other  case  in  which 
a  court  has  been  asked  to  decree  the  specific  performance  of  so  unjust  and 
inequitable  a  contract.  *  *  *  There  are  other  reasons  why  the  relief 
prayed  for  should  be  denied,  but  those  stated  are  sufficient.  The  petition  will 
be  dismissed  and  defendant  will  have  judgment  for  costs." 


486  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

"Burlington,  X.  J.,  February  2.  1904. 
"Received  from  Nathan  Worth  two  thousand  five  hundred  dollars  ($2,500) 
on  account  of  purchase  price  for  house  and  lots  303,  305  High  street,  and  20 
and  22  Union  street,  Burlington,  N.  J.,  which  I  agreed  to  sell  to  him  clear 
of  all  incumbrances  for  four  thousand  ($4,000),  deed  to  be  delivered  on  the 
payment  of  the  balance  of  the  money,  but  to  continue  paying  rent  as  before, 
until  balance  is  paid.  Firman  Dubel." 

The  body  of  this  paper  is  in  the  handwriting  of  complainant,  and 
the  signature  is  that  of  defendant's  testator. 

Six  additional  receipts  for  payments,  on  account  of  the  purchase 
price  of  the  property,  were  received  in  evidence.  These  receipts  are 
dated,  respectively,  June  17,  1904,  July  11,  1904,  August  15,  1904,  Sep- 
tember 19,  1904,  October  18.  1904,"  and  November  1,  1904,  and  aggre- 
gate in  amount  $1,300.  The  same  language  is  used  in  each  receipt, 
and  the  body  of  each  receipt  is  in  the  handwriting  of  complainant,  and 
each  is  signed  by  defendant's  testator.  These  receipts,  omitting  dates 
and  amounts,  are  as  follows : 

"Received  of  Nathan  Worth  dollars  as  a  payment  for  properties 

303-305  High  street  and  20  and  22  Union  street,  Burlington,  N.  J.,  agreed  to 
be  sold  by  me  to  him  as  per  receipt  of  February  2,  1904. 

"Firman  Dubel." 

Firman  Dubel  died  December  28,  1904,  and  upon  the  refusal  of  de- 
fendant, as  his  executor,  to  accept  $200,  which  was- tendered  to  him  by 
complainant  as  the  balance  of  the  purchase  price,  this  suit  for  specific 
performance  of  the  contract  was  brought. 

At  the  date  of  the  agreement  (February  2,  1904)  complainant  was 
occupying  the  premises  referred  to  as  303  and  305  High  street,  under 
a  lease  from  Dubel  made  June  10,  1902,  at  a  rental  of  $40  per  month 
for  the  first  year,  and  $45  per  month  for  the  two  subsequent  years.  At 
the  end  of  the  first  year  the  increased  rental  provided  for  in  the  lease 
was  waived  by  Dubel,  and  complainant  thereafter  continued  to  occupy 
the  premises  at  $40  per  month. 

Defendant  has  undertaken  to  establish  such  fraud,  in  connection  with 
the  agreement  of  sale  which  complainant  seeks  to  enforce,  as  will 
operate  to  deny  the  relief  sought. 

Leamixg,  V.  C.  (after  stating  the  facts  as  above).  Defendant  urges 
that  the  consideration  named  in  the  agreement  is  so  grossly  inadequate 
that  it  affords  conclusive  evidence  of  fraud.  The  law  of  this  state 
touching  inadequacy  of  consideration,  as  a  defense  to  a  suit  for  specific 
performance  of  a  contract  for  the  sale  of  land,  may,  I  think,  be  said 
to  be  well  settled.  A  court  of  equity  will  not  refuse  to  decree  the  spe- 
cific performance  of  a  private  contract  for  the  sale  of  land  because  the 
price  for  which  the  land  is  to  be  sold  is  less  than  the  market  value 
of  the  land.  Inadequacy  of  price,  however,  is  a  feature  which  may  be 
considered  in  determining  the  existence  of  fraud.  It  may,  in  connec- 
tion with  other  evidence,  establish  the  existence  of  fraud,  or  the  inade- 
quacy of  price  may  be  so  gross  as  to  shock  the  conscience  of  the  court, 
and  thus  furnish  satisfactory  and  decisive  evidence  of  fraud.  In  ei- 
ther case  it  may  be  said  to  be  the  fraud  so  ascertained,  and  not  the  in- 


Sec.  8)  EQUITABLE   DEFENSES  487 

adequacy  of  price,  which  operates  as  the  bar  to  relief.  Rodman  v. 
Zillev,  1  N.  J.  Eq.  320;  Executors  of  Wintermute  v.  Executors  of 
Snyder,  3  N.  J.  Eq.  489;  Ready  v.  Noakes,  29  N.  J.  Eq.  497;  Shaddle 
v.  Disborough,  30  N.  J.  Eq.  370,  384 ;  Phillips  v.  Pullen,  45  N.  J.  Eq. 
5,  16  Atl.  9. 

In  the  present  case  the  difference  between  the  market  value  of  the 
land  in  question  and  the  price  named  in  the  agreement  for  its  sale  close- 
ly approaches  that  which  some  eminent  judges  have  defined  as  "gross 
inadequacy."  Ten  witnesses  testified,  in  behalf  of  defendant,  touching 
the  value  of  the  premises  described  in  the  contract  of  sale.  From  their 
testimony  it  is  apparent  that  the  value  of  the  premises  was  about  $10, 
000  at  the  date  of  the  contract.  Assuming  that  amount  to  have  been 
the  value  of  the  premises  named  in  the  contract  of  sale,  it  will  be  ob- 
served that  the  consideration  specified  in  the  contract  was  something 
less  than  one-half  of  the  value  of  the  property.  Any  extended  review 
of  the  adjudicated  cases,  with  a  view  of  ascertaining  when  the  differ- 
ence between  the  value  and  contract  price  may  be  said  to  become  so 
great  as  to  amount  to  gross  inadequacy,  and  shock  the  conscience  of  the 
court,  and  in  itself  operate  to  deny  relief,  would,  I  think,  be  of  little 
assistance.  Most  of  the  authorities  touching  that  subject  will  be  found 
collected  in  a  footnote  to  26  Amer.  &  Eng.  Encyc.  of  Law  (2d  Ed.)  28. 
Any  considerable  inadequacy  of  price  naturally  suggests  unfair  deal- 
ing on  the  part  of  the  one  favored  by  the  terms  of  the  contract,  when 
the  engagement  is  considered,  as  it  must  be,  as  a  contract,  and  not  as 
a  gratuity ;  but  it  is  difficult  to  conceive  any  case  in  which  some  cir- 
cumstance may  not  exist  which  will  operate  to  either  repel  or  to  ac- 
centuate such  suggestion  of  unfair  dealing.  Even  in  a  case  where  there 
exists  such  gross  inadequacy  of  price  as  may  be  appropriately  said  to 
shock  the  conscience  of  the  court,  and  afford  in  itself  satisfactory  and 
convincing  evidence  of  unfair  dealing,  other  circumstances  may  exist 
which,  if  considered,  would  tend  to  destroy  the  conclusion  which  might 
be  otherwise  reached.  Such  circumstances  should,  I  think,  be  given 
due  consideration.  I  am  convinced  that  where  it  is  established  (as  I 
understand  it  to  be,  both  in  this  state  and  by  the  weight  of  authority 
elsewhere),  that  it  is  the  ascertained  fraud,  and  not  the  inadequacy  of 
price,  which  operates  as  the  bar  to  specific  performance,  such  fraud 
must  be  ascertained  by  a  consideration  of  all  the  circumstances  of  the 
individual  case ;  and  that  it  is  quite  impracticable  to  define  any  exact 
ratio  between  values  and  price  as  a  boundary  line,  which,  when  crossed, 
affords,  in  itself,  conclusive  evidence  of  fraud.  One  feature  of  the 
present  case  well  illustrates  the  thought  here  suggested.  While  the  in- 
adequacy of  price  in  the  present  contract  of  sale  may  suggest  that 
complainant  in  some  improper  way  obtained  an  unjust  advantage  over 
defendant's  testator  when  the  original  agreement  was  made,  yet  the 
mind  cannot  close  itself  from  the  knowledge  that,  on  June  17,  1904, 
over  three  months  after  the  original  receipt  which  embodied  the  terms 
of  the  agreement  was  signed,  defendant's  testator  signed  a  receipt  for 


488  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

another  portion  of  the  purchase  price,  and  in  that  receipt  specifically 
referred  to  the  receipt  of  February  2,  1904,  as  embodying  the  terms  of 
the  agreement  of  sale.  If  this  second  transaction  was  fairly  conducted, 
it  was  a  reaffirmance,  by  defendant's  testator,  of  the  terms  of  the  orig- 
inal agreement.  Again,  in  the  following  July,  August,  September,  and 
October,  respectively,  additional  receipts  for  portions  of  the  purchase 
price  were  signed  by  defendant's  testator,  and  in  each  receipt  the  orig- 
inal contract  was,  in  like  manner,  referred  to.  Thus  on  six  several 
occasions,  extending  over  a  period  of  18  months,  defendant's  testator 
reaffirmed  the  original  contract,  and  received,  in  the  aggregate,  all  but 
$200  of  the  purchase  price.  His  death  occurred  in  the  month  follow- 
ing the  payment  last  referred  to.  Assuming  that  these  payments  were 
actually  made  at  the  times  stated,  and  that  the  contents  of  the  several 
receipts  wrere  fully  understood  by  defendant's  testator,  it  seems  clear 
that  such  repeated  affirmances  of  the  original  contract  would  have 
operated  as  a  serious  bar  to  any  claim  which  might  have  been  there- 
after made  by  defendant's  testator  for  a  rescission  of  the  contract, 
based  upon  fraud  in  the  original  transaction.  Surely  such  affirmances 
of  the  contract  cannot  be  properly  disregarded,  when  presented  to  re- 
pel an  assumption  of  fraud  arising  from  an  inadequacy  of  price  of  a 
degree  which,  standing  alone,  might  be  sufficient  to  lead  the  mind  to  a 
conviction  of  fraud.  It  is  my  opinion  that  specific  performance  of 
this  contract  cannot  be  properly  denied  upon  the  theory  that  the  inade- 
quacy of  price,  in  itself,  furnishes  conclusive  evidence  of  fraud. 

But  it  is  earnestly  urged,  in  behalf  of  defendant,  that  other  circum- 
stances of  the  case,  when  considered  in  connection  with  the  evidence 
touching  inadequacy  of  price,  justify  the  conclusion  of  fraud,  or  dis- 
close a  contract  of  such  unfairness  and  hardship  that  a  court  of  equity 
should  deny  relief.  While  a  court  of  equity  will  not  decree  specific 
performance  of  a  contract  which  is  unfair,  unreasonable  or  unjust, 
any  inadequacy  of  price  (standing  alone,  and  unaccompanied  by  other 
evidence  of  fraud  or  imposition),  which  is  not  so  gross  as  to  be,  of  it- 
self, what  some  courts  call  conclusive  evidence  of  fraud,  cannot  be 
treated  as  such  an  instance  of  unfairness  or  hardship  as  will  bar  the 
equitable  relief  sought ;  but  such  inadequacy  may  be  considered  in  con- 
nection with  other  circumstances  tending  to  show  undue  advantage, 
or  other  elements  of  fraud.  As  already  stated,  I  understand  that  to  be 
the  rule  established  in  this  state,  and  also  by  the  more  modern  au- 
thorities elsewhere.  See  Pomeroy  on  Contracts,  §  194,  and  cases  there 
collected.  A  number  of  circumstances,  other  than  inadequacy  of  con- 
sideration, are  urged  by  defendant  as  evidence  of  fraud  upon  the  part 
of  complainant.  It  has  been  shown  that  defendant's  testator  was  84 
years  of  age ;  that  he  was  a  man  with  careless  methods  of  doing  busi- 
ness ;  that  he  was  of  a  trustful  nature,  and  habitually  signed  receipts 
without  first  reading  them,  and  usually  received  money  without  count- 
ing it ;  that  he  drank  to  excess,  and  was  more  or  less  drunk  almost 
every  day;   and  it  is  also  urged  that  complaint  did  not  have  sufficient 


Sec.  8)  EQUITABLE   DEFENSES  48$ 

money  to  enable  him  to  make  the  payments  evidenced  by  the  receipts, 
to  which  reference  has  already  been  made.  It  was  also  shown  that  de- 
fendant's testator  made  some  permanent  improvements  to  one  of  the 
buildings  covered  by  the  contract,  at  a  date  subsequent  to  the  date  of 
the  contract.  I  have  undertaken  to  give  adequate  consideration  to  all 
of  these  circumstances,  in  connection  with  the  low  price  at  which  the 
property  was  sold,  with  a  view  of  reaching  the  conclusion  that  some 
improper  conduct  upon  the  part  of  the  complainant  may  have  existed ; 
but  I  have  been  unable  to  reach  that  conclusion  of  fact.  Any  sugges- 
tions of  improper  conduct  upon  the  part  of  complainant,  emanating 
from  the  circumstances  referred  to,  fail  to  impress  upon  my  mind  a 
conviction  of  fact ;  and  especially  is  this  true  when  all  the  evidence  in 
the  case  is  given  due  consideration.  The  suggestion  arising  from  the 
advanced  age  and  intemperate  habits  of  defendant's  testator,  and  from 
his  custom  to  sign  receipts  without  reading  them,  is  that  the  signature- 
to  the  contract  may  have  been  procured  by  complainant  through  some 
subterfuge,  or  that  defendant's  testator  may  have  been  incapable  of 
fully  comprehending  his  acts.  But  defendant's  testator  was  a  man  wha 
owned  a  considerable  number  of  properties  in  that  vicinity,  and  these 
properties  were  successfully  handled  by  him,  and  his  ability  to  intelli- 
gently transact  his  own  business  does  not  appear  to  have  been  material- 
ly impaired  by  either  his  age  or  intoxication.  The  impression  of  the 
man,  as  I  have  received  it  from  the  evidence,  is  that  of  a  man  who 
was  quite  as  capable  of  making  a  bargain  when  under  the  influence  of 
liquor  as  at  other  times.  While  he  appears  to  have  been  in  the  habit 
of  signing  rent  receipts  for  various  tenants  without  reading  the  re- 
ceipts he  was  keenly  aware  of  the  times  when  the  rent  was  due,  and 
it  cannot  be  inferred  that  he  could  have  been  induced  to  sign  papers 
when  nothing  was  due  him,  as  he  must  have  done  if  the  contract  now 
in  question  and  the  several  receipts  for  payments  on  account  of  the 
contract  price  were  signed  by  him  when  the  payments  called  for  in  the 
receipts  were  not  in  fact  made ;  for  it  must  not  be  overlooked  that  if  it 
be  assumed  that  the  original  receipt,  which  embodies  the  terms  of  the 
contract,  was  signed  by  defendant's  testator  without  an  intelligent 
knowledge  of  its  contents  and  force,  or  through  any  subterfuge  upon 
the  part  of  complainant,  a  like  assumption  must  be  indulged  touching 
the  several  subsequent  receipts,  and  it  is  impossible  for  me  to  believe 
that  complainant  has  procured  the  signature  to  these  seven  papers  with- 
out defendant's  testator  having  comprehended  the  nature  of  any  of 
them.  Each  month  a  rent  receipt  was  signed  in  a  book  kept  by  com- 
plainant for  that  purpose.  As  to  the  claim  that  complainant  was  not 
able  to  raise  the  money  which  the  receipts  disclose  that  he  paid  for 
the  property,  it  is  my  opinion  that  the  claim  is  not  supported  by  the 
evidence.  While  I  have  referred  to  the  value  of  the  premises  in  ques- 
tion as  $10,000  ($9,000  for  the  property  which  complainant  occupied 
as  a  tenant,  and  $1,000  for  the  property  in  the  rear,  which  was  occu- 
pied by  the  Salvation  Army),  it  also  appears  that  the  rental  paid  by 


490  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

complainant  was  $40  per  month,  and  by  the  other  tenants  $15  per 
month ;  and,  according  to  the  testimony,  this  rental,  when  used  as  a 
guide  to  determine  valuation,  indicates  a  total  value  of  about  $7,000.  It 
is,  of  course,  impossible  to  determine  what  may  have  impelled  defend- 
ant's testator  to  agree  to  part  with  his  property  for  the  amount  named. 
The  diversified  considerations  which  control  human  conduct  are  too 
complex  to  warrant  the  effort  of  affirmative  ascertainment.  The  evi- 
dence discloses  that  the  relation  of  the  contracting  parties  was,  to  say 
the  least,  friendly.  That  fact  alone  renders  it  natural  and  reasonable 
that  the  terms  of  payment  should  be  made  easy  rather  than  otherwise. 
As  the  case  has  been  tried  upon  the  theory,  on  the  part  of  counsel  on 
both  sides,  that  our  statute  forbids  testimony,  by  either  of  the  present 
parties  to  the  record,  touching  statements  made  by  or  transactions  with 
the  deceased,  we  are  denied  the  benefit  of  their  testimony  in  that  field. 
But  the  evidence  discloses  that  the  contract  was  in  fact  made,  and  I 
find  nothing  in  the  case  to  lead  my  mind  to  the  conclusion  that  the 
contract  was  not  the  intelligent  and  deliberate  act  of  defendant's  testa- 
tor. 
I  will  advise  a  decree  pursuant  to  the  prayer  of  the  bill. 


IV.  Mistake 
NEAP  v.  ABBOTT. 

(In  Chancery,  1S3S.     Cooper,  333,  47  E.  R.  531.) 

The  bill  in  this  cause  prayed  a  specific  performance  of  the  following 

agreement : 

Memorandum  of  an  agreement  made  this  16th  day  of  March,  1S35,  between 
Mr.  George  Abbott  of  Southwell,  Westgate.  of  the  one  part,  and  William  Neep 
of  Southwell,  Westgate,  of  the  other  part,  as  follows:  That  the  said  George 
Abbott  agrees  to  sell  to  the  said  William  Neep  all  that  garden  which  belongs 
to  and  is  in  the  occupation  of  the  said  George  Abbott,  situated  in  Southwell, 
adjoining  to  Mr.  Richard  Thompson  on  the  west  side,  and  north  and  east  to 
the  said  George  Abbott,  and  to  the  town  street  on  the  other  side:  and  the 
said  George  Abbott  agrees  to  deliver  up  to  the  said  William  Neep,  or  to  whom 
he  may  appoint,  all  that  garden  thirteen  yards  in  width  and  eighteen  in  length, 
or  thereabouts,  to  be  measured:  and  the  said  William  Neep  agrees  to  pay  to 
the  said  George  Abbott,  or  whom  he  shall  appoint  at  the  rate  of  7s.  per  scpiare 
yard ;  the  land  being  copyhold,  it  shall  be  delivered  up  by  the  said  George 
Abbott  to  the  said  William  Neep,  or  whom  he  shall  appoint  at  some  Court 
day  hereafter  to  be  mentioned  by  the  said  parties:  and  the  said  George  Abbott 
agrees  to  let  the  said  William  Neep  or  his  workmen  set  up  scaffolding  to  build 
or  repair  the  building  which  is  about  to  be  erected  on  the  said  land,  and  have 
the  use  of  the  water:  and  the  said  George  Abbott  agrees  to  deliver  up  the 
aforesaid  land  in  six  months  from  the  date  hereof,  or  sooner,  if  agreed  on. 
Witness  our  hands  the  day  and  year  aforesaid.     George  Abbott,  William  Neep. 

The  ground  actually  used  as  a  garden  was  thirteen  yards  wide  in 
the  centre  only,  there  being  at  the  two  extremities  small  buildings 
erected  upon  part  of  it  about  ten  years  previously.  The  Plaintiff,  who 
had  entered  into  the  contract  with  the  view  of  building  a  Methodist 


Sec.  8)  EQUITABLE   DEFENSES  491 

chapel,  the  width  of  which  was  to  be  about  forty  feet,  and  the  length 
about  fifty  feet,  alleged  that  it  was  the  understanding  that  the  build- 
ings should  be  removed.  The  Defendant,  on  the  other  hand,  swore 
that  he  never  meant  that  the  sites  of  the  buildings  should  be  com- 
prised in  the  contract — that  the  buildings  were  indispensable  to  him 
in  his  trade,  which  was  that  of  an  innkeeper,  and  that  to  pull  the  same 
down  and  rebuild  therrl  elsewhere  would  cost  two-thirds  of  the  pur- 
chase money.  Parol  evidence  was  gone  into  both  on  the  part  of  the 
Plaintiff  and  of  the  Defendant;  from  which,  upon  the  whole,  mutual 
misapprehension  might  be  inferred.  A  plan  of  the  garden  and  the  ad- 
joining premises,  which  was  one  of  the  Defendant's  exhibits,  shewed 
the  importance  of  the  buildings  to  the  occupier  of  the  inn. 

The  cause  was  heard  by  the  Master  of  the  Rolls  on  the  24th  March, 
1838,  who  dismissed  the  bill,  and  this  was  an  appeal  from  his  Lord- 
ship's decision. 

Mr.  Wigram,  Mr.  Cooper  and  Mr.  Bethell,  for  the  Appellant,  in- 
sisted that  the  memorandum  being  upon  the  face  of  it  a  contract  for 
land  for  building,  the  thirteen  yards  by  eighteen  plainly  meant  a  rec- 
tangular area  of  that  extent — that  such  construction  was  so  obvious, 
that  the  respondent  could  not  be  permitted  to  allege  that  his  under- 
standing was  different. — that  the  buildings  were  such  as  mostly  form 
part  of  the  garden  of  an  inn — and  that  the  Respondent  having  the 
ground  required,  must  abide  by  the  agreement  he  had  signed. 

Mr.  Wakefield,  and  Mr.  Girdlestone,  for  the  Respondent,  said,  the 
Court  need  not  determine  whether  in  a  document  like  that  before  it, 
"thirteen  yards  in  width  and  eighteen  in  length,  or  thereabouts,  to  be 
measured,"  necessarily  meant  a  superficies  of  that  width  throughout 
the  entire  length — as,  conceding  that  point  (which  was  however  one 
upon  which  the  Court,  under  the  circumstances,  would  probably  en- 
tertain an  opinion  adverse  to  the  Appellant),  it  was  clear  the  Respond- 
ent had  contracted  in  error — that  it  plainly  appeared  that  the  business 
of  the  inn  could  not  be  carried  on  without  buildings  of  the  description 
of  those  in  question,  and  the  Respondent  therefore  never  could  have 
contemplated  that  the  same  would  be  embraced  by  the  description  of 
garden.  The  case  then  was  brought  within  the  authorities,  which  lay 
down  that  the  Court  will  not  decree  a  specific  performance  against  a 
party  who  mistakes  a  material  fact  in  the  agreement. 

They  cited  Calverley  v.  Williams,  1  Vesey,  Jun.  210;  Stapylton  v. 
Scott,  13  Vesey,  425,  427,  and  Malins  v.  Freeman,  2  Keen,  25. 

The  Lord  Chancellor  [Cottenham]  adopted  this  view  of  the 
case,  and  dismissed  the  appeal  with  costs. 


492  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Ch.  2 

MASON  v.  ARMITAGE. 

(In  Chancery  before  Lord  Erskine,  1S06.    13  Ves.  25.) 

The  bill  stated,  that  the  defendant  Armitage  put  up  to  sale  by  auc- 
tion at  Norwich,  on  the  7th  of  August,  1802,  a  freehold  and  copyhold 
estate;  that  there  were  several  bidders;  and. the  plaintiff,  being  the 
highest  bidder,  at  the  sum  of  £8,000  the  estate  was  knocked  down  to 
him  at  that  sum;  and  he  was  declared  the  purchaser.  The  plaintiff, 
after  the  sale  was  concluded,  tendered  the  deposit,  and  a  moiety  of  the 
auction  duty  to  the  auctioneer,  according  to  the  conditions  of  sale :  but 
the  auctioneer  declined  to  take  the  money;  as  the  vendor  seemed  dis- 
satisfied with  the  sale ;  and,  as  auctioneer  and  agent  for  the  defendant, 
made  and  signed  the  following  memorandum  on  the  printed  particulars 
and  conditions  of  sale : 

"Memorandum:  Saturday  the  7th  of  August,  1S02;  attended  at  the  Blue 
Bell  on  Hoghil,  Norwich.  Mr.  Robert  Mason  was  the  highest  bidder  at  the 
sum  of  £8,000:  the  deposit  being  10  per  cent,  upon  the  purchase  money.  Mr. 
Mason  offered  me  £S00  for  the  same,  as  well  £100  for  his  moiety  of  the  auc- 
tion duty:  but  the  owner  nor  his  attorney  being  present,  I  did  not  think  proper 
to  receive  the  same.  R.  Bacon,  Auctioneer." 

Then,  after  the  names  of  persons  who  were  present, 

"N.  B.  There  was  a  misunderstanding  between  the  vendor  and  the  person 
appointed  by  him  to  bid  for  the  estate." 

The  bill  prayed  a  specific  performance  of  the  agreement,  and  a  con- 
veyance, &c.     *     *     * 

The  circumstances  upon  which  the  bill  was  resisted,  according  to 
the  evidence  of  the  auctioneer,  and  other  persons  present  at  the  sale, 
were  these : 

Armitage  in  the  usual  way,  by  writing,  appointed  William  Rising  to 
make  one  bidding  for  him;  there  was  an  interval  of  17  minutes  be- 
tween the  time  of  Mason's  last  bidding,  and  the  time  when  the  estate 
was  knocked  down  to  him.  After  that  bidding,  the  auctioneer  laid  a 
watch  upon  the  table ;  and  said,  if  no  farther  bidding  was  made,  it 
would  be  necessary  for  him  to  call  on  the  person  appointed  to  bid  for 
the  owner,  to  make  his  bidding  if  he  thought  proper.  After  waiting 
about  seven  minutes,  the  auctioneer  inquired  of  the  persons  present,  if 
they  were  inclined  to  make  any  farther  offer,  addressing  himself  to 
each  individual ;  to  those  who  were  known  to  him  by  name ;  and  par- 
ticularly to  Rising,  by  pointedly  looking  at  him :  he  being  the  person 
who  was  authorised  to  make  the  reserved  bidding,  and  to  bid  once  on 
the  part  of  the  owner ;    and  the  auctioneer  said : 

"It  is  with  your  free  will  and  consent  that  the  estate  shall  be  knocked  down 
at  £S,000  to  Mr.  Mason." 

And  Rising,  who  sat  upon  the  same  seat  with  Armitage,  making  no 
motion  whatsoever,  the  auctioneer  asked  the  company  at  large,  wheth- 
er any  one  of  them  chose  to  make  any  farther  advance  on  the  last  bid- 
ding ;   observing  at  the  same  time,  that  the  seller  had  made  no  bidding : 


Sec.  8)  EQUITABLE   DEFENSES  493 

but  no  farther  offer  being  made  by  any  person  present,  and  Rising  still 
taking  no  notice,  after  some  farther  pause  the  estate  was  knocked 
down.  Immediately  after  the  auction  was  finished,  Rising  remon- 
strated with  the  auctioneer ;  insisting,  that  he  had  no  right  to  knock 
the  estate  down  to  the  plaintiff,  as  he  (Rising)  expected  to  have  been 
called  upon  by  name ;  and  said  to  the  plaintiff,  that  as  he  (Rising)  had 
made  this  mistake,  he  would  give  the  plaintiff  £100  out  of  his  own 
pocket  to  relinquish  the  estate,  rather  than  the  vendor  should  be  a  suf- 
ferer on  his  account.  In  the  course  of  the  sale,  the  auctioneer  being 
asked,  whether  there  were  any  setters  in  the  room,  answered,  not  that 
he  knew  of ;  but  that  the  vendor  had  reserved  one  bidding  for  him- 
self ;  and  that  the  company  should  know,  when  he  made  that  bidding ; 
and  after  that  bidding,  any  person  making  an  advance  of  £10  should  be 
the  purchaser.  The  auctioneer,  being  farther  asked,  who  was  to  bid 
for  the  vendor,  said,  he  was  not  at  liberty  to  give  up  the  name. 

Rising,  by  his  deposition  stated,  that  great  intimacy  subsisted  be- 
tween the  plaintiff  and  the  defendant  Armitage ;  and  previously  to  the 
sale,  on  the  same  day,  Armitage  told  the  plaintiff  he  had  appointed 
Rising  to  buy  the  estate  in  for  him  at  £9,000  and  would  not  take  less ; 
and  that  the  plaintiff  had  better  take  the  estate  for  his  friend.  The 
plaintiff  replied  that  he  had  no  money ;  and  would  have  nothing  to  do 
with  it  either  for  himself  or  his  friend.  Rising  also  stated,  that  he 
expected  to  be  called  upon  by  name ;  and  did  not  conceive  the  general 
call  upon  the  company  to  be  addressed  to  him;  otherwise  he  would 
have  bid  £9,000. 

The  Lord  Chancellor.57  *  *  *  I  admit  there  is  nothing  in 
this  contract,  shewing,  that  any  thing  was  fraudulently  obtained  by  the 
plaintiff ;  and  if  he  had  been  declared  the  purchaser,  and  had  got  into 
possession,  so  that  the  defendant  had  been  obliged  to  come  into  this 
Court  upon  the  head  of  fraud,  there  would  not  be  sufficient  ground  to 
deprive  the  plaintiff  of  the  benefit  of  his  legal  contract.  But  that  is 
not  this  case.  This  plaintiff  has  got  all  the  law  can  give  him ;  and 
applies  here  desiring  more ;  and  the  question  is,  whether,  under  all  the 
circumstances,  and  upon  the  authorities  and  principles,  this  is  a  case 
for  a  specific  performance. 

As  to  the  cases  that  were  cited,  independent  of  the  authority  of  Lord 
Kenyon,  I  find  a  more  ancient  authority.  The  same  rule  is  laid  down 
by  Lord  Hardwicke,  particularly  in  the  case  of  Underwood  v.  Hitch- 
cox,  1  Ves.  279.  A  specific  performance  is  so  much  matter  of  discre- 
tion, that  it  is  very  rarely,  at  least,  granted  in  the  case  of  personal  chat- 
tels. In  the  case  of  a  bill,  filed  for  the  performance  of  an  agreement 
to  transfer  stock  at  a  given  day  and  price,  in  consideration  of  two 
guineas,  the  decree  was  made :  but  it  was  upon  appeal  reversed  by 
Lord  Parker,  who  said  the  plaintiff  should  go  to  law  for  damages,  one 
man's  stock  being  the  same  as  another's.    It  is  not  necessary  that  fraud 

57  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


494  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

should  be  made  out.  Though  from  want  of  attention,  misrepresen- 
tation, and  mistake,  a  party  may  have  acquired  a  right  at  law,  this 
Court  will  not,  especially  if  upon  other  circumstances  the  case  is  hard, 
decree  a  specific  performance :  but  the  law  is  open  to  him.  Joynes 
v.  Statham,  3  Atk.  388.  Upon  this  subject  the  Court  is  governed  by 
a  sound,  not  a  capricious  and  arbitrary  discretion. 

In  this  case  I  cannot  say  the  plaintiff  has  acted  so  as  to  be  an  ex- 
ample ;  though  his  conduct  does  not  come  up  to  fraud,  so  that  I  could 
have  dealt  with  it  as  such  if  he  had  obtained  possession.  It  is  plain 
he  had  talked  of  purchasing  it  for  his  friend  ;  and  his  answer  to  the 
offer  made  to  him,  that  he  would  have  nothing  to  do  with  it,  is  rather 
against  him ;  the  defendant  on  that  account  not  looking  to  him  as  a 
purchaser.  Having  thus  put  the  defendant  off  his  guard,  the  plaintiff 
went  into  the  room,  and  was  considered  by  every  one  as  a  puffer. 
This  is  not  a  damp  upon  the  sale  by  a  circumstance,  over  which  the 
man  had  no  control ;  as  in  Twining  v.  Morrice,  2  Bro.  C.  C.  326. 
This  arises  from  his  own  act.  Upon  the  suspicion  that  the  plaintiff 
was  a  puffer,  the  question  was  put  whether  any  puffers  were  present ; 
and  then  a  fair  account  is  given  by  the  auctioneer,  that  the  defendant 
had  reserved  one  bidding,  and  any  one  who  would  advance  £10  upon 
that  should  have  the  estate.  This  was  not  private,  but  a  public  con- 
ventional option  not  to  let  the  estate  go  at  a  particular  bidding.  The 
result  of  the  evidence  is  plain  misapprehension  and  mistake ;  not  an 
after-thought  by  the  defendant,  satisfied  at  the  moment  with  the  sum 
of  £8.000.  There  is  no  difficulty  as  to  the  evidence,  which  is  embodied 
upon  the  written  memorandum,  stating  clearly  that  there  was  a  mis- 
understanding. If,  however,  the  plaintiff  thinks  he  has  a  case  which 
the  statute  will  not  meet,  upon  which  I  do  not  give  any  opinion,  he  is 
not  injured  by  this  decision.  There  is  nothing  to  shew  that  this  land 
is  of  any  peculiar  value  to  him;  as  if  it  was  contiguous  to  his  own 
estate,  or  purchased  with  a  view  to  set  up  a  manufacture.  Therefore 
Lord  Parker's  observation  as  to  stock  is  applicable ;  and  as  the  plain- 
tiff declared  he  did  not  intend  to  make  this  purchase,  and  he  has  ob- 
tained an  advantage  through  a  mistake,  a  Court  of  Equity  will  not  give 
him  any  assistance  in  that. 

Dismiss  the  bill  without  costs. 


WOOD  v.  SCARTH. 

(In  Chancery,  1855.     19  Jur.  [N.  S.]  1107.) 

The  plaintiffs  in  this  suit  sought  to  compel  the  defendant  to  grant 
them  a  lease  according  to  the  agreement  alleged  in  the  bill.  The  de- 
fendant was  in  July,  1853,  seised  in  fee  of  a  newly-built  house  near 
Putney,  intended  to  be  used  as  a  public-house,  and  to  be  called  "The 
Quill."     The  plaintiffs  were  brewers,  and  had  applied   to  know  the 


Sec.  8)  EQUITABLE   DEFENSES  495 

terms  on  which  the  defendant  would  let  the  same.     On  the  8th  July, 
1853,  the  plaintiffs  received  the  following  letter  from  the  defendant : 

"The  terms  for  the  intended  new  public-house  at  Putney  are  £30  yearly  rent 
till  Lady-day,  and  £63  yearly  rent  from  that  time,  on  a  lease  of  twenty-five 
years,  to  commence  from  the  quarter-day  next  after  obtaining  the  license. 
Pray  let  me  know  if  it  suits  you  at  your  earliest  convenience,  as  I  am  giving 
all  the  brewers  who  left  cards  the  offer  in  rotation,  and  I  am  going  to  my 
place  in  Hants  next  week." 

The  defendant  now  alleged  that  a  premium  of  £500,  which  he  in- 
tended to  have  asked  in  addition  to  the  above  terms,  was  accidentally 
omitted.  In  consequence  of  this  letter,  the  defendant  and  Mr.  Shed- 
lock,  a  confidential  clerk  of  the  plaintiffs,  met  by  appointment  to  view 
the  property  on  the  30th  July,  and  then  and  there  had  a  conversation, 
without  witnesses,  as  to  the  terms  of  the  lease.  The  evidence  of  the 
only  two  persons  present  at  this  conversation  was  in  direct  conflict. 
Shedlock  swore  positively  that  no  premium  of  £500,  or  any  other 
amount,  was  mentioned  concerning  "The  Quill,"  although  the  defend- 
ant mentioned  having  lately  let  a  neighbouring  house,  "The  Arab 
Boy,"  at  £50  per  annum,  in  addition  to  a  premium  of  £400,  and  that 
he,  Shedlock,  had  made,  at  the  time  of  such  conversation,  and  in  the 
presence  of  the  defendant,  a  memorandum  as  to  the  terms  for  "The 
Quill,"  and  also  for  "The  Arab  Boy,"  as  above  mentioned.  The  pock- 
et-book, which  was  produced,  bore  out  Shedlock's  statement  in  all  re- 
spects. The  defendant  swore,  both  in  his  answer  and  before  the  ex- 
aminer, that  he  had  at  such  conversation  mentioned  £500  premium  as 
part  of  the  terms  of  letting  "The  Quill,"  and  that  Shedlock  wrote 
down  the  terms  in  his  pocket-book,  the  expressions  used  by  the  de- 
fendant in  the  answer  being — "I  personally  and  distinctly  saw  him 
note  down  the  premium  of  £500  and  the  other  terms  so  proposed  by 
me ;"  and  before  the  examiner — "I  saw  the  words  and  figures,  and 
read  them."  The  plaintiffs  intimated  in  July  that  they  would  accept 
the  defendant's  terms,  and  entered  and  commenced  some  additions  and 
alterations.  In  September  a  draft  lease  was  sent  to  the  plaintiffs  by  the 
defendant's  solicitor,  in  which,  for  the  first  time,  as  they  alleged,  they 
saw  the  mention  of  the  £500  premium,  to  be  paid  within  two  months 
after  obtaining  a  license.  They  immediately  wrote  to  the  defendant 
to  state  that  the  £500  premium  formed  no  part  of  their  agreement ; 
but  as  he  refused  to  complete  without  it,  the  plaintiffs  filed  the  present 
bill  for  a  specific  performance.  The  defendant  resisted  on  the  ground 
of  accident  and  mistake,  insisting  that  the  premium  had  been  by  an 
oversight  omitted  in  the  letter  of  the  8th  July ;  and  it  was  proved  that 
the  premises  had  been,  immediately  previous  to  the  offer  made  to  the 
plaintiffs  on  the  8th  July,  offered  to  and  refused  by  Messrs.  Elliott 
&  Watney,  another  brewing  firm,  at  the  rent  of  £63  for  twenty-five 
years,  and  with  the  premium  of  £500.     *     *     * 

Sir  W.  P.  Wood,  V.  C.58     I  do  not  think  that  that  last  point  need 

ss  Parts  of  the  opinion  are  omitted. 


496  SPECIFIC  PERFORMANCE  OF   CONTRACTS  (Ch.  2 

be  the  subject  of  inquiry.  The  case  stands  thus:  The  defendant  sends 
on  the  8th  July  a  letter  containing  certain  terms  on  which  he  is  willing 
to  let  the  premises.  The  plaintiffs  say,  "We  accept  your  terms."  Un- 
less the  defendant  can  shew  some  other  terms  to  have  been  made,  the 
terms  referred  to  must  be  those  in  the  letter  of  the  8th  July.  Then 
has  the  defendant  made  out  that  there  were  other  terms  made  at  the 
interview  on  the  13th  July  with  Shedlock?  The  defendant's  case  is, 
that  he  made  an  entire  mistake  in  that  first  letter  of  the  8th  July ;  that 
he  always  intended  to  introduce  the  premium  of  £500  in  addition  to 
the  rent,  and  that  he  had  the  firmest  impression  of  having  done  so. 
Has  he  brought  any  evidence  to  shew  that  he  did  make  this  mistake 
in  the  original  transaction,  or  is  there  anything  to  prevent  him  from 
now  taking  advantage  of  that  mistake  if  he  can  shew  that  he  fell  into 
it  ?  I  find  in  the  same  original  letter  of  the  8th  July,  the  following  ex- 
pression, which  is  very  material : 

"I  am  making  the  offer  in  rotation  to  all  the  brewers  who  left  cards." 

It  would  be  of  the  utmost  danger  to  allow  a  person,  thinking  he  has 
made  a  bargain,  to  vary  by  verbal  testimony  the  terms  of  a  written 
agreement ;  that  I  would  not  allow  even  if  supported  by  the  oath  of 
the  defendant,  swearing  that  he  had  always  intended  to  ask  for  that 
premium  ;  nor  even,  although  supported  by  his  agent's  evidence ;  that 
the  vendor  had  uniformly  instructed  him  to  insist  upon  such  a  premi- 
um. Here,  however,  I  consider  that  I  have  some  written  evidence  of 
a  mistake.  In  the  same  letter  of  the  8th  July  in  which  the  defendant 
makes  the  offer  to  the  plaintiffs  he  says  that  he  is  making  "the  offer" 
to  all  the  brewers  in  rotation.  Now  I  think  I  am  justified  in  thinking 
that  this  offer  so  made  to  the  other  brewers  must  be  taken  to  mean  the 
identical  offer  which  he  thought  he  was  making  to  the  plaintiffs ;  and 
I  find  that  he  had  actually  just  before  offered  the  premises  to  Messrs. 
Elliott  &  Watney  at  the  same  terms,  including  the  £500  premium, 
which  offer  they  had  declined.  I  cannot,  on  the  other  hand,  assume 
that  the  defendant  had  thereupon  at  once  come  to  the  determination 
to  leave  out  the  £500  premium.  It  is  not  consistent  with  sense  or  with 
the  dealings  of  mankind  that  he  should  cut  down  his  offer  by  £500  be- 
cause the  first  comer,  to  whom  he  had  given  the  refusal,  had  declined 
it.  It  becomes  almost  as  if  he  had  said  in  his  letter,  "I  have  made 
Messrs.  Elliott  &  Watney  an  offer ;  I  repeat  that  offer  to  you,  viz.," 
and  then  stated  the  terms  as  in  the  letter  of  the  8th  July,  without  men- 
tioning the  premium.  That  would,  perhaps,  be  a  clearer  case,  but 
really  what  he  has  said  brings  it  almost  to  the  same  thing.  Then  the 
question  is,  whether  the  defendant  has,  by  any  statements  put  forward 
by  him,  prevented  himself  from  being  relieved  from  this  mistake.  The 
Duke  of  Beaufort  v.  Neeld,  9  Jur.  813,  would  not  prevent  the  relief 
now  sought.  That  a  person  is  not  to  be  brought  here  to  perform  a 
contract  which  he  never  intended  to  enter  into  is  clear.     *     *     * 

But  here  the  question  is,  what  is  the  effect  of  the  defendant  having 


Sec.  8)  EQUITABLE   DEFENSES  497 

said,  not  that  the  whole  contract  was  a  mistake  throughout,  but  that 
before  the  purchaser  entered  on  the  land,  he  (the  vendor)  told  the  pur- 
chaser's agent  what  the  real  terms  intended  by  him  were,  and  that  the 
latter  agreed  to  them,  when  that  turns  out  not  to  have  been  the  fact. 
How  is  that  to  affect  the  question?  I  do  not  find  it  necessary  to  rely 
in  the  least  upon  the  defendant's  personal  testimony.  I  rely  upon  what 
I  find  in  the  letter  signed  by  him,  and  upon  what  Elliott  &  Watney 
state  to  have  been  the  offer  made  to  them.     *     *     * 

So  here,  it  seems  probable  that  at  the  time  of  the  interview  the  de- 
fendant was  convinced  that  he  had  already  mentioned  the  £500  pre- 
mium, as  he  saw  Shedlock  write  down  something  about  a  premium  of 
some  hundreds  of  pounds,  which  turns  out  to  have  related  solely  to 
the  £400  premium  for  "The  Arab  Boy,"  and  he  has  not  hesitated  to 
swear  that  Shedlock's  memorandum  related  to  the  subject  of  the  pres- 
ent controversy.  The  defendant  has  already  shewn  himself,  by  the 
omission  complained  of,  to  be  careless  in  matters  of  business ;  and  in 
a  contest  of  credibility  between  Shedlock  and  him,  I  should  have  no 
hesitation  in  believing  Shedlock.  But  to  say  that  because  the  defend- 
ant has  set  up  a  double  proposition,  "I  made  a  mistake,  and  you  knew 
it,"  and  has  failed  in  the  latter  branch,  he  is  therefore  to  be  prevented 
from  having  the  benefit  of  the  first  branch  of  his  defence,  is,  I  think, 
going  too  far.  On  the  other  hand,  I  conceive  that  the  plaintiffs  had 
every  reason  to  believe,  and  did  believe,  that  they  were  proceeding  bona 
fide — that  they  had  entered  into  a  valid  contract  for  a  lease  without 
any  premium.  But  notwithstanding  that,  feeling  bound  to  dismiss  the 
bill,  I  cannot  give  them  any  costs ;  but  I  dismiss  it  without  costs,  with- 
out any  prejudice  to  any  action  which  the  plaintiffs  may  be  advised  to 
bring  for  damages,  and  without  prejudice  to  any  right  they  may  have 
to  have  their  costs  of  this  suit  included  in  that  action.  It  would  be 
only  reasonable,  after  the  defence  set  up,  that  the  plaintiffs  should  have 
their  costs,  but  I  cannot  give  them  now. 


MANSER  v.  BACK. 

(In  Chancery  before  Sir  James  Wigrain,  1848.     6  Hare,  443.) 

The  vendors  were  owners  of  copyhold  premises  at  Hoddesden, 
bounded  on  the  west  by  the  road  from  London  to  Ware,  on  the  south 
by  a  lane  called  Conduit-lane,  and  on  the  north  by  premises  called  Whit- 
ley's. Part  of  these  premises  consisted  of  the  Fox  Inn,  which  adjoined 
the  London  and  Ware  road  and  Whitley's  premises,  and  formed  the 
north-western  part  of  the  premises  belonging  to  the  vendor.  There 
was  a  right  of  way  from  Whitley's  premises,  along  the  back  of  the 
Fox  Inn,  to  Conduit-lane,  passing  through  the  lot,  the  subject  of  this 
suit.  The  vendors  gave  directions  for  the  sale  of  the  above  premises, 
Boke  Eq.— 32 


498  srECiPic  performance  of  contracts  (Ch.  2 

with  the  exception  of  the  Fox  public-house  and  a  small  house  adjoin- 
ing it,  and  particulars  were  prepared  by  the  auctioneer,  describing  the 
lot  (being  lot  11)  and  reserving  Whitley's  right  of  way.  At  the  auc- 
tion, on  the  30th  of  May,  1844,  the  plaintiff,  and  one  Warner,  became 
the  purchasers ;  and  on  the  evening  of  the  same  day,  memoranda  of 
this  purchase,  written  on  two  copies  of  the  particulars  of  sale,  were 
signed,  one  by  the  plaintiff,  for  himself  and  Warner,  and  the  other  by 
the  auctioneer.  On  the  7th  of  June,  two  other  memoranda  of  the  con- 
tract were  signed,  on  similar  copies  of  the  particulars,  the  name  of 
Warner  being  omitted,  and  the  plaintiff  becoming  the  sole  purchaser. 
The  title  was  afterwards  investigated,  the  purchase-money  was  paid, 
and  the  plaintiff  was  let  into  possession.  But  when  the  surrenders  were 
prepared,  the  vendors  insisted  on  the  right  of  reserving  a  right  of  car- 
riage-way to  the  back  yard  of  the  Fox  Inn.  Upon  this  the  plaintiff  filed 
his  bill  to  enforce  a  surrender  of  the  premises,  without  a  reservation 
of  such  right  of  carriageway. 

It  appeared  from  the  evidence,  that,  after  the  original  particulars  and 
conditions  of  sale  had  been  prepared  and  distributed,  it  was  discover- 
ed that  the  reservation  of  a  right  of  way  to  the  back  yard  of  the 
Fox  Inn  where  there  were  stables  and  a  coach  or  cart  house,  had  not 
been  made,  and  that  there  was  no  other  access  for  carriages  to  those 
premises.  The  information  of  this  fact  was  received  in  London,  by  the 
vendor's  solicitor,  on  the  evening  before  the  day  of  sale,  and  he  im- 
mediately altered  a  copy  of  the  particulars  of  sale,  by  introducing  a 
reservation  of  the  right  of  way  to  the  Fox  Inn  after  the  reservation  of 
the  right  of  way  to  Whitley's  premises.  Fourteen  or  fifteen  copies  of 
the  original  particulars  were  altered  in  the  same  manner  by  his  clerks. 
These  copies  were  brought  to  the  auction  room  ;  some  were  distributed, 
without  observation,  and  the  others  placed  together  on  the  table,  and, 
after  the  sale,  the  greater  part  of  the  altered  particulars  were  taken 
away.  The  vendor's  solicitor  directed  the  auctioneer  to  sell  accord- 
ing to  the  altered  particulars.  It  was  proved  by  the  evidence  of  the 
vendor's  solicitor  and  the  auctioneer,  that  the  auctioneer,  before  the 
sale  took  place,  read  aloud  the  altered  particulars ;  and,  on  the  part 
of  the  plaintiff,  it  was  proved  that  several  persons  in  the  room  did  not 
hear  or  notice  the  reading  of  the  alteration.  The  particulars  of  sale, 
on  which  the  memoranda  as  to  the  purchase  were  signed,  were  the  orig- 
inal copies  of  the  particulars,  not  containing  the  alteration.  The  auc- 
tioneer, in  his  evidence,  stated  that  he  had  signed  these  particulars 
through  inadvertence. 

Vice-Chancellor  59  (after  stating  the  facts  to  the  foregoing  ef- 
fect) :  *  *  *  It  is  indisputable,  that,  at  the  time  the  auctioneer 
knocked  down  Lot  11,  he  had  (as  between  himself  and  the  vendors)  no 
authority  to  sell  except  according  to  the  altered  particulars,  provided 
the  vendors'  solicitor  had  authority  to  make  the  alteration. 

so  Parts  of  the  opinion  are  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  499 

The  evidence  of  the  witnesses  as  to  what  was  said  in  the  auction- 
room  is  of  little  value  when  given  a  long  time  after  the  sale,  unless 
something  very  material  occurred  at  the  time  to  fix  their  attention. 
Where  parties  supposed  that  they  already  knew  what  was  in  the  par- 
ticulars, their  attention  was  not  likely  to  be  very  closely  directed  to 
what  the  auctioneer  read,  even  if  they  intended  to  be  bidders.  If 
these  observations  should  not  be  deemed  satisfactory,  it  must  be  re- 
membered how  much  greater  force  is  to  be  given  to  the  testimony  of 
two  credible  witnesses,  one  of  whom  says  he  did  read,  and  the  other 
says  he  heard  him  read  (both  swearing  to  an  affirmative,)  than  to  the 
negative  evidence  of  those  who  only  say  they  did  not  hear  him  read 
a  particular  passage  or  clause.  But  I  must  give  the  plaintiff  the  bene- 
fit He  claims  of  not  having  heard  the  auctioneer  read  the  reservation  of 
the  right  of  the  way  to  the  Fox.  Nothing  but  the  most  conclusive  evi- 
dence could  induce  me  to  fix  him  with  having  heard  it  read.  Not  mean- 
ing to  lay  down  any  general  rule,  I  say  that,  in  a  case  like  this, — after 
the  circulation  of  the  original  particulars,  and,  looking  at  the  manner 
in  which  the  altered  copies  were  dealt  with,  I  must  suppose  the  plain- 
tiff came  into  the  auction-room  believing  the  sale  was  to  take  place 
without  other  reservation  than  was  specified  in  the  original  particulars. 
Xo  care  was  taken  to  correct  that  belief.  The  auctioneer  should  not 
have  satisfied  himself  with  merely  reading  the  altered  particulars ;  he 
should  pointedly  have  called  attention  to  the  fact  that  they  had  been 
altered,  and  in  what  way.  The  onus  of  proving  this  distinct  notice  is 
wholly  upon  the  vendors,  and  they. have  not  discharged  it.  I  shall 
therefore  apply  myself  to  the  further  consideration  of  this  case,  upon 
the  hypothesis  that  the  auctioneer  read,  but  that  the  plaintiff  did  not 
hear  him  read,  the  new  reservation.     *     *     * 

It  is,  however,  a  well-established  principle  of  equity,  that  the  Court 
will  not  enforce  the  specific  performance  of  an  agreement  in  writing, 
where,  from  fraud,  mistake,  or  surprise,  injustice  would  be  done  to 
the  defendant  by  a  decree  for  that  purpose.  *  *  *  As  the  princi- 
ple, however,  is  general,  where  the  fraud,  mistake,  or  surprise  cannot 
be  established  without  evidence,  equity  will  allow  a  defendant,  to  a 
bill  for  specific  performance,  to  support  a  defence  founded  upon  any 
of  those  grounds  by  evidence  dehors  the  agreement.     *     *     * 

Bill  dismissed  without  costs. 


LESLIE  v.  TOMPSOX. 

(In  Chancery,  1851.     9  Hare,  268.) 


A  special  case. 

In  August,  1850,  certain  hereditaments,  situated  at  Iver,  belonging 
to  the  plaintiffs,  were  put  up  for  sale  by  auction  in  several  lots,  sub- 
ject to  certain  particulars  and  conditions  of  sale,  with  a  plan  annexed 
thereto,  denoting  the  several  lots  by  different  colors ;    printed  copies 


500  SPECIFIC   PERFORMANCE   OF  CONTRACTS  (Cll.  2 

of  which  particulars  were  delivered  to  the  defendant  and  others  a  few 
days  before  the  sale.  The  defendant  was  declared  the  purchaser  of  Lot 
1  at  the  auction,  at  the  price  of  £2,800.  He  also  afterwards  became 
the  purchaser  of  Lots  2,  3,  and  4. 

Lot  1  was  thus  described  by  the  particulars : 

"A  country  residence,  park,  and  grounds,  called  'Dromenagh  Lodge.'  The 
well-timbered  park  is  enclosed  by  thriving  plantations  and  strong  oak  palings. 
There  is  a  neat  lodge-entrance,  containing  a  neat  sitting-room,  three  bed- 
rooms, with  good  garden,  and  strong  entrance-gate.  The  long  coppice  is  a 
gradually  sloping  wood  to  a  pure  running  stream  abundantly  supplied  with 
fish,  and  is  studded  with  numerous  rustic  lodges  and  seats.  This  lot  com- 
prises about  70  A.  24  P.,  divided  in  the  following  manner: 
No.  on  Plan.  Quantity 

A.    R.    P. 

1.  Residence,  office,  garden,  lawn,  and  fishpond, 3    0    30 

2.  Stabling,  yards,  and  kitchen-garden 2     0     30 

3.  Lodge  and  park 18     0      4 

4.  Long   coppice 4(3    3      0 

Total  acres  more  or  less 70     0     24" 


The  Lots  2,  3,  and  4,  were  described  in  the  particulars  as  comprising 
certain  messuages,  out-buildings,  &c,  together  with  certain  quantities 
of  arable,  pasture,  meadow,  and  wood  lands,  amounting  in  the  aggre- 
gate to  321  A.  2  R.  30  P.,  more  or  less. 

The  11th  condition  of  sale  provided,  that,  if  any  mistake  or  error 
should  appear  in  the  description  of  the  property,  or  any  error  whatever 
appear  in  the  annexed  particulars,  such  mistake  or  error  should  not  an- 
nul the  sale ;  but,  except  where  otherwise  provided  for  by  the  condi- 
tions, a  compensation  or  equivalent  should  be  given  or  taken,  as  the 
case  might  require,  to  be  settled  by  two  referees,  or  an  umpire  to  be 
nominated  by  them  before  entering  on  the  business ;  one  referee  to  be 
nominated  by  each  party  within  seven  days  after  the  discovery  of  the 
error  and  notice  thereof  given  to  the  other  party;  and,  in  case  either 
party  should  refuse  or  neglect  to  name  a  referee  within  the  time  ap- 
pointed, the  referee  of  the  other  party  should  alone  make  a  final  deci-' 
sion. 

Some  time  after  the  sale  had  taken  place,  it  was  found  that  Lot  1 
comprised  89  A.  29  P.,  instead  of  70  A.  24  P. ;  and  that  the  Lots  2,  3, 
and  4,  comprised  in  the  aggregate  310  A.  3  R.  18  P.,  instead  of  321  A. 
2  R.  30  P. 

The  whole  of  Lot  1,  with  the  exception  of  the  stabling  and  kitchen- 
garden,  which  were  separated  by  a  road  from  the  residue  of  the  lot, 
was  in  a  ring  fence,  bounded  on  the  south,  south-west,  and  south-east 
sides  by  roads  and  wooden  palings,  on  the  western  side  by  a  hedge  or 
fence,  and  on  the  north  and  north-east  by  the  stream  or  brook. 

The  quantities  of  the  lands  assigned  to  the  different  lots  were  in- 
serted in  the  particulars  under  a  mistake.  In  the  preparation  of  such 
particulars,  and  for  the  purpose  of  describing  the  property  therein,  the 
plaintiffs'  solicitor  had  referred  to  and  taken  the  several  descriptions 


Sec.  8)  EQUITABLE   DEFENSES  501 

from  printed  particulars  of  the  estate,  prepared  by  another  solicitor  on 
a  former  occasion,  and  from  a  surveyor's  report  made  on  such  occa- 
sion, which  he  believed  to  be  correct,  and  therefore  relied  upon. 

The  plaintiffs  claimed  an  increased  amount  of  purchase-money,  to  be 
paid  to  them  by  way  of  compensation  for  the  extra  quantity  of  land 
comprised  in  Lot  1 ;  and  offered  to  allow  compensation  to  the  defend- 
ant for  the  deficiency  on  the  other  lots ;  and  the  question  submitted  for 
the  judgment  of  the  court  was,  whether  the  plaintiffs  were  entitled  to 
any  compensation  for  such  excess  of  acreage  in  Lot  1,  above  the 
quantity  stated  in  the  particulars,  they  (in  the  event  of  being  so  en- 
titled) allowing  compensation  to  the  defendant  for  the  deficiency  exist- 
ing in  the  acreage  of  Lots  2,  3,  and  4. 

The  Vice-Chancellor  [Sir  G.  J.  Turner].  In  this  case  there 
has  been  a  sale  of  property  in  four  lots.  In  the  particulars  of  Lot  1, 
there  has  been  an  under-statement  of  about  twenty  acres  in  the  quantity 
of  the  property  which  it  comprised ;  and  in  Lots  2,  3.  and  4,  there  has 
been  an  over-statement  by  about  ten  acres.  The  question  which  I  have 
to  consider  is,  whether  the  purchaser  is  bound  to  pay  compensation  for 
the  surplus  in  Lot  1,  and  to  receive  compensation  for  the  deficiency  in 
the  other  lots. 

The  conditions  of  sale  contain,  amongst  others,  a  provision  that  mis- 
take or  error  in  the  description  of  the  property  in  the  particulars  shall 
be  made  the  subject  of  compensation.  [His  Honor  read  the  11th 
condition  (supra).]  I  think  the  mistake  or  error  meant  to  be  referred 
to  by  that  condition  is  such  a  mistake  or  error  as,  on  the  part  of  the 
vendors,  would  vitiate  or  annul  the  contract  for  sale.  The  question, 
then,  to  be  considered,  is  whether,  in  this  state  of  circumstances,  the 
vendors  could  on  bill  filed  have  been  relieved  from  their  contract  on  the 
ground  of  the  mistake  they  have  made  in  the  particulars,  or  whether 
the  purchaser  could  have  enforced  the  contract  against  the  vendors.  I 
entertain  some  doubt  whether,  under  the  circumstances  of  this  case, 
the  vendors  could  have  been  relieved,  if  they  had  filed  their  bill  to  have 
the  contract  delivered  up  to  be  cancelled.  I  am  rather  disposed  to  think 
that,  under  the  circumstances  stated  on  the  special  case,  they  might 
have  been  relieved ;  for  it  appears  upon  the  special  case,  that  the  par- 
ticulars of  sale  were  prepared  from  some  previous  conditions  and  par- 
ticulars of  sale,  and  from  the  report  of  a  surveyor  prepared  on  a  for- 
mer occasion,  and  which  particulars  and  report  were  erroneous.  I  am 
disposed  to  think,  therefore,  that,  as  the  vendors  have,  in  preparing 
the  particulars  in  this  case,  proceeded  on  former  conditions  of  sale 
drawn  up  on  the  report  of  a  surveyor,  which  is  incorrect,  and  have, 
therefore,  entered  into  the  contract  under  a  mistaken  conception  of  the 
amount  of  property  comprised  in  the  particulars,  they  would  be  entitled 
to  relief.  But  whether  that  would  be  so  or  not,  I  am  strongly  of  opin- 
ion that  the  purchaser  could  not  enforce  the  contract  in  the  face  of  that 
mistake,  which  is  proved  to  have  existed,  unless,  indeed,  he  were  will- 


502  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

ing  to  adopt  the  condition  by  which  compensation  is  prescribed  for 
any  excess  in  the  quantity  of  land  taken. 

(  hie  argument  put  by  Mr.  Prendergast  appeared  to  me  at  first  to  be 
entitled  to  weight.  It  was,  that  the  vendors  did  not  intend  to  sell  the 
lot  by  measurement,  but  that  they  meant  to  sell  the  lot  in  the  mass  or 
lump.  It  was  upon  that  point  that  I  felt  some  hesitation  during  the 
discussion  before  me.  The  conclusion,  however,  to  which  I  have  ar- 
rived is  this,  that  the  actual  designation  of  the  number  of  acres  con- 
tained in  the  lot  negatives  the  presumption  of  any  intention  on  the  part 
of  the  vendors  to  sell  in  the  lump. 

Another  argument  urged  on  behalf  of  the  purchaser  was  that,  even 
if  the  court  should  be  of  opinion  that  this  is  a  case  in  which,  under  the 
contract,  the  purchaser  is  bound  to  make  compensation ;  yet  that,  in 
the  circumstances  which  appear,  there  are  no  means  of  estimating  the 
amount  of  such  compensation.  That,  however,  is  pointed  out  by  the 
condition  of  sale,  which  provides  that  the  amount  of  compensation 
shall  be  settled  by  arbitration ;  and,  if  the  parties  are  unable  to  procure 
the  amount  of  the  compensation  to  be  settled  by  arbitration  according 
to  the  provisions  of  the  contract,  this  court  will  ascertain  it  by  a  refer- 
ence to  the  Master. 

Declare,  that  the  purchaser  is  bound  to  make  compensation  for  the 
extra  quantity  of  land  comprised  in  Lot  1,  and  is  entitled  to  receive 
compensation  in  respect  of  the  deficiency  of  the  quantity  in  Lots  2,  3, 
and  4.    No  costs  on  either  side. 


RICHARDS  v.  NORTH  LONDON  RY.  CO. 
(In  Chancery,  1872.     20  Wkly.  Rep.  194.) 

This  was  a  bill  to  enforce  specific  performance  of  a  contract  al- 
leged to  have  been  entered  into  by  the  defendant  company  to  grant 
a  lease  of  a  house  in  Great  College-Street,  Camden  Town.  By  the 
terms  of  the  agreement  the  plaintiff,  who  is  a  butcher,  was  to  have  a 
lease  of  a  certain  house  called  in  the  lease  No.  1,  and  that  part  of  a 
house  called  No.  2  which  the  company  did  not  require  for  the  purposes 
of  their  railway.  The  defendant  company  eventually  refused  to  grant 
a  lease  of  more  than  about  a  moiety  of  the  house  No.  1,  and  the  plain- 
tiff insisted  that  he  was  entitled  to  compensation,  or  otherwise  to  a 
specific  performance  of  the  original  contract. 

Sir  R.  Baggallay,  Q.  C,  and  Berkeley,  for  the  plaintiff,  contended 
that  there  was  no  ambiguity  about  the  agreement,  which  was  in  plain 
and  intelligible  terms,  and  that  as  there  had  been  a  part  performance, 
the  plaintiff  was  entitled  to  insist  that  it  should  be  carried  out. 

Southgate,  Q.  C,  and  Rodwell,  for  the  defendant  company.  It  is 
plain  that  the  contract  could  never  have  been  intended  to  include  the 
whole  of  No.  1  house,  and  such  a  construction  is  incompatible  with  the 
fact  that  a  moiety  of  the  premises  forms  part  of  the  land  occupied  by 


Sec.  8)  EQUITABLE   DEFENSES  503 

the  buildings  of  the  railway.  There  was  a  map  to  which  the  plaintiffs 
referred  at  the  time  of  making  the  agreement,  and  it  is  the  house  No. 
1,  as  coloured  in  that  map,  to  which  the  agreement  was  intended  to  ex- 
tend, and  not  absolutely  to  the  whole  of  the  premises. 

Sir  R.  Baggallay,  in  reply. 

Lord  Romilly,  M.  R.  There  is  no  contract  here  that  the  bill  can 
be  supported  upon.  I  am  of  the  opinion  that  the  parties  were  at  cross 
purposes  when  they  entered  into  the  agreement,  and  that  the  com- 
pany never  intended  to  grant  more  than  that  part  of  the  house  and 
premises  which  is  coloured  in  the  map  produced.  It  is  evident  that 
the  whole  house,  with  the  ground  behind,  could  never  have  been  in- 
tended to  be  included,  for  this  land  was  always  meant  to  be  used  for 
the  purposes  of  the  railway.  It  is  marked  on  the  map  as  the  site  for  a 
flight  of  steps,  and  the  steps  were  actually  being  laid  down  when  the 
agreement  was  entered  into.  Then,  as  the  meaning  of  the  words, 
"whole  house,"  is  to  be  restricted,  I  think  it  should  be  restricted  to  that 
part  of  the  house  which  I  have  mentioned,  and  of  which  the  lease  has 
been  granted.  The  doctrine  of  part  performance  does  not  apply  here. 
That  can  apply  only  where  there  has  been  a  definite  and  well  under- 
stood agreement.  If  after  that  the  parties  enter  such  entry  consti- 
tutes a  part  performance.  But  here  there  was  no  conventio.  If  a 
contract  such  as  the  plaintiff  contends  to  have  existed  was  ever  en- 
tered into,  it  was  entered  into  by  mistake,  and  the  entry  is  not  a  part 
performance  of  anything.    I  must  dismiss  the  bill. 


In  re  HARE  AND  O'MORE'S  CONTRACT. 
(Chancery  Division.     [1901]  1  Ch.  93.) 

Vendor  and  purchaser  summons. 

This  was  a  summons  by  the  purchaser  under  the  above  contract  ask- 
ing for  a  declaration  that  he  was  entitled  to  compensation  for  misde- 
scription of  the  property  therein  comprised. 

A  number  of  leasehold  houses  were  sold  in  lots  by  auction  on 
March  23,  1900.  The  particulars  of  sale  described  lots  4  and  5  as  fol- 
lows : 

"Lot  4.  Highfield  Road,  Saltley. — Four  Capital  Private  Houses,  each  with 
hall  entrance,  garden  and  outbuildings  in  the  rear,  adjoining  lot  3,  and  called 
'Eastbourne,'  and  producing  at  low  rents  £72.  16s.  per  annum.  Term  eighty- 
live  years  from  Midsummer  next.    Ground  rent  £12. 

"Lot  5.  Highfield  Road,  Saltley. — Four  similar  houses,  called  'Somerville,' 
situate  in  the  Highfield  Road,  adjoining  the  last  lot ;  let  to  tenants  of  long 
standing,  at  old-fashioned  rents  producing  £67.  12s.  a  year.  Leasehold  for 
eighty-five  years  from  Midsummer  next.     Ground  rent  £12," 

Condition  14  provided  as  follows : 

"Any  error,  misstatement,  or  omission  in  the  particulars  shall  not  annul  the 
sale,  but  if  pointed  out  before  the  completion  of  the  purchase,  and  not  other- 
wise, shall  form  the  subject  of  compensation,  which  shall  be  allowed  by  the 


504  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Cll.  2 

vendor  or  purchaser  as  the  case  may  require.  The  amount  of  such  compensa- 
tion in  cases  of  dispute  shall  be  settled  by  the  auctioneer,  whose  decision  shall 
be  final." 

The  purchaser  inspected  lot  4  before  the  sale,  and  found  that  the 
houses  had  entrance-halls  and  water-closets. 

He  attended  the  sale,  and  purchased  lot  5  for  £580  in  reliance,  as  he 
asserted,  on  the  statement  in  the  particulars  that  the  houses  were  sim- 
ilar houses  to  those  of  lot  4,  whereas  it  was  found  that  the  houses  of 
lot  5  had  no  entrance-halls,  and  had  privies  in  lieu  of  water-closets, 
the  rent  being  less  in  consequence  than  that  of  the  houses  in  lot  4.  He 
thereupon  claimed  £77  compensation  for  the  misdescription. 

The  vendor  alleged  that,  before  putting  up  lot  5  for  sale,  the  auc- 
tioneer made  a  verbal  statement  correcting  the  misdescription,  which 
the  purchaser  must  have  heard,  and  one  of  the  requisitions  made  on 
behalf  of  the  purchaser  asked  for  a  written  statement  by  the  auction- 
eer of  what  he  had  said  at  the  sale.  This  was  furnished ;  but  at  the 
trial  the  purchaser  denied  that  any  such  statement  was  made,  or,  if 
made,  that  he  heard  it. 

The  evidence  on  the  point  being  conflicting,  the  summons  was  or- 
dered to  be  set  down  as  a  witness  action,  the  purchaser  to  be  treated 
as  plaintiff  in  an  action  for  specific  performance  with  compensation. 

On  hearing  the  evidence,  the  Court  found  that  the  statement  had 
been  made  clearly  and  distinctly,  but  that  it  was  not  proved  that  the 
purchaser  had  heard  it. 

The  question  was,  therefore,  whether  on  that  finding  the  purchaser 
was  entitled  to  specific  performance  with  compensation.     *     *     * 

Joyce,  J.  The  question  is  whether,  when  a  statement  correcting  a 
material  misdescription  in  the  particulars  has  been  made  clearly  and 
distinctly  by  the  auctioneer  at  the  time  of  sale,  but  the  purchaser  is 
not  shewn  to  have  heard  that  statement,  the  circumstances  are  such  as 
to  render  it  inequitable  to  grant  the  purchaser  specific  performance 
with  compensation  for  the  misdescription.  The  vendor  relied  on  Man- 
ser v.  Back,  6  Hare,  433,  and  I  reserved  judgment  in  order  to  con- 
sider that  case,  which,  it  was  suggested,  had  not  been  followed  in  any 
subsequent  authority. 

I  think  that  Manser  v.  Back,  6  Hare,  433,  if  good  law,  is  a  clear 
authority  for  relieving  the  vendor  from  the  contract  in  such  a  case  as 
this.  In  Manser  v.  Back,  6  Hare,  433,  there  was  a  distinct  verbal 
statement  by  the  auctioneer  in  the  auction  room,  which  the  purchaser 
did  not  hear,  and  it  was  held  that  it  was  inequitable  to  enforce  specific 
performance  of  the  contract  on  the  vendor  without  the  verbal  modifica- 
tion introduced  by  the  statement.  I  do  not  find  that  Manser  v.  Back, 
6  Hare,  433,  has  ever  been  questioned,  or  disapproved.  On  the  con- 
trary, it  was  cited  with  approval  by  Baggallay.  L.  J.,  sitting  for  Malins 
V.-C,  in  Tamplin  v.  James  (1880)  15  Ch.  D.  215,  217,  218,  219.  It  is 
treated  as  good  law  in  all  the  text-books,  and,  if  I  may  say  so,  I  en- 
tirely agree  with  the  decision. 


Sec.  8)  EQUITABLE   DEFENSES  505 

That  being  so,  I  have  come  to  the  conclusion  that  the  vendor  cannot 
be  compelled  to  specifically  perform  this  contract  with  compensation. 

Lett  v.  Randall,  49  L.  T.  71,  on  which  the  purchaser  relied,  does  not 
affect  the  present  case,  the  only  point  decided  being  that  the  mere  fact 
that  the  purchaser  knew  of  a  misdescription  in  the  particulars  did  not 
preclude  him  from  enforcing  specific  performance  with  compensation  ; 
while  In  re  Edwards  to  Daniel  Sykes  &  Co.,  Limited,  62  L.  T.  445, 
there  was  no  evidence  that  the  purchaser  did  not  hear  the  verbal  state- 
ment, and  Chitty,  J.,  held  as  a  fact  that  he  must  be  taken  to  have  heard 
it.  In  this  case,  therefore,  I  cannot  enforce  specific  performance  with 
compensation  against  the  vendor;  and,  as  the  purchaser  does  not 
wish  to  complete  without  compensation,  I  will  rescind  the  contract, 
order  the  return  of  the  deposit  with  interest,  and  give  the  purchaser 
the  costs  of  investigating  the  title  down  to  the  time  he  was  furnished 
with  the  written  statement  of  the  auctioneer.  Subject  to  this,  I  dismiss 
the  summons  without  costs. 


VAN  PRAAGH  v.  EVERIDGE. 
(Chancery  Division.     [1902]  2  Ch.  266.     Court  of  Appeal.     [1903]  1  Ch.  434.) 

The  plaintiff,  Mrs.  Edith  Sarah  Van  Praagh,  widow,  was  the  owner 
of  a  freehold  house  situate  at  Frognal,  Hampstead,  and  known  as  Sara- 
dith.  In  September,  1901,  this  property  was  put  up  for  sale  by  auc- 
tion, but  it  was  bought  in  at  £4500.  On  November  18,  1901,  this  prop- 
erty was  again  put  up  for  sale  by  auction  by  Messrs.  Farebrother,  Ellis 
&  Co.  They  also  offered  for  sale  at  the  same  time  two  other  properties, 
namely,  an  estate  known  as  Parson's  Mead,  Ashtead,  and  No.  24,  Cul- 
lum  Street,  in  the  City  of  London.  The  defendant,  who  was  a  builder 
of  Surbiton,  frequently  purchased  properties  by  auction  with  a  view 
to  develop  them.  His  attention  had  been  called  to  the  particulars  of 
Parson's  Mead,  Ashtead,  and,  after  going  to  Ashtead  to  inspect  the 
property,  he  resolved  to  bid  for  it.  On  November  18  he  came  up  to 
London  for  this  purpose  and  attended  the  auction.  He  was  present  in 
the  auction-room  at  the  commencement  of  the  sale,  and  took  a  seat 
in  the  second  or  third  row  from  the  front.  He  was  somewhat  deaf. 
Affixed  to  the  auctioneer's  rostrum  was  a  large  notice  stating  the  order 
of  sale  to  be  as  follows  : 

"1.  Saradith,  Hampstead;  2.  Parson's  Mead,  Ashtead;  3.  24,  Cullum  Street." 

There  were  also  distributed  about  the  saleroom  a  number  of  smaller 
printed  notices  to  the  same  effect.  The  auctioneer,  Mr.  Breach,  on 
entering  the  rostrum  began  by  stating  the  order  in  which  he  would 
offer  the  properties,  and  he  then  proceeded  to  offer  the  Hampstead 
property,  which  he  fully  described.     The  defendant  bid  three  or  four 


506  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

times  for  this  property,  and  it  was  ultimately  knocked  down  to  him  at 
£4500.  Mr.  Breach  then  sent  his  clerk  to  the  defendant  to  obtain  his 
name  and  address  for  the  purpose  of  filling  up  the  necessary  contract ; 
but  the  defendant  objected  that  he  had  not  purchased  the  Hampstead 
property,  but  had  purchased  the  Ashtead  property.  The  clerk  then 
informed  Mr.  Breach  that  the  defendant  denied  having  bought  the 
Hampstead  property;  but  Mr.  Breach,  who  had  proceeded  some  way 
with  the  description  of  the  Ashtead  property,  declined  to  interrupt 
the  sale  of  that  property,  which  was  ultimately  bought  in  at  £16,000. 
Before  Lot  3  was  offered  the  defendant  had  an  interview  with  Mr. 
Breach,  and  told  him  that  he  had  made  a  mistake  and  believed  that 
he  was  bidding  for  the  Ashtead  property.  Mr.  Breach  replied  that  he 
must  hold  him  to  his  bargain,  and  requested  him  to  sign  the  contract. 
This  the  defendant  refused  to  do.  Accordingly  Mr.  Breach,  before 
leaving  the  rostrum,  signed  the  contract  as  agent  for  the  defendant. 

The  contract  so  signed  contained  two  small  mistakes.  In  the  first 
place,  it  was  dated  October  17,  1901,  instead  of  November  18,  1901. 
This  mistake  was  due  to  the  circumstance  that  the  particulars  and 
conditions  of  sale  had  been  printed  with  a  view  to  a  sale  on  October 
17,  1901,  which  was  eventually  postponed  till  November  18,  and,  al- 
though the  date  was  altered  in  the  particulars,  the  original  date  had 
by  inadvertence  been  allowed  to  remain  in  the  conditions  and  in  the 
printed  form  of  contract  annexed  thereto.  Secondly,  the  Christian 
names  of  the  vendor  were  filled  in  by  the  auctioneer  in  the  wrong  or- 
der. 

The  defendant  having  repudiated  the  contract,  the  plaintiff  com- 
menced this  action  for  specific  performance  and  damages. 

The  defendant  by  his  defence  resisted  the  action  on  the  ground  of 
mistake,  and  alleged  that  he  never  agreed  to  purchase  the  Hampstead 
property;  he  also  pleaded  that  there  was  no  memorandum  of  the  al- 
leged contract  sufficient  to  satisfy  the  Statute  of  Frauds.     *     *     * 

KekEwich,  J.,  after  discussing  the  evidence  and  saying  that  he  had 
no  reason  to  doubt  the  honesty  and  veracity  of  the  defendant,  and 
after  referring  to  the  precautions  taken  by  the  auctioneer  to  prevent 
any  mistake  as  to  the  order  of  sale,  continued  as  follows : 

The  defendant  made  an  extraordinary  blunder,  which  can  only  be 
explained  upon  the  theory  that  the  idea  of  Ashtead  was  so  fixed  in  his 
mind  that  he  could  not  think  of  anything  else;  but  he  did  in  fact  bid 
for  the  Hampstead  property,  and  it  was  eventually  knocked  down  to 
him.  From  that  moment  there  was  a  contract.  I  cannot  understand 
the  argument  that  there  was  no  contract.  The  case  of  Raffles  v.  Wichel- 
haus,  2  H.  &  C.  906  was  relied  on  as  establishing  that  there  might  be  a 
case  of  no  contract  for  want  of  consensus  ad  idem.  The  ground  of 
the  decision  in  that  case,  as  explained  by  Sir  F.  Pollock,  in  his  book 
on  Contracts,  was  that  the  contract  which  was  made  was  not  the  con- 
tract which  was  sued  on,  and  therefore  was  not  a  contract  which  the 


Sec.  8)  EQUITABLE   DEFENSES  507 

defendant  could  be  called  upon  to  perform.  There  was  nevertheless  a 
contract. 

There  being  then  a  contract  here,  can  there  be  any  doubt  upon  the 
authorities  that  the  auctioneer  was  authorized  to  sign  the  necessary 
memorandum  on  behalf  of  the  purchaser?  It  would  be  a  waste  of  time 
to  go  into  the  cases.  The  only  suggestion  is  that  the  authority  having 
been  given,  and  referring  necessarily  to  the  time  when  the  highest  bid 
was  given,  that  could  be  revoked  at  any  time  afterwards.  But  it  is 
from  that  moment  that  the  authority  comes  into  operation,  and  it 
would  be  opening  a  wide  door  to  fraud  if  the  purchaser  could  be  al- 
lowed to  say  to  the  auctioneer  half  an  hour  or  an  hour  after  the  sale, 
''I  revoke  my  authority;  you  must  not  sign  the  contract."  That  is 
entirely  contrary  to  principle.  Then  it  is  said  that  there  is  no  suffi- 
cient memorandum  within  the  Statute  of  Frauds.  The  particulars  and 
conditions  were  prepared  for  a  sale  to  take  place  in  October,  and  the 
sale  was  deferred,  and  by  a  slip  the  wrong  date  was  left  in  the  con- 
tract. That  is  not  a  substantial  error,  and  cannot  prevent  this  from 
being  a  good  memorandum.  Then  by  another  slip  the  Christian  names 
of  the  vendor  were  transposed.  That  cannot  be  regarded  as  having 
any  importance. 

The  only  substantial  question  is  whether  this  defendant  is  to  be  let 
off  on  payment  of  damages,  or  whether  a  decree  of  specific  perform- 
ance ought  to  be  made  against  him.  That  to  my  mind  is  a  very  difficult 
question.  According  to  the  view  expressed  by  Lord  Langdale  in  Ma- 
lins  v.  Freeman,  2  Keen,  25,  35,  44  R.  R.  178,  it  seems  to  me  that  the 
defendant  would  clearly  be  entitled  to  escape  specific  performance. 
The  language  applied  by  the  learned  judge  to  the  defendant  in  that 
case  fits  this  defendant  admirably.    He  says  : 

"I  am  of  opinion  that  the  defendant  never  did  intend  to  bid  for  the  estate. 
He  was  hurried  and  inconsiderate,  and  when  his  error  was  pointed  out  to  him, 
lie  was  not  so  prompt  as  he  ought  to  have  been  in  declaring  it." 

That,  of  course,  cannot  be  said  here,  because  the  defendant  pointed 
out  the  mistake  immediately ;  but  the  words  "hurried  and  inconsider- 
ate" seem  to  cover  this  case  exactly.  There  are,  however,  a  great  many 
subsequent  cases  in  which  a  somewhat  different  view  of  the  law  has 
been  expressed,  and  there  are  one  or  two  to  which  I  think  it  necessary 
to  refer.  The  first  is  the  case  of  Tamplin  v.  James,  15  Ch.  D.  215,  217, 
221,  222,  which  came  before  several  judges  whose  views  are  entitled 
to  very  great  respect.  It  came  in  the  first  instance  before  Baggallay, 
L.  J.,  sitting  for  Malins,  V.  C,  and  it  went  from  him  to  the  Court  of 
Appeal,  consisting  of  James,  L.  J.,  Brett,  L.  J.,  and  Cotton,  L.  J.  In 
that  case  there  was  clearly  a  mistake  on  the  part  of  the  defendant  as  to 
the  amount  of  the  property  contracted  to  be  sold,  and  the  question  was 
whether  there  should  be  specific  performance  or  damages.  How  the 
Lords  Justices  applied  the  law  to  the  facts  of  that  particular  case  is 
immaterial,  but  I  cite  it  for  the  general  observations  which  were  made. 
Baggallay,  L.  J.,  says : 


508  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Ch.  2 

"It  is  doubtless  well  established  that  a  Court  of  Equity  will  refuse  specific 
performance  of  an  agreement  when  the  defendant  has  entered  into  it  under 
a  mistake,  and  where  injustice  would  be  done  to  him  were  performance  to  be 
enforced." 

With  great  respect  to  the  learned  judge,  those  words  appear  to  me 

to  raise  almost  more  questions  than  they  solve,  because  it  is  extremely 

hard  to  know  what  would  be  doing  injustice  to  the  defendant.     Cotton, 

L.  J.,  says : 

"I  will  not  attempt  to  define  the  cases  in  which  the  Court  will  refuse  spe- 
cific performance  on  the  ground  of  mistake.  The  circumstances  of  each  case 
have  to  be  considered." 

And  James,  L.  J.,  says : 

"Perhaps  some  of  the  cases  on  this  subject  go  too  far,"  i.  e.,  too  far  in  the 
defendant's  favour,  "but  for  the  most  part  the  cases  where  a  defendant  has 
escaped  on  the  ground  of  a  mistake  not  contributed  to  by  the  plaintiff,  have 
been  cases  where  a  hardship  amounting  to  injustice  would  have  been  in- 
flicted upon  him  by  holding  him  to  his  bargain,  and  it  was  unreasonable  to 
hold  him  to  it." 

There  we  get  a  little  comment  on  what  Baggallay,  L.  J.,  meant  by 
injustice  being  done  to  the  defendant.  Suppose  this  gentleman  had 
been  saddled  with  a  residential  estate  requiring  considerable  expendi- 
ture, and  one  incapable  of  being  used  for  the  purpose  for  which  he 
wanted  it,  and  suppose  that  he  could  not  reside  there  himself  and  might 
find  it  difficult  to  let  it.  That  might  be  a  case  of  hardship.  It  is  very 
difficult  to  say  whether  it  would  be  so  or  not. 

The  next  case  to  which  I  desire  to  refer  is  the  case  of  Goddard  v. 

Jeffreys,  30  W.  R.  269,  270,  which  was  before  Kay,  J.     There  the 

learned  judge  lays  down  the  law  as  follows : 

"Speaking  generally,  I  understand  the  rule  to  be  this,  that  the  purchaser 
may  escape  from  his  bargain  on  the  ground  of  mistake,  if  it  was  a  mistake 
to  which  the  vendors  contributed ;  that  is,  in  other  words,  if  he  was  misled 
by  any  act  of  the  vendors ;  but  if  he  was  not  misled  by  any  act  of  the  vendors, 
if  the  mistake  was  entirely  his  own,  then  the  Court  ought  not  to  let  him  off 
his  bargain  on  the  ground  of  mistake  made  by  himself  solely,  unless  the  case 
is  one  of  considerable  harshness  and  hardship." 

That  is  putting  in  different  language  what  was  said  by  James,  L.  J., 
in  Tamplin  v.  James,  15  Ch.  D.  215.  I  now  turn  to  the  last  edition  of 
Fry  on  Specific  Performance.  The  learned  author  refers  to  many  of 
the  cases  on  this  subject,  and  quotes  at  considerable  length  the  judg- 
ments in  Tamplin  v.  James,  15  Ch.  D.  215,  and  then  he  adds  this  (pi. 
765): 

"Indeed,  it  seems  on  general  principles  clear  that  one  party  to  a  contract 
can  never  defend  himself  against  it  by  setting  up  a  misunderstanding  on  his 
part  as  to  the  real  meaning  and  effect  of  the  contract,  or  any  of  the  terms  in 
which  it  is  expressed.  To  permit  such  a  defence  would  be  to  open  the  door 
to  perjury  and  to  destroy  the  security  of  contracts." 

Now,  in  this  case  the  evidence  shews  that  the  blunder  was  entirely 
the  defendant's  own ;  there  was  nothing  whatever  on  the  part  of  the 
vendor  to  induce  the  blunder.  Therefore  we  get  rid  of  that  objection 
to   specific  performance.     There  was  no  contributory  negligence  by 


Sec.  8)  EQUITABLE   DEFENSES  509 

the  vendor.  Then  is  there  any  hardship  amounting  to  injustice  in  keep- 
ing the  defendant  to  his  contract?  I  do  not  think  there  is.  I  have 
evidence  that  this  property  may  be  used  in  the  way  in  which  the  de- 
fendant intended  to  use  the  Ashtead  property.  It  is  his  business  to 
buy  and  develop  estates,  and  there  is  no  reason  why  having  bought 
this  he  should  not  develop  it.  He  has  bought  it  at  a  price  which  it  is 
true  had  not  been  reached  before,  and  perhaps  would  not  have  been 
reached  on  this  occasion  but  for  the  amount  which  he  himself  bid 
for  it.  Still  it  was  not  an  extravagant  price.  I  do  not  see  any  hard- 
ship. I  do  not  doubt  the  honesty  of  this  gentleman  in  saying  that  he 
made  a  blunder,  yet,  on  the  general  principles  referred  to  by  Sir  Ed- 
ward Fry,  to  permit  such  a  defence  would  be  to  open  the  door  to  per- 
jury and  destroy  the  security  of  contracts.  If  the  Court  relieves  this 
gentleman  who  honestly  confesses  his  blunder  from  performing  his 
contract,  that  would  be  inviting  some  one  else  to  come  here  dishonest- 
ly to  get  off  his  bargain.  It  seems  to  me  that  the  defendant  has  entered 
into  a  contract  from  which  he  is  not  entitled  to  be  relieved,  and  that 
there  must  be  judgment  for  specific  performance. 

But  if  specific  performance  were  refused,  the  defendant  would  be 
liable  in  damages.  While,  therefore,  I  have  the  materials  before  me 
and  the  evidence  is  fresh  in  my  mind,  I  think  it  best,  in  case  the  de- 
fendant should  be  advised  to  take  the  opinion  of  another  Court,  that  I 
should  say  what  I  think  about  the  damages.  One  thing  the  defendant 
must  certainly  pay,  and  that  is  the  expenses  of  another  auction.  Be- 
sides that,  there  is  the  depreciation  of  the  property.  That  is  extremely 
difficult  to  calculate,  because  the  defendant  was  the  only  bidder  at  this 
sale  who  went  up  to  near  the  price  at  which  the  property  was  knocked 
down.  There  had  been  a  failure  before,  and,  although  the  price  ran  up 
to  £4500,  I  think  I  must  take  it  that  that  price  would  not  have  been 
reached  in  any  other  way.  Having  regard  to  the  previous  failure  to 
sell  this  property,  I  must  take  it  that  the  property  was  not  worth  that 
sum.  The  difficulty  is  to  estimate  by  how  much  the  value  of  the  prop- 
erty is  decreased  by  the  defendant's  repudiation.  The  only  real  way 
to  ascertain  that  is  by  putting  up  the  property  for  sale  by  auction  again. 
I  can  only  arrive  at  the  amount  in  the  roughest  possible  way.  I  think 
that  if  I  say  that  the  defendant's  repudiation  has  prejudiced  the  vendor 
to  the  extent  of  £250,  I  shall  be  giving  her  quite  as  much  as  she  is  en- 
titled to  on  that  head.  Upon  the  evidence  before  me,  I  assess  the  costs 
of  a  fresh  auction  at  £150.  Therefore,  if  I  were  to  refuse  specific  per- 
formance I  should  give  the  plaintiff  £400  damages.  In  either  case  the 
plaintiff  will  have  the  costs  of  the  action. 

In  the  Court  of  Appeal,  [1903]  1  eh.  434- 

Appeal  from  Kekewich,  J. 

The  action  was  by  a  vendor  against  a  purchaser  for  specific  perform- 
ance of  a  contract  alleged  to  have  been  entered  into  upon  the  sale  by 
auction  of  a  freehold  house,  the  defendant  having  repudiated  the  con- 


510  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

tract  on  the  ground  that  he  had  bid  for  the  property  by  mistake.  The 
facts  are  stated  in  the  report  of  the  case  below. 

Kekewich,  J.,  held  that  there  was  a  binding  contract,  and  gave  judg- 
ment for  specific  performance.  The  defendant  appealed.  Having  re- 
gard to  the  course  the  case  took  on  appeal,  it  should  be  stated  that  the 
contract,  which  was  in  printed  form,  contained  several  mistakes  in 
date.  In  the  first  place  it  bore  the  printed  date  '"October  17,  1901," 
which  was  not  altered  to  "November  18,  1901,"  the  actual  date  of  sale. 
This  mistake  was  due  to  the  circumstance  that  the  particulars  and  con- 
ditions of  sale  had  been  printed  with  a  view  to  a  sale  on  October  17, 
1901,  which  was  eventually  postponed  till  November  18,  and,  although 
the  date  was  altered  in  the  particulars,  the  original  date  had  by  inad- 
vertence been  allowed  to  remain  in  the  conditions  and  in  the  printed 
form  of  contract  annexed  thereto.  Also  the  original  date  for  comple- 
tion, "November  21,  1901,"  was  left  in  the  conditions,  with  the  re- 
quirement that  the  engrossment  of  the  conveyance  should  be  sent  to 
the  vendor's  solicitors  four  days  before  that  date. 

The  appeal  was  heard  on  February  5,  1903.     *     *     * 

Collins,  M.  R.  The  point  now  raised  disposes  of  the  case.  The 
plaintiff  cannot  succeed  without  a  contract.  That  contract  must  be  evi- 
denced by  some  memorandum  in  writing  within  the  statute  of  frauds ; 
and  here  there  is  no  memorandum  of  that  character. 

Upon  the  supplemental  point,  as  to  whether  the  parties  were  ad  idem, 
it  is  not  clear  to  my  mind  that  the  parties  ever  were  ad  idem ;  I  do  not 
think  they  were,  but  it  is  unnecessary  to  say  anything  further  about 
that,  as  the  plaintiff's  case  fails  on  the  other  point.  The  appeal  must, 
therefore,  be  allowed. 

Romer.  L.  J.     I  agree. 

CozEns-Hardy,  L.  J.  I  agree.  Kekewich.  J.,  says  that  the  date 
appearing  on  the  face  of  the  printed  form  of  contract  was  "not  a  sub- 
stantial error."  With  that  I  cannot  agree.  The  contract  so  dated  pur- 
ported to  impose  very  substantial  conditions ;  and,  moreover,  some  of 
the  conditions  are  impossible  of  performance. 


CHUTE  v.  QUINCY  et  al. 
(Supreme  Judicial  Court  of  Massachusetts,  1S92.    156  Mass.  189,  30  N.  E.  550.) 

Report  from  supreme  judicial  court,  Norfolk  county;  John  Lathrop, 
Judge. 

Bill  by  J.  N.  Chute  against  Josiah  Quincy  and  others  for  the  specific 
performance  of  a  contract  by  defendants  to  convey  land  to  plaintiff. 
Defendants  filed  a  cross-bill,  asking  that  the  contract  be  reformed,  or 
surrendered  and  canceled. 

KnowlTon,  J.  The  plaintiff  in  the  first  case  entered  into  a  contract 
in  writing  for  the  purchase  from  the  defendants  of  a  lot  of  land  which 


Sec.  8)  EQUITABLE   DEFENSES  511 

was  one  of  a  large  number  of  lots  held  by  them  as  trustees.  The  prop- 
erty was  described  in  the  contract  as  "a  certain  lot  of  land,  being  lot 
Xo.  23  on  the  plan  of  Charles  S.  Miller,  dated  April  10,  1890,"  and 
recorded,  etc.  This  plan  showed  a  great  number  of  building  lots,  about 
800  in  all,  designated  by  numbers,  with  the  lengths  of  their  boundary 
lines  given,  and  the  number  of  square  feet  contained  in  each  marked  in 
plain  figures.  Lot  Xo.  23  contained  9,230  square  feet,  but  by  a  mistake 
of  the  surveyor,  the  number  marked  on  the  plan  was  3,230  square  feet. 
The  defendants'  agent,  in  negotiating  with  the  plaintiff,  agreed  to  sell 
the  lot  for  $430.66,  determining  the  price  by  computing  the  value  of 
3,230  square  feet,  at  131 1^  cents  per  foot.  It  is  found  as  a  fact  that 
the  defendants  made  the  contract  under  a  mistake  as  to  the  contents  of 
the  lot,  and  in  the  belief  that  it  contained  only  3,230  square  feet.  The 
defendants'  agent  did  not  inform  the  plaintiff  how  he  fixed  the  price. 
The  plaintiff  "admitted  that  when  he  examined  the  lot  he  had  a  copy 
of  the  above-mentioned  plan,  and  that  he  noticed  at  the  time  of  his  ne- 
gotiations with  the  agent  that  lot  23  was  larger  than  lot  22  or  lot  24, 
the  adjacent  lots  on  either  side,  and  that  he  knew  that  lot  23  con- 
tained more  square  feet  than  the  plan  stated."  The  dimensions  of  lots 
22  and  24  were  plainly  marked  on  the  plan,  and  it  is  hard  to  believe 
that  one  buying  a  lot  apparently  for  his  own  use,  to  be  paid  for  in  small 
installments,  as  the  contract  shows,  would  not  so  far  investigate  the 
subject,  when  the  boundaries  were  pointed  out  to  him,  and  when  he  had 
a  copy  of  the,  plan  before  him,  and  "knew  that  it  [the  lot]  contained 
more  square  feet  than  the  plan  stated,"  as  to  find  out  the  nature  and 
extent  of  the  mistake,  especially  when  the  shape  of  the  lot  and  the 
lengths  of  its  boundary  lines,  and  the  sizes  and  shapes  of  other  lots  in 
the  vicinity,  were  all  correctly  given  on  the  plan.  It  is  fair  to  presume 
that,  before  making  his  purchase,  he  had  some  knowledge  of  the  prices 
at  which  the  defendants  were  accustomed  to  sell  lands  in  the  vicinity. 
Whatever  his  knowledge  or  ignorance  on  this  subject,  he  concealed 
from  the  defendants'  agent  his  discovery  of  the  mistake  in  the  plan, 
and  took  a  contract  which  described  the  lot  merely  by  a  reference  to 
the  plan.  It  may  be  that  the  plaintiff  was  free  from  fraud  in  the  trans- 
action,— the  findings  certainly  do  not  go  far  enough  to  show  that  he 
was  guilty  of  it.  The  parties  were  not  acting  under  a  mutual  mistake, 
and,  in  the  absence  of  proof  of  fraud,  the  cross-bill  brought  by  the 
defendants  in  the  first  case,  asking  to  have  the  contract  reformed  or 
delivered  up  and  canceled,  must  be  dismissed. 

The  remaining  question  is  whether  the  plaintiff  should  have  a  decree 
for  specific  performance  of  the  contract.  If  we  assume  that  the  con- 
tract is  good  at  law,  it  does  not  follow  that  it  will  be  specifically  en- 
forced in  equity.  It  is  a  universally  recognized  principle  that  a  court 
of  equity  will  not  decree  specific  performance  of  a  contract  when  it 
would  be  inequitable  so  to  do.  Specific  performance  may  be  refused 
when  a  contract  is  hard  and  unreasonable,  so  that  enforcement  of  it 
would  be  oppressive  to  the  defendant,  or  where  there  has  been  misrep- 


512  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

resentation  by  the  plaintiff  on  a  material  point,  or  other  unfair  con- 
duct, although  it  may  not  be  sufficient  to  invalidate  the  contract,  or 
where  the  defendant  has  by  mistake  not  originating  in  mere  careless- 
ness entered  into  a  contract  different  from  that  intended  by  him,  not- 
withstanding that  there  was  no  unfairness  on  the  plaintiff's  part. 
Adams,  Eq.  (5th  Amer.  Ed.)  195,  199;  2  Story,  Eq.  Jur.  §  769.  Says 
Chief  Justice  Shaw,  in  Railroad  Corp.  v.  Babcock,  6  Mete.  346,  352 : 

"A  defendant,  therefore,  may  not  only  show  that  the  agreement  is  void  by 
proof  of  fraud  or  duress  which  would  avoid  it  at  law,  but  he  may  also  show 
that,  without  any  gross  laches  of  his  own,  he  was  led  into  a  mistake,  by  any 
uncertainty  or  obscurity  in  the  descriptive  part  of  the  agreement,  by  which 
he,  in  fact,  mistook  one  line  or  one  monument  for  another,  though  not  misled 
by  any  misrepresentation  of  the  other  party,  so  that  the  agreement  applied  to 
a  different  subject  from  that  which  he  understood  at  the  time;  or  that  the 
bargain  was  hard,  unequal,  and  oppressive,  and  would  operate  in  a  manner 
different  from  that  which  was  in  the  contemplation  of  the  parties  when  it 
was  executed.  In  either  of  these  cases  equity  will  refuse  to  interfere,  and 
will  leave  the  claimant  to  his  remedy  at  law." 

This  principle  was  applied  in  Boynton  v.  Hazelboom,  14  Allen,  107, 
92  Am.  Dec.  738,  and  the  rule  prevails  generally  in  the  state  and  fed- 
eral courts  of  the  United  States  as  well  as  in  England.  Malins  v.  Free- 
man, 2  Keen,  25 ;  Webster  v.  Cecil,  30  Beav.  62 ;  Manser  v.  Back, 
6  Hare,  443 ;  Leslie  v.  Tompson,  9  Hare,  268 ;  Wood  v.  Scarth,  2  Kay 
&  J.  33;  King  v.  Hamilton,  4  Pet.  311,  328,  7  L.  Ed.  869;  Willard 
v.  Tayloe,  8  Wall.  557,  565,  19  L.  Ed.  501 ;  Perkins  v.  Wright,  3  Har. 
.&  McH.  (Md.)  324;  Leigh  v.  Crump,  36  N.  C.  299;  Cannady  v. 
Shepard,  55  N.  C.  224;  Eastland  v.  Vanarsdel,  3  Bibb  (Ky.)  274; 
Bowen  v.  Waters,  2  Paine,  1,  Fed.  Cas.  No.  1725;  Veth  v.  Gierth,  92 
Mo.  97,  4  S.  W.  432;  Burkhalter  v.  Jones,  32  Kan.  5,  3  Pac.  559. 
The  recently  decided  case  of  Mansfield  v.  Sherman,  81  Me.  365,  17 
Atl.  300,  is  identical  in  principle  with  the  one  at  bar.  There  the  de- 
fendant, in  New  York,  offered  for  sale,  through  an  agent  in  Maine,  lot 
No.  12  on  a  certain  plan  of  lands  in  Bar  Harbor  for  $2,500,  in  ignor- 
ance of  the  fact  that  the  lot,  as  delineated  on  the  plan,  contained  a 
valuable  building  site  which  he  supposed  to  be  upon  another  lot,  and 
specific  performance  of  the  agreement  was  denied,  though  the  plaintiff 
had  in  no  way  contributed  to  the  defendant's  mistake,  and  was  entirely 
ignorant  of  it.  On  broad  grounds  of  morality,  it  may  be  said  to  be 
inequitable  for  a  plaintiff  to  enforce  a  contract  against  a  defendant 
who  shows  that,  by  mistake  and  without  fault,  he  entered  into  an 
agreement  very  different  from  that  which  he  thought  he  was  making, 
and  engaged  to  do  something  far  more  onerous  than  what  he  sup- 
posed he  was  undertaking.  In  some  English  cases  that  is  stated  to  be 
the  ground  on  which  relief  is  refused  to  a  plaintiff  who  innocently  en- 
tered into  a  contract  which  the  defendant  signed  under  a  mistake.  This 
principle  must  be  adhered  to  unless  specific  performance  of  a  contract 
for  a  sale  of  lands  is  to  be  decreed  as  a  matter  of  right,  wherever  a 
plaintiff  shows  that  he  has  a  contract  enforceable  at  common  law.  We 
see  no  reason  for  introducing  such  an  innovation  in  equity  practice,  or 


Sec.  8)  EQUITABLE   DEFENSES  513 

for  disregarding  the  rule  that  courts  of  equity  will  grant  relief  only 
when  the  plaintiff  asks  for  that  which,  in  equity  and  good  conscience, 
ought  to  he  granted.  In  the  present  case  it  is  admitted  that,  through  a 
mistake,  the  defendants  agreed  to  sell  their  land  for  about  one-third 
of  the  price  which  they  supposed  they  were  getting  for  it ;  and  that, 
while  the  plaintiff  knew  that  there  was  a  mistake  in  the  plan  which 
might  naturally  mislead  the  defendants  in  making  their  bargain,  he  did 
not  disclose  it.  Under  these  circumstances,  a  majority  of  the  court 
are  of  opinion  that  the  plaintiff  must  be  left  to  his  remedy  at  law  upon 
his  contract. 

Bill  and  cross-bill  dismissed. 


DIFFENDERFFER  v.  KNOCHE. 

(Court  of  Appeals  of  Maryland,  1912.    118  Md.  189,  84  Atl.  416.) 

Appeal  from  Circuit  Court  of  Baltimore  City;  Carroll  T.  Bond, 
Judge. 

Suit  by  William  Stewart  Diffenderffer  against  Fritz  Knoche.  Bill 
dismissed,  and  complainant  appeals. 

Boyd,  C.  J.60  This  is  an  appeal  from  a  decree  dismissing  a  bill  filed 
by  the  appellant  against  the  appellee  for  the  specific  performance  of 
a  contract  of  sale  of  a  property  in  Baltimore  city.  The  contract  sought 
to  be  enforced  is  as  follows : 

"Balto.,  Nov.  14/11. 

"I  have  this  day  purchased  from  W.  Stewart  Diffenderffer  the  stable  in  fee, 
1801  Lovegrove  alley  for  the  sum  of  four  thousand  dollars  ($4000.00)  and  agree 
to  pay  said  sum  of  four  thousand  dollars  in  cash,  when  deed  is  passed  by  my 
lawyer.  Fritz  Knoche." 

"Baltimore,  November  14,  1911. 
"Received  of  Mr.  Fritz  Knoche  five  dollars  on  account  of  purchase  price  of 
four  thousand  dollars  ($4000)  for  stable  1801  Lovegrove  alley,  Baltimore,  Mary- 
land, all  taxes  and  other  expenses  adjusted  to  date  of  transfer  of  deed.  W. 
Stewart  Diffenderffer.  The  above-named  property  is  in  fee,  and  the  deed  to 
that  effect  must  be  given.  W.  Stewart  Diffenderffer." 

The  defense  relied  upon  by  the  appellee  was  that  he  was  acting  for 
and  on  behalf  of  George  Doebreiner  who  is  engaged  in  business  on 
North  avenue  in  the  city  of  Baltimore,  and  it  was  the  intention  and  de- 
sire of  Air.  Doebreiner  and  himself  to  purchase  the  stable,  which  was 
at  the  corner  of  an  alley  in  the  rear  of  Mr.  Doebreiner's  establishment, 
and  that  at  the  time  the  defendant  signed  the  agreement  he  thought  it 
was  for  that  stable.  The  evidence  shows  that  there  were  on  Lovegrove 
alley,  situated  between  two  other  alleys,  three  two-story  brick  houses 
adjoining  each  other;  one  being  the  stable  of  Charles  R.  Diffenderffer, 
another  the. garage  of  James  Caldwell,  and  the  third  the  stable  of 
the  appellant.    The  stable  nearest  North  avenue,  where  Mr.  Doebrein- 

6  0  Parts  of  the  opinion  are  omitted. 
Boke  Eq.— 33 


514  SI'ECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

er's  establishment  was,  belonged  to  Charles  R.  Diffenclerffer,  who  is  a 
brother  of  the  appellant,  and  a  member  of  the  same  firm — Charles  H. 
Ross  &  Co.  They  are  in  the  wholesale  liquor  business,  and  the  appel- 
lee, who  is  a  "jobber  of  liquor,"  sometimes  dealt  with  that  firm,  but 
testified  that  he  only  knew  the  appellant,  and  had  never  seen  Charles 
R.  Diffenderffer.     *     *     * 

The  testimony  shows  conclusively  that  the  appellee  was  buying  the 
property  for  Mr.  Doebreiner,  and  that  the  latter,  the  appellee,  and  a 
Mr.  Max  Miller  went  to  see  the  stable,  which  now  turns  out  to  belong 
to  Charles  R.  Diffenderffer,  before  this  contract  was  made,  and  thought 
that  was  the  one  ^f or  sale.  There  can  be  no  doubt  from  the  evidence 
that  the  appellee  did  believe  that  he  was  buying  the  one  which  is  now 
shown  to  belong  to  the  brother,  and  he  signed  the  contract  under  that 
belief.  It  is  true  that  the  stable  of  the  brother  was  No.  1805  Lovegrove 
alley,  while  that  of  the  appellant  was  No.  1801,  but  the  appellant  admit- 
ted that  the  glass  on  which  his  number  was  fixed  was  broken,  and  the 
evidence  is  conflicting  as  to  whether  the  number  on  the  brother's  stable 
was  easily  seen.  There  was  a  sign  on  each  of  the  stables ;  the  one  read- 
ing, "For  sale  or  rent.  Apply  to  W.  S.  Diffenderffer,  109  Commerce 
Street,"  and  the  other  was  larger,  but  had  the  same  thing  on  it,  except 
the  initials  were  "C.  R.,"  instead  of  "W.  S."     *     *     * 

Convinced  as  we  are  that  the  purchase  by  the  appellee,  of  the  appel- 
lant's stable  was  undoubtedly  the  result  of  a  mistake  as  to  what  he 
was  buying,  it  would  not  only  be  "highly  unreasonable"  to  grant  the  ap- 
pellant affirmative  relief  by  the  enforcement  of  this  contract,  but  it 
would  not  reflect  credit  upon  the  administration  of  justice  to  hold  that  a 
court  of  equity  was  compelled,  by  reason  of  principles  of  law  which 
govern  it,  to  give  its  aid  in  the  enforcement  of  a  contract  made  under 
such  circumstances  as  we  have  detailed.  As  will  be  seen  from  the 
above-cited  cases,  this  court  has  held  that  in  suits  for  specific  perform- 
ance the  defendant  can  rely  on  the  mistake  "of  both  or  either  of  the 
parties"  in  order  to  prevent  a  court  of  equity  from  giving  affirmative 
relief  to  a  plaintiff  seeking  to  compel  a  defendant  "to  perform  a  con- 
tract which  he  did  not  intend  to  make,  or  which  he  would  not  have 
entered  into  had  its  true  effect  been  understood."  There  is  not  the 
slightest  suggestion  in  this  record  that  the  appellee  was  merely  en- 
deavoring to  free  himself  from  a  contract  deliberately  entered  into 
and  afterwards  regretted,  but  it  is  a  clear  case  of  such  a  mistake  as 
a  court  of  equity  will  permit  a  defendant  to  set  up  to  prevent  a  plain- 
tiff from  compelling  him  to  do  what  he  never  intended  to  do  or  know- 
ingly contracted  to  do.  Of  course,  in  such  cases  the  defendant  should 
be  required  to  prove  the  mistake  by  clear  and  thoroughly  satisfactory 
evidence,  and,  when  that  is  done,  there  is  far  less  danger  of  injury 
and  injustice  being  done  by  the  recognition  of  the  rule  we  have  an- 
nounced than  would  result  from  aiding  the  plaintiff  in  the  enforcement 
of  what  the  chancellor  is  satisfied  only  bears  the  evidence  of  a  contract 
by  reason  of  the  mistake  of  the  defendant. 


vSeC.  S)  EQUITABLE   DEFENSES  515 

It  may  be  that  a  defendant  has  been  guilty  of  such  "inexcusable  care- 
lessness/' as  it  is  called  in  the  above  citation  from  Cyc.  [see  36  Cyc. 
605],  as  to  deprive  him  of  such  a  defense,  especially  if  by  his  act  he 
has  caused  the  plaintiff  to  sustain  loss.  But  it  cannot  be  said  that  this 
appellee  was  guilty  of  "inexcusable  carelessness."  According  to  the 
evidence,  he  knew  that  a  Mr.  Diffenderffer  owned  the  stable  which  he 
had  examined,  and  which  he  intended  to  purchase.  He  also  knew  that 
it  was  on  Lovegrove  alley,  and  that  the  owner  was  a  member  of  the  firm 
of  Charles  H.  Ross  &  Co.  He  only  knew  one  Mr.  Diffenderffer  in 
that  firm,  and  that  was  the  appellant,  and  he  did  not  know  that  each 
of  two  persons  by  that  name  owned  stables  in  the  block  on  Lovegrove 
alley.  When  Mr.  Freeman  told  him  that  Mr.  Diffenderffer  had  a  stable 
on  Lovegrove  alley,  he  told  Mr.  Freeman  he  knew  more  about  the 
stable  than  he  did,  showing  that  he  then  had  in  mind  the  one  which 
Mr.  Doebreiner  wanted,  and  which  they  had  under  consideration  in 
May.  When  the  only  Mr.  Diffenderffer  whom  he  knew  came  to  see 
him  about  the  purchase  of  it,  he  naturally  supposed  that  it  was  the 
same  stable  he  had  examined.  The  numbers  would  not  make  any  im- 
pression on  his  mind,  especially  if  there  was  no  number  on  1801  and 
the  one  on  1805  was  indistinct.  He  made  just  such  a  mistake  as  any 
one  might  make,  and  he  was  not  guilty  of  such  negligence  as  could 
deprive  him  of  the  defense  he  relies  on. 

We  will  not  discuss  the  exceptions  to  the  testimony  filed  by  the  ap- 
pellant. They  are  very  general,  and  we  have  no  doubt  that  much  of 
the  evidence  which  would  be  included  in  the  exceptions  was  relevant, 
competent,  and  material.  It  tends  to  explain  howr  the  mistake  was 
made,  and  reflects  upon  the  bona  fides  of  the  defense. 

So,  without  further  prolonging  this  opinion  by  discussing  other  ques- 
tions, we  will  affirm  the  decree. 

Decree  affirmed,  the  appellant  to  pay  the  costs,  above  and  below. 


GOLDSBROUGH,  MORT  &  CO.,  Ltd.,  v.  QUI XX. 

(Supreme  Court  of  New  South  Wales,  Equity  Division,  1909.    10  State  Reports, 
170.     On  Appeal,  1910.     11  State  Reports,  7.) 

On  the  8th  February,  1909,  the  defendant,  John  Thomas  Ouinn,  in 

consideration  of  five  shillings,  gave  the  plaintiff  company  an  option  to 

purchase — 

"the  whole  of  my  freehold  and  conditional  purchase  and  conditional  lease 
Lands,  situate  near  Canonbar,  and  known  as  Benabilla,  comprising  about  two 
thousand  five  hundred  and  ninety  acres,  within  one  week  from  this  date,  at 
the  price  of  one  pound  ten  shillings  per  acre  calculated  on  a  freehold  basis." 

On  the  11th  February,  1909,  the  plaintiff  company  wrote  to  the  de- 
fendant notifying  him  that  it  thereby  exercised  the  option  and  ac- 
cepted the  offer. 


516  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

The  defendant  refused  to  carry  out  the  contract  on  the  ground  that 
he  had  been  under  a  mistake  as  to  the  meaning  of  "calculated  on  a 
freehold  basis."  The  plaintiff  company  sued  for  specific  perform- 
ance.    *     *     * 

On  December  1st  the  following  written  judgment  was  delivered  by 
A.  H.  Simpson,  C.  J.  in  Eq. :  G1     *     *     * 

The  first  interview  of  any  importance  was  on  the  8th  February, 
1909.  The  accounts  given  by  McLeod,  the  defendant,  and  Flashman 
are  somewhat  conflicting,  but  the  principal  part  of  the  conversation 
took  place  in  Mr.  Flashman's  office.  The  words  "calculated  on  a  free- 
hold basis"  seem  to  me  ambiguous.  They  might  mean  that  the  money 
required  to  make  the  whole  land  freehold  was  to  come  out  of  the  pur- 
chase money,  which  is  the  meaning  put  on  them  by  the  plaintiff  com- 
pany, or  they  might  mean  that  the  whole  land  is  to  be  regarded  as 
freehold  and  paid  for  on  that  basis,  which  is  the  meaning  the  defendant 
swears  he  attached  to  the  words. 

The  meeting  at  Flashman's  office  only  lasted  from  fifteen  to  twenty 
minutes,  and  the  defendant  had  no  separate  solicitor.  Almost  imme- 
diately after  leaving  Flashman's  office  the  defendant  met  a  friend  nam- 
ed Herrick,  and  had  a  conversation  with  him,  and  then,  he  says,  he 
discovered  his  mistake.  He  then  went  to  see  Mr.  Hogg,  the  acting 
manager  of  the  Commercial  Bank,  where  Quinn  had  an  account.  Hogg 
at  once  went  to  see  Flashman.    Hogg  says  : 

"I  told  hiin  the  defendant  was  under  a  misapprehension  with  regard  to  the 
amount  he  was  receiving  for  his  property,  that  he  did  not  understand  what 
freehold  basis  meant,  that  he  thought  he  was  to  get  30s.  an  acre;  I  asked 
him  if  he  expected  the  defendant  to  make  the  land  freehold.  He  said  it  was 
on  a  freehold  basis,  the  amount  would  have  to  be  deducted.  That  was  sub- 
stantially all."     *     *     * 

The  question  arises  whether  the  amount  of  damages  should  be  re- 
ferred to  the  Master,  or  the  parties  left  to  their  remedy  at  law.  Here 
a  difficulty  arises,  a  voluntary  offer  may  be  revoked  at  any  time  before 
acceptance,  though  it  is  made  irrevocable  by  acceptance.  Anson,  Law 
of  Contracts  (10th  Ed.)  p.  37.  If  an  option  is  given  for  valuable  con- 
sideration it  cannot  be  revoked,  and  then  the  point  arises  whether  five 
shillings  is  valuable  consideration,  or  a  mere  nominal  consideration 
which  the  court  will  disregard. 

There  is  certainly  some  evidence  that  Quinn  revoked  the  offer  the 
day  it  was  made,  the  8th  February,  and  if  he  could  and  did  do  this, 
there  was  never  any  contract  between  the  parties.  This  point  was  not 
taken  in  the  pleadings,  and  to  allow  it  to  be  taken  by  amendment  after 
the  evidence  is  closed  would  mean  practically  reopening  the  whole  suit. 
I  do  not  think  I  ought  to  do  this,  nor  can  I  deal  with  it  on  the  pleadings 
as  they  stand.  Consequently  the  only  course  is  to  leave  the  plaintiff 
to  bring  an  action  for  damages  at  law,  if  so  advised. 

I  think  there  should  be  no  order  as  to  costs.    The  defendant  admits 

6i  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  517 

that  he  thought  he  was  getting  a  very  high  price,  and  in  his  eagerness 
to  get  this  he  never  said  that  he  didn't  understand  the  bargain,  nor 
ask  to  have  the  words  "freehold  basis"  explained,  nor  say  he  wished 
to  consult  anyone  before  signing. 

The  suit  will  be  dismissed  without  costs,  without  prejudice  to  any 
action  the  plaintiff  company  may  bring  at  law  for  damages. 

On  Appeal. 

Appeal  by  the  plaintiffs  from  the  decision  of  A.  H.  Simpson,  Chief 
Judge  in  Equity,  dismissing  the  plaintiffs'  suit  for  specific  perform- 
ance. 

The  facts  are  sufficiently  stated  in  the  report  in  the  court  below. 

Griffith,  C.  J.02  The  respondent  contends  that  there  never  was 
any  complete  contract  for  the  sale  of  the  land,  that  the  only  agreement 
evidenced  by  the  document  of  8th  February  was  an  agreement  to  make 
another  agreement,  which  if  made  might  have  been  specifically  en- 
forced, and  that  the  only  remedy  for  breach  of  the  actual  agreement  is 
in  damages.  This  question  was  not  discussed  before  the  learned 
Chief  Judge.  I  think  there  was  a  contract  for  valuable  consideration 
to  sell  the  property  upon  condition  that  the  other  party  should  within 
the  stipulated  time  bind  himself  to  perform  the  terms  of  the  offer  em- 
bodied in  the  contract.    I  therefore  think  that  this  point  fails.     *     *     * 

The  appeal  will  therefore  be  allowed. 

O'Connor,  J.,  concurred  in  a  separate  judgment. 

Isaacs,  J.,  concurred.     *     *     * 

Appeal  allowed. 


HAYES  v.  STIGER. 
(Court  of  Chancery  of  New  Jersey,  1878.    29  N.  J.  Eq.  196.) 

On  petition  of  purchaser  to  be  relieved  from  his  bid  at  a  sale  made 
under  a  decree  for  sale  of  mortgaged  premises. 

The  Vice-Chancellor  [Van  Fleet].  The  petitioner,  William  A. 
Sweeney,  seeks  to  be  relieved  from  his  contract  to  purchase  certain 
mortgaged  premises,  sold  pursuant  to  a  decree  of  this  court,  on  the 
ground  that  he  entered  into  it  under  a  misapprehension.  He  jsays  he 
made  the  purchase  under  the  belief  that  the  proceedings  in  foreclosure 
were  full  and  perfect,  and  that  the  title  he  would  acquire  under  them 
would  be  valid  against  all  persons  acquiring  rights  subsequent  to  the 
mortgage  on  which  the  decree  of  sale  was  founded,  but  that  he  has 
since  discovered  he  was  mistaken  in  both  particulars.  It  is  admitted 
that  the  wife  of  the  owner  of  the  equity  of  redemption  of  one  moiety 
of  the  mortgaged  premises  was  not  made  a  party  to  the  foreclosure 
suit,  and  that,  if  the  petitioner  is  held  to  his  contract,  his  title  will  be 
burdened  with  her  inchoate  right  of  dower. 

62  Part  of  the  opinion  of  Griffith,  C.  J.,  and  opinion  of  Isaacs,  J.,  are  omitted. 


518  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

The  petitioner  was  represented  at  the  sale  by  a  member  of  the  New 
York  bar.  The  sale  was  fairly  and  regularly  conducted,  and  no  imputa- 
tion is  made  against  the  officer  who  made  it,  nor  against  any  other  per- 
son. If  the  petitioner  acted  under  a  mistake,  he  alone  was  responsible 
for  it.  He  neither  sought  information  by  examination  nor  inquiry. 
His  misapprehension  was  entirely  the  result  of  his  own  carelessness 
and  inattention  to  his  interests. 

The  power  of  this  court  to  set  aside  a  sale  made  under  its  authority, 
and  thus  relieve  the  purchaser  from  his  bid,  is  unquestionable,  but  its 
exercise,  like  all  other  judicial  action,  must  always  rest  upon  some  con- 
sideration of  justice.  Fraud  will  always  justify  its  exercise.  Cum- 
mins v.  Little,  16  N.  J.  Eq.  48.  It  may  be  exercised  in  case  of  accident. 
Seaman  v.  Riggins,  2  N.  J.  Eq.  214,  34  Am.  Dec.  200.  So,  also,  where 
surprise  or  misapprehension  is  occasioned  by  the  conduct  of  the  pur- 
chaser, or  the  the  officer  making  the  sale,  to  the  injury  of  a  person  in- 
terested, the  court  will  interfere.  Woodward  v.  Bullock,  27  N.  T.  Eq. 
507;  and  in  Campbell  v.  Gardner,  11  N.  J.  Eq.  423,  69  Am.  Dec.  598, 
Chancellor  Williamson  set  aside  a  sale  because  it  appeared  that  the 
defendant,  who  was  an  aged  female,  had  been  misled,  by  her  brother, 
as  tO'  the  contents  of  a  subpoena  served  upon  her.  But  this  power  will 
not  be  exercised  in  behalf  of  a  suitor  who  seeks  to  escape  from  the 
consequences  of  his  own  act  induced  by  mistake  of  law  (Wakeman  v. 
Duchess  of  Rutland,  3  Ves.  233 ;  Dillett  v.  Kemble,  25  N.  J.  Eq.  66 ; 
Mott  v.  Shreve,  25  N.  J.  Eq.  438) — ignorantia  juris  non  excusat — nor 
will  the  court  exert  it  in  favor  of  a  purchaser  who  seeks  to  escape  from 
a  contract  on  the  ground  of  misapprehension  or  mistake  of  fact  when 
it  appears  his  error  resulted  entirely  from  his  own  negligence,  and  that 
he  would  have  avoided  it  by  the  use  of  ordinary  prudence  (Parkhurst 
v.  Cory,  11  N.  J.  Eq.  233;  Campbell  v.  Gardner,  supra;  Smith  v.  Dun- 
can, 16  N.  J.  Eq.  240;  Haggerty  v.  McCanna,  25  N.  J.  Eq.  48).  In  the 
absence  of  fraud,  the  negligence  of  counsel  will  be  esteemed  the  fault 
of  the  client.  Wakeman  v.  Duchess  of  Rutland,  Dillett  v.  Kemble,  and 
Mott  v.  Shreve,  supra.  The  legal  effect  of  a  decree  of  this  court  direct- 
ing land  to  be  sold,  and  the  character  and  extent  of  the  title  to  be  ac- 
quired by  virtue  of  it,  are  purely  matters  of  law.  A  purchaser  at  a 
judicial  sale  who  voluntarily  abstains  from  all  effort  to  get  correct  in- 
formation, and  deliberately  assumes  the  hazard  of  making  a  purchase 
ignorantly,  must,  as  a  general  rule,  bear  the  consequences  of  his  own 
negligence.  Cool's  Ex'rs  v.  Higgins,  23  N.  J.  Eq.  308 ;  s.  c,  25  N.  J. 
Eq.  117.  It  would  be  difficult  to  imagine  a  case  of  grosser  negligence 
than  that  admitted  by  the  petitioner. 

No  attempt  has  been  made  to  show  that  the  title  the  petitioner  will 
get,  if  his  contract  is  enforced,  is  worth  less  than  the  sum  he  agreed 
to  pay ;  it  cannot,  therefore,  be  assumed  that  he  will  be  required  to  pay 
more  than  the  title  he  will  acquire  is  worth.  As  the  case  stands,  the 
highest  equity  he  can  claim  is,  that  he  has  not  made  as  good  a  bargain 
as  he  expected  to  make.    This  can  hardly  be  esteemed  an  equity  suffi- 


Sec.  S)  EQUITABLE   DEFENSES  519 

cient  to  justify  the  abrogation  of  a  contract.  While  contracts  of  this 
description  are,  very  properly,  said  to  be  made  with  the  court,  and 
therefore  the  court  may  exercise  a  greater  power  over  them  than  it  can 
over  any  other  class  of  contracts  (McCahill  v.  Equitable  Life  Assur- 
ance Society,  26  N.  J.  Eq.  531),  still,  it  cannot  rescind  them,  without 
an  equitable  or  legal  reason  sufficient  to  justify  its  action.  In  my  judg- 
ment the  case  made  by  the  petitioner  does  not  entitle  him  to  the  relief 
he  asks.    His  petition,  therefore,  must  be  dismissed,  with  costs. 


In  re  RHOADES. 
(Court  of  Appeal.     [1S99]  2  Q.  B.  Div.  347.) 

This  was  an  appeal  by  the  official  receiver  and  trustee  in  bankruptcy 
from  the  decision  of  Wright,  J. 

June  9.  The  judgment  of  the  court  (LindlEy,  M.  R.,  Sir  F.  H. 
Jeune,  P.,  and  Romer,  L.  J.)  was  delivered  by  Lindley,  M.  R.,63 
who,  after  stating  the  facts,  continued : 

Two  questions  arise.  The  first  and  most  important  is  whether  the 
executrix  had  a  right  to  retain  her  debt  as  against  the  trustee  in  bank- 
ruptcy. The  second  is  whether,  if  she  had,  she  lost  this  right  by  pay- 
ing the  whole  £1100  over  to  the  trustee  and  by  afterwards  proving  for 
her  debt.     *     *     * 

In  the  present  case,  when  the  order  for  the  administration  of  the 
testator's  estate  was  made,  his  executrix  had  assets  in  her  hands  to 
the  value  of  £1100.  This  sum  was  standing  to  her  credit  at  her  bank- 
ers. We  attach  no  importance  to  the  fact  that  the  account  was  not  in 
form  opened  in  her  name  as  executrix.  The  £1100  represented  the 
assets  of  the  testator,  and,  if  the  executrix  had  herself  become  bank- 
rupt, the  whole  of  this  sum  would  not  have  passed  to  her  trustee  and 
been  distributable  as  her  property  amongst  her  creditors.  She  was, 
however,  a  creditor  of  the  deceased  for  £600.  This  is  admitted.  She 
had  a  right  to  retain  this  sum  out  of  the  £1100  as  against  the  other  cred- 
itors of  the  deceased.    This  is  quite  clear.     *     *     * 

The  second  question  presents  no  real  difficulty.  The  executrix, 
not  knowing  her  rights,  paid  the  whole  £1100  over  to  the  trustee.  He, 
however,  has  not  distributed  the  assets,  and  no  injustice  will  be  done 
to  him  or  to  any  one  if  he  is  ordered  to  repay  to  her  the  amount  which 
she  was  entitled  to  retain.  Ex  parte  James  (1874)  L,.  R.  9  Ch.  609,  and 
Ex  parte  Simmonds  (1885)  16  Q.  B.  D.  308,  are  distinct  authorities  to 
shew  that  mistakes  of  this  kind,  although  attributable  to  ignorance  of 
law,  can  and  will  be  set  right  by  the  court  so  long  as  the  officer  of  the 
court  still  has  the  money  in  his  hands.  Still  less  can  the  proof  by  the 
executrix  in  the  bankruptcy,  withdrawn,  as  it  was,  when  she  discovered 
her  error,  deprive  her  of  her  right  to  have  her  money  baqk. 

63  Parts  of  the  opinion  are  omitted. 


520  SrECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

The  judgment  appealed  from  is  right  on  all  points,  and  the  appeal, 
therefore,  must  be  dismissed  with  costs. 
Appeal  dismissed. 


ERKENS  v.  NICOLIN. 

(Supreme  Court  of  Minnesota,  18SS.     39  Minn.  461,  40  N.  W.  567.) 

Appeal  from  district  court,  Scott  county;  Edson,  Judge. 

Action  by  Fred  Erkens  against  Frank  Nicolin  to  recover  back  money 
paid  for  a  quitclaim  deed.  Judgment  for  plaintiff,  and  defendant  ap- 
peals. 

Mitchell,  J.  Action  to  recover  back  the  money  paid  by  plaintiff 
to  defendant  for  a  quitclaim  deed  of  a  piece  of  land  in  the  village  of 
Jordan.  The  facts,  as  disclosed  by  the  evidence,  are  that  defendant 
platted  into  lots  a  tract  of  land,  of  which  he  was  the  owner,  lying  be- 
tween Water  street  and  Sand  creek.  As  shown  upon  the  plat,  the  north 
and  south  lines  of  the  lots  extend  from  Water  street  to  the  creek.  The 
distance  marked  on  the  plat  gave  the  length  of  these  lines  as  80  feet, 
but  the  actual  distance  from  Water  street  to  the  creek  was  110  feet. 
One  of  these  lots,  and  the  adjoining  35  feet  of  another,  had  been  con- 
veyed by  defendant,  according  to  the  plat,  to  plaintiff  or  plaintiff's 
grantor.  Subsequently  defendant  claimed  and  stated  to  plaintiff,  in 
substance,  that  the  lots  only  extended  back  80  feet,  according  to  the 
distance  indicated  on  the  plat,  and  hence  that  he  still  owned  the  strip 
of  30  feet  next  to  the  creek.  Plaintiff  knew  that  defendant's  claim  was 
based  wholly  upon  the  theory  that  the  distance  given  on  the  plat  would 
control,  and  hence  that  his  claim  of  title  was  in  fact  but  expressions  of 
opinion  as  to  the  legal  effect  and  construction  to  be  given  to  the  plat. 
So  far  as  the  evidence  shows,  defendant  made  this  claim  in  good  faith, 
and  honestly  supposed  that  his  deeds  of  the  lots  only  conveyed  80  feet. 
Plaintiff  took  the  matter  under  consideration  for  nearly  a  month,  and 
went  to  the  register's  office  and  examined  the  plat  for  himself.  Pie 
then  obtained  from  defendant  and  wife  a  quitclaim  deed  of  all  the  land 
down  to  the  creek,  and  paid  therefor  the  money  which  he  now  seeks 
to  recover.  When  he  paid  the  money  he  knew  all  the  facts,  and  had 
the  same  means  of  knowledge  of  them  which  defendant  had.  The  trans- 
action was  unaffected  by  any  fraud,  trust,  confidence,  or  the  like.  The 
parties  dealt  with  each  other  at  arm's  length.  Plaintiff  was  not  labor- 
ing under  any  mistake  of  facts.  He  took  the  deed,  and  paid  his  money 
under  a  mistake  of  law  as  to  his  antecedent  existing  legal  rights  in  the 
property,  supposing  that,  according  to  the  proper  legal  construction 
of  the  plat,  the  lots  were  only  80  feet  deep. 

However,  under  the  doctrine  of  Nicolin  v.  Schneiderhan,  37  Minn. 
63,  33  N.  W.  33,  since  decided  by  this  court,  it  is  now  settled  that  a 
deed  of  lots  according  to  this  plat  would  cover  all  the  land  down  to 
the  creek,  under  the  rule  that  distances  must  yield  to  natural  boundaries 


Sec.  8)  EQUITABLE   DEFENSES  521 

called  for  in  a  deed.  We  are  unable  to  see  that  this  case  differs  in 
principle  from  Perkins  v.  Trinka,  30  Minn.  241,  15  N.  W.  115,  and 
Hall  v.  Wheeler,  37  Minn.  522,  35  N.  W.  377.  It  is  unnecessary  to  en- 
ter into  any  discussion  of  the  question  (left  in  great  confusion  in  the 
books)  when,  if  ever,  relief  will  be  granted  on  the  ground  of  mistake 
in  law  alone,  or  whether  there  is  any  difference  between  mistake  of 
law  and  ignorance  of  law,  or  between  ignorance  or  mistake  as  to  a 
general  rule  of  law  and  ignorance  or  mistake  of  law  as  to  existing  in- 
dividual rights  in  the  property  which  is  the  subject  matter  .of  the  con- 
tract. We  hold  that  money  paid  under  mistake  of  law  cannot  be  re- 
covered back  where  the  transaction  is  unaffected  by  any  fraud,  trust, 
confidence,  or  the  like,  but  both  parties  acted  in  good  faith,  knew  all  the 
facts,  and  had  equal  means  of  knowing  them,  especially  where,  as  was 
evidently  the  fact  in  this  case,  the  transaction  was  intended  to  remove 
or  settle  a  question  of  doubt  as  to  title.  It  would  be  impossible  to 
foresee  all  the  consequences  which  would  result  from  allowing  parties 
to  avoid  their  contracts  in  such  cases  on  the  mere  plea  of  ignorance  or 
mistake  of  law  affecting  their  rights.  It  would  be  difficult  to  tell  what 
titles  would  stand,  or  what  contracts  would  be  binding,  if  grantors  and 
grantees  were  at  liberty  to  set  up  such  a  plea.  This  may  seem  to  work 
inequitably  in  the  present  case,  but  more  mischief  will  always  result 
from  attempting  to  mould  the  law  to  what  seems  natural  justice  in  a 
particular  case  than  from  a  steady  adherence  to  general  principles.  Or- 
der reversed. 


WATSON  v.  MARSTON. 
(In  Chancery,  1S53.    4  De  Gex,  M.  &  G.  230.) 

This  was  the  appeal  of  the  defendant,  a  mortgagee,  who  -had  con- 
tracted to  sell  freehold  property  comprised  in  her  security,  and  against 
whom  Vice-Chancellor  Stuart  had  made  a  decree  in  a  suit  instituted 
by  the  purchaser,  directing  the  specific  performance  of  the  contract, 
and  also  directing  that  the  conveyance  should  be  made  by  the  defend- 
ant under  a  power  of  sale  contained  in  the  mortgage. 

The  question  was  whether  the  plaintiff  was  entitled  to  a  convey- 
ance in  that  form  or  must  take  the  title  under  a  decree  for  foreclo- 


sure. 


*     *     * 


The  Lord  Justice  Turner.64  The  plaintiff  has  filed  this  bill  to 
enforce  the  specific  performance  of  an  agreement  entered  into  under 
these  circumstances :  The  defendant  was  originally  a  mortgagee  of  the 
estate,  and  had  obtained  in  1850  a  decree  for  foreclosure.  Whether 
the  equity  of  redemption  was  regularly  or  completely  foreclosed  may 
be  open  to  question.  It  may  be  that  the  title  under  the  decree  could 
not  be  enforced  upon  a  purchaser. 

G4  The  statement  of  far-ts  is  abridged  and  part  of  the  opinion  is  omitted. 


522  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.   2 

The  contract  for  purchase,  however,  contained  this  clause: 

"The  vendor  being  a  mortgagee  with  power  of  sale  will  only  enter  into  the 
usual  covenant  that  she  has  not  incumbered." 

That,  no  doubt,  imported  that  the  defendant  did  contract,  in  the 
character  of  mortgagee  with  a  power  of  sale.  The  question  which 
we  have  to  consider  is,  whether  the  agreement  containing  these  words 
is  to  be  enforced  against  her  by  directing  a  conveyance  under  the  pow- 
er. It  is  clear,  if  the  evidence  is  correct,  that  the  agreement  was  en- 
tered into 'by  the  defendant  under  the  impression  that  the  surplus  after 
payment  of  her  debt  was  to  be  her  property,  for  which  she  was  to  be 
under  no  liability  to  account.  And  I  do  not  see  that  there  is  any  evi- 
dence to  displace  that  view,  or  to  show  that  Mr.  Fisher  was  in  any  way 
aware  that  the  effect  of  the  insertion  in  the  contract  of  the  clause  in 
question  would  place  the  defendant  in  the  position  of  being  liable  to 
account  to  the  parties  interested  in  the  equity  of  redemption  for  the 
surplus. 

Now  relief  by  way  of  specific  performance  is  always  within  the  dis- 
cretion of  the  Court.  This  discretion  is  of  course  to  be  exercised  care- 
fully. Specific  performance  is  not  to  be  withheld  merely  upon  a  vague 
idea  as  to  the  true  effect  of  the  contract  not  having  been  known.  But, 
upon  the  evidence  in  this  case,  I  think  that,  although  there  may  have 
been  an  intention  to  complete  under  the  mortgage  title,  there  was  no 
impression  on  Mr.  Fisher's  part  that  the  effect  would  be  to  convert  the 
defendant  into  a  trustee  of  the  surplus  for  the  mortgagors.  He  may 
have  intended  that  the  purchase  should  be  completed  under  the  power ; 
but  it  clearly  was  not  his  intention  to  deprive  the  defendant  of  the 
benefit  of  the  foreclosure.     *     *     * 

It  was  insisted  that  the  foreclosure  was  as  much  opened  by  the 
agreement  to  sell  under  the  power  as  it  would  be  by  a  conveyance. 
I  am  by  no  means  satisfied  that  this  was  the  case.  I  do  not  think  that 
by  reason  of  the  inadvertent  introduction  of  the  clause  relied  upon, 
it  would  be  competent  to  the  mortgagors  to  insist  that  the  foreclosure 
was  opened.  To  dispose  of  that  question,  it  would  be  necessary  to  see 
under  what  circumstances  that  stipulation  found  its  way  into  the  agree- 
ment. Now,  it  appears  upon  the  evidence  that  the  clause  was  copied 
from  the  draft  of  another  contract  which  had  been  prepared  before  the 
decree  for  foreclosure  had  been  made,  and  that,  being  thus  transcribed 
from  one  draft  into  the  other,  it  was  overlooked  and  allowed  to  re- 
main, although  the  vendor  had  between  the  preparation  of  the  two  ac- 
quired the  absolute  fee.  It  is  stated  in  the  evidence  that  no  discussion 
took  place  till  after  the  engrossment  of  the  agreement ;  and  that  at 
the  time  of  the  preparation  of  the  draft,  the  defendant  believed  that 
she  was  the  absolute  owner  of  the  property,  and  was  prepared  to  sell, 
and  intended  to  sell,  as  the  absolute  owner,  having  obtained  the  decree 
with  that  object.  It  appears  that  she  did  not  consider  that  she  was  any 
longer  liable  to  account.    Under  these  circumstances,  I  think  we  should 


Sec.  8)  EQUITABLE   DEFENSES  523 

not  be  justified  in  depriving  her  of  the  benefit  of  any  right  she  may 
have  against  the  mortgagors. 

Our  refusal  to  direct  a  specific  performance  is  not  the  exercise  of 
an  arbitrary  discretion ;  but  being  satisfied  that  the  circumstances  of 
the  case  bring  it  within  the  rule  to  be  deduced  from  former  decisions, 
we  think  that  the  bill  must  be  dismissed,  unless  the  plaintiff  will  ac- 
cept the  conveyance  which  the  defendant  is  ready  to  execute. 

The  Lord  Justice  Knight  Bruce  concurred. 

June  4.  The  case  stood  over  for  the  plaintiff  to  consider  whether 
he  would  take  the  title  under  the  foreclosure,  and  it  is  believed  that 
ultimately  terms  were  arranged  for  the  completion. 


STONE  v.  GODFREY. 

(In  Chancery,  1S54.     5  De  Gex,  M.  &  G.  76.) 

This  was  the  appeal  of  the  plaintiff  from  a  decree  of  Vice-Chan- 
cellor Stuart,  dismissing  a  bill  whereby  the  plaintiff  sought  to  be  re- 
lieved against  a  settlement  on  the  ground  of  mistake.  The  case  is  re- 
ported by  Messrs.  Smale  and  Giffard,  volume  1,  p.  590,  where  the  facts 
are  fully  stated.65     *     *     * 

The  Lord  Justice  Turner.  The  plaintiff  in  this  case,  in  effect, 
asks  of  the  Court  to  raise  a  trust  for  his  benefit  upon  the  legal  estate 
vested  in  the  defendant ;  and  he  asks  this  relief  upon  the  footing  of 
an  equitable  title,  which  accrued  to  him  in  the  year  1824. 

The  ground  on  which  he  founds  his  title  to  this  relief  is,  that  in  the 
year  1826  he  was  erroneously  advised  that  his  equitable  title  could  not 
be  maintained ;  and  I  assume  that  the  advice  so  given  to  him  was  er- 
roneous ;  and  that  this  Court  has  power  (as  I  feel  no  doubt  that  it 
has)  to  relieve  against  mistakes  in  law  as  well  as  against  mistakes  in 
fact.  When,  however,  parties  come  to  this  Court  to  be  relieved  against 
the  consequences  of  mistakes  in  law,  it  is,  I  think,  the  duty  of  the 
Court  to  be  satisfied  that  the  conduct  of  the  parties  has  been  deter- 
mined by  those  mistakes,  otherwise  great  injustice  may  be  done.  Par- 
ties may  be  erroneously  advised  as  to  the  law,  but  they  may  be  told  on 
what  circumstances  the  question  of  law  depends,  and  in  what  mode 
it  may  be  tried,  and  they  may  determine  that  (whether  the  advice  which 
they  have  received  be  well  or  ill  founded)  they  will  give  up  the  question 
in  favour  of  the  party  with  whom  it  arises.  Cases  of  this  nature, 
therefore,  require  the  most  careful  examination,  and  particularly  when 
they  arise  between  parent  and  child. 

These  considerations  have  led  me  to  look  very  carefully  into  the 
facts  of  this  case,  and  upon  examining  them  I  am  satisfied  that  this 
plaintiff,  having  been  made  aware  of  the  question  on  which  his  title 
depended,  determined  to  waive  it  in  favour  of  the  defendant,  his  child. 

6  5  The  statement  of  facts  is  abridged. 


524  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

In  the  first  place,  the  opinion  on  which  he  acted  was  thus  expressed : 
[His  Lordship  read  it.]  So  that  opinion  (although  it  advises  him  he 
has  not  the  estate  by  the  curtesy)  tells  him  that  it  depends  on  the  ques- 
tion whether  the  possession  of  the  tenants  or  of  the  trustee  is  to  be 
considered  as  the  possession  of  the  wife;  and  in  a  farther  part  of  the 
opinion  it  is  intimated  that,  if  he  persists  in  his  claim,  he  must  be  made 
a  defendant  to  the  suit.  In  that  state  of  circumstances,  and  having 
been  so  advised,  he  became  the  next  friend  of  his  daughter  in  a  suit 
instituted  by  her  for  the  purpose  of  asserting  her  title,  to  the  prejudice 
of  his  own  title ;  and  in  the  year  1830  a  decree  was  made  declaring  the 
rights  of  the  plaintiff,  and  that  she  was  entitled  in  fee,  as  from  the 
death  of  the  mother;  displacing,  therefore,  the  estate  by  the  curtesy 
in  him.  In  the  year  1833  he  presented  a  petition,  and  upon  the  hearing 
of  that  petition,  and  of  the  cause  on  further  directions,  he  obtained 
an  order  for  the  payment  of  the  rents  to  him  for  the  daughter's  main- 
tenance during  her  minority.  The  original  decree  had  directed  a  par- 
tition of  the  estates.  A  partition  was  made,  and  was  to  be  carried  into 
effect  by  a  conveyance  to  be  executed  by  the  trustee.  That  convey- 
ance was  thus  framed :  A  term  of  years  was  limited  to  him  during  the 
minority  of  the  daughter  in  trust  to  dispose  of  the  rents  as  the  Court 
of  Chancery  should  think  fit,  or  otherwise  for  the  maintenance  and 
benefit  of  the  daughter.  In  the  course  of  preparing  that  conveyance, 
the  gentleman  who  was  instructed  to  -prepare  it,  an  eminent  convey- 
ancer (Master  Senior,  then  at  the  bar),  intimated  an  opinion  that  Mr. 
Stone  was  entitled  to  an  estate  by  the  curtesy,  and  that  opinion  was 
communicated  to  him.  It  is  said,  however,  that  there  was  communi- 
cated to  him  a  retractation  of  that  opinion.  The  allegation  in  the  bill 
appears  to  me  to  be  that  the  communication  which  was  made  to  him 
was  the  communication  of  the  written  opinion  given  by  Mr.  Senior. 
But,  whether  the  further  opinion  was  or  not  communicated  to  him, 
beyond  all  doubt  the  fact  of  the  opinion  having  been  given,  and  the 
fact  of  the  retractation  of  the  opinion  (if  he  knew  it),  distinctly  brought 
to  his  mind  the  question  of  his  title.  He  entered  into  possession,  nev- 
ertheless, under  these  trusts,  and,  acquiring  possession  under  a  trust 
created  for  the  benefit  of  the  daughter,  he  thinks  it  right,  after  the  de- 
termination of  the  term  under  which  alone  he  has  acquired  the  pos- 
session, to  retain  it.  It  is  impossible  for  a  person  who  has  acquired 
possession  of  an  estate  under  a  trust  for  the  benefit  of  another  to  be 
permitted  to  set  upon  that  possession  as  adverse  to  the  other.  It  was 
his  duty,  if  he  meant  to  claim  adversely  to  the  daughter,  to  have  given 
up  possession  of  the  estate,  and  to  have  then  set  up  his  claim  after  he 
had  redelivered  possession.  In  the  year  1843  the  daughter  attained 
twenty-one.  No  step  was  taken  by  the  plaintiff  to  disturb  the  title  of 
the  daughter ;  no  allegation  was  set  up  of  any  mistake  having  been 
made  by  him ;  no  intimation  that  he  in  any  way  disputed  her  title.  In 
the  year  1847  she  married.  No  question  was  then  raised  by  him,  that 
1  can  find,  upon  her  title  to  this  estate.    On  the  contrary,  I  find  it  dis- 


Sec.  8)  EQUITABLE   DEFENSES  525 

tinctly  stated  in  the  affidavits,  on  the  part  of  the  defendants,  and  not, 
that  I  can  find,  contradicted  on  the  part  of  the  plaintiff,  that  after 
the  marriage,  upon  the  occasion  of  Mr.  Stone  going  to  visit  his  daugh- 
ter, he  made  a  positive  promise  that  he  would  account  to  her  in  respect 
of  the  rents  of  the  estate.  It  was  not  until  he  was  leaving  the  house 
of  his  daughter  that  any  claim  was  made  by  him  on  his  own  behalf. 

Under  these  circumstances  I  think  it  clear  that  Mr.  Stone  had  de- 
liberately determined  not  to  set  up  the  title  against  the  daughter,  and 
that  it  would  be  great  injustice  now  to  permit  him  tp  do  so. 

In  determining  the  case  upon  this  ground,  I  desire  to  be  understood 
as  not  intimating  any  opinion  that  the  plaintiff  could  have  succeeded 
if  the  case  had  been  more  favourable  to  him  in  the  point  of  view  to 
which  I  have  referred.  On  the  contrary,  I  think  that  the  length  of 
time,  coupled  with  the  circumstances  of  the  case,  would  have  been 
sufficient  to  bar  his  claim.  Some  useful  observations  on  that  point  are 
to  be  found  in  Lord  Redesdale's  judgment  in  Cholmondeley  v.  Clinton, 
4  Bligh,  35. 

My  opinion,  therefore,  upon  the  whole  clearly  is,  that  this  appeal 
must  be  dismissed  with  costs.  Perhaps  if  I  had  had  to  deal  with  the 
case  originally,  I  should  have  been  of  opinion  that  the  bill  should  also 
have  been  dismissed  with  costs ;  but  being  very  reluctant  to  interfere 
with  the  discretion  of  the  learned  Judge  on  the  subject  of  the  costs, 
and  finding  in  the  note  of  what  passed  at  the  hearing  that  there  was  a 
disclaimer  on  the  part  of  the  defendant  of  any  intention  to  demand 
costs,  as  these  costs  have  not  been  given  by  the  decree,  I  think  the  jus- 
tice of  the  case  will  be  satisfied  by  dismissing  the  appeal  with  costs. 


TWINING  et  al.  v.  NEIL  et  al. 
(Court  of  Chancery  of  New  Jersey,  1884.    38  N.  J.  Eq.  470.) 

On  petition  by  the  complainant  in  foreclosure  proceedings  to  compel 
the  purchaser  at  a  sale  made  by  the  sheriff  to  complete  his  purchase. 

Bird,  V.  C.  There  is  no  dispute  as  to  the  facts  in  this  case.  Walk- 
er attended  the  sale  and  bid  $1,150  for  the  land  offered  by  the  sheriff, 
paid  $125,  the  amount  of  the  percent,  of  the  purchase-money  required 
by  the  conditions,  and  signed  the  conditions.  He  made  no  inquiries 
respecting  the  title  or  encumbrances.  He  examined  the  property,  or 
was  so  well  acquainted  with  it  that  he  estimated  its  fair  value  before 
attending  the  sale.  On  the  day  fixed  by  the  conditions  for  delivering 
the  deed  and  the  payment  of  the  balance  of  the  purchase-money,  he 
employed  counsel,  and  soon  learned  that  the  lot  which  he  had  bid  was 
encumbered  by  a  mortgage  prior  to  the  one  on  which  the  foreclosure 
proceedings  rested,  and  by  a  tax  assessment  equal  to  the  full  value 
thereof. 

Walker,  upon  such  information,  filed  his  petition  in  this  court,  and 
asked  to  be  relieved  from  his  bid  and  for  an  order  directing  the  sher- 


526  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Ch.  2 

iff  to  refund  to  him  the  deposit-money.  The  court  refused  to  aid  him, 
on  the  principles  laid  down  in  Hayes  v.  Stiger,  29  X.  J.  Eq.  196,  Sey- 
mour v.  Delancy,  3  Cow.  (X.  Y.)  445,  15  Am.  Dec.  270,  Dillett  v.  Kem- 
ble,  25  X.  J.  Eq.  66,  and  Haggerty  v.  McCanna,  25  X.  J.  Eq.  48. 

And  now  the  complainant  comes  with  his  petition  and  asks  the  court 
to  compel  Walker  to  pay  the  amount  of  his  bid.  Ought  the  court  to 
do  so  ?  Walker  is  a  plain  business  man,  but  little  acquainted  with  the 
rules  of  law  and  the  legal  methods  necessary  to  be  pursued  to  protect 
the  dealer  in  real  estate.  The  purchase  in  this  case  was  made  in  the 
most  indifferent  manner,  if  not  the  most  negligent;  certainly,  such 
conduct  in  many  would  be  regarded  as  gross  negligence.  But  shall 
such  indifference  or  negligence  enure  to  the  benefit  of  the  complainant? 
Shall  the  court  aid  him  in  reaping  large  advantages  from  the  ignorance 
(through  negligence)  of  Walker?  It  is  true  the  law  calls  such  igno- 
rance negligence ;  but  is  there  no  defensive  relief  in  equity  ?  In  such 
case  shall  this  court  be  more  exacting  than  a  court  of  law?  In  such 
case  a  court  of  law  would  pronounce  its  judgment  upon  the  verdict  of 
a  jury;  and  a  jury  would  assess  such  damages  only  as  the  plaintiff 
should  prove  he  had  actually  sustained.  Most  clearly  no  jury  would 
go  beyond  the  value  of  the  equity  of  redemption  and  costs.  Xow  I 
am  satisfied  that  the  value  of  the  equity  of  redemption  in  this  case,  if 
anything,  was  merely  nominal.  I  am  as  well  satisfied  that  had  Walker 
known  the  truth,  his  bid  would  have  been  merely  nominal,  if  anything. 
With  such  convictions  on  the  mind  of  the  court,  is  it,  nevertheless,  the 
duty  of  the  court  to  say  to  Walker : 

•'You  bought  at  your  peril  and  tins  court  must  exact  of  you,  as  the  just 
penalty  of  your  ignorance  and  carelessness,  the  whole  amount  of  your  bid'.'" 

I  think  not.  The  guide  is  not  in  the  words  of  the  rule  but  in  the 
spirit.  Guided  by  the  spirit  of  the  rule,  courts  of  equity  often  decline 
to  enforce  contracts.  Parties  are  left  to  their  remedy  at  lawr.  If  a 
bargain  appears  unconscionable  this  court  never  enforces  it,  unless 
third  parties  become  interested.  The  court  is  permitted  to  exercise  its 
discretion.  It  is  not  simply  that  a  bargain  is  a  hard  one,  but  that  it  is 
so  unequal  and  unjust  as  to  shock  the  mind.  The  following  authori- 
ties show  that  courts  do  not  enforce  every  purchase  and  also  the  prin- 
ciple which  influences  them:  Rodman  v.  Zilley,  1  N.  J.  Eq.  320;  Ely 
v.  Perrine,  2  X.  J.  Eq.  396;  Crane  v.  De  Camp,  21  X.  J.  Eq.  414; 
Malins  v.  Freeman,  2  Keen,  25. 

I  think,  also,  that  there  are  cases  which  sustain  me  in  refusing  the 
aid  prayed  for  by  the  petitioner.  Post  v.  Leet,  8  Paige  (N.  Y.)  337 ; 
Alvanley  v.  Kinnaird,  2  Macn.  &  G.  1 ;  Leslie  v.  Thompson,  9  Hare, 
268 ;  Manser  v.  Back,  6  Hare,  443 ;  Malins  v.  Freeman,  2  Keen,  34. 
Sugd.  Vend.  &  Pur.  vol.  1,  364,  *310,  says  when  fraud  and  misrepre- 
sentation do  not  appear,  but  the  estate  is  a  grossly  inadequate  consider- 
ation for  the  purchase-money,  equity  will  not  relieve  either  party. 
See,  also,  Seymour  v.  Delancy,  3  Cow.  (X.  Y.)  445 ;  Mortlock  v.  Bul- 
ler,  10  Ves.  292. 


Sec.  S)  EQUITABLE   DEFENSES  527 

It  is  important  to  observe  that  the  complainant  has  his  remedy  at 
law.  which  fact  has  always  entered  into  the  consideration  of  courts  of 
equity.  Nor,  in  this  case,  must  it  be  forgotten  that  the  complainant, 
by  the  conditions  of  sale,  has  secured  the  whole  of  the  deposit-money, 
which  is,  as  I  believe,  from  the  testimony,  so  much,  at  least,  more  than 
the  equity  of  redemption  is  worth.  In  concluding,  I  think  I  should 
distinctly  state  that,  in  my  judgment,  this  method  of  relief  is  purely 
defensive ;  it  is  not  a  new  doctrine ;  nor  is  it  in  conflict  with  a  single 
authority  which  I  have  had  my  attention  called  to  in  this  state ;  but 
is  distinctly  recognized  by  the  chancellor  at  the  close  of  his  opinion, 
in  Haggarty  v.  McCanna,  supra.  This  view  of  the  case  works  no  in- 
justice to  the  petitioner,  who  is  also  the  complainant  in  the  cause.  He 
has  the  deposit-money.  He  has  the  equity  of  redemption  still,  precise- 
ly what  he  had  at  first.  Is  it  said  that  it  may  have  declined  in  value? 
If  so,  a  jury  can  determine  how  much,  determining  such  damage  as 
well  as  every  other. 

I  think  the  prayer  of  the  petitioner  should  be  denied,  and  will  so 
advise,  but  without  costs. 


V.  Misrepresentation  and  Fraud 
MEMPHIS  KEELEY  INSTITUTE  v.  LESLIE  R.  KEELEY  CO. 

(Circuit  Court  of  Appeals  of  the  United  States,  Sixth  Circuit,  1907.     155  Fed. 
964,  te4  C.  C.  A.  112,  16  L.  R.  A.  [N.  S.]  921.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Western 
District  of  Tennessee. 

Cochran,  District  Judge.66  This  is  the  second  appeal  of  this  case. 
The  first  appeal  was  dismissed,  and  the  opinion  then  delivered  is  re- 
ported in  144  Fed.  628,  75  C.  C.  A.  430.  A  reading  thereof  will  dis- 
close the  ground  of  the  dismissal  and  the  nature  of  the  controversy 
involved  in  the  case.  In  brief,  the  first  appeal  was  dismissed  because 
the  decree  appealed  from  was  not  final.  It  was  a  partial  dismissal  of 
the  bill.  It  did  not  dismiss  the  bill  entirely,  but  only  one  branch  of 
the  controversy  raised  by  it,  and  that  a  subordinate  one.  On  the  re- 
turn of  the  cause  to  the  lower  court,  it  disposed  of  the  whole  contro- 
versy by  a  final  decree.  It  receded  from  the  position  taken  on  the  for- 
mer hearing  that  the  contracts  between  the  appellee  and  the  appellant 
Memphis  Keeley  Institute  had  been  abandoned  and  rescinded  before 
suit  brought,  because  of  which  said  partial  dismissal  of  the  bill,  to  wit, 
in  so  far  as  it  sought  a  cancellation  of  said  contracts,  was  made,  and 
granted  appellee  the  full  relief  which  it  sought.  It  enjoined  the  appel- 
lants from  claiming  that  they  had  a  right  to,  and  were,  in  fact,  admin- 
istering Keeley  remedies  at  the  Memphis  Keeley  Institute,  and  ad- 

ee  Parts  of  the  opinion  are  omitted. 


528  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

judged  a  cancellation  of  said  contracts  and  delivery  up  to  appellee  of 
the  Keeley  remedies  in  possession  of  the  appellants  on  their  being  re- 
imbursed the  price  paid  for  same.  It  is  from  this  decree  that  this  ap- 
peal is  taken. 

The  main  ground  upon  which  appellants  claim  that  the  decree  of 
the  lower  court  should  be  reversed  is  that  the  appellee  did  not  come 
into  that  court  with  clean  hands,  and  therefore  was  not  entitled  to  the 
relief  it  sought  and  that  was  granted  to  it.  The  position  that  it  did 
not  so  come  into  court  is  undertaken  to  be  maintained  in  this  way. 
The  business  in  which  the  appellee  is  engaged,  to  wit,  administering, 
and  selling  to  be  administered,  what  are  known  as  "Keeley  remedies" 
for  the  opium,  liquor,  and  tobacco  habits  and  neurasthenia,  and  which 
was  sought  to  be,  and  by  the  decree  is,  protected  from  injury  and  inva- 
sion by  appellants,  has  been  built  up  and  is  being  maintained  by  certain 
fraudulent  misrepresentations.  This  position  was  urged  on  the  lower 
court,  and  it  was  claimed  that  because  of  it  the  bill  should  be  dis- 
missed. But  it  refused  to  so  hold  and,  as  stated,  granted  appellee  full 
relief.  This  it  did  for  two  reasons :  One  was  that  the  evidence  did 
not  establish  the  position  that  appellee's  business  had  been  built  up  and 
was  being  maintained  by  any  such  misrepresentations.  The  other  was 
that,  even  if  it  did,  that  fact  was  not  against  appellee's  right  to  relief. 
We  will  dispose  of  these  two  reasons  in  the  order  stated.  The  alleged 
fraudulent  misrepresentations  relied  on  are  quite  numerous.  The 
main  one  is  that  gold  is  the  principal  ingredient  and  effective  agent  in 
said  remedies.  We  will  limit  our  consideration  to  this  alleged  fraud- 
ulent misrepresentation,  because  we  are  constrained  to  hold  that  the 
claim  of  appellants  in  regard  thereto  is  made  good  by  the  evidence. 

It  is  not  disputed  that  appellee  represents  to  the  public  that  gold  is 
the  principal  ingredient  and  effective  agent  in  its  remedies.  So  dis- 
tinct, repeated,  and  emphatic  has  been  and  is  its  representation  to  this 
effect  that  it  must  be  held  that  its  business  has  been  built  up  and  is 
being  maintained  by  this  representation.  The  name  which  it  has  given 
its  remedies,  and  by  which  they  are  known,  is  the  "Double  Chloride 
of  Gold  Cure."  There  is  no  such  substance  as  the  "Double  Chloride 
of  Gold."  There  is  a  chloride  of  gold  and  a  chloride  of  sodium,  ihe 
claim  was  that  these  two  substances  were  ingredients  of  the  remedies, 
and  to  voice  the  claim  the  short  form,  of  "Double  Chloride  of  Gold" 
was  adopted.  It  was  intended  to  designate  that  the  remedies  contained 
the  two  chlorides  of  gold  and  sodium.  This  name  is  printed  upon  the 
labels  on  the  bottles  containing  the  remedies,  and  is  used  in  the  circu- 
lars and  other  means  used  to  advertise  the  business.  The  remedy  for 
neurasthenia  is  called  "Gold  Neurotine."  To  emphasize  the  claim  as 
to  the  existence  of  gold  in  the  remedies  and  its  importance,  the  promi- 
nent portion  of  the  lettering  on  the  labels  on  the  bottles  is  in  gold. 
They  contain  a  picture  of  the  globe  with  a  belt  around  it  encircled  by 
the  words,  "We  belt  the  world,"  and  on  the  belt  are  these  words,  "Gold 
cure  for  opium  habit,  gold  cure  for  drunkenness,  gold  cure  for  neu- 


Sec.  8)  EQUITABLE   DEFENSES  529 

rasthenia,  gold  cure  for  tobacco  habit" — all  in  gold.     The  labels  con- 
tain this  statement,  to  wit: 

"Gold  is  especially  beneficial  in  its  action  on  the  mental  forces.  It  gives 
the  patient  courage,  hope,  and  renewed  will  power ;  and  is  the  only  medical 
agent  that  will  effectually  and  forever  relieve  all  craving  or  necessity  for  al- 
cohol in  any  form.    The  remedy  can  in  no  way  act  injuriously  on  the  patieut." 

********* 

The  sole  question  at  issue  in  regard  to  this  representation  is  as  to 
whether  it  is  a  misrepresentation  and  fraudulent;  i.  e.,  intended  to 
mislead  and  deceive  the  public.  If  it  is  untrue  and  known  to  be  so, 
the  rest  follows. 

The  record  contains  positive  evidence  to  the  effect  that  it  is  un- 
true and  known  to  be  so.  It  contains  no  affirmative  evidence  that  the 
representation  is  true.     *     *     * 

This  brings  us  to  the  other  reason,  why  the  lower  court  refused  to 
give  any  effect  to  the  position  that  appellee's  business  had  been  built 
up  and  was  being  maintained  by  fraudulent  misrepresentations.  It  was 
that,  even  if  this  was  true,  it  was  not  against  appellee's  right  to  relief. 
But,  before  considering  just  how  this  was  attempted  to  be  made  out, 
it  is  to  be  noted  that  this  court  has  heretofore  held  that  a  court  of 
equity  should  not  protect  against  injury  or  invasion  a  business  of  selling 
a  medicine  which  has  been  built  up  and  is  being  maintained  by  fraudu- 
lent misrepresentations  as  to  its  ingredients,  and  this  on  the  ground 
that  a  suitor  in  equity  should  come  into  court  with  clean  hands.  This 
it  did  in  the  case  of  Fig  Syrup  Co.  v.  Stearns,  73  Fed.  812,  20  C.  C.  A. 
22,  33  L.  R.  A.  56.  That  was  a  suit  by  a  manufacturer  of  a  liquid 
laxative  medicine,  to  which  he  gave  the  name  "Syrup  of  Figs"  or  "Fig 
Syrup,"  to  enjoin  another  from  interfering  with  his  business  by  unfair 
competition.  It  was  held  that  it  was  not  entitled  to  the  injunction  be- 
cause it  falsely  and  fraudulently  represented  to  the  public  that  the  juice 
of  the  fig  was  the  important  medicinal  agent  in  the  composition  of  the 
medicine,  when,  in  fact,  just  a  suspicion  of  fig  juice  was  put  into  it  not 
for  the  purpose  of  affecting  its  medicinal  character  or  even  its  flavor, 
but  merely  to  give  a  weak  support  to  the  statement  that  the  article  sold 
was  syrup  of  figs,  and  the  laxative  agent  in  it  was  senna.  This  was  so 
held  notwithstanding  there  was  much  evidence  introduced  showing 
that  it  was  a  very  useful  medicine  and  prescribed  by  physicians  of  high 
standing.    Judge  Taft  said : 

"This  is  a  fraud  upon  the  public.  It  is  true,  it  may  be  a  harmless  humbug 
to  palm  off  upon  the  public  as  syrup  of* figs  what  is  syrup  of  senna,  but  it  is 
nevertheless  of  such  a  character  that  a  court  of  equity  will  not  encourage  it 
by  extending  any  relief  to  the  person  who  seeks  to  protect  a  business  which 
has  grown  out  of  and  is  dependent  upon  such  deceit." 

The  case  was  subsequently  approved  and  followed  by  the  Supreme 
Court  in  the  case  of  Worden  v.  California  Fig  Syrup  Co.,  187  U.  S. 
519,  23  Sup.  Ct.  161,  47  L.  Ed.  282. 

The  case  we  have  here  comes  clearly  within  the  holding  in  these 
Boke  Eq. — 34 


530  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

two  cases.  The  ground  upon  which  the  lower  court  held  that  the  fact 
thai  appellee's  business  may  have  been  built  up  and  grown  out  of  fraud- 
ulent misrepresentations  to  the  public  was  not  in  the  way  of  its  right 
to  the  relief  it  sought  was  substantially  this :  A  dismissal  of  the  bill 
for  that  reason  would  aid  the  appellants  in  practicing  the  very  same 
fraud  upon  the  public  that  it  is  claimed  that  appellee  is  practicing,  and 
would  therefore  put  the  court  in  an  inconsistent  position.  The  way 
in  which  it  was  thought  that  such  a  dismissal  would  have  this  effect 
was  that  it  would  amount  to  an  adjudication  that  the  appellant  Mem- 
phis Keeley  Institute  had  a  valid  subsisting  contract  with  appellee,  and 
thereby  enable  it  to  obtain  remedies  from  appellee  to  administer  to 
patients.  But  such  a  dismissal  could  not  possibly  have  any  such  effect. 
It  would  not  be  an  adjudication  as  to  the  rights  of  the  parties  as  be- 
tween themselves.  It  would  be  a  direct  refusal  to  make  any  such  ad- 
judication. And  a  court  of  equity  will  not  aid  a  plaintiff  who  comes 
before  it  with  unclean  hands,  even  though  by  not  doing  so  it  deprives 
itself  of  the  opportunity  to  prevent  the  defendant  from  doing  the  un- 
clean thing,  and  thus  may  be  said  to  indirectly  aid  the  defendant  in 
so  doing.  In  the  Fig  Syrup  Case  the  defendant  was  taking  plaintiff's 
business  by  unfair  competition,  and  was  practicing  the  very  same 
fraud  on  the  public,  because  of  which  the  court  refused  to  aid  plaintiff, 
yet  the  court  did  not  stop  him  from  so  doing  by  granting  plaintiff  in- 
junctive relief,  but  turned  the  plaintiff  out  of  court. 

Counsel  for  appellee  cites  and  relies  on  a  number  of  cases  which 
hold  that  a  court  of  equity  will  not  turn  out  of  court  an  unclean  man, 
or  a  man  who  has  done  an  unclean  thing  which  has  no  relation  to  the 
thing  which  it  is  sought  to  have  protected  by  its  decree.  But  such 
decisions  have  no  application  here.  The  uncleanness  here  has  to  do 
with  the  very  thing  which  the  court  is  asked  to  protect  and  prevent 
from  injury  and  invasion  by  appellants.  The  appellee  claims  to  have 
the  right  to  administer  and  to  sell  for  administration,  in  the  state  of 
Tennessee,  its  Keeley  remedies,  and  that  appellants  are  injuring  that 
right  and  invading  its  business  by  asserting  that  it  has  the  right  to 
and  is  in  fact  administering  such  remedies  at  the  Memphis  Institute, 
and  asks  the  court  to  protect  its  right  and  business  from  such  injury 
and  invasion  by  enjoining  appellants  from  so  claiming,  canceling  the 
contracts,  and  requiring  a  delivery  up  of  the  remedies  held  by  appel- 
lant. But  that  business — the  very  thing  which  the  court  is  asked  to 
protect — is,  as  we  have  held,  unclean  in  the  particular  stated.  Hence 
it  is  a  clear  case  within  the  rule  that  a  court  of  equity  will  not  aid  one 
who  comes  before  it  with  unclean  hands. 

It  should  be  noted,  however,  though  it  is  not  relied  on  either  by  the 
lower  court  or  by  appellee's  counsel  here,  that  the  fact  in  regard  to  ap- 
pellee's fraudulent  misrepresentations,  as  we  have  adjudged  it,  was 
not  set  up  by  appellants  in  their  answer  as  a  defense  to  the  suit.  This 
presents  the  question  whether,  in  the  absence  of  its  having  been  so  pre- 
sented, any  effect  can  be  given  to  it.     It  seems  to  be  well  settled  that 


Sec.  8)  EQUITABLE   DEFENSES  531 

such  a  matter  need  not  be  pleaded  as  a  defense  to  the  suit.  If  it  ap- 
pears from  the  record,  it  will  be  given  effect  notwithstanding  it  has 
not  been  pleaded.  The  theory  upon  which  this  is  done  is  that  in  reality 
it  is  not  a  matter  of  defense.  It  is  given  effect  to,  not  on  defendant's 
account,  but  because  of  the  public.  As  said  by  the  Supreme  Court  of 
Tennessee  in  the  case  of  Simmons  Med.  Co.  v.  Drug  Co.,  93  Tenn.  99, 
23  S.  W.  169 : 

"It  is  not  strictly  speaking  a  defense  at  all,  but  rather  an  interposition  by 
the  court  to  discourage  fraud  and  wrong  upon  the  public." 

The  following  decisions  lend  support  to  and  uphold  this  doctrine : 
Fetridge  v.  Wells,  13  How.  Prac.  (N.  Y.)  385:  Cardoze  v.  Swift,  113 
Mass.  250-;  Dunham  v.  Presby,  120  Mass.  285  ;  Connell  v.  Reed,  128 
Mass.  477,  35  Am.  Rep.  397;'  Teoli  v.  Xordrill,  23  R.  I.  87,  49  Atl. 
489;  Mass.  Nat.  Bank  v.  Shinn,  163  X.  Y.  360,  57  N.  E.  611. 

In  view  of  the  holding  that  we  have  made  as  to  this  matter,  it  is 
not  necessary  that  we  consider  any  other  question  raised  and  discussed 
on  the  appeal. 

We  feel  constrained,  therefore,  to  adjudge  that  the  decree  of  the  low- 
er court  be  reversed,  and  the  cause  remanded  thereto,  with  directions 
to  dismiss  the  bill. 


HOLMES'  APPEAL. 

(Supreme  Court  of  Pennsylvania,  1874.     77  Pa.  50.) 

Per  Curiam.07  When  the  treaty  between  the  parties  for  the  ex- 
change was  in  progress,  both  Heckler  and  his  wife  were  anxious  to 
knowT  whether  ague  and  fever  existed  in  the  vicinity  of  the  Indiana 
farm,  and  inquired  of  Holmes  as  to  the  fact.  He  represented  that 
none  existed,  and  that  the  health  of  that  locality  was  good  in  this  re- 
spect. 

The  facts  show  clearly  that  this  was  a  misrepresentation  on  his 
part.  It  is  evident  Heckler  and  his  wife  made  the  absence  of  that  dis- 
ease a  material  ground  for  accepting  the  offer  of  Holmes.  Now 
clearly,  equity,  under  such  circumstance,  will  not  compel  a  man  thus 
misled  to  perform  specifically  a  contract  of  exchange  at  the  risk  of 
his  health  and  that  of  his  family.  Even  had  there  been  no  misrepre- 
sentation on  Holmes'  part,  it  would  be  doubtful  whether  a  chancellor 
would  compel  specific  performance  against  one  who  was  ignorant  of  the 
fact;  but  when  this  conduct  of  the  plaintiff  is  added,  there  can  be  no 
hesitation.  The  other  question  does  not  necessarily  arise  under  this 
view  of  the  case.  Decree  affirmed  with  costs,  to  be  paid  by  the  appel- 
lant, and  the  appeal  dismissed. 

6?  The  statement  of  facts  is  omitted. 


532  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

COX  v.  MIDDLETON. 

(In  Chancery,  1S54.     2  Drew.  209,  61  E.  R.  GOO.) 

This  was  a  suit  for  specific  performance.  The  general  case  made 
by  the  Plaintiff  was  this :  that,  being  possessed  of  a  certain  leasehold 
house  and  appurtenances  for  a  term  of  years,  he  entered  into  a  verbal 
agreement  with  the  Defendant  for  the  purchase  of  it ;  and  a  lease  was 
actually  prepared,  approved  by  the  Defendant  and  executed  by  the 
Plaintiff,  and  tendered  for  execution  to  the  Defendant.  That  the  De- 
fendant refused  to  complete  that  agreement,  and  afterwards  a  fresh 
agreement  in  writing  was  entered  into  and  signed  by  the  Defendant. 
The  Defendant  afterwards  refused  to  complete  that  agreement,  on  the 
ground  that  misrepresentations  were  made  to  him  as  to  the  state  of  the 
premises,  and  he  now  resisted  it  at  the  Bar,  on  the  ground  that  the 
agreement  was  not  sufficient  within  the  Statute  of  Frauds,  and  on  the 
ground  of  the  misrepresentations.     *     *     * 

The  following  facts  are  material  to  the  claim  of  misrepresentation : 

Defendant  signed  a  memorandum  as  follows : 

"Mr.  Midclleton  agrees  to  pay  £625  for  the  cottage  and  stable,  Mr.  Cox  pay- 
ing the  expenses  of  the  lease  held  by  Mr.  Smith.  H.  Middleton. 

"December  4th,  1852. 
•"Witness:    John  Newman." 

On  the  24th  December,  1852,  the  following  letter  was  sent  by  Mr. 
Middleton's  solicitor  to  Mr.  Holt : 

"7  Whitehead's  Grove,  December  24th,  1S52. 

"Sir:  (Middleton  and  Cox.)  I  regret  to  state  that  an  obstacle  has  occurred 
to  the  further  carrying  out  of  this  arrangement  for  the  present.  The  prem- 
ises were  represented  by  Mr.  Cox  as  substantially  and  well  built,  and  on  that 
representation  Mr.  Middleton  treated  for  the  purchase  of  them.  His  atten- 
tion having  however  been  called  to  their  construction,  he  has  had  them  sur- 
veyed by  Mr.  George  Handford,  of  this  neighborhood,  and  much  to  his  disap- 
probation learns  that  they  are  seriously  defective.  Mr.  Middleton  however  is 
desirous  of  doing  what  is  right  in  the  measure,  and  if  Mr.  Cox  will  remedy 
the  defects  pointed  out  in  Mr.  Handford's  report  (a  copy  of  which  I  beg  to 
enclose)  to  Mr.  Handford's  satisfaction,  he  will  still  carry  out  the  purchase. 
Requesting  you  to  consider  this  letter  without  prejudice,  I  am,  Sir,  yours 
very  obediently.  H.  Whitehead. 

"To  Charles  Holt,  Esq., 

"03  Guildford  Street,  Russell  Square." 

To  this  the  following  reply  was  immediately  returned : 

"93  Guildford  Street,  24th  December,  1852. 

"Sir:  (Cox  and  Middleton.)  Your  client,  for  the  purpose  of  making  a  better 
bargain  for  himself,  shuffled  off  a  verbal  agreement  and  made  a  written  one 
with  Mr.  Cox,  and  he,  through  you,  now  attempts  to  impose  upon  Mr.  Cox  by 
saying  that  the  premises  were  represented  as  otherwise  than  they  are.  Mr. 
Middleton  was  quite  aware  of  the  condition  of  the  buildings  long  before  he 
made  his  written  agreement  with  Mr.  Cox.  Unless  I  hear  from  you  (before 
the  opening  of  the  Chancery  Offices)  and  receive  the  draft  lease  back  ap- 
proved, I  shall  file  a  bill  without  further  notice. 

"Yours  most  obediently,  Charles  Holt. 

"To  H.  Whitehead,  Esq., 

"7  Whitehead's  Grove,  Chelsea." 


Sec.  8)  EQUITABLE   DEFENSES  533 

The  Vice  Chancellor  [Sir  R.  T.  KinderslEy].68  *  *  * 
The  Plaintiff  in  his  letter  does  not  go  on  to  say  that  the  premises  were 
in  repair,  but  that  the  Defendant  knew  their  conditions.     *     *     * 

It  is  clearly,  in  my  opinion,  established  that  the  Plaintiff  did  repre- 
sent, on  many  occasions  before  the  contract,  that  the  premises  were 
substantial  and  well  built,  and  were,  in  fact,  built  for  the  Plaintiff's 
own  use.  But  then  it  is  said  that,  if  the  Defendant  had  taken  the  pains 
to  look,  he  might  himself  have  seen  what  was  the  state  of  the  premises. 
But  this  is  a  suit  for  specific  performance ;  and  in  such  a  suit  it  is  not 
an  answer  to  the  fact  of  the  Plaintiff  having  made  false  representations 
to  say  the  defendant  was  imprudent.  If  the  case  stood  on  this  ground 
only,  I  should  refuse  specific  performance.  If  a  plaintiff  comes  here 
and  asks  relief ;  asks  this  Court  to  assist  him  in  what  is  not  the  asser- 
tion of  a  strict  legal  right,  but  to  assist  him  on  grounds  standing  on  the 
peculiar  jurisdiction  of  this  Court,  he  must  shew  that  his  conduct  has 
been  clear,  honourable  and  fair.  If  he  has  been  guilty  of  misrepresen- 
tation this  Court  will  leave  him  to  his  remedy,  if  any,  at  law.  On  both 
grounds,  the  bill  must  be  dismissed  with  costs. 


HIGGINS  v.  SAMELS. 

(In  Chancery,  1862.    2  Johns.  &  H.  460.) 

This  was  a  bill  for  specific  performance  of  an  agreement  to  take  a 
lease  of  a  field  for  the  purpose  of  quarrying  limestone. 

The  plaintiff  was  the  owner  of  a  field  under  which  was  a  bed  of 
limestone,  which  had  never  been  opened  from  the  plaintiff's  field, 
though  a  quarry  had  been  opened  in  an  adjoining  field,  and  lime  pro- 
cured which  was  not  of  first  rate  quality,  and  had  been  tried  and  re- 
jected by  a  railway  company  when  a  station  in  the  neighbourhood  was 
being  built. 

The  plaintiff,  being  ignorant  of  this  fact,  and  having  no  experience 
in  judging  of  limestone,  on  being  told  by  the  defendant  that  the  lime 
would  be  useless  to  him  unless  fit  for  the  London  market,  represented 
to  him  that  the  limestone  would  produce  lime  of  first-rate  quality,  fit 
for  the  London  market.  According  to  the  evidence,  the  phrase  "fit 
for  the  London  market,"  would  be  understood  in  the  trade  as  signify- 
ing lime  of  the  best  quality.  It  appeared  also  that  the  rejection  by  the 
railway  company  of  the  lime  from  the  neighbouring  quarry  was  a  fact 
which  might  easily  have  been  ascertained  on  inquiry  as  to  how  that 
lime  had  turned  out.  The  defendant  after  this  conversation  made  a 
cursory  inspection  of  the  quarry  in  company  with  the  plaintiff  and  two 
friends  of  his  own ;  but  it  did  not  appear  that  any  of  these  persons 
were  competent  to  judge,  by  inspection,  of  the  quality  of  the  stone  for 

6  8  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


534  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

the  purpose  of  lime-burning,  the  plaintiff  being  a  corn-dealer,  and  the 
defendant  a  lime-dealer  but  not  a  lime-burner. 

Shortly  afterwards,  the  defendant  signed  an  agreement  dated  the 
1 1th  of  June,  1860,  for  a  lease,  at  a  rent  of  £50  per  annum,  to  be  pro- 
portionally increased  if  more  than  one  tenth  of  the  surface  of  the  field 
was  opened.  The  defendant  subsequently  ascertained  that  the  lime- 
stone would  not  suit  his  purpose,  and  declined  to  accept  a  lease,  on  the 
ground  that  the  stone  was  not  such  as  had  been  represented  to  him. 
The  plaintiff  thereupon  filed  this  bill  for  specific  performance. 

Evidence  was  gone  into  at  some  length  as  to  the  particulars  of  the 
conversations  and  the  inspection  of  the  adjacent  quarry,  the  result  of 
which  is  stated  in  the  judgment  of  the  court. 

Vice-chancellor  Sir  W.  Page  Wood.69  This  is  a  contest  which 
comes  very  close  upon  the  boundary  that  divides  cases  where  the  court 
grants  specific  performance,  from  those  in  which  it  holds  its  hand  on 
the  ground  of  misrepresentation.     *     *     * 

Upon  this  evidence  I  must  hold,  that  in  the  first  instance  a  represen- 
tation was  made  which  went  beyond  the  sort  of  puffing  or  speculative 
commendation  which  is  held  excusable  in  a  vendor.  Either  party 
might  have  inquired  what  had  been  done  with  the  lime  procured  from 
the  quarry  in  the  adjacent  field,  and  whether  it  had  proved  to  be  fit  for 
the  London  market ;  and  it  is  clear  from  the  evidence  now  given,  that, 
if  any  such  inquiry  had  been  made,  there  could  have  been  no  difficulty 
in  discovering  what  the  facts  really  were.  These  circumstances,  I 
think,  distinguish  the  case  from  the  class  of  which  Scott  v.  Hanson,  1 
Sim.  13,  is  a  commonly  quoted  example,  where  it  was  held  that  the  de- 
scription of  a  field  as  an  uncommonly  rich  water-meadow,  when  it  was, 
in  fact  imperfectly  watered,  was  too  vague  a  representation  to  justify 
the  inference  that  the  purchaser  relied  upon  it.  The  representation 
here  is  different,  for  it  assigns  a  definite  quality  to  the  lime  by  describ- 
ing it  as' fit  for  the  London  market.  Neither  can  it  be  regarded  as  a 
merely  speculative  representation. 

The  strongest  authority  in  favour  of  the  plaintiff  upon  this  point  is 
Jennings  v.  Broughton,  5  D.,  M.  &  G.  126,  which  was  a  bill  seeking 
relief  against  a  purchase  of  shares  in  a  mine  on  the  ground  of  misrep- 
resentations of  the  character  of  the  mine.  L.  J.  Turner  in  his  judg- 
ment, after  referring  to  a  representation  that  in  a  particular  level  the 
lode  showed  a  body  of  solid  ore  resting  on  the  vein,  three  feet  wide, 
largely  intermixed  with  lumps  of  ore  and  calamine,  and  continuing  to 
maintain  the  same  width  and  characteristics  to  the  extent  of  the  work- 
ings, being  seventeen  yards  further,  says : 

"I  find  no  evidence  to  warrant  this  statement.  *  *  *  But  to  say  that 
these  statements  in  the  report  were  not  well  founded,  is  one  thing;  to  say 
that  the  plaintiff  was  deceived  by  those  statements,  or  was  induced  by  them 
to  purchase  "these  shares,  is  another  thing.  Looking  at  the  character  which 
the  plaintiff  gives  of  himself,  and  which  is  given  of  him  by  his  witnesses,  I 
think  it  impossible  to  believe  that  he  could  have  been  at  all  induced  to  pur- 

«»  Parts  of  the  opinion  are  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  535 

chase  these  shares  by  the  statement  of  there  being  lumps  of  calamine  in  this 
level.  And  with  respect  to  the  lode  continuing  to  maintain  the  same  width 
and  characteristics,  the  plaintiff  was  twice  at  the  mine,  once  before  he  pur- 
chased any  shares,  and  the  second  time  in  the  interval  between  his  two  pur- 
chases; and  however  ignorant  he  may  be  of  mining,  he  must  at  least  have 
been  capable  of  seeing  whether  the  vein  had  or  had  not  been  laid  open  behind 
the  point  where  the  solid  ore  was  presented  to  bis  view.  If  it  had,  he  must 
have  known  what  were  its  characteristics.  If  (as  was  the  fact)  it  had  not,  he 
must  have  known  that  tbis  statement  could  only  be  matter  of  speculation, 
and  not  of  certainty." 

That  is,  undoubtedly,  very  strong.  There  was  a  distinct  represen- 
tation of  an  alleged  fact;  but  that  was  followed  by  an  examination  of 
the  mine,  which,  according  to  the  view  taken  of  the  evidence  by  the 
court,  must  have  shown  that  the  representation  was  really  matter  of 
speculation. 

Applying  the  same  principle  of  law  to  the  peculiar  facts  of  the  pres- 
ent case,  I  hold,  first,  that  there  was  a  definite  representation;  and, 
secondly,  that  the  examination  (conducted  as  it  was  by  a  lime  dealer 
or  stone  mason  and  a  gentleman  who  seems  to  have  been  something  of 
a  chemist  and  something  of  an  architect)  was  not  such  as  to  show  that 
the  previous  representation  must  have  been  merely  speculative.  If  it 
ought  to  be  looked  upon  as  a  mere  speculative  statement  about  the 
quality  of  the  lime,  my  judgment  should  be  for  the  plaintiff;  but  I  can- 
not come  to  this  conclusion.  The  quarry  had  actually  been  worked, 
and  the  lime  had  been  tried  in  the  neighbourhood.  The  quality  was 
not  matter  of  speculation,  but  matter  of  fact,  which  could  easily  have 
been  ascertained.  The  information  was  at  hand,  which  would  have 
satisfied  both  parties  to  the  treaty  that  the  lime  was  not  of  the  quality 
which  the  defendant  required.     *     *     * 

In  applying  the  law  to  the  facts  of  this  case,  I  give  entire  credit  to 
the  plaintiff's  assertion  that  he  knew  nothing  about  the  quality  of  lime; 
and  he  has  not  been  asked  whether  he  was  aware  that  the  lime  ob- 
tained from  the  quarry  in  the  next  field  had  proved  a  failure.  I  as- 
sume, therefore,  that  he  knew  nothing  of  the  matter.  But  he  admits 
that  he  knew  the  lime  would  be  useless  to  the  defendant  unless  it  was 
fit  for  the  London  market,  and,  therefore  (knowing  nothing  whatever 
about  it),  he  took  on  himself  to  say  that  it  was  fit.  Up  to  this  point, 
therefore,  the  matter  is  clear,  and  all  that  remains  is  to  ascertain 
whether  the  defendant  acted  in  reliance  on  this  statement.  That  he  re- 
lied solely  upon  it  cannot,  I  think,  be  said  ;  but  he  undoubtedly  did  rely, 
to  a  great  extent,  upon  it.  "What  weighs  upon  my  mind  is  the  circum- 
stance that  the  quality  of  the  lime  was  not  a  mere  subject  of  specula- 
tion, but  a  fact  which  the  plaintiff  (without  any  special  familiarity 
with  the  business)  could  have  made  himself  acquainted  with.  He  knew 
the  quarry  in  the  adjoining  field  had  been  worked;  and  if  he  meant 
to  deal  with  entire  fairness,  he  ought — before  making  the  represen- 
tation that  the  lime  was  of  the  desired  quality — to  have  made  the  ob- 
vious inquiry,  what  became  of  the  lime  that  had  been  obtained  from 
it  ?    Instead  of  doing  so  he  makes  a  representation  in  order  to  secure 


536  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

a  contract,  without  taking  the  trouble  to  inform  himself  what  the  truth 
was. 

It  is  true  that  the  defendant  did  not  rely  exclusively  upon  this  state- 
ment, because  he  did  go  to  look  at  the  stone ;  still  his  trade  was  not 
that  of  a  lime  burner;  and  he  cannot  be  supposed  to  have  trusted 
merely  to  what  he  saw,  he  really  knowing  nothing  of  the  quality  of 
limestone. 

Under  all  the  circumstances,  the  case  does  not  appear  to  me  to  be 
one  in  which  this  court  ought  to  interfere  by  decreeing  specific  per- 
formance ;  but  it  is  not  necessary  to  decide  the  nice  question,  whether 
the  contract  is  valid  or  not. 

There  was  a  distinct  representation  of  fact  which  the  plaintiff, 
though  he  did  not  believe  it  to  be  false,  made  without  seeking  the  fur- 
ther information  which  was  within  his  reach,  and  which  would  have 
shown  him  that  the  statement  was  not  true.  After  this,  notwithstand- 
ing the  inspection  made  by  the  defendant,  it  would  not  be  right  for 
this  court  to  enforce  performance. 

The  bill  will  be  dismissed,  but  without  costs. 


LORD  BROOKE  v.  ROUNTHWAITE. 

(In  Chancery,  1846.     5  Hare,  297.) 

A  bill  for  the  specific  performance  of  a  contract.    The  property  was 

offered  for  sale  at  the  Auction  Mart,  London,  in  July,  1844,  and  was 

described  as  follows : 

"Particulars  of  the  residue  of  the  late  Lord  Monson's  estates  iu  Lincoln- 
shire, devised  to  be  sold,  comprising  Ingleby  Wood,  with  upwards  of  sixty 
acres  of  fine  oak  timber-trees,  the  average  size  of  which  approaches  fifty  feet ; 
and  also  a  quantity  of  ash  poles,  from  ten  to  twenty  years'  growth." 

The  particulars  of  sale  then  pointed  out  the  facilities  which  existed 
for  bringing  the  timber  to  market ;  and  the  description  of  the  lot  to 
which  the  question  in  this  cause  related,  was  as  follows : 

"Lot  1  consists  of  Ingleby  Wood,  which  contains  sixty-five  acres  two  roods 
and  twelve  perches  of  growing  timber,  chiefly  oak  and  ash  poles.  It  is  at 
present  in  hand,  and  the  only  outgoings  are  £1.  7s.  3d.  land  tax,  and  parish 
rates  £1.  15s." 

By  the  ninth  condition  of  sale,  wThich  was  the  only  condition  mate- 
rial to  the  question,  it  was  provided  as  follows : 

"If,  through  any  mis-statement,  any  error  should  arise  in  this  particular, 
the  same  shall  not  vitiate  the  sale;  but  the  purchaser  shall  take  or  make  ade- 
quate compensation,  in  proportion  to  the  purchase-money,  as  the  case  may 
happen;  such  compensation  to  be  settled  by  the  referees,  or  their  umpire,  to  be 
appointed  in  the  usual  manner." 

The  defendant,  by  his  agent,  was  the  highest  bidder  for  lot  1,  at  the 
price  of  £4,725  ;  and,  by  letter,  promised  to  pay  the  deposit  of  ilO 
per  cent,  and  the  auction  duty  in  ten  days.  After  the  specified  time 
had  rassed,  the  defendant  proposed  to  pay  a  moiety  of  the  deposit,  and 


Sec.  8)  EQUITABLE   DEFENSES  537 

the  rest  at  the  end  of  a  month,  and  to  allow  the  residue  of  the  pur- 
chase-money to  remain  on  the  security  of  the  estate.  The  plaintiff  of- 
fered to  agree  to  the  former,  but  not  to  the  latter  term.  The  defend- 
ant afterwards  refused  to  complete  the  purchase. 

The  bill  prayed  a  decree  for  specific  performance  of  the  contract; 
and  that,  in  case  it  should  appear  that  any  abatement  out  of  the  pur- 
chase-money ought  to  be  made  on  the  ground  of  error  or  misdescrip- 
tion of  the  premises,  the  amount  of  such  abatement  might  be  deter- 
mined by  the  court. 

The  answer  of  the  defendant  objected  to  perform  the  contract,  on 
the  ground,  as  was  alleged,  that  the  average  size  of  the  trees  in  Ingleby 
Wood  did  not  approach  fifty  feet,  and  did  not  amount  to  more  than 
about  twenty-two  feet ;  that  the  value  of  oak  timber  of  the  larger  was 
very  much  greater  than  of  the  smaller  size ;  that,  from  the  season  of 
the  year  before  the  purchase,  there  was  no  opportunity  for  the  inspec- 
tion or  examination  of  the  wood ;  and  that  the  defendant's  bidding  had 
been  founded  entirely  on  the  representation  made  by  the  plaintiff  in 
the  particulars  of  sale. 

The  evidence  for  the  plaintiff  went  to  show,  that  the  timber-trees  in 
Ingleby  Wood  were  of  the  average  size  of  thirty-four  feet  six  inches 
each,  reckoning  those  only  to  be  timber-trees  which  contained  at  least 
ten  cubic  feet  of  wood ;  and  the  witnesses  deposed,  that,  according  to 
the  custom  of  the  trade,  a  timber-tree  should  contain  that  quantity. 
The  witnesses  for  defendant  deposed,  that  there  were  a  much  larger 
number  of  timber-trees  in  the  wood,  including  in  that  description  (as 
they  alleged  should  be  included)  all  trees  containing  five  cubic  feet  and 
upwards ;  that  the  effect  of  this  computation  was  to  reduce  the  aver- 
age size  to  twenty-two  feet  each,  and  to  reduce  the  value  of  the  timber 
per  foot  in  nearly  the  same  proportion ;  for,  if  a  tree  containing  fifty 
feet  was  worth  three  shillings  per  foot,  a  tree  of  twenty-two  feet  would 
be  worth  only  two  shillings  per  foot.     *     *     * 

The  Vice-Chancellor  [Sir  James  Wigram].70  *  *  *  If, 
however,  there  has  been  a  misrepresentation,  I  cannot  refuse  the  de- 
fendant the  benefit  of  that  ground  of  defence,  either  in  the  way  of 
compensation,  or  of  a  decree  dismissing  the  bill, — merely  upon  such  a 
speculation.  *  *  *  This  is  a  case  in  which  it  is  impossible  to  give 
compensation. 

If,  however,  the  court  is  not  able  to  see  that  the  purchaser  is  dam- 
nified to  a  definite  extent,  capable  of  being  ascertained,  it  may  still  be 
right  to  say  that  the  vendor  is  unable  to  give  the  purchaser  that  which 
he  promised;  and  if  so,  the  court  may  properly  refuse  to  enforce  the 
contract,  though  it  cannot  modify  it  by  directing  it  to  be  performed 
with  compensation.  I  agree  that  an  indefinite  representation  by  a  ven- 
dor ought  to  put  a  purchaser  upon  inquiry;  but  a  definite  representa- 
tion upon  a  point  affecting  the  value  of  the  subject  of  sale  will  entitle 

to  Parts  of  the  opinion  are  omitted. 


538  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Ch.  2 

the  purchaser,  if  the  representation  be  untrue,  to  resist  the  specific 
performance  of  the  contract.  This  appears  very  distinctly  from  T row- 
er v.  Newcome,  3  Mer.  704,  Stewart  v.  Alliston,  1  Mer.  26,  and  Fen- 
ton  v.  Browne,  14  Ves.  144.  Now,  the  sale  in  this  case  took  place  at 
a  time  of  the  year  when  the  wood  could  not  be  viewed.  I  think,  there- 
fore, the  representation  made  must,  as  against  the  vendor,  be  taken  as 
a  definite  representation  that  the  vendor  knew  the  timber  in  the  wood 
approached  an  average  size  of  fifty  feet.  Was  this  representation  un- 
true, and  the  defendant  thereby  deceived?  and  if  so,  can  I  treat  it  as 
immaterial  on  the  ground  before  alluded  to,  that  the  particulars  of  sale 
contained  no  representation  as  to  the  quantity  of  timber  in  the  wood? 
This,  I  think,  I  ought  not  to  do,  though  I  acknowledge  there  is  diffi- 
culty .in  the  opposite  conclusion.  If  the  wood  had  consisted  wholly  of 
young  timber-trees,  it  could  not  successfully  have  been  contended  that 
it  was  what  the  purchaser  had  contracted  for,  for  the  timber  might 
be  useless  for  years  to  come;  though  it  might  be  difficult  to  say  what 
degree  of  difference  would  be  enough  to  vitiate  the  sale. 

The  question,  then,  is,  whether  the  representation  was  untrue  or  not. 
The  witnesses  for  the  plaintiff  and  defendant  differ  greatly,  owing  to 
the  different  modes  in  which  they  ascertain  the  quantity  of  timber, — 
one  taking  into  account  trees  containing  five  cubic  feet,  and  the  other 
only  those  that  contain  ten.  But  the  plaintiff  states  that  thirty-five 
feet  is  the  highest  average ;  and  he  admits  that  the  particulars  of  sale 
would  have  been  more  correct,  if,  instead  of  stating  the  average  as  ap- 
proaching fifty  feet,  they  had  stated  it  at  forty.  Was  the  defendant, 
who  is  stated  to  be  a  timber-merchant  deceived  by  this  representation? 
When  I  say  that  a  vendor  who  makes  a  representation  that  is  untrue, 
cannot  enforce  his  contract,  that,  of  course,  supposes  that  the  purchas- 
er was  deceived ;  if  the  purchaser  knows  at  the  time  that  the  repre- 
sentation is  untrue,  he  is  not  deceived,  and  cannot  in  that  case  avail 
himself  of  the  fact  that  there  has  been  misrepresentation.  I  am  far 
from  being  satisfied  as  to  what  the  justice  of  the  case  requires.  Look- 
ing at  that  part  of  the  answer  relating  to  Jabez  Wrest,  I  felt  considera- 
ble doubt  whether  it  might  not  appear  that  he  had  sufficient  knowledge 
of  the  wood,  and  that  he  had  not  made  any  representation  by  which 
the  defendant  could  be  deceived ;  but  if  this  were  so,  it  was  the  plain- 
tiff's duty  to  have  made  out  that  case,  which  he  has  not  done.  As  it 
is,  there  has  been  a  representation  which  turns  out  not  to  be  correct, 
and  I  think  the  proper  course  will  be  to  dismiss  the  bill,  but  without 
costs. 


Sec.  8)  EQUITABLE    DEFENSES  539 

BUXTON  v.  LISTER  AND  COOPER. 

(In  Chancery  before  Lord  Hardwicke,  1746.     3  Atk.  383,  26  E.  R.  1020.) 

The  defendants  entered  into  an  agreement  for  the  purchase  of  sev- 
eral timber  trees,  marked  and  growing  at  the  time  it  was  reduced  into 
writing:  and  on  the  first  day  of  November,  174-r,  the  following  memo- 
randum was  signed  by  the  parties : 

"Matthew  Lister  and  John  Cooper  have  agreed  with  Joseph  Buxton  for  the 
purchase  of  all  those  several  large  parcels  of  wood,  consisting  of  oaks,  ashes, 
elms,  and  asps;  which  are  numbered,  figured,  and  cyphered,  standing  and  be- 
ing within  the  township  of  Kirkby,  for  the  sum  of  £3050,  to  be  paid  at  six 
several  payments,  every  Lady-day  for  the  six  following  years;  and  Lister 
and  Cooper  to  have  eight  years  for  disposing  of  the  same;  and  that  articles 
of  agreement  shall  be  drawn  and  perfected  as  soon  as  conveniently  can  be, 
with  ail  the  usual  covenants  therein  to  be  inserted  concerning  the  same." 

There  were  two  parts  of  the  agreement. 

The  plaintiff  signed  one,  and  the  defendants  the  other ;  one  was  left 
in  the  custody  of  the  plaintiff,  and  the  other  in  the  custody  of  the  de- 
fendants. 

The  bill  was  brought  by  the  vendor  for  the  specific  performance  of 
the  agreement. 

Lord  Chancellor,71  upon  the  opening,  said,  he  did  not  know  any 
instance  of  a  bill  of  this  nature,  where  it  is  a  mere  chattel  only,  and 
nothing  that  affects  the  realty. 

That  a  bill  might  as  well  be  brought  for  compelling  the  perform- 
ance of  an  agreement  for  the  sale  of  a  horse,  or  for  the  sale  of  stock, 
or  any  goods  or  merchandise. 

Sir  Joseph  Jekyll  did,  in  Cud  v.  Rutter,  1  P.  Wras.  570,  decree  a 
specific  performance  in  the  case  of  a  chattel,  but  Lord  Macclesfield 
reversed  it,  and  it  has  been  the  rule  of  the  court  ever  since,  not  to  re- 
tain such  a  bill. 

The  proper  remedy  is  an  action  at  law,  where  you  may  recover  dam- 
ages for  the  non-performance  of  the  agreement. 

The  defendants'  counsel,  to  shew  the  impropriety  of  such  a  bill,  and 
that  the  parties  ought  to  be  left  to  law,  cited  Roll's  Reports,  493,  and 
Latch's,  172. 

Upon  hearing  what  the  plaintiff's  counsel  could  alledge,  in  order  to 
take  this  case  out  of  the  general  rule  of  the  court,  Lord  Chancellor 
delivered  his  opinion  as  follows : 

The  general  question  is,  as  to  the  decree  for  specific  performance, 
and  this  divides  itself  into  two  subordinate  ones. 

First,  whether  the  plaintiff  is  intitled  to  seek  his  remedy  in  a  court 
of  equity  for  a  specific  performance. 

Secondly,  whether  as  to  the  merits  of  his  case,  he  is  intitled  to  such 
a  decree. 

7i  Parts  of  the  opinion  are  omitted. 


540  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Cll.  2 

As  to  the  first,  I  am  of  opinion,  that  this  is  such  an  agreement, 
though  for  a  personal  chattel,  that  the  plaintiff  may  come  here  to  have 
a  specific  performance.     *     *     * 

Secondly,  if  the  plaintiff  on  the  merits  of  the  case  is  intitled  to  a 
decree. 

Nothing  is  more  established  in  this  court,  than  that  every  agreement 
of  this  kind  ought  to  be  certain,  fair,  and  just  in  all  its  parts. 

If  any  of  those  ingredients  are  wanting  in  the  case,  this  court  will 
not  decree  a  specific  performance. 

For  it  is  in  the  discretion  of  the  court,  whether  they  will  decree  a 
specific  performance,  because  otherwise,  as  I  said  before,  a  decree 
might  be  made  which  would  tend  to  the  ruin  of  one  party. 

One  objection  made  by  the  defendants'  counsel  to  the  decreeing  a 
specific  performance  was  misrepresentation. 

This  depends  upon  the  evidence  of  John  Cooper,  son  of  the  defend- 
ant Cooper,  that  his  father  offered  the  plaintiff  £2800,  but  he  insisted 
on  £3500,  and  said  Fenwick  and  Clark,  two  timber  merchants,  had 
valued  it  at  so  much,  and  that  this  was  true  on  his  honour,  and  when 
he  said  a  thing  on  his  honour,  the  defendant  ought  to  believe  it. 

Afterwards  the  defendants  agreed  to  give  £3050  for  the  wood,  on 
the  opinion  they  had  of  Fenwick  and  Clark's  judgment. 

If  this  be  true,  it  is  an  ingredient  which  will  induce  a  court  of  equity 
not  to  decree  a  specific  performance,  for  it  comes  out  now  that  Fen- 
wick and  Carter  did  not  set  any  greater  valuation  than  £2500  upon  the 
timber,  and  this  misrepresentation  was  the  ground  which  induced  the 
defendants  to  come  into  the  agreement. 

This  fact  is  very  particularly  put  in  issue,  and  yet  the  plaintiff,  who 
examined  Okey  and  his  wife  that  were  present  when  this  discourse 
passed,  do  not  ask  them  as  to  this  fact.     *     *     * 

Upon  the  whole,  I  am  of  opinion  the  bill  must  be  dismissed,  and  if 
it  was  to  be  dismissed  upon  the  misrepresentation  it  ought  to  be  with 
costs :  but  what  I  would  propose  is,  that  if  the  plaintiff  will  consent 
to  give  up  the  agreement,  I  will  dismiss  it  without  costs;  but  if  he  will 
bring  an  action,  then  with  costs. 

The  plaintiff  waiving  the  agreement,  his  Lordship  decreed  accord- 
ingly.   

OLDFIELD  v.  ROUND. 

(In  Chancery  before  Lord  Loughborough,  1800.     5  Ves.  508.) 

The  object  of  the  bill  was  to  obtain  a  specific  performance  of  an 
agreement  entered  into  by  the  defendant  to  purchase  a  meadow,  called 
Burnett's  Meadow,  near  Clewer ;  which  was  sold  by  auction  to  the  de- 
fendant for  £950. 

The  principal  objections  made  by  the  defendant  were,  first,  that 
the  premises  were  described  as  a  meadow,  consisting  of  fifteen  acres, 
without  any  notice  of  a  way  round,  and  a  footpath  across  it.     *     *     * 


Sec.  S)  EQUITABLE   DEFENSES  541 

The  Attorney  General  and  Mr.  Thompson  for  the  plaintiff  pressed 
for  a  decree  with  costs  :  the  defendant  having  raised  several  objections  ; 
none  of  which  he  could  sustain.  The  way  round  the  field  was  stated 
by  the  answer  to  be  a  public  road :  but  upon  the  evidence  it  appeared 
to  be  only  a  foot-path ;  and  the  answer  stated,  that  the  defendant  was 
owner  of  a  house  and  ground  adjoining.     *     *     * 

The  Solicitor  General  for  the  defendant  observed  upon  the  variance 
from  the  description,  and  the  disadvantage  arising  from  this  way; 
which  by  length  of  time  had  become  very  wide. 

Lord  Chancellor.72  Certainly  the  meadow  is  very  much  the 
worse  for  a  road  going  through  it :  but  I  cannot  help  the  carelessness 
of  the  purchaser;  who  does  not  choose  to  inquire.  It  is  not  a  latent 
defect. 

Decree  according  to  the  prayer  of  the  bill  with  costs. 


AARON'S  REEFS,  Limited,  v.  TWISS. 

(House  of  Lords.     [1896]  App.  Cas.  273.) 

The  following  statement  of  the  facts  is  taken  from  the  judgment  of 
Lord  Watson : 

The  appellant  company  was  incorporated  in  January,  1890,  with  a 
nominal  capital  of  £200,000,  divided  into  800,000  shares  of  5s.  each,  for 
the  purpose  of  acquiring  the  right  to  work  and  of  working  ores,  aurif- 
erous deposits,  and  precious  stones.  In  February,  1890,  the  company, 
under  two  deeds  of  purchase,  acquired  the  right  to  work  what  is  there- 
in described  as  the  mining  concession  of  La  Victoria,  in  the  Republic  of 
Venezuela.  The  price  payable  for  one  portion  of  the  concession  was 
£19,000,  and  for  the  other  £131,000;  and  the  company  undertook  to 
pay  over  to  each  of  the  vendors  a  moiety  of  the  moneys  received  from 
the  public  for  the  subscription  of  shares  until  the  first  of  these  sums 
was  paid  off,  and  thereafter  to  pay  two-thirds  of  the  moneys  derived 
from  that  source,  in  extinction  of  the  balance  of  £112,000  of  the  second 
sum,  retaining  the  other  third  as  working  capital. 

The  concession  of  La  Victoria  was  well  known  to  many  persons 
who  indulge  in  gold-mining  speculations,  and  among  them  the  directors 
of  the  new  company.  One  of  these  gentlemen,  who  was  examined  as 
a  witness  for  it  in  the  present  case,  gave  the  following  abstract  of  its 
history.  It  was  first  taken  up  by  the  Victoria  Gold  Company,  Limited, 
which  was  formed  for  that  purpose  in  the  year  1882,  who  agreed  to 
pay  £100,000  for  it,  and,  after  "prospecting  for  mining  operations," 
went  into  liquidation  in  November,  1885.  In  January,  1886,  a  new 
company,  called  Victory,  Limited,  was  formed,  and  took  over  the 
assets  and  liabilities  of  its  predecessor.    The  public  subscribed  for  170,- 

T2  Part  of  the  case  is  omitted. 


542  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

000  of  its  5s.  shares ;  and  the  whole  subscriptions,  amounting  to  £42,- 
500,  were  "spent  in  the  mine."  The  company  paid  no  dividend,  but 
lasted  till  the  end  of  1887,  when  it  was  wound  up  by  order  of  the  Court, 
and  its  property,  including  the  concession,  was  sold  for  £2000  in  cash, 
the  purchaser  at  the  same  time  undertaking  liabilities  to  the  amount 
of  £8000.  A  month  afterwards  a  new  company,  the  Victory  or  Victoria 
Company,  Limited,  was  started,  which  is  said  to  have  taken  over  the 
concern  from  the  last  purchaser  giving  him  in  exchange  £3910  in  cash 
and  £131,000  in  paid-up  shares,  besides  assuming  the  liabilities  which 
he  had  undertaken.  The  third  company  did  not,  like  its  unfortunate 
predecessors,  find  its  way  into  liquidation.  So  far  as  appears,  it  neither 
spent  money  in  prospecting  nor  in  attempting  to  work  or  develop  the 
mine ;  and  the  only  profitable  business  it  seems  to  have  engaged  in  was 
when  its  leading  spirits  got  up  the  present  and  fourth  company,  and 
proceeded  to  transfer  the  concern  to  it  at  the  price  of  £15Q,000,  to  be 
paid  in  hard  cash  out  of  the  money  to  be  subscribed  by  the  new  share- 
holders. 

In  February,  1890,  the  appellant  company  issued  a  prospectus,  on  the 
faith  of  which  the  respondent  in  this  appeal,  an  Irish  gentleman  resid- 
ing in  Limerick  county,  became  a  subscriber,  on  the  terms  it  offered  for 
100  shares.  The  prospectus  invited  subscriptions  for  200,000  shares 
only,  upon  which  a  deposit  of  Is.  per  share  was  to  be  paid,  and  no  fur- 
ther call  made  during  the  year.  The  shares  were  allotted  to  the  re- 
spondent, who  paid  the  deposit  money. 

On  March  5,  1891,  after  the  expiry  of  the  year,  the  company  made 
a  call  of  4s.  per  share,  payable  on  the  19th  of  that  month.  The  respond- 
ent did  not  comply  with  that  request,  and  on  April  27  he  received  an 
intimation  that  his  shares  would  be  forfeited  if  payment  were  not  made 
on  or  before  May  4.  On  May  5  notice  was  sent  him  that  the  shares 
had  been  forfeited.  The  articles  of  association  provide  that  a  member 
whose  shares  are  forfeited  shall  nevertheless  •  remain  liable  for  calls 
previously  made. 

On  September  21,  1891,  the  appellant  company  brought  the  present 
suit  against  the  respondent,  before  the  Exchequer  Division  of  the  High 
Court  of  Justice  in  Ireland,  for  recovery  of  the  call  of  4s.  per  share. 
The  defence,  which  was  delivered  on  December  21,  1891,  substantially 
consisted  in  the  allegation  and  plea  that  the  prospectus  was  untrue  in 
material  respects,  and  that  his  contract  to  take  shares,  having  been  in- 
duced by  fraud,  could  not  be  enforced.  In  the  voluminous  proceedings 
which  have  followed  upon  these  pleadings  the  appellant  company  has 
traversed  the  allegations  of  fraud,  and  has  also  maintained  that  the 
respondent  is  estopped  from  challenging  the  validity  of  the  contract  by 
reason  of  his  failure,  within  a  reasonable  time,  to  repudiate  it,  or  to 
take  steps  for  procuring  its  rescission. 

At  the  trial  of  the  cause  before  Holmes,  J.,  the  jury  found  (1)  That 
the  fact  and  terms  of  the  sale  by  the  Victoria  Gold  Mining  Company 
to  the  City  Stock  Exchange  Company,  and  of  the  resale  of  the  last- 


Sec.  S)  EQUITABLE   DEFENSES  543 

named  company  to  the  plaintiff  company,  were  material  matters  which 
ought  to  have  been  disclosed  in  the  prospectus  ;  and  (2)  that  these  mat- 
ters were  not  disclosed  in  the  prospectus,  with  the  fraudulent  intent 
of  concealing  from  persons  reading  it  matters  which  if  known  would 
have  prevented  them  from  becoming  shareholders,  and  of  inducing 
them  by  such  concealment  to  apply  for  shares.  The  jury  also  found 
(5)  that  the  defendant  was  induced  to  apply  for  the  allotment  of  shares 
by  the  prospectus,  and  (7)  that  the  statement  that  the  mine  had  been 
proved  "rich"  in  the  prospectus  was  false.  There  are  other  findings 
of  the  jury,  none  of  them  favourable  to  the  company,  which  I  do  not 
find  it  necessary  to  consider  for  the  purposes  of  this  appeal. 

After  verdict,  the  judge  who  presided  at  the  trial  entered  judgment 
for  the  respondent.  A  motion  to  set  aside  the  verdict  was  thereafter 
dismissed  unanimously  by  two  learned  judges  of  the  Exchequer  Divi- 
sion. The  Court  of  Appeal  was  equally  divided,  the  Lord  Chancellor 
and  the  Master  of  the  Rolls  being  of  opinion  that  there  was  neither 
untruth  nor  fraud  in  the  prospectus,  and  also  that,  if  there  had  been, 
the  respondent  would  have  been  barred  from  objecting  to  the  validity 
of  his  contract  to  take  shares  by  his  own  delay  in  repudiating  it ;  whilst 
Fitz  Gibbon  and  Barry,  L.  JJ.,  took  an  opposite  view  upon  both  these 
points.  The  Court  being  equally  divided,  the  order  was  that  the  order 
of  the  Exchequer  Division  do  stand  affirmed.  Against  these  decisions 
the  plaintiffs  brought  the  present  appeal.     *     *     * 

Lord  Halsbury,  L.  C.73  My  Lords,  this  is  an  appeal  from  an  or- 
der of  the  Court  of  Appeal  in  Ireland  affirming  an  order  of  the  Excheq- 
uer Division  refusing  to  set  aside  the  findings,  verdict,  and  judgment 
entered  for  the  defendant  (the  respondent  at  your  Lordships'  bar)  at 
the  trial  of  the  action.  It  was  an  action  in  respect  of  calls  on  shares. 
The  defendant  in  the  action  succeeded  in  having  the  judgment  entered 
for  him,  and  the  appeal  is  now  brought  claiming  that  the  judgment 
shall  be  entered  for  the  plaintiffs  notwithstanding  certain  findings  of  the 
jury,  to  which  I  shall  refer  presently.     *     *     * 

Then,  inasmuch  as  the  jury  have  found  that,  I  think,  upon  very  good 
evidence  in  the  prospectus  itself,  it  remains  only  to  consider  the  final 
question,  namely,  whether  or  not  there  was  evidence  for  the  jury  which 
would  justify  them  in  finding  that  this  was  a  fraudulent  prospectus — 
that  these  statements  were  fraudulent  and  false.  Now,  in  dealing  with 
that  question,  again  I  say  I  protest  against  being  called  on  only  to  look 
at  some  specific  allegation  in  it ;  I  think  one  is  entitled  to  look  at  the 
whole  document  and  see  what  it  means  taken  together.  Now,  if  you 
look  at  the  whole  document  taken  together,  knowing  what  we  now 
know  and  what  the  jury  had  before  them,  I  suppose  nobody  can  doubt 
that  this  was  a  fraudulent  conspiracy.  I  observe  that  one  or  two  of 
the  learned  judges  below  used  very  plain  language  upon  it,  and  re- 

73  Parts  of  the  opinion  of  Lord  Halsbury,  L.  C,  and  the  opinions  of  Lords 
Herschell,  Macnaghten,  Morris,  and  Davey  are  omitted. 


544  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

marked  upon  the  fact  that  Mr.  Gilbert,  who  seems  to  have  been  the 
head  and  front  of  it,  was  not  subjected  to  an  inquiry  in  a  criminal 
court.  But,  be  that  as  it  may,  the  question  before  your  Lordships  now 
is  whether  the  jury  were  justified  in  finding  with  these  facts  before 
them  what  they  did  find. 

It  is  said  there  is  no  specific  allegation  of  fact  which  is  proved  to  be 
false.  Again  I  protest,  as  I  have  said,  against  that  being  the  true  test. 
I  should  say,  taking  the  whole  thing  together,  was  there  false  represen- 
tation? I  do  not  care  by  what  means  it  is  conveyed — by  what  trick 
or  device  or  ambiguous  language :  all  those  are  expedients  by  which 
fraudulent  people  seem  to  think  they  can  escape  from  the  real  sub- 
stance of  the  transaction.  If  by  a  number  of  statements  you  inten- 
tionally give  a  false  impression  and  induce  a  person  to  act  upon  it,  it  is 
not  the  less  false  although  if  one  takes  each  statement  by  itself  there 
may  be  a  difficulty  in  shewing  that  any  specific  statement  is  untrue. 

But  I  do  not  shrink  from  the  question  whether  any  of  these  state- 
ments are  untrue.  I  think  some  of  them  are  absolutely  untrue.  I  will 
take  one  or  two  for  example,  although  I  think  that  the  whole  thing  ex- 
hibits falsehood.  I  observed  in  the  prospectus  there  is  a  statement  to 
the  effect  that  reports  of  the  most  favourable  character  had  been  made 
upon  this  mine.  That  is  not  true.  I  only  mention  it  in  passing — I 
do  not  propose  to  rely  upon  it.     *     *     * 

It  is  said,  "Oh,  the  mine  is  very  rich  still — at  all  events,  you  did  not 
give  any  evidence  that  it  was  not;''  but  if  there  is  this  evidence,  that 
three  companies  have  tried  to  work  it  and  have  failed,  can  anybody 
say  that  that  reflects  no  light  upon  the  richness  or  comparative  poverty 
of  the  mine?    I  should  have  thought  it  was  ample  evidence.     *     *     * 

For  these  reasons,  my  Lords,  it  appears  to  me  that  this  appeal  ought 
to  be  dismissed  with  costs,  and  I  so  move  your  Lordships. 

Lord  Watson  (after  stating  the  facts  given  above).  My  Lords, 
Air.  Levett  and  Mr.  Ford  said  everything  that  could  possibly  be  urged 
on  behalf  of  the  appellant  company;  but  after  hearing  them,  I  found 
it  impossible  to  differ  from  the  opinion  of  the  great  majority  of  the 
Irish  judges.  I  think  that  the  findings  of  the  jury  which  I  have  al- 
ready noticed,  although  the  first  two  of  them  are  peculiar  in  their  form, 
are  not  only  intelligible,  but  are  reasonable,  and  are  fully  warranted  by 
the  evidence  in  the  case. 

•  The  personal  knowledge  which  its  framers  had  of  the  antecedents 
of  the  Victoria  concession  must  have  made  it  a  difficult,  if  not  an  im- 
possible task  for  them  to  prepare  a  prospectus  which  would  be  attrac- 
tive without  being  dishonest.  They  apparently  succeeded  in  making 
it  attractive ;  but  in  doing  so  they  appear  to  me  to  have  come  a  long 
way  short  of  common  honesty.  The  substance  of  the  representations 
conveyed  by  it  is,  that  the  property  acquired  by  the  company  had  al- 
ready been  proved  to  be  rich  in  gold,  and  only  required  the  erection  of 
machinery  (tenders  for  which  were  about  to  be  invited)  in  order  to  be 
at  once  in  a  position  to  make  returns ;  that  it  was  proposed  to  erect  a 


Sec.  8)  EQUITABLE   DEFENSES  545 

forty-stamp  mill  in  the  first  instance,  and  to  make  additions  from  time 
to  time;  that  an  average  yield  of  1%  ounces  per  ton  would  give  a 
monthly  return  of  3600  ounces  of  gold  per  month,  value  nearly  £14,000, 
the  greater  part  of  which  would  be  available  for  distribution  as  divi- 
dends, and  that  it  was  not  unreasonable  to  anticipate  that  the  mine 
would  readily  and  speedily  pay  dividends  to  the  extent  of  100  per 
cent. 

The  prospect  of  becoming  interested  in  a  rich  mine  of  gold  which 
was  to  make  returns  at  once,  with  the  probable  result  of  yielding  a 
handsome  dividend  although  it  should  not  nearly  approach  to  cent 
per  cent,  was  very  alluring.  If  the  readers  of  the  prospectus  had  known 
that  of  the  £10,000  which  they  were  asked  to  contribute  during  the 
coming  year  not  one  sixpence  would  be  available  for  working  the 
mine,  that  there  would  be  no  money  available  for  that  purpose  until 
£38,000  of  calls  had  been  paid,  and  that  thereafter,  until  a  further  sum 
of  £112,000  had  been  paid,  only  one-third  of  the  subscriptions  or  calls 
received  by  the  company  would  be  available.  I  think  they  would  have 
taken  a  much  less  sanguine  view  of  the  situation.  It  was  argued  for 
the  company  that,  inasmuch  as  its  contracts  for  the  purchase  of  the 
concession  are  generally  referred  to  towards  the  end  of  the  prospectus, 
the  respondent  must  be  held  to  have  had  notice  of  their  contents.  That 
appears  to  me  to  be  one  of  the  most  audacious  pleas  that  ever  was  put 
forward  in  answer  to  a  charge  of  fraudulent  misrepresentation.  When 
analyzed  it  means  simply  that  a  person  wh'o  has  induced  another  to  act 
upon  a  statement  made  with  intent  to  deceive  must  be  relieved  from 
the  consequences  of  his  deceit  if  he  has  given  his  victim  constructive 
notice  of  a  document,  the  perusal  of  which  would  have  exposed  the 
fraud.  The  extravagance  of  the  plea  in  the  present  case  is  not  lessen- 
ed by  the  fact  that  the  respondent  had  no  right  of  access  to  the  docu- 
ment, and  that  it  is  clear  that  he  was  neither  invited  nor  expected  to 
examine  it. 

The  expression  "material  matters"  which  occurs  in  the  first  two  find- 
ings of  the  jury  is  one  which  might  in  some  cases  require  serious  con- 
sideration. The  duty  of  disclosure  is  not  the  same  in  the  case  of  a 
prospectus  inviting  share  subscriptions  as  in  the  case  of  a  proposal  for 
marine  insurance.  In  an  honest  prospectus  many  facts  and  circum- 
stances may  be  lawfully  omitted,  although  some  subscribers  might  be 
of  opinion  that  these  would  have  been  of  materiality  as  influencing 
the  exercise  of  their  judgment.  But  the  statement  of  a  portion  of  the 
truth,  accompanied  by  suggestions  and  inferences  which  would  be 
possible  and  credible  if  it  contained  the  whole  truth,  but  become  neither 
possible  nor  credible  whenever  the  whole  truth  is  divulged,  is,  to  my 
mind,  neither  more  nor  less  than  a  false  statement.  It  was  in  that 
sense  that  the  jury  affirmed  the  suppression  of  all  information  with 
respect  to  the  purchase  of  the  concession  to  be  material  and  fraudu- 
lent ;  because  they  thought,  as  I  do,  that  such  suppression  was  neces- 
Boke  Eq. — 35 


546  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Cll.  2 

sary  in  order  to  enable  the  company  to  manufacture  a  tempting  bait 
for  the  unwary,  and  to  submit  to  them  a  prospectus  which  was  neither 
true  nor  honest. 

As  already  stated,  I  am  also  of  opinion  that  the  finding,  to  the  effect 
that  the  statement  in  the  prospectus  "that  the  mine  had  been  proved 
rich''  was  false,  was  reasonable  and  was  warranted  by  the  evidence; 
and  if  so  it  was  unquestionably  calculated  to  deceive,  being  the  very 
basis  upon  which  the  representations  made  as  to  the  prospects  of  the 
mine  and  it  anticipated  returns  are  reared.  It  appears  to  me  to  be 
proved  by  the  evidence  that,  not  only  was  the  statement  false,  as  found 
by  the  jury,  but  that  it  was  known  by  the  framers  of  the  prospectus 
to  be  so.  There  are  no  less  than  twelve  reports  quoted  in  the  prospec- 
tus, which*  are  now  relied  on  as  evidencing  the  large  proportion  of  gold 
to  be  found  in  the  quartz  rock  of  the  concession,  one  of  these  being 
mere  hearsay  of  somebody  else,  and  another  anonymous ;  only  one  of 
the  remaining  ten  purports  to  contain  an  assay  of  samples,  which  was 
not  made  by  the  writer  of  it,  the  writer  himself  being  one  of  the 
directors  of  a  defunct  company  who  failed  to  make  the  mine  pay.  No 
date  is  attached  to  any  of  these  reports;  but  it  appears  from  the  evi- 
dence of  Robert  Larchin,  a  director  of  the  appellant  company  until 
March,  1892,  that  they  were  all  written  before  December,  1887,  when 
the  second  company  went  into  liquidation.  They  bear  internal  evidence 
(and  there  is  no  proof  to  the  contrary)  of  having  been  prepared  for  no 
other  purpose  than  that  of  influencing  the  share  market ;  and  the  fram- 
ers of  the  prospectus  of  1890  were  perfectly  aware  that  the  brilliant 
predictions  in  which  they  abound  had  been  falsified  by  experience. 
Accordingly  the  appellant  company  had  hardly  been  formed  before 
they  began  to  press  John  Nicholls  who  had  been  employed  by  their 
predecessors  and  whom  they  continued  to  employ  at  the  mine  in 
Venezuela,  for  a  favourable  report,  of  the  auriferous  qualities  of  the 
quartz.  They  received  from  him  in  February  the  gratifying  assurance 
that  he  actually  had  in  his  possession  "several  pieces  shewing  visurable 
gold,"  and  also  that  he  "saw  gold  in  several  pieces  of  quartz."  In 
April,  1890,  further  pressure  elicited  from  the  same  servant  the  in- 
formation that : 

"Mr.  Fenn  is  testing  some  of  the  quartz  from  the  Arran  Reef  and  some  from 
the  Howard  Reef." 

Of  the  results  of  that  testing  nothing  was  heard  at  the  trial.  During 
the  same  month  Nicholls  reported  that  he  had  met  with  "small  seams 
of  quartz  shewing  a  little  gold  by  panning" ;  and  in  May  he  further  re- 
ported that  he  had  "found  specks  of  gold  by  panning."  Not  being 
altogether  satisfied  with  the  tenor  of  the  communications  which  they 
had  received  from  Nicholls,  the  company  wrote  to  him  on  September 
16,  1890: 

"You  must  keep  two  men  working  on  the  drive,  don't  forget,  at  any  cost. 
It  is  most  important  to  have  something  coming  forward  as  to  work  being  done, 
and  I  think  you  will  cut  the  lode  first  here." 


Sec.  8)  EQUITABLE   DEFENSES 


547 


The  letter  produced  the  following  reply  by  wire : 
"We  have  struck  a  well  defined  lode." 

The  reply  was  probably  not  considered  satisfactory,  as  nothing  was 
heard  at  the  trial  of  any  gold  being  found  in  the  "well  defined  lode." 

The  respondent  did  not  remit  the  deposit  payable  in  respect  of  his 
100  shares  or  obtain  an  allotment  of  them  until  September,  1890.  Even 
if  the  company  believed  (which  in  my  opinion  it  did  not)  in  the  truth 
of  the  representations  made  in  its  prospectus  with  regard  to  the  richness 
of  the  mine,  it  is  too  heavy  a  draft  on  my  credulity  to  suppose  that  it 
continued  to  entertain  that  belief  in  September,  1890.  In  that  case  its 
acceptance  of  the  respondent's  money  and  the  issue  of  shares  to  him, 
without  any  explanation  of  what  had  come  to  its  knowledge  since  the 
date  of  the  prospectus,  was  neither  more  nor  less  than  a  fraud.  The 
truth  is  that  the  whole  circumstances  of  this  case  are  redolent  of 
fraud;  and  I  should  have  been  surprised  if  the  jury  had  come  to  any 
ether  conclusion  than  that  which  is  embodied  in  their  verdict. 

The  question  remains  whether  the  respondent  was  not  entitled  to 
challenge  the  contract  under  which  he  became  a  member  of  the  company 
by  reason  of  his  having  unduly  delayed  his  repudiation.  I  venture  to 
think,  with  all  deference,  that  the  reasoning  of  the  Lord  Chancellor 
of  Ireland  and  the  Master  of  the  Rolls  upon  this  point  is  founded  upon 
a  misapprehension  of  the  law.  The  authorities  relating  to  rescission 
by  the  member  of  a  registered  company  with  the  view  of  having  his 
name  removed  from  the  list  rest  upon  considerations  which  involve  the 
interests  of  creditors  of  the  company,  or  of  his  socii ;  and  they  have  no 
application  to  the  present  case  unless  it  is  shewn  that  on  May  5,  1891, 
the  respondent  had  lost  his  right  to  escape  from  the  liabilities  of  a 
shareholder  on  the  plea  that  he  had  been  fraudulently  induced.  Ac- 
cordingly, the  argument  of  counsel  for  the  appellant  company  was, 
very  properly,  maintained  before  us  upon  the  footing  that  on  or  before 
May  5,  1891,  the  respondent  could  not  have  succeeded  in  a  suit  to  have 
his  name  removed  from  the  register  of  the  company.  In  the  absence 
of  a  liquidation  order,  or  any  equivalent,  that  argument  necessarily 
rested  upon  the  assumption  that  the  respondent  was  before  that  date  in 
the  knowledge  of  the  fraud  which  had  been  practiced  upon  him.  The 
main  defect  of  the  argument  consists  in  the  want  of  any  foundation 
in  fact.  There  is  not  a  tittle  of  evidence  tending  to  shew  that  the  re- 
spondent had  such  knowledge.  It  is  true  that  in  answer  to  a  letter 
of  March  10  he  had  been  furnished  with  the  names  of  the  directors  of 
the  company,  which  put  him  upon  his  inquiry;  and  also  that  before 
May  6  he  had  formed  a  shrewd  suspicion  that  he  had  been  the  victim 
of  a  fraud.  But  the  whole  weight  of  the  evidence  supports  the  con- 
clusion that,  until  he  had  an  opportunity  of  examining  the  documents 
produced  in  this  suit,  he  knew  of  no  tangible  grounds  for  disputing 
the  validity  of  his  contract  with  the  company. 

In  that  state  of  matters  the  forfeiture  of  his  shares  on  May  5,  1891, 


548  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

remanded  him  and  the  company  to  the  common  law  relation  of  debtor 

and  creditor,  which,  in  so  far  as  concerns  the  right  of  rescission,  was 

thus  defined  by  the  Exchequer   Chamber  in  Clough  v.  London  and 

North  Western  Ry.  Co.,  L.  R.  7  Ex.  35 : 

"We  think  that  so  long  as  he  had  made  no  election  he  retains  the  right  to 
determine  it  either  way,  subject  to  this,  that  if  in  the  interval  whilst  he  is 
deliberating  an  innocent  third  party  has  acquired  an  interest  in  the  property, 
or  if  in  consequence  of  his  delay  the  position  even  of  the  wrongdoer  is  af- 
fected, it  will  preclude  him  from  exercising  his  right  to  rescind." 

In  this  case  it  cannot  be  affirmed  that  the  respondent  had  indicated 
his  election  to  be  bound  by  the  contract,  or  that  any  innocent  third  party 
had  acquired  an  adverse  interest,  or  that  the  wrong-doer  had  been  prej- 
udicially affected  by  his  delay.  It  must  also  be  kept  in  view  that  the 
respondent  is  not  seeking  to  rescind  the  contract :  he  is  merely  resisting 
its  enforcement  by  the  party  guilty  of  the  fraud. 

For  these  reasons  I  concur  in  the  judgment  which  has  been  moved 
by  the  Lord  Chancellor. 

Orders  appealed  from  affirmed  and  appeal  dismissed  with  costs. 


BROWN  v.  SMITH  et  al. 

(Supreme  Court  of  Iowa,  1902.    89  N.  W.  1097.) 

PER  Curiam.     The  plaintiff  held  a  contract  for  a  quarter  section  of 

land  in  Ottertail  county,   Minn.,   from  the  D.   S.   B.  Johnston  Land 

Company,  of  the  value,  according  to  the  evidence,  of  not  exceeding  $4 

per  acre,  and  claims  to  have  entered  into  an  agreement  with  defendant 

by  the  terms  of  which,  in  consideration  of  a  deed  to  defendant  of  such 

land,  on  which  was  to  be  executed  a  mortgage  of  $500  to  said  company 

by  defendant,  the  latter  undertook  to  convey  to  plaintiff  his  dwelling 

house  and  two  lots,  of  the  estimated  value  of  from  $1,600  to  $2,000, 

subject  to  a  mortgage  to  a  building  and  loan  association  of  $750.    The 

defendant  admitted  as  a  witness  that  he  made  the  contract,  but  insists 

that  he  was  induced  to  do  so  by  the  misrepresentations  of  the  plaintiff, 

and  that  he  promptly  repudiated  it  upon  discovery  that  the  land  was 

not  as  it  had  been  represented.     April  2,  1899,  Brown  wrote  of  the 

land : 

"It  is  good  soil,  only  about  two  and  a  half  miles  from  Elkhart,  on  the  G. 
N.  Ry." 

And  again,  on  April  9th : 

"I  wish  you  would  read  an  article  in  to-day's  St.  Paul  Dispatch  about  Minn, 
lands.  It  is  better  than  anything  I  can  say,  and  I  have  been  studying  it  for 
three  years." 

Defendant  testified  that  plaintiff  told  him  that  the  land  was  good  til- 
lable land,  which  cost  him  $10  per  acre,  and  was  located  2*4  miles 
from  the  above  station,  and  that  in  making  the  agreement  he  relied 
upon  these  statements.    The  plaintiff  denies  this,  and  testified  that  he 


Sec.  8)  EQUITABLE   DEFENSES  549 

advised  defendant  that  he  knew  nothing  of  the  land,  and  that  the  lat- 
ter must  learn  for  himself.  But,  in  view  of  plaintiff's  letters,  the  court 
might  well  have  accepted  defendant's  testimony  as  the  more  reliable. 
True,  the  defendant,  who  knew  nothing  personally  of  Ottertail  coun- 
ty, made  inquiry  concerning  land,  but,  through  probable  mistake  as  to 
its  location,  was  misinformed  as  to  its  character  and  value.  If  he  was 
influenced  somewhat  by  this  mistaken  advice,  it  does  not  follow  that 
he  did  not  rely  on  plaintiff's  misrepresentations,  so  that  but  for  them 
he  would  not  have  entered  into  the  agreement.  The  land  was,  in  fact, 
6  miles  instead  of  21/->  from  a  railroad  station,  included  a  pond  or  lake 
of  about  25  acres,  the  north  half  hilly  and  sandy,  all  save  the  lake,  and 
15  acres  of  slough,  covered  with  stumps  and  brush,  and  only  80  acres, 
after  being  cleared,  that  could  be  cultivated.  Certain  it  is  that  with 
correct  information  defendant  would  not  have  considered  a  proposi- 
tion of  exchanging  property  in  which  his  interest  was  from  $850  to 
$1,250  for  a  $140  interest  in  such  land. 

As  the  plaintiff  was  undertaking  to  obtain  an  unfair  advantage  over 
defendant,  and  this,  in  so  far  as  successful,  was  accomplished  by  de- 
ceit, we  have  no  notion  of  lending  our  aid  to  enable  him  to  carry  out 
his  enterprise  of  getting  something  for  practically  nothing.     Affirmed. 


GRAND  RAPIDS,  G.  H.  &  M.  RY.  CO.  v.  STEVENS. 

(Supreme  Court  of  Michigan,  1906.     143  Mich.  646,  107  N.  W.  437.) 

McAlvay,  J.74  Complainant,  a  Michigan  corporation,  filed  its  bill 
in  the  Ottawa  circuit  court,  in  chancery,  to  enforce  against  defendant 
the  specific  performance  of  the  following  written  option :     *     *     * 

Complainant  was  constructing  or  about  to  construct  an  electric  three 
rail  railway.  It  had  in  its  employment  one  Liggett  who  was  securing 
the  right  of  way  for  its  road,  and  also  one  Chappell  who  was  introduc- 
ing Liggett  and  assisting  him  in  such  work.  Defendant  is  the  owner 
of  3!/2  acres  of  land  near  the  village  of  Berlin,  Ottawa  county,  upon 
which  she  resides  with  a  family  consisting  of  her  father,  mother  and 
sister,  largely  dependent  upon  her.  The  family  is  supported  from  the 
proceeds  of  garden  truck  raised  upon  this  land  by  defendant  with  her 
sister's  assistance,  and  by  picking  and  selling  berries.  Defendant  is,, 
from  an  injury  received  when  a  child,  a  hunchbacked  cripple.  Liggett 
has  been  engaged  in  railroad  promoting  and  securing  rights  of  way 
for  16  years.  Chappell  is  a  justice  of  the  peace  living  in  defendant's 
neighborhood,  and  had  done  a  little  business  for  her  when  she  pur- 
chased the  land.  These  parties  came  to  her  house  September  13,  1900, 
between  1  and  2  o'clock  in  the  afternoon,  and  remained  from  two  to 
four  hours  for  the  purpose  of  securing  this  option.     Before  they  left 

74  Parts  of  the  opinion  are  omitted. 


550  SPECIFIC  PERFORMANCE  OF   CONTRACTS  (Ch.  2 

she  signed  the  paper.  On  March  13,  1901,  Mr.  Wheeler  on  behalf  of 
complainant  tendered  her  a  deed  for  signature  and  $35.  She  refused 
to  execute  the  deed  or  accept  the  money.  There  is  no  dispute  about 
the  tender  of  the  money,  which  has  been  kept  good.  Afterwards  de- 
fendant forbade  complainant's  workmen  to  come  on  the  land  to  con- 
struct the  road,  and  attempted  to  prevent  them.  The  road  was  built 
across  her  land  in  the  nighttime,  against  her  protest,  by  a  large  gang 
of  men.  Defendant  by  her  answer  claims  that  the  option  was  obtained 
from  her  by  fraud,  misrepresentation,  duress,  and  undue  influence, 
also  that  it  was  not  mutually  binding  upon  the  parties  in  that  complain- 
ant was  not  authorized  and  empowered  by  the  statute  under  which  it 
was  organized  to  enter  into  such  an  agreement.     *     *     * 

We  find  from  the  record  that  Liggett  made  statements  to  defendant 
which  were  false  and  misleading.  He  threatened  condemnation  pro- 
ceedings if  she  refused  the  option,  and  enlarged  upon  the  great  ex- 
pense it  would  make  her.  He  admits  he  knew  his  company  had  no  au- 
thority to  condemn.  This  woman  was  ignorant  of  business  affairs, 
weak,  crippled,  and  excitable.  There  is  no  dispute  but  that  after  she 
signed  this  paper  she  stated  she  was  not  satisfied,  and  had  not  been 
dealt  fairly  with.  The  record  shows  that  this  option  was  procured 
from  her  by  means  used  on  the  part  of  the  representative  of  complain- 
ant which  amounted  to  a  fraud  upon  her.     *     *     * 

The  company  built  its  road  upon  her  land  without  right  or  author- 
ity, against  the  protest  of  this  defendant.  Under  the  statute  when 
complainant  organized,  and  when  this  option  was  secured,  it  was  only 
authorized  to  maintain  and  own  a  street  railway  in  and  along  the 
streets  and  highways  of  any  township  upon  such  terms  and  conditions 
as  might  be  agreed  upon  by  the  company  and  the  township  board.  It 
was  by  an  amendment  of  the  Legislature  of  1905,  that  such  corpora- 
tions were  authorized  to  use  private  rights  of  way,  and  were  given  the 
right  of  eminent  domain.  Pub.  Acts  1905,  p.  182,  Act  No.  133.  It  is 
not  necessary  to  discuss  the  question  of  ultra  vires  raised  by  defendant 
in  the  case.  The  above  statement  relative  to  the  statute  is  added  as 
bearing  upon  matters  already  discussed,  and  because  the  record  dis- 
closes that  complainant  and  its  agent  Liggett  knew  at  the  time  this  op- 
tion was  secured  that  such  amendment  was  necessary. 

The  decree  of  the  circuit  court  is  reversed,  and  the  bill  of  complaint 
dismissed,  with  costs  of  both  courts  to  defendant.75     *     *     * 

75  A  motion  to  modify  the  decree  (1)  by  determining  the  defendant's  dam- 
ages for  appropriating  the  right  of  way,  or  (2)  by  enjoining  defendant  from 
interfering  with  the  operation  of  the  railway  pending  condemnation  proceed- 
ings, was  denied. 

In  Brown  v.  Smith  (1901)  109  Fed.  26  (ante,  pp.  105,  548),  the  court  quoted 
with  approval  the  following  statement  made  in  Slaughter  v.  Gerson,  13  Wall. 
379,  20  L.  Ed.  627: 

"The  misrepresentation  which  will  vitiate  a  contract  of  sale,  and  prevent 
a  court  of  equity  from  aiding  its  enforcement,  must  not  only  relate  to  a  ma- 
terial matter  constituting  an  inducement  to  tbe  contract,  but  it  must  relate 
to  a  matter  respecting  which  the  complaining  party  did  not  possess  at  hand 


Sec.  8)  EQUITABLE   DEFENSES  551 


VI.     Concealment 

HAYWOOD  v.  COPE. 
(In  Chancery,  1S5S.    25  Beav.  140,  53  E.  R.  590.) 

The  Plaintiff  was  seised  of  a  farm  called  the  Bank  End  Farm,  sit- 
uate in  the  parish  of  Norton  in  the  moors,  in  Staffordshire,  and  of  the 
coals  and  minerals  under  it,  and  for  working  which  shafts  had  been 
previously  sunk,  which  had  been  visibly  abandoned.  The  farm  con- 
sisted of  about  twenty-seven  acres,  two  roods,  and  two  perches. 

The  Defendant  applied  to  the  Plaintiff  for  a  lease  of  the  coal  mines, 
and  after  some  negotiations,  and  after  the  Defendant,  accompanied  by 
some  friends,  had  examined  the  shaft,  as  far  as  was  possible  (see  25 
Beav.  p.   148),  the  Plaintiff  and  Defendant,  on  the  15th  of  January, 

1855,  signed  the  following  agreement: 

"Mr.  Charles  Cope  agrees  with  Howard  Hayward,  Esq.,  for  those  two  seams 
of  coals  known  as  the  two-feet  coal  and  three-feet  coal,  lying  under  lands  to 
be  hereafter  defined  in  the  Bank  End  estate,  near  Norton,  in  the  county  of 
Stafford,  at  the  rate  of  ninepence  per  ton  for  all  coals  and  slack  going  over  a 
weighing  machine,  112  lbs.  to  cwt.,  or  2240  lbs.  per  ton,  minimum  rent  £100 
per  annum,  on  lease  of  fourteen  years.  Mr.  Cope  to  pay  for  all  surface  tres- 
pass, at  the  rate  of  £5  per  acre,  to  commence  paying  minimum  rent  within 
eighteen  months  from  date  of  agreement,  all  coals  and  slack  sold  or  raised 
in  the  intermediate  time  to  be  paid  for,  at  the  rate  of  9d.  per  ton.  Howard 
Haywood,  Esq.,  agrees  to  let  to  Mr.  Charles  Cope  the  before-mentioned  two 
seams  of  coals  at  the  price  beforementioned." 

Shortly  after  the  agreement  had  been  signed  the  Defendant  entered 
into  possession.  He  commenced  working  the  coal  mines,  and  he  contin- 
ued to  work  them  regularly  until  July,  1855,  and  off  and  on  until  Oc- 
tober, 1856. 

On  the  26th  of  May,  1855,  the  Plaintiff's  solicitor  forwarded  to  the 
Defendant,  for  his  approval,  a  draft  lease,  in  which  the  particulars  of 
the  land  under  which  the  mines  lay  were  defined  and  scheduled.  The 
Defendant  made  no  objection  to  the  draft,  and  retained  it,  notwith- 
standing various  applications  made  to  him  to  return  it.    At  Christmas, 

1856,  the  Defendant  first  objected  that  the  coals  had  not  turned  out 


the  means  of  knowledge ;  and  it  must  be  a  misrepresentation  upon  which  he 
relied,  and  by  which  he  was  actually  misled  to  his  injury.  A  court  of  equity 
will  not  undertake,  any  more  than  a  court  of  law,  to  relieve  a  party  from  the 
consequences  of  his  own  inattention  and  carelessness.  Where  the  means  of 
knowledge  are  at  hand,  and  equally  available  to  both  parties,  and  the  subject 
of  purchase  is  alike  open  to  their  inspection,  if  the  purchaser  does  not  avail 
himself  of  these  means  and  opportunities  he  will  not  be  heard  to  say  that  he 
has  been  deceived  by  the  vendor's  misrepresentations.  If,  having  eyes,  he  will 
not  see  matters  directly  before  them,  where  no  concealment  is  made  or  at- 
tempted, he  will  not  be  entitled  to  favorable  consideration  when  he  complains 
that  he  has  suffered  from  his  own  voluntary  blindness,  and  been  misled  by 
overconfidence  in  the  statements  of  another." 


552  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

so  well  as  he  expected,  and  in  January,  1857,  he  declined  to  accept  a 
lease — 

"on  the  ground  that  the  mines  were  not  (as  he  alleged)  what  they  were  rep- 
resented to  be,  either  as  to  thickness  or  quality  ;  and  that  his  surveyor  had 
stated  that  the  coal  was  absolutely  not  worth  getting." 

The  Defendant  afterwards  returned  the  draft  lease. 

On  the  26th  of  March,  1857,  the  Plaintiff  filed  this  bill,  for  a  specific 
performance  of  the  contract ;  for  an  account  of  the  coal  worked,  and 
for  payment  by  the  Defendant  of  the  royalty  and  rent. 

The  Defendant  resisted  the  specific  performance  on  the  ground  of 
the  uncertainty  of  the  contract,  of  the  misrepresentation  and  conceal- 
ment of  the  Plaintiff,  of  the  delay  which  had  occurred,  and  of  the 
hardship  of  being  obliged  to  pay  £100  a  year  during  the  remainder  of 
the  time,  without  receiving  any  benefit  from  the  mines. 

Mr.  Selwyn,  Mr.  Hadden,  and  Mr.  Jessel,  for  the  Plaintiff.  The 
Defendant  principally  relies  on  misrepresentation  and  concealment, 
but  there  has  been  none ;  the  Defendant  examined  the  mine  and  acted 
on  his  own  judgment ;  he  cannot  now  repudiate  the  contract,  merely 
because  the  collieries  have  turned  out  less  profitable  than  he  antici- 
pated. 

The  rule  of  law  as  to  concealment  of  the  defects  in  the  property  sold 
is  thus  laid  down  by  Sir  Edward  Sugden  (1  Sugden's  Vendors  &  Pur- 
chasers, 1,  2) : 

"I.  Moral  writers  insist  that  a  vendor  is  bound,  in  foro  conscientiae,  to  ac- 
quaint a  purchaser  with  the  defects  of  the  subject  of  the  contract.  Arguments 
of  some  force  have,  however,  been  advanced  in  favour  of  the  contrary  doc- 
trine ;  and  our  law  does  not  entirely  coincide  with  this  strict  precept  of 
morality.  Even  if  the  purchaser  was,  at  the  time  of  the  contract,  ignorant 
of  the  defects,  and  the  vendor  was  acquainted  with  them,  and  did  not  disclose 
them  to  the  purchaser,  yet  if  they  were  patent,  and  could  have  been  discov- 
ered by  a  vigilant  man,  no  relief  will  be  granted  against  the  vendor." 

So  in  Attwood  v.  Small,  6  CI.  &  Fin.  232,  it  was  held : 

"That  if  a  purchaser  choosing  to  judge  for  himself,  does  not  avail  himself 
of  the  knowledge  or  means  of  knowledge  open  to  him  or  to  his  agents,  he 
cannot  be  heard  to  say  he  was  deceived  by  the  vendor's  representations,  the 
rule  being  caveat  emptor,  and  the  knowledge  of  his  agents  being  as  binding 
on  him  as  his  own  knowledge." 

The  Master  of  the  Roles  [Sir  John  Romilly].70  *  *  * 
The  next  question  is,  was  the  Plaintiff  bound  to  say  that  he  had 
worked  the  mine  and  that  he  had  found  it  unprofitable?  That  some- 
one had  worked  and  abandoned  it  was  obvious,  for  there  were  the 
shafts  and  the  abandoned  workings  which  the  Defendant  examined. 
Was  it  incumbent  on  the  Plaintiff  to  inform  him  that  he  was  the  per- 
son who  had  worked  it  some  twenty  years  before,  and  found  it  to  be 
not  worth  working?  It  is  to  be  observed  that  the  subject-matter  of 
this  contract  is  a  mine,  that  is  to  say,  seams  of  coal,  which  may  turn 
out  better  or  worse,  and  is  always,  in  some  degree,  a  speculation.     It 

70  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  55£ 

may  turn  out  better,  or  it  may  turn  out  worse,  and  it  is  well  known 
that  leases  and  sales  are  always  made  with  reference  to  this  circum- 
stance. With  the  exception  of  knowing  that  the  Plaintiff  had  worked 
it,  the  Defendant  knew  as  much  as  anybody  could  know  by  his  own 
examination ;  but  whether  the  seams  were  to  improve  or  to  deteri- 
orate was  a  matter  which  could  only  be  ascertained  by  the  future  work- 
ing. They  have  turned  out  ill,  but  the  consequence  of  that  is  not,  in 
my  opinion,  that  the  Defendant  can  reject  the  contract,  any  more  than 
the  Plaintiff  could  have  rejected  it,  or  have  demanded  higher  terms,, 
if  the  seams  had  turned  out  profitable.     *     *     * 

In  my  opinion  this  is  a  contract  which  was  fairly  entered  into  be- 
tween the  parties ;  there  is  nothing  to  invalidate  it,  and  the  usual  decree 
must  therefore  be  made  for  the  specific  performance  of  the  contract, 
with  costs  to  the  present  time.     *     *     * 


SHIRLEY  v.  STRATTON. 

(In  Chancery  before  Lord  Loughborough,  1785.    1  Brown,  Ch.  440.) 

This  was  a  bill  for  the  specific  performance  of  an  agreement  for  the 
purchase  of  an  estate  in  marsh-land,  at  Barking,  in  Essex,  and  for 
payment  of  a  sum  of  1000/.  the  purchase-money.  The  defence  was, 
that  the  estate  was  represented  to  the  defendant  as  clearing  a  neat 
value  of  90/.  per  annum,  and  no  notice  was  taken  to  him  of  the  nec- 
essary repair  of  a  wall  to  protect  the  estate  from  the  river  Thames, 
which  would  be  an  outgoing  of  50/.  per  annum.  And  it  appearing, 
upon  evidence,  that  there  had  been  an  industrious  concealment  of 
the  circumstance  of  the  wall,  during  the  treaty,  Lord  Chancellor 
dismissed  the  bill,  but  without  costs. 


WALTERS  v.  MORGAN. 

(In  Chancery  before  Lord  Campbell,  1861.     3  De  Gex,  F.  &  J.  718, 
45  E.  R.  1056.) 

This  was  an  appeal  from  the  dismissal  by  Vice-Chancellor  Wood  of 
a  bill  for  specific  performance.  The  Plaintiff  William  Walters  had 
been  a  master  mariner,  but  afterwards  became  a  brickmaker  at  Tenby, 
and  the  Defendant  Thomas  Morgan  was  a  retired  draper,  formerly 
residing  at  King's  Cross. 

The  agreement  was  dated  the  9th  December,  1857,  and  made  be- 
tween the  Plaintiff  and  Defendant ;  and  thereby  the  Defendant  agreed 
to  grant  to  the  Plaintiff  and  the  Plaintiff  agreed  to  take  of  the  Defend- 
ant for  one  whole  year  from  the  day  of  the  date  of  the  agreement  the 
right  of  digging,  searching  for  and  carrying  off  from  land  of  the  De- 


554  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

fendant  in  Pembrokeshire  described  in  the  agreement  all  and  all  man- 
ner of  stone,  sand,  minerals  and  clay  in  or  upon  those  lands,  and  the 
Plaintiff  agreed  to  pay  to  the  Defendant  for  such  grant  the  full  sum 
of  3d.  per  ton  weight  of  2880  lbs.  for  stone,  rock  or  sands  and  min- 
erals carried  from  the  premises,  and  the  full  sum  of  4d.  per  ton  weight 
of  2880  lbs.  for  all  clays  worked  or  so  carried  off ;  and  it  was  further 
thereby  agreed  that  at  the  option  of  the  Plaintiff  Walters  the  Plaintiff 
might  take  and  the  Defendant  would,  at  the  expiration  of  twelve 
months,  grant  to  the  Plaintiff  a  lease  for  a  term  of  twenty-one  years 
renewable,  to  commence  from  Christmas  1858,  such  lease  to  contain  a 
covenant  on  the  part  of  the  Plaintiff  to  pay  the  Defendant  the  said  rate 
per  ton  royalty  and  all  usual  covenants ;  and  further,  the  Defendant 
agreed  to  grant  sufficient  lands  on  which  the  Plaintiff  might  erect 
buildings  and  offices  for  the  works  he  might  require  during  the  term 
of  his  lease,  at  no  increased  rental,  provided  such  land  should  not  ex- 
ceed in  quantity  one  acre ;  and  the  Plaintiff  agreed,  that  if  he  should 
not  require  the  lease,  he  would,  at  the  expiration  of  twelve  months, 
leave  all  holes  and  diggings  which  he  should  make  sound  and  properly 
filled  up. 

In  the  month  of  July  1858  the  Plaintiff's  solicitor  forwarded  to  the 
Defendant's  solicitor  the  draft  of  a  lease  in  pursuance  of  the  agree- 
ment, and  requested  the  Defendant's  solicitor  to  alter  it  in  such  a  way 
as  he  might  think  proper,  and  return  it  for  revision. 

On  the  19th  July,  1858,  the  Defendant's  solicitor  wrote  to  the  Plain- 
tiff's solicitor  a  letter,  saying  that  it  would  be  premature  to  discuss  the 
draft  lease  before  the  twelve  months  had  expired.  On  the  9th  Decem- 
ber, 1858,  the  Plaintiff's  solicitor  wrote  to  the  Defendant's  solicitor  a 
letter  containing  the  following  passages : 

"Under  an  impression,  derived  as  I  am  instructed  from  a  statement  by  Mr. 
Morgan  to  Mr.  Walters  that  he  was  willing  to  grant  this  lease  without  await- 
ing the  expiration  of  twelve  months,  the  draft  of  that  document  was  prepared 
by  me  and  banded  by  Mr.  Walters  to  Mr.  Morgan  in  tbe  early  part  of  July 
last  for  his  approval  and  was  subsequently  submitted  by  him  to  you.  The 
result  was,  as  you  will  remember,  that  Mr.  Morgan  finally  objected  to  sign 
any  lease  at  that  time,  and  suggesting  a  doubt  whether  the  agreement  was 
binding  upon  him,  determined  at  all  events  to  do  nothing  in  the  matter  until 
the  expiration  of  twelve  months.  As  that  period  will  expire  to-day  I  must  re- 
quest to  be  at  once  informed  whether  Mr.  Morgan  is  ready  or  whether  he  de- 
clines to  execute  a  lease  to  Mr.  Walters  in  accordance  with  the  above-men- 
tioned agreement.  In  the  former  case  I  must  beg  you  to  return  me  the  draft 
with  any  modifications  you  may  consider  your  client  entitled  to  have  made  in 
it,  and  in  the  latter  my  instructions  are  immediately  to  take  tbe  necessary 
steps  for  compelling  a  specific  performance  of  the  agreement  by  your  client." 

The  bill  after  stating  to  the  foregoing  effect  and  setting  out  some 
further  correspondence,  prayed  a  specific  performance  of  the  agree- 
ment. 

The  Defendant  by  his  answer  stated  that  the  agreement  was  entered 
into  by  him  when  he  had  recently  purchased  the  property  and  was  un- 
acquainted with  it,  and  under  circumstances  amounting  to  concealment 
and  misrepresentation  of  the  value  of  the  property  on  the  part  of  the 


Sec.  S)  EQUITABLE   DEFENSES  555 

Plaintiff,  who  had  lived  in  the  neighbourhood  of  the  property  for  some 
time  and  was  well  acquainted  with  it,  and  moreover  that  the  Defend- 
ant was  induced  to  sign  the  agreement  by  surprise  and  without  any 
opportunity  of  considering  the  stipulation  as  to  granting  a  lease,  the 
agreement  having  been  brought  to  him  ready  for  signature  without  any 
draft  having  been  submitted  to  him,  and  that  upon  his  objecting  to  sign 
it  without  further  consideration  the  Plaintiff  had  represented  that  the 
amount  to  be  agreed  to  be  given  by  the  agreement  for  the  sand  and 
clay  was  the  same  that  he  had  given  to  Mr.  Wilson,  a  neighbouring 
landowner,  by  which  the  Defendant  was  led  to  believe  that  the  sum 
offered  was  the  fair  value ;  that  the  Plaintiff  had  stated  that  if  the  land 
turned  out  to  be  more  valuable  he  would  give  the  Defendant  his  "fair 
share." 

The  Lord  Chancellor.77  This  was  a  bill  for  the  specific  per- 
formance of  an  agreement  for  a  lease  of  mineral  property;  the  bill 
having  been  dismissed  without  costs.     *     *     * 

The  ground  on  which  I  am  of  opinion  that  the  decree  ought  to  be 
supported  is,  that  by  the  contrivance  of  the  Plaintiff  the  Defendant 
was  surprised  and  was  induced  to  sign  the  .agreement  in  ignorance  of 
the  value  of  his  property.  I  most  fully  concur  in  the  doctrine  of  con- 
cealment and  misrepresentation  as  laid  down  by  Lord  Thurlow  in  Fox 
v.  Mackreth,  2  B.  C.  C.  420,  and  qualified  by  Lord  Eldon  in  Turner 
v.  Harvey,  Jac.  169.  There  being  no  fiduciary  relation  between  vendor 
and  purchaser  in  the  negotiation,  the  purchaser  is  not  bound  to  disclose 
any  fact  exclusively  within  his  knowledge  which  might  reasonably  be 
expected  to  influence  the  price  of  the  subject  to  be  sold.  Simple  reti- 
cence does  not  amount  to  legal  fraud,  however  it  may  be  viewed  by 
moralists.  But  a  single  word,  or  (I  may  add)  a  nod  or  a  wink,  or  a 
shake  of  the  head,  or  a  smile  from  the  purchaser  intended  to  induce 
the  vendor  to  believe  the  existence  of  a  nonexisting  fact,  which  might 
influence  the  price  of  the  subject  to  be  sold,  would  be  sufficient  ground 
for  a  Court  of  Equity  to  refuse  a  decree  for  a  specific  performance  of 
the  agreement. 

So,  a  fortiori,  would  a  contrivance  on  the  part  of  the  purchaser,  bet- 
ter informed  than  the  vendor  of  the  real  value  of  the  subject  to  be 
sold,  to  hurry  the  vendor  into  an  agreement  without  giving  him  the 
opportunity  of  being  fully  informed  of  its  real  value,  or  time  to  delib- 
erate, and  take  advice  respecting  the  conditions  of  the  bargain. 

In  the  present  case,  although  the  parties  had  met  on  several  occa- 
sions before  the  signing  of  the  agreement,  and  had  conversed  about  the 
digging  in  the  land  for  a  year  by  way  of  experiment,  yet  till  the  writ- 
ten agreement  for  the  lease  was  brought  by  the  Plaintiff  to  the  Defend- 
ant "cut  and  dry,"  there  does  not  appear  to  have  been  any  negotiation 
between  them  for  a  lease,  nor  any  proposal  respecting  the  term  to  be 
granted  (which  is  substantially  forty-two  years),  or  the  royalty  to  be 

7  7  Part  of  the  opinion  is  omitted. 


556  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

reserved,  or  any  of  the  covenants  to  be  contained  in  the  lease.     Then 

the  Plaintiff  urges  the  Defendant  to  sign  the  agreement,  saying: 

"You  will  trust  to  rue  for  making  a  fair  allowance  if  it  should  turn  out 
more  valuable." 

This  is  of  a  piece  with  his  afterwards  employing  his  own  solicitor 
to  prepare  the  lease,  and  trying  to  get  it  signed  by  the  Defendant  with- 
out the  Defendant's  solicitor  having  seen  it.  A  purchaser  who  so  con- 
ducts himself  cannot  be  said  to  have  proceeded  with  the  good  faith 
which  even  jurists  require  in  such  a  transaction.     *     *     * 

Upon  the  whole  I  cannot  say  that  the  Appellant  was  improperly  ad- 
vised to  bring  this  appeal ;  and  I  therefore  order  the  appeal  to  be  dis- 
missed without  costs — the  deposit  to  be  returned  to  the  Appellant. 


KIMBER  v.  BARBER. 
(In  Chancery,  1S72.     8  Ch.  App.  56.) 

In  the  year  1850  a  company,  called  the  Colonization  Assurance  Cor- 
poration, was  formed,  but  it  appeared  to  have  fallen  into  abeyance. 
Early  in  January,  1870,  Kimber,  Barber,  and  others,  desired  to  reor- 
ganize the  company,  and  to  appoint  new  directors.  Before  new  di- 
rectors were  appointed  it  was  necessary  to  acquire  a  large  number  of 
shares,  in  order  to  qualify  the  new  directors.  The  Defendant  Barber 
knew  that  Kimber  was  anxious  to  acquire  shares  for  this  purpose,  and 
on  the  19th  of  January,  1870,  called  upon  him,  and  told  him  that  he, 
Barber,  knew  of  264  shares  for  sale  at  £3.  Barber  was  thereupon  au- 
thorized by  Kimber  to  buy  the  shares  at  £3.  The  shares  were  accord- 
ingly bought ;  64  of  them  were  transferred  to  Kimber,  and  200  to 
his  nominees,  one  T.  G.  Taylor,  a  broker,  being  the  transferor,  and 
Kimber  paying  Barber  £795  for  the  shares  and  the  transfer  duty. 

Kimber,  as  he  alleged,  subsequently  learnt  that  the  shares  had  been 
in  fact  bought  by  Barber  from  one  T.  Jones  at  £2  a  share,  with  a  view 
to  the  sale  to  Kimber,  and  had  been  transferred  by  Jones  to  Taylor 
under  the  direction  of  Barber.  Kimber  thereupon  filed  the  bill  in  this 
suit  against  Barber  and  a  Mrs.  Rutt,  for  whom  Barber  alleged  he  had 
bought  the  shares,  charging  that  the  264  shares  were  purchased  from 
Jones  by  Barber,  as  agent  for  the  Plaintiff,  and  praying  for  a  declara- 
tion that  the  Plaintiff  was  entitled  to  the  benefit  of  the  purchase  of 
the  264  shares  from  Jones,  and  that  the  Defendants,  or  one  of  them, 
might  be  decreed  to  pay  to  the  Plaintiff  the  sum  of  £264  being  the  dif- 
ference between  the  prices  paid ;  or  otherwise,  that  the  sale  of  the 
shares  might  be  set  aside,  and  that  the  Defendant  Rutt  might  be  de- 
creed to  repay  to  the  Plaintiff  the  sum  of  £795  paid  by  the  Plaintiff, 
he  offering  to  re-transfer  the  shares  to  the  Defendant  Rutt. 

It  appeared,  on  the  evidence,  that  Barber  wrote  on  the  13th  of  Jan- 
uary to  Jones,  asking,  as  for  a  friend,  whether  he  would  sell  his  shares, 


Sec.  8)  EQUITABLE   DEFENSES  557 

and  on  the  17th  of  January  Barber  concluded  an  agreement  with  Jones 
and  forwarded  him  a  blank  transfer.  After  the  interview  of  the 
19th  of  January,  Barber  instructed  Taylor  to  prepare  bought  and 
sold  notes  to  the  effect  that  the  shares  had  been  bought  through  Tay- 
lor as  the  broker,  and  the  shares  were  afterwards  transferred  by 
Jones  to  Taylor.  As  Barber  had  not  sufficient  money  to  pay  for  all 
the  shares,  some  of  them  were  lent  to  him  by  Taylor,  for  the  purpose 
of  being  transferred  to  Kimber.  There  was  much  other  evidence  in 
the  case,  which,  for  the  purpose  of  this  report,  is  immaterial. 

Kimber  had  transferred  10  of  the  64  shares  to  other  persons,  so  that 
at  the  time  when  the  bill  was  filed  he  held  only  54  shares. 

1872,  April  18.  Lord  Romilly,  M.  R.,  after  stating  the  facts  of 
the  case,  and  reading  the  prayer  of  the  bill,  continued : 

I  think  that  the  first  part  of  the  relief  prayed  is  not  within  my  power 
to  give.  It  would  in  fact,  be  making  a  new  contract  for  the  parties, 
which  I  have  no  right  to  do.  They  were  the  Defendant's  shares  which 
he  sold  for  £3,  and  I  have  no  right  to  compel  him  to  sell  them  for  £2, 
or  for  any  other  price  than  the  price  he  stated.  But  at  the  same  time 
it  is  quite  clear  that  he  ought  not  to  be  allowed  to  gain  any  advantage 
by  the  concealment  from  the  Plaintiff  of  the  real  facts  of  the  case,  and 
of  his  interest  in  the  shares.  The  proper  relief,  therefore,  would  be 
that  which  is  prayed  for  in  the  second  branch  of  the  prayer ;  and  if  the 
matter  stood  between  the  parties  exactly  as  at  first,  I  should  have  had 
no  hesitation  in  granting  it.  I  am  of  opinion  that  the  conduct  of  the 
Defendant  in  concealing  the  real  facts,  and  in  endeavoring  to  compli- 
cate the  matter  by  the  introduction  of  Mrs.  Rutt  and  of  the  stock- 
broker, Mr.  Taylor,  are  such  as  to  entitle  the  Plaintiff  to  ask  that  the 
whole  transaction  should  be  set  aside,  and  the  shares  restored  to  the 
Defendant  Barber,  and  the  money  repaid  by  him  to  the  Plaintiff,  if 
that  be  possible.  But  now  arises  this  difficulty :  The  Plaintiff  is  not  in 
a  situation  to  restore  the  shares,  for  he  has  parted  with  a  great  por- 
tion of  them,  and  has  retained  only  54  of  them  for  himself,  the  rest 
having  been  transferred  to  persons,  no  one  of  whom  is  a  party  to  this 
suit.  The  consequence  is  that  the  Plaintiff  had  precluded  himself  from 
obtaining  the  relief  prayed  for  in  the  second  branch  of  the  prayer  of 
the  bill.  The  view  that  I  take  of  this  case  is  fully  represented  in  the 
case  of  Great  Luxembourg  Railway  Company  v.  Magnay,  25  Beav. 
586,  which  came  before  me  in  1858.  In  that  case  the  Defendant,  Sir 
William  Magnay,  having  been  supplied  by  the  Luxembourg  Railway 
Company  with  a  large  sum  of  money  to  buy  a  concession  made  by  the 
Belgian  Government,  it  turned  out  that  he  was  himself  the  owner  of 
that  concession,  and  that  he  sold  it  to  the  company  for  his  own  benefit 
as  the  vendor.  I  held  that  the  transaction  could  not  stand,  and  that 
the  only  proper  relief  would  be  to  annul  the  whole  transaction,  and 
to  order  the  concession  to  be  returned  and  the  purchase  money  to  be 
repaid.  But  pending  the  suit,  the  Luxembourg  Railway  Company  had 
themselves  sold  this  concession  to  another  person,  and  •  had  thereby 


558  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

adopted  the  transaction,  assuming  and  acting  on  its  validity ;  and  con- 
sequently I  held  that,  having  done  so,  they  were  no  longer  in  a  position 
to  restore  the  Defendant  to  the  position  in  which  he  was  before  the 
suit  was  instituted ;  and  thereupon  I  dismissed  the  bill  in  that  case, 
but  without  costs.  I  take  the  same  view  of  this  case,  and  adopt  the 
observations  I  made  in  that  case.  I  am  of  opinion  that  the  only  proper 
relief  is  to  restore  the  shares  and  repay  the  money ;  but  the  Plaintiff 
has  rendered  this  impossible.  I  have  no  control  over  the  holders  of 
the  other  shares,  and  do  not  even  know,  if  they  were  parties, 
whether  they  would,  without  exception,  consent  to  restore  the  shares 
transferred  to  them.  Most  certainly  I  could  not  compel  them  so  to 
do,  and  no  decree  of  mine  could  touch  the  holders  of  these  210  shares, 
between  whom  and  the  Defendant  there  is  not  any  privity. 

The  Plaintiff  has  therefore  precluded  himself  from  obtaining  the 
relief  prayed  for;  but  as  the  suit  was  occasioned  by  what  I  consider 
to  have  been  the  misconduct  of  the  Defendant  Barber,  the  bill  must  be 
dismissed  without  costs. 

The  Plaintiff  appealed. 

Mr.  Fry,  Q.  C,  and  Mr.  Woodroffe,  for  the  Plaintiff. 

Mr.  Shebbeare  (Sir  R.  Baggallay,  Q.  C,  with  him),  for  the  Defend- 
ants, contended,  on  the  facts,  that  the  Defendant  Barber  was  not  an 
agent  for  the  Plaintiff;  and  that  if  he  was  agent,  he  was  so  gratuitously, 
and  not  bound  to  the  Plaintiff.  The  Plaintiff  knew  all  about  the  com- 
pany and  the  price  of  the  shares,  and  could  not  complain  of  having  been 
deceived  in  the  price. 

Lord  Selborne,  L.  C.  I  am  sorry  to  say  that  I  cannot  quite  agree 
with  the  Master  of  the  Rolls  in  this  case,  although  it  appears  to  me 
that  in  substance  His  Lordship  took  exactly  the  same  view  of  the  facts, 
or,  at  all  events,  very  nearly  the  same  view  of  the  facts,  as  I  do. 

(His  Lordship  then  stated  that  he  agreed  with  the  Master  of  the  Rolls 
in  thinking  the  whole  case  as  to  Mrs.  Rutt  fictitious.  His  Lordship 
believed  the  statements  of  the  Plaintiff,  and  held  it  to  be  established 
that  there  was  as  to  these  shares  a  fiduciary  relation  between  him 
and  Barber.  Barber  knowing  the  wish  of  the  Plaintiff  to  get  some 
shares,  wrote  to  Jones,  applying  as  for  some  one  else.  Barber's  case 
was  that  this  application  was  for  Mrs.  Rutt,  but  his  Lordship  agreed 
with  the  Master  of  the  Rolls  that  that  case  had  failed.  His  Lordship 
commented  further  on  the  evidence  as  shewing  that  Barber  was 
throughout  the  agent  of  the  Plaintiff,  and  had  not  even  been  able  to 
pay  for  the  shares  until  he  got  the  Plaintiff's  money.) 

To  my  mind,  with  the  greatest  deference  to  the  Master  of  the  Rolls, 
if  His  Lordship  thought  otherwise,  this  is  a  very  clearly  established 
case  of  agency.  That  being  so,  I  see  no  difficulty  in  the  relief  which 
is  asked  by  the  first  part  of  the  prayer.  It  seems  to  me  the  common 
relief,  the  relief  which  was  given  in  Hichens  v.  Congreve,  4  Russ. 
562,  577,  in  Bank  of  London  v.  Tyrrell,  10  H.  L.  C.  26,  and  in  other 
cases  too  numerous  to  mention. 


Sec.  S)  EQUITABLE   DEFENSES  559 

It  is  unnecessary  to  inquire,  therefore,  whether,  if  I  had  been  ob- 
liged to  consider  the  alternative  part  of  the  prayer,  I  should  have'been 
pressed  with  the  difficulties  which  weighed  upon  the  mind  of  the  Mas- 
ter of  the  Rolls,  I  will  not  go  into  that  farther  than  to  say  that,  as  it 
appears  to  me,  the  case  of  Great  Luxembourg  Railway  Company  v. 
Magnay,  25  Beav.  586,  4  Jur.  (N.  S.)  839,  is,  assuming  it  to  be  well 
decided,  a  case  in  its  circumstances  very  different  from  the  present 
case.  On  the  view  which  I  take  of  the  facts  in  this  case,  there  is  no 
difficulty  in  granting  the  relief  sought  by  the  first  portion  of  the  prayer. 

I  am  obliged,  therefore,  to  reverse  the  decree  made  by  the  Master 
of  the  Rolls,  and  to  substitute  a  decree  in  the  terms  of  the  first  part  of 
the  prayer  of  the  bill,  for  the  payment  by  the  Defendant  Barber  of 
the  sum  in  question,  and  that  he  also  pay  the  costs  of  the  suit. 


McMANUS  v.  CITY  OF  BOSTON. 

(Supreme  Judicial  Court  of  Massachusetts,  1S9S.    171  Mass.  152,  50  N.  E.  607.) 

Bill  by  McManus  against  the  city  of  Boston  for  specific  perform- 
ance.    The  case  is  reported  to  the  supreme  judicial  court. 

Barker,  J.78  On  October  27,  1896,  the  school  committee  of  the  city 
of  Boston,  having  power,  under  St.  1895,  c.  408,  §  2,  with  the  approv- 
al of  the  mayor,  to  designate  for  school  purposes  lands  which  the  board 
of  street  commissioners  shall  thereupon  take  by  purchase  or  otherwise, 
passed  an  order  requesting  the  board  of  street  commissioners  to  take, 
by  purchase  or  otherwise,  the  land  which  the  plaintiff  by  this  bill  seeks 
to  compel  the  city  to  take  and  pay  for,  and  this  order  was  subsequently 
approved  by  the  mayor.  When  the  order  was  passed,  the  plaintiff  was 
not  the  owner  of  the  land.  The  approval  of  the  order  by  the  mayor 
took  place  on  November  5,  1896,  and  on  that  day  the  plaintiff  bought 
the  land  for  $5,700,  in  anticipation  of  the  action  of  the  school  com- 
mittee and  street  commissioners,  and  shortly  after  offered  it  to  the  city 
for  $9,500,  saying  that  that  was  a  fair  price,  and  not  disclosing  what 
the  land  had  cost  him.  On  December  22,  1896,  the  board  of  street  com- 
missioners voted  to  purchase  the  land  for  the  city  for  school  purposes, 
of  the  plaintiff,  for  the  sum  of  $9,500 ;  and  on  the  same  day  the  plaintiff 
signed  a  written  agreement  under  seal  to  convey  the  land  to  the  city 
for  that  sum.  The  bill  alleges  that  the  plaintiff  on  that  day  agreed  in 
writing  with  the  board  of  street  commissioners  to  sell  the  land  to  the 
city  for  the  sum  of  $9,500 ;  which  the  city,  through  the  board,  agreed 
to  pay ;  and  the  answer  alleges  that  on  that  day  the  plaintiff  offered  the 
land  to  the  board  of  street  commissioners  for  the  sum  of  $9,500,  by 
the  written  paper  of  that  date,  signed  by  him,  and  above  mentioned. 
The  answer  denies  that  there  was  any  agreement  on  the  part  of  the 

»s  Part  of  the  opinion  is  omitted. 


500  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

board  of  ^t:-eet  commissioners  other  than  that  contained  in  its  vote  of 
December  22,  1896,  which  was  to  purchase  the  land  of  the  plaintiff 
for  $9,500.  The  report  does  not  state  whether  or  not  this  vote  was 
communicated  to  the  plaintiff.  It  was  communicated  on  the  day  of  its 
passage  to  the  school  committee,  who  on  January  4,  1897,  passed  an 
order  that  the  sum  of  $9,500  be  paid  to  the  plaintiff  for  the  land  upon 
his  giving  to  the  city  a  deed  satisfactory  to  its  law  department,  and  also 
passed  another  order  transferring  funds  to  enable  the  payment  to  be 
made.  The  plaintiff's  deed  not  having  been  accepted,  nor  the  price  of 
the  land  paid  to  him,  he  brings  this  bill.     *     *     * 

The  remaining  question  is  whether  the  facts  that  the  plaintiff  bought 
the  land  on  November  5,  1896,  for  $5,700,  in  anticipation  of  the  action 
of  the  school  committee  and  street  commissioners,  and  shortly  after 
offered  it  to  the  city  for  $9,500,  not  disclosing  what  the  land  had  cost 
him,  should  cause  the  court  in  its  discretion  to  refuse  a  decree  for  spe- 
cific performance.  These  facts  do  not  of  themselves  show  that  the  con- 
tract was  unreasonable  or  unfair  or  inequitable,  or  that  it  was  tainted 
with  fraud  or  bad  faith,  or  that  it  would  operate  as  a  fraud  on  the 
public.  The  allegations  of  the  answer  that  the  full  value  of  the  land 
was  $5,700,  and  that  $9,500  was  an  exorbitant  and  excessive  price  for 
it,  are  not  found  by  the  report  to  be  true.  The  circumstances  stated 
in  the  report  are  suspicious,  but  are  yet  consistent  with  the  fact  that  the 
price  at  which  the  board  of  street  commissioners  voted  to  purchase  the 
land  was  a  fair  one,  and  that  there  was  no  fraud  or  bad  faith.  If  the 
price  was  so  exorbitant  as  to  make  the  contract  unconscionable,  a  court 
of  equity  would  not  decree  specific  performance.  We  should  not, 
however,  refuse  to  grant  that  relief  merely  because  the  vendor,  ascer- 
taining that  a  certain  parcel  of  land  would  be  needed  for  a  public  pur- 
pose, had  had  the  address  to  purchase  it  at  much  less  than  its  fair 
value,  and  then  to  sell  it  to  the  city  at  a  fair  price,  through  a  board 
charged  with  the  duty  of  taking  it  for  the  city  by  purchase  or  other- 
wise. If  the  price  was  exorbitant,  the  contract  might  well,  under  the 
circumstances,  be  found  to  be  unconscionable,  and  one  which  a  court  of 
equity  would  not  specifically  enforce. 

As  this  was  not  proved,  and  as  there  was  a  contract  of  purchase 
which  the  city  has  failed  to  perform,  we  think  the  plaintiff  is  entitled 
to  a  decree.    Decree  for  plaintiff. 


WOOLLTJMS  v.  HORSLEY. 

(Court  of  Appeals  of  Kentucky,  1S92.     93  Ky.  5S2,  20  S.  W.  781.) 

Holt,  C.  J.  In  August,  1887,  the  appellant,  John  Woollums,  was 
living  upon  his  mountain  farm  of  about  200  acres  in  Bell  county.  He 
was  then  about  60  years  old,  uneducated,  afflicted  with  disease  disa- 
bling him  from  work,  owned  no  other  land,  and  but  very  little  personal 
property.     He  knew  but  little  of  what  was  going  on  in  the  business 


Sec.  8)  EQUITABLE   DEFENSES  561 

world,  owing  to  his  situation  and  circumstances  in  life.  He  moved 
in  a  small  circle.  At  this  time  the  appellee,  W.  J.  Horsley,  who  was 
then  a  man  of  large  and  varied  experience  in  business,  who  was  then 
buying  mineral  rights  in  that  locality  by  the  thousands  of  acres,  and 
who  was  evidently  familiar  with  all  that  was  then  going  on  and  near 
at  hand  in  the  way  of  business  and  development  in  that  section,  through 
his  agent  entered  into  a  contract  with  the  appellant,  which  was  signed 
by  the  latter  only,  by  which  he  sold  to  Horsley  all  the  oils,  gases,  and 
minerals  in  his  land,  with  customary  mining  privileges,  for  40  cents  per 
acre,  and  obligated  himself  to  convey  the  same  by  general  warranty 
deed  free  of  dower  claim  or  other  incumbrance  when  the  purchase 
money  was  paid,  to  wit,  one  half  in  three  months,  and  the  balance  in 
four  months  from  the  first  payment,  or  as  soon  as  the  deed  should 
be  made ;  three  dollars  of  it,  however,  being  then  paid. 

It  is  suggestive  upon  the  question  of  the  then  value  of  the  purchase, 
and  as  regarded  by  Horsley,  that  his  agent,  who  made  it,  was  to  get 
$80  for  his  pay,  or  as  much  as  Woollums  was  to  receive  for  all  he 
sold,  and  also  that  this  agent  does  not  testify  in  the  case.  The  pur- 
chase money  was  not  paid  as  stipulated,  but  the  reason  given  is  that  it 
was  a  sale  of  the  minerals  by  the  acre,  and  the  quantity  of  land  was 
not  known,  and  Woollums  refused  to  survey  it.  Nothing  appears  to 
have  transpired  between  the  parties  until  the  summer  after  the  trade, 
when  Horsley  demanded  a  deed.  He  says  he  sent  his  agent  to  do  so 
before  that  time,  but  it  does  not  appear  that  he  did  so.  In  December, 
1888,  this  suit  was  brought  for  a  specific  performance  of  the  contract. 
The  main  defense  is  that  it  was  procured  through  undue  advantage, 
and  under  such  circumstances  that  in  equity  its  performance  should 
not  be  decreed.  The  answer  also  sets  up  inability  to  convey  with  con- 
tingent right  of  dower  relinquished,  as  the  wife  refused  to  unite  in  the 
deed ;  but  it  is  alleged,  and  not  denied,  that  the  husband  induced  this 
refusal  by  her,  and  the  appellee  offered  to  accept  a  conveyance  without 
her  relinquishment,  a  proper  reduction  of  the  purchase  money  being  al- 
lowed. Pom.  Cont.  §  438.  The  specific  execution  of  the  contract  was 
ordered. 

Considering  all  the  circumstances,  and  the  rule  applicable  in  such  a 
case,  the  judgment  should  not  be  upheld.  There  is  a  distinction  be- 
tween the  case  of  a  plaintiff  asking  a  specific  performance  of  a  con- 
tract in  equity  and  that  of  a  defendant  resisting  such  a  performance. 
Its  specific  execution  is  not  a  matter  of  absolute  right  in  the  party,  but 
of  sound  discretion  in  the  court.  It  requires  less  strength  of  case  on 
the  side  of  the  defendant  to  resist  the  bill  than  it  does  upon  the  part  of 
the  plaintiff  to  enforce  it.  If  the  court  refuses  to  enforce  specifically, 
the  party  is  left  to  his  remedy  at  law.  Thus  a  hard  or  unconscion- 
able bargain  will  not  be  specifically  enforced,  nor  if  the  decree  will 
produce  injustice,  or  under  all  the  circumstances  be  inequitable,  will 
it  be  rendered.  In  other  words,  a  court  of  equity  will  not  exercise 
Boke  Eq—  36 


562  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

its  power  in  this  direction  to  enforce  a  claim  which  is  not,  under  all 
the  circumstances,  just  as  between  the  parties,  and  it  will  allow  a  de- 
fendant to  resist  a  decree  where  the  plaintiff  will  not  always  be  allowed 
relief  upon  the  same  evidence.  A  contract  ought  not  to  be  carried  into 
specific  performance  unless  it  be  just  and  fair  in  all  respects.  When 
this  relief  is  sought,  ethics  are  considered,  and  a  court  of  equity  will 
sometimes  refuse  to  set  aside  a  contract,  and  yet  refuse  its  specific  per- 
formance.    Story  says : 

"Courts  of  equity  will  not  proceed  to  decree  a  specific  performance  where 
the  contract  is  founded  in  fraud,  imposition,  mistake,  undue  advantage,  or 
gross  misapprehension,  or  where,  from  a  change  of  circumstances  or  other- 
wise, it  would  be  unconscientious  to  enforce  it."    2  Story,  Eq.  Jur.  §  750a. 

Kent  also  says : 

"It  is  a  rule  in  equity  that  all  the  material  facts  must  be  known  to  both 
parties  to  render  the  agreement  fair  and  just  in  all  its  parts ;  and  it  is  against 
all  the.  principles  of  equity  that  one  party,  knowing  a  material  ingredient  in 
an  agreement,  should  be  permitted  to  suppress  it,  and  still  call  for  a  specific 
performance."     2  Kent,  Comm.  p.  491. 

It  was  held  in  Patterson  v.  Bloomer,  95  Amer.  Dec.  218,  and  the 
same  rule  has  been  announced  in  other  cases,  that  an  application  for 
specific  performance  is  addressed  to  the  court's  sound  discretion,  and 
will  not  be  granted  unless  the  contract  is  made  according  to  legal  re- 
quirements, is  certain,  reasonable,  equitable,  mutual,  on  sufficient  con- 
sideration, consistent  with  public  policy,  and  is  free  from  gross  mis- 
apprehension, fraud,  surprise,  or  mistake.  The  appellee  testifies  that 
he  did  not  know  anything  as  to  the  mineral  value  of  this  land  when 
the  contract  was  made,  but  it  is  evident  he  had  a  thorough  knowledge 
of  the  value  in  this  respect  of  lands  generally  in  that  section,  and  of 
the  developments  then  in  progress  or  near  at  hand.  All  this  was  un- 
known to  the  appellant.  It  is  evident  his  land  was  valuable  almost  al- 
together in  a  mineral  point  of  view.  While  it  is  not  shown  what  it  was 
worth  at  the  date  of  the  contract,  yet  it  is  proven  to  have  been  worth 
in  April,  1889,  $15  an  acre,  and  that  this  value  arises  almost  altogether 
from  its  mineral  worth;  and  yet  the  appellee  is  asking  the  enforcement 
of  a  contract  by  means  of  which  he  seeks  to  obtain  all  the  oil,  gas,  and 
minerals,  and  the  virtual  control  of  the  land,  at  40  cents  an  acre.  The 
interest  he  claims  under  the  contract  is  substantially  the  value  of  the 
land.  Equity  should  not  help  such  a  harsh  bargain.  The  appellee 
shows  pretty  plainly  by  his  own  testimony  that  when  the  contract  was 
made  he  was  advised  of  the  probability  of  the  building  of  a  railroad  in 
that  locality  in  the  near  future.  His  agent,  when  the  trade  was  made, 
assured  the  appellant  that  he  would  never  be  bothered  by  the  contract 
during  his  lifetime.  He  was  lulled  in  the  belief  that  the  Rip  Van 
Winkle  sleep  of  that  locality  in  former  days  was  to  continue,  and  the 
grossly  inadequate  price  of  this  purchase  can  only  be  accounted  for 
upon  the  ground  that  the  appellant  was  misled  and  acted  under  gross 
misapprehension.  The  contract  was  not  equitable  or  reasonable,  or 
grounded  upon  sufficient  consideration,  and  no  interest  has  arisen  in 


Sec.  8)  EQUITABLE   DEFENSES  5G3 

any  third  party.  A  court  of  equity  should  therefore  refuse  its  specific 
enforcement,  but  the  appellant  should  have  what  was  in  fact  paid, 
with  its  interest,  and,  when  this  is  done,  his  petition  should  be  dis- 
missed. 

Judgment  reversed,  and  cause  remanded  for  proceedings  consistent 
with  this  opinion. 


JONES  v.  STEWART. 

(Supreme  Court  of  Nebraska.  1901.     C2  Neb.  207,  87  N.  W.  12.) 

Error  to  district  court,  Lancaster  county ;  Hall,  Judge. 

Action  by  John  T.  Jones  against  Willard  E.  Stewart.  Judgment  for 
defendant,  and  plaintiff  brings  error. 

Day,  C.79  The  facts  in  this  case  present  a  very  singular  transac- 
tion. On  and  prior  to  November  12,  1892,  Willard  E.  Stewart  was 
the  owner  of  lots  7  and  8  of  College  Hill,  an  addition  to  the  city  of 
Lincoln,  upon  which  was  erected  a  seven-room  dwelling  house.  The 
premises  were  incumbered  by  a  mortgage  of  $2,000,  together  with  a 
small  amount  of  accumulated  interest  and  taxes.  On  said  day,  and 
for  several  years  prior  thereto,  the  plaintiff,  under  the  name  of  John 
T.  Jones,  treasurer,  had  on  deposit  and  to  his  credit  in  the  First  Na- 
tional Bank  of  Lincoln  $2,609.35 ;  and,  incomprehensible  as  it  may 
seem,  this  fact  had  entirely  escaped  his  attention.  The  defendant, 
discovering  this  fact,  made  a  proposition  to  the  plaintiff  to  deed  him 
the  property  above  mentioned,  subject  to  the  incumbrance,  for  an  as- 
signment of  the  plaintiff's  interest  in  and  to  certain  property,  the  na- 
ture and  location  of  which  the  defendant  declined  to  disclose.  One 
of  the  conditions  of  the  proposed  trade  was  that  plaintiff  should  sign 
his  name  to  the  papers  without  seeing,  reading,  or  knowing  the  con- 
tents of  the  instrument  he  signed.  After  some  modification  of  the 
proposition,  the  parties  came  to  an  agreement,  in  pursuance  of  which 
the  defendant  on  November  12,  1892,  executed  and  delivered  a  warran- 
ty deed  conveying  the  premises  above  mentioned  to  a  person  named 
by  the  plaintiff,  for  plaintiff's  use,  and  also  paid  to  the  plaintiff  $100 
in  cash.  In  consideration  of  this  conveyance  and  the  cash  payment, 
the  plaintiff,  in  pursuance  of  the  agreement,  signed  two  papers  without 
reading  them  or  seeing  their  contents,  or  knowing  what  they  contained, 
except  that  they  were  to  operate  as  an  assignment  of  certain  interests 
which  he  had,  the  nature  of  which  he  was  ignorant.  At  the  time  of 
the  negotiation  the  plaintiff  secured  a  written  statement  from  the  de- 
fendant that  there  was  nothing  contained  in  the  papers  which  plaintiff 
signed  which  would  subject  him  to  criminal  liability  or  bring  upon 
him  public  ignominy  or  disgrace.  Protected  by  this  simple  assurance, 
he  blindly  entered  into  the  contract,  and  signed  the  instrument  placed 

79  Part  of  the  opiniou  is  omitted. 


564  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

before  him.  One  of  the  papers  so  signed  was  a  check  in  favor  of  the 
defendant  on  the  First  National  Bank  for  $2,609.35,  by  means  of  which 
the  defendant  drew  said  sum  from  the  bank  and  applied  it  to  his  own 
use.  Plaintiff  kept  the  real  estate  for  about  two  years,  at  which  time 
he  sold  it,  realizing  from  the  sale  just  sufficient  to  pay  the  mortgage 
lien  upon  it.  In  1894  plaintiff  discovered  the  nature  and  extent  of  the 
property  he  had  assigned  to  the  defendant,  and  the  full  purport  of  the 
contract  he  had  made  dawned  upon  him. 

This  action  was  broughi  in  the  district  court  of  Lancaster  county 
to  recover  of  the  defendant  $2,609.35  and  interest,  and  is  in  the  na- 
ture of  an  action  for  deceit.  As  a  basis  for  his  claim,  the  plaintiff,  in 
substance,  alleges :  That  he  was  induced  to  sign  the  check  without 
reading  it  or  seeing  its  written  and  printed  contents  by  the  untruth- 
ful and  fraudulent  representations  made  to  him  by  the  defendant. 
That  defendant  told  him  he  wished  to  procure  from  plaintiff  a  power 
of  attorney  and  an  assignment;  that  it  would  not  put  the  plaintiff  in  a 
worse  condition  or  position,  lose  him  any  money,  or  deprive  him  of 
any  interest,  but  would  be  of  great  value  to  the  defendant.  That  plain- 
tiff, by  oversight  and  error,  forgot  the  fact  of  his  deposit  in  the  bank, 
and,  relying  on  the  representations  made  by  the  defendant,  and  be- 
lieving them  to  be  true,  signed  his  name  twice,  but,  in  doing  so,  un- 
knowingly signed  the  check  on  which  the  defendant  drew  said  money 
from  the  bank.  The  answer  denied  any  false  or  fraudulent  represen- 
tations whatever  to  induce  him  to  sign  the  papers,  and  alleged  that 
the  plaintiff  signed  the  check  and  papers  voluntarily  and  knowingly, 
and  in  accordance  with  the  agreement  entered  into  between  the  plain- 
tiff and  defendant.  The  trial  resulted  in  a  verdict  and  judgment  in 
favor  of  the  defendant,  to  review  which  the  case  is  brought  to  this 
court  on  error. 

Much  as  the  court  may  feel  disposed  to  condemn  the  selfish  cunning 
manifested  by  defendant  in  this  transaction,  and  to  lament  the  artless 
confidence  of  plaintiff,  yet  the  legal  rights  involved  are  governed  by 
well-established  principles  of  the  law,  and  by  the  law  only  must  they 
be  settled.  The  rule  is  well  established  that  where  persons  are  deal- 
ing with  each  other  upon  equal  terms,  and  no  confidential  relation  ex- 
ists between  them,  neither  is  bound  to  disclose  superior  information  he 
may  have  respecting  the  transaction,  and,  in  the  absence  of  fraud  or 
deception  to  induce  the  contract,  the  court  can  afford  no  relief.  The 
law  presumes  every  man  capable  of  taking  care  of  his  own  interests, 
and  his  poor  judgment  or  unfortunate  trades  cannot  form  a  basis  of 
interference  by  the  court.  To  recover,  it  was  necessary  for  plaintiff 
to  prove  that  the  representations  were  made,  that  they  were  false,  that 
plaintiff  believed  the  representations  to  be  true  and  relied  upon  them, 
and  that  he  was  injured  thereby.  The  question  of  fact  as  to  whether 
defendant  had  made  any  false  or  fraudulent  representations,  upon 
which  plaintiff  relied  in  entering  into  this  transaction  and  signing  the 
check  and  power  of  attorney,  was  submitted  to  the  jury  under  proper 


Sec.  8)  EQUITABLE  DEFENSES  565 

instructions,  upon  evidence  which  was  slightly  conflicting,  and  the  find- 
ing of  the  jury  is  conclusive  upon  this  court. 

For  the  purpose  of  determining  the  amount  of  plaintiff's  damage,  in 
the  event  the  jury  should  find  there  had  been  false  representations 
made  by  defendant,  upon  which  plaintiff  relied  in  making  the  contract, 
testimony  was  introduced  on  both  sides  as  to  the  value  of  the  property 
at  the  date  the  trade  was  made.  Plaintiff's  witnesses  (four  in  number) 
placed  the  value  of  the  real  estate  at  sums  ranging  from  $2,500  to  $2,- 
700,  while  the  defendant's  witnesses  (seven  in  number;  placed  it  at 
from  $4,000  to  $5,000.  There  was  ample  evidence  for  the  jury  to 
find  that  the  value  of  the  property  received  by  the  plaintiff  was  equal  to 
the  value  of  the  property  he  parted  with.  This  question  was  also  sub- 
mitted to  the  jury  under  proper  instructions,  and,  being  resolved  by  the 
jury  in  defendant's  favor  upon  fairly  conflicting  evidence,  their  find- 
ing will  not  be  disturbed.  Loan  Ass'n  v.  Strine,  59  Neb.  27,  80  N.  W. 
45 ;  Van  Housen  v.  Broehl,  59  Neb.  48,  80  N.  W.  260.  This  rule  has 
been  announced  so  many  times  by  this  court  that  it  is  unnecessary  to 
cite  authorities  to  support  it.  Fourteen  cases  can  be  found  in  the  in- 
dex of  59  Neb.,  under  the  title  of  "Review."     *     *     * 

The  defendant  testified  that  he  told  the  plaintiff  that,  in  his  opinion, 
the  property  he  was  deeding  to  him  was  of  about  equal  value  of  the 
property  he  was  getting  from  plaintiff.  To  discredit  this,  and  to  show 
defendant  did  not  regard  the  properties  of  equal  value,  plaintiff  sought 
to  show  that  defendant  had  paid  $600  for  the  information  which  en- 
abled him  to  make  the  trade.  We  can  see  no  error  in  excluding  the 
testimony.  It  was  entirely  immaterial  what  defendant  may  have  paid 
for  the  information.  He  may  have  made  a  good  or  a  bad  bargain.  It 
did  not  go  to  show  that  the  value  of  the  property  was  less  than  defend- 
ant claimed.  It  is  a  matter  of  common  experience  that  persons  oft- 
times  make  great  sacrifices  of  their  property  for  the  purpose  of  realizing 
therefrom  ready  cash. 

All  of  the  elements  of  fraud  presented  by  the  pleadings  were  fully 
and  fairly  submitted  to  the  jury  by  the  instructions,  and,  after  a  careful 
investigation  of  the  record,  we  can  find  no  legal  reason  to  disturb  the 
judgment.    It  is  therefore  recommended  that  the  judgment  be  affirmed. 

Hastings  and  Kirkpatrick,  CC,  concur. 

Per  Curiam.  For  the  reasons  stated  in  the  foregoing  opinion,  the 
judgment  of  the  district  court  is  affirmed. 

Holcomb,  J.,  dissents. 


5G6  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

STANDARD  STEEL  CAR  CO.  v.  STAMM. 

(Supreme  Court  of  Pennsylvania,  1904.    207  Pa.  419,  50  Atl.  954.) 

The  court  found  as  a  conclusion  of  law  that  the  complainants  were 
not  entitled  to  specific  performance,  and  accordingly  dismissed  the 
bill.80 

Brown,  J.  The  material  facts  in  this  case  are  undisputed.  Shortly 
before  March  20,  1902,  W.  D.  George  went  to  the  town  of  Butler  to 
procure  options  to  purchase  land  in  his  name,  but  intended  really  for 
the  benefit  of  the  Standard  Steel  Car  Company,  which  contemplated 
the  erection  of  a  large  plant  for  the  construction  of  steel  cars.  He  em- 
ployed W.  D.  Brandon,  Esq.,  a  member  of  the  Butler  bar,  to  assist  him, 
but  did  not  disclose  the  name  of  the  company  he  represented.  After 
George  had  procured  options  for  a  number  of  properties,  he  found  it 
important  to  procure  one  for  the  property  of  the  defendant,  which  is 
the  subject  of  this  controversy,  and,  having  so  informed  Mr.  Brandon, 
his  attorney,  the  latter  called  to  their  assistance  J.  F.  Anderson,  one 
of  the  appellants.  On  March  20,  1902,  Anderson  took  Stamm,  the  ap- 
pellee, to  Brandon's  office,  and  procured  the  following  option : ' 

"Received  of  J.  F.  Anderson  this  20th  of  March,  1902,  five  dollars  for  an 
option  to  purchase  at  any  time  within  sixty  days  at  the  price  of  $14,000,  a 
tract  of  land  in  Butler,  Pa.,  bounded  north  by  Pillow  street,  east  by  Willow 
street  or  Fair  Ground  Road,  south  by  Charles  Duffy  and  west  by  public  road ; 
containing  nine  acres,  more  or  less,  with  the  appurtenances.  Possession  of 
the  house  and  lot — the  residence  property — to  be  given  in  thirty  days  after  ac- 
ceptance of  this  option,  and  of  the  balance  also  in  thirty  days,  except  so  far 
as  it  may  be  necessary  for  him  to  operate  his  brick  yard  for  the  season  for 
which  purpose  he  retains  possession  until  November  1,  1902,  and  thereafter 
of  the  kiln  until  he  can  remove  his  brick,  which  he  agrees  then  to  do  with  all 
reasonable  diligence.  Acceptance  of  this  option  to  be  in  writing.  The  amount 
of  purchase  money  to  be  paid  eight  thousand  dollars  on  acceptance  of  option 
when  deed  clear  of  encumbrance  is  to  be  made,  and  balance  in  payments  of 
$2,000  a  year  for  three  years  with  interest,  to  be  secured  by  mortgage. 

"J.  George  Stamm.     [Seal.] 
"J.  F.  Anderson.  [Seal.] 

"Attest:     W.  D.  Brandon." 

On  April  1,  1902,  the  option  was  accepted  in  writing  by  Anderson, 
and  subsequently  he  assigned  it  to  the  Standard  Steel  Car  Company, 
the  other  appellant.  While  Brandon  and  Anderson  knew  at  the  time 
the  option  was  given  that  a  manufacturing  company  contemplated  locat- 
ing its  plant  in  Butler,  its  name  had  not  been  disclosed  to  either  of 
them.  When  the  option  was  given,  the  agreement  was  that,  if  it  should 
be  exercised  by  Anderson,  Stamm  would  go  to  the  office  of  Mr.  Bran- 
don and  execute  the  deed.  He  did  not  do  this,  but  there  were  inter- 
views between  him  and  Brandon  and  Anderson  for  the  purpose  of 
closing  the  contract,  in  which  he  expressed  his  willingness  to  perform 
his  part  of  it,  but  excused  himself  for  not  promptly  doing  so  on  the 
ground  that  his  wife  was  unwilling  to  join  in  the  deed,  and  requested 

so  The  statement  of  facts  is  abridged. 


Sec.  8)  EQUITABLE   DEFENSES  5G7 

time  for  the  purpose  of  inducing  her  to  do  so.  Another  reason  given 
by  him  for  asking  for  delay  was  that  there  was  some  trouble  about 
car  tracks  over  his  land.  He  subsequently  admitted  that  this  latter 
reason  was  a  mere  pretext,  and  that,  as  the  real  reason  for  his  delay 
was  the  unwillingness  of  Mrs.  Stamm  to  join  in  the  deed,  he  wanted 
a  little  more  time  to  talk  it  over  with  her.  On  July  19,  1902,  Brandon 
notified  Stamm  that  the  deed  for  the  property  would  be  accepted  with- 
out its  execution  by  his  wife,  but  he  refused  to  so  execute  and  de- 
liver it  to  the  purchaser.  On  September  27,  1902,  the  purchase  money 
of  $8,0C0  and  Anderson's  bond  and  mortgage  for  the  balance,  accord- 
ing to  the  contract,  were  tendered  to  the  defendant,  and  he  still  re- 
fused to  comply  with  his  agreement. 

This  bill  was  then  riled  on  Xovember  5,  1902,  and,  under  the  fore- 
going facts,  was  dismissed  by  the  court  below,  for  the  reason  that,  as 
Anderson  had  not  disclosed  to  Stamm.  at  the  time  the  option  was  pro- 
cured, his  knowledge  of  the  fact  that  a  manufacturing  plant  would 
probably  come  to  Butler,  such  concealment  was  a  fraud  upon  Stamm, 
in  the  face  of  which  he  ought  not  to  be  compelled  to  specifically  per- 
form his  contract.  The  words  of  the  learned  trial  judge  in  his  con- 
clusion that  the  bill  ought  to  be  dismissed  for  the  reason  stated  are : 

"Under  the  undisputed  facts  in  this  case  it  would  be  inequitable  to  compel 
the  defendant  to  convey  the  land  to  the  plaintiff,  the  Standard  Steel  Car  Com- 
pany. The  option,  when  taken,  was  not  taken  for  the  Standard  Steel  Car 
Company,  nor  by  its  direction,  nor  did  said  company  have  any  knowledge  that 
it  was  to  be  taken,  or  that  it  had  been  taken,  for  some  time  thereafter.  Mr. 
J.  F.  Anderson,  who  took  the  option,  was  a  volunteer.  He  had  no  interest 
whatever  in  the  premises.  He  is  not  asking  for  a  conveyance  to  himself.  He 
has  been  in  no  way  injured  or  wronged  by  the  refusal  of  the  defendant  to  con- 
vey the  land.  At  the  time  he  took  the  option  he  believed  that  a  manufactur- 
ing plant  was  coming  to  Butler,  and  he  had  reason  to  believe  that  the  defend- 
ant had  no  knowledge  of  the  facts  relative  thereto.  His  conduct  in  his  deal- 
ings with  the  defendant  was,  in  effect,  fraudulent  as  to  the  defendant.  Mr. 
Anderson  testifies  that  he  concealed  the  knowledge  he  had  of  the  probable 
coming  of  some  new  industry,  knowing  or  believing,  if  he  disclosed  it,  the  de- 
fendant would  ask  a  higher  price  for  his  land  than  he  did.  He  knew,  if  the 
plant,  did  come,  it  would  greatly  enhance  the  market  value  of  the  defendant's 
property;  and,  as  a  fact,  it  has  largely  enhanced  the  value  of  said  property. 
There  is  no  evidence  in  the  case  of  an  imperative  necessity  that  the  car  com- 
pany should  own  the  property  of  the  defendant  for  the  convenient  and  success- 
ful operation  of  its  plant." 

The  statement  that  Anderson  is  not  asking  for  a  conveyance  to  him- 
self is  an  inadvertence,  for  the  prayer  of  the  bill  is  for  a  decree  that 
a  deed  be  executed  and  delivered  to  him  or  his  co-complainant. 

In  Anderson's  negotiations  with  Stamm  for  the  option  it  is  not  pre- 
tended that  he  made  any  misstatement,  or  practiced  any  deception  or 
imposition,  or  refused,  at  Stamm's  request,  to  disclose  any  information 
which  he  possessed.  As  a  matter  of  fact,  he  was  in  possession  of  no 
definite  information.  It  was  limited  to  the  probability  that  a  com- 
pany, unknown  and  unnamed  to  him,  might  locate  in  Butler,  and, 
among  other  lands,  might  need  that  of  the  defendant  for  its  business 
purposes.     As  we  gather  from  the  testimony,  he,  with  other  citizens 


568  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

of  the  place,  was  anxious  to  have  the  manufacturing  company  come 
among  them,  and,  most  naturally,  was  willing  to  assist  in  the  move- 
ment to  induce  it  to  do  so.  With  not  the  slightest  evidence  of  any  in- 
tention to  deceive  Stamm,  or  to  practice  a  fraud  upon  him,  he  negotiated 
with  him  on  a  pure  business  basis.  Each  dealt  with  the  other  at  arm's 
length,  the  prospective  seller  trying  to  obtain  the  best  possible  price 
paid  for  his  land,  and  the  option  was  given  only  after  the  prospective 
buyer  had  agreed  to  give  all  that  was  asked  for  it.  There  is  nothing  to 
show  that  the  price  agreed  to  be  paid  was  not  full  and  adequate  at  the 
time  the  option  was  given.  And  now,  for  no  other  conceivable  reason 
than  that  the  value  of  his  land  has  greatly  increased,  the  defendant 
would  avoid  performance  of  a  contract  in  which  there  is  involved 
nothing  dishonest  in  law  or  in  morals.  Before  the  option  was  exer- 
cised, the  appellee  heard  that  the  manufacturing  company  might  come 
to  the  town,  but  he  made  no  objection  on  that  account  when  Anderson 
notified  him  that  he  would  exercise  it.  Such  exercise  turned  it  into  a 
contract,  enforceable  by  either  party,  whether  the  company  came  or 
not,  and,  if  it  had  not  come,  Anderson  would  have  had  to  pay  the  pur- 
chase money,  though  the  same  might  have  been  much  more  than  the 
property  was  worth  and  than  anybody  else  would  have  paid  for  it. 
What  Anderson  is  alleged  to  have  concealed  was  nothing  more  than  a 
rumor,  which  might  have  been  true  or  false.  He  concealed  no  fact 
then  in  existence  that  had  actually  affected  the  real  market  value  of  the 
property.  But,  even  if  he  had,  and  the  concealment  under  what  took 
place  between  him  and  the  prospective  vendor  had  not  amounted  to 
actual  deception,  no  fraud  would  have  been  practiced. 

The  complaint  of  the  appellee  is,  that  Anderson  did  not  speak  when 
it  was  his  duty  to  speak. 

"A  concealment,  to  be  material,  must  be  tbe  concealment  of  something  that 
the  party  concealing  was  under  some  legal  or  equitable  obligation  to  disclose." 
Kerr  on  Fraud  (Am.  Ed.)  95. 

"Concealment  which  amounts  to  fraud  in  the  sense  of  a  court  of  equity,  and 
for  which  it  will  grant  relief,  is  the  nondisclosure  of  those  facts  and  circum- 
stances which  one  party  is  under  some  legal  or  equitable  obligation  to  com- 
municate, and  which  the  other  party  has  a  right,  not  merely  in  foro  con- 
scientiae,  but  juris  et  de  jure,  to  know." 

In  Neill  v.  Shamburg,  158  Pa.  263,  27  Atl.  992,  the  plaintiff  sought 
to  set  aside  her  sale  of  an  oil  lease,  alleging  as  one  of  her  reasons  con- 
cealment by  the  purchaser  at  the  time  of  the  purchase  of  the  fact  that 
oil  was  being  produced  upon  a  neighboring  leasehold  owned  by  him, 
and  we  held  that  the  failure  of  the  purchaser  to  make  such  disclosure 
was  not  a  fraud  upon  her.  If  the  information  had  been  imparted  to 
her,  she  might  have  refused  to  sell,  or  demanded  more ;  but  it  was  said 
by  the  present  chief  justice: 

"Unless  there  is  some  exceptional  circumstance  to  put  on  him  the  duty  of 
speaking,  it  is  the  right  of  every  man  to  keep  his  business  to  himself." 

There  was  no  exceptional  circumstance  here  requiring  Anderson  to 
repeat  to  Stamm  the  rumor  of  the  probability  of  the  location  of  the 


Sec.  8)  EQUITABLE   DEFENSES  569 

manufacturing  company  in  their  town.  On  the  contrary,  common  busi- 
ness prudence  required  him  to  remain  silent,  for,  if  he  had  spoken  of 
the  rumor,  he  might  not  have  been  able  to  negotiate  at  all.  On  this 
very  point  the  learned  trial  judge  says : 

"Had  Mr.  Anderson  frankly  confided  to  Mr.  Stamni  the  information  and 
knowledge  he  had,  and  which  was  entirely  proper  that  he  should  have  done, 
it  is  scarcely  possible  this  option  would  have  been  given." 

If  Anderson  had  been  asked  to  speak  on  a  material  matter,  and  had 
answered  falsely,  Stamm  would  not  be  bound  by  the  option,  nor  the 
contract  that  flowed  from  it;  and,  if  he  had  refused  to  speak  when 
asked,  Stamm  would  have  dealt  with  him  at  his  own  risk.  But  such 
is  not  the  situation. 

Harris  v.  Tyson,  24  Pa.  347,  64  Am.  Dec.  661,  was  a  case  in  which 
the  vendee  did  not  disclose  to  his  ignorant  vendor  the  fact  known  by 
him  that  there  was  a  mine  of  chrome  on  the  land  he  wished  to  pur- 
chase. The  vendor  subsequently  would  have  avoided  his  deed  for  the 
reason  that  the  vendee  had  not  informed  him  of  the  presence  of  the 
chrome  on  the  property  at  the  time  he  sold  it,  and  Black,  J.,  said : 

"A  person  who  knows  that  there  is  a  mine  on  the  land  of  another  may  nev- 
ertheless buy  it.  The  ignorance  of  the  vendor  is  not  of  itself  fraud  on  the 
part  of  the  purchaser.  A  purchaser  is  not  bound  by  our  laws  to  make  the 
man  he  buys  from  as  wise  as  himself.  The  mere  fact,  therefore,  that  Tyson 
knew  there  was  sand  chrome  on  Harris'  land,  and  that  Harris  himself  was 
ignorant  of  it,  even  if  that  were  conclusively  established,  would  not  be  ground 
for  impugning  the  validity  of  the  deed." 

In  Guaranty  Safe  Deposit  &  Trust  Co.  v.  Ljebold,  207  Pa.  399,  56 
Atl.  951,  in  which  we  have  this  day  filed  an  opinion,  we  said  what  we 
repeat  as  applicable  to  the  facts  here : 

"In  this  commercial  age  options  are  daily  procured  by  those  in  possession 
of  information  from  which  they  expect  to  profit  simply  because  thdse  from 
whom  the  options  are  sought  are  ignorant  of  it.  When  the  prospective  seller 
knows  as  much  as  the  prospective  buyer,  options  can  rarely,  if  ever,  be  pro- 
cured. *  *  *  The  prospective  buyer  seeks  an  option,  instead  of  at  once 
entering  into  a  contract  for  the  purchase  of  land,  because,  no  matter  what  in- 
formation he  may  possess  exclusively,  he  is  unwilling  to  act  upon  it  until  it 
becomes  a  certainty.  In  the  meantime,  on  the  contingency  of  its  becoming  so, 
he  makes  his  contingent  bargain  to  purchase.  This  is  fair  in  law  and  in 
morals.  Hershey  v.  Keembortz,  6  Pa.  128;  Harris  v.  Tyson,  24  Pa.  347  [64 
Am.  Dec.  661]." 

The  reason  given  for  dismissing  plaintiffs'  bill  and  refusing  a  de- 
cree for  specific  performance  is  untenable,  and  cannot  be  sanctioned  in 
this  practical  age.  The  decree  of  the  court  below  is  reversed,  and  it 
is  now  ordered,  adjudged,  and  decreed  that  the  bill  be  reinstated,  and 
that  upon  the  tender  of  $8,000  of  the  purchase  money  by  J.  F.  Ander- 
son to  the  appellee,  and  the  execution  and  delivery  by  him  of  the  mort- 
gage to  secure  the  three  annual  payments  of  $2,000  each,  balance  of 
the  purchase  money,  the  appellee,  J.  George  Stamm,  execute  and  de- 
liver to  him,  and  said  J.  F.  Anderson,  a  deed  for  the  land  described 
in  the  bill ;  the  costs  on  this  appeal  and  below  to  be  paid  by  the  appellee. 


570  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Ch.  2 

LIVINGSTON  v.  PERU  IRON  CO.  et  al. 

(Court  of  Chancery  of  New  York,  1S31.    2  Paige,  390.) 

The  bill  in  this  cause  was  filed  by  the  son  and  grantee  of  John  Liv- 
ingston, deceased,  to  set  aside  the  conveyance  of  a  lot  of  land,  on  the 
ground  of  fraud.  The  bill  stated  among  other  things,  that  Palmer,  one 
of  the  defendants,  applied  to  J.  Livingston  to  purchase  the  land  in 
question,  which  was  then  wild  and  uncultivated,  and  that  he  falsely 
represented  to  Livingston  that  the  same  was  of  little  or  no  value  except 
for  a  sheep  pasture,  for  which  purpose  he  wanted  the  lot ;  whereas  in 
point  of  fact  he  had  previously  discovered  a  valuable  ore  bed  on  the 
premises ;  which  fact  he  fraudulently  concealed  from  Livingston.  The 
bill  also  stated  that  in  consequence  of  this  representation  and  fraudu- 
lent concealment,  Livingston  was  induced  to  sell  164  acres  of  land  to 
Palmer  at  $2  per  acre ;  when  the  ore  bed  alone  was  worth  $70,000. 

The  Peru  Iron  Company  demurred  to  the  bill  for  want  of  equity. 
They  also  showed  for  special  grounds  of  demurrer,  that  it  appeared 
by  the  bill  that  the  complainant  was  not  the  sole  heir  at  law  of  his 
father ;  that  the  conveyance  to  him,  in  January  1820,  while  the  defend- 
ants were  in  possession  claiming  the  land  as  their  own  under  the  previ- 
ous conveyance,  was  void  by  the  statute  against  buying  pretended 
titles ;  and  that  all  the  heirs  at  law  should  have  been  made  parties  to 
the  suit.     *     *     * 

The  Chancellor  (Walworth).  Upon  the  merits  of  this  case  the 
demurrer  cannot  be  sustained.  I  am  not  aware  of  any  case  in  our  own 
courts,  or  in  England,  where  the  simple  suppression,  by  the  buyer,  of 
a  fact  which  materially  enhanced  the  value  of  the  property,  has  been 
deemed  sufficient  to  set  aside  the  sale,  on  the  ground  of  fraud.  The 
rule  is  different  where  the  purchaser  applies  to  a  court  of  equity  to  en- 
force the  specific  performance  of  an  agreement.  In  such  a  case  this 
court  will  not  enforce  a  specific  performance  of  the  contract,  if  the 
complainant  has  intentionally  concealed  a  material  fact,  from  the 
adverse  party,  the  disclosure  of  which  would  have  prevented  the  mak- 
ing of  the  agreement ;  but  he  will  be  left  to*  his  remedy  at  law.  It  has 
even  been  questioned  by  many  whether  the  suppression  of  a  material 
fact  by  the  one  party,  of  which  fact  he  knew  the  other  party  to  be 
ignorant,  was  not  of  itself  sufficient  to  avoid  the  contract  on  the  ground 
of  fraud.  Thus  in  Perkins  v.  McGavock,  Cook's  Rep.  417,  the  court 
of  errors  and  appeals  in  Tennessee  say,  it  is  a  sound  principle  of  equity 
that  each  party  to  a  contract  is  bound  to  disclose  to  the  other  all  he 
knows  respecting  the  subject  matter  materially  affecting  a  correct  view 
of  it,  unless  common  observation  would  have  furnished  the  informa- 
tion. They  also  say  that  the  neglect  to  disclose  facts  within  the  knowl- 
edge of  one  party,  and  not  of  the  other,  would  in  equity  be  considered 
a  concealment  which  is  both  immoral  and  unjust.  Although  our  courts 
have  not  gone  that  length,  yet,  even  in  this  state,  very  slight  circum- 


Sec.  S)  EQUITABLE   DEFENSES  571 

stances,  in  addition  to  the  intentional  concealment  of  a  fact,  have  been 
considered  sufficient  to  constitute  a  fraud  upon  the  other  party.  Thus 
in  Wardell  v.  Fosdick  &  Davis,  13  Johns.  (N.  Y.)  325,  7  Am.  Dec.  383, 
where  the  defendants  had  taken  a  deed  of  land  which  they  afterwards 
ascertained  had  no  actual  existence,  and  after  this  they  sold  and  as- 
signed their  interest  under  that  deed  to  the  plaintiff,  without  disclosing 
to  him  that  fact,  he  was  permitted  to  recover  against  them  for  the 
fraud.  So  also  in  Monell  &  Wetter  v.  Colden,  13  Johns.  (N.  Y.)  395, 
7  Am.  Dec.  390,  where  the  vendor  of  a  water  lot,  knowing  that  the 
purchasers  wanted  to  buy  the  lot  for  the  purpose  of  obtaining  the 
privilege  of  a  wharf,  represented  to  them  that  the  owners  of  land 
bounded  on  the  water  had  a  right  by  law  to  apply  to  the  commissioners 
of  the  land  office  for  a  grant  of  the  privilege  to  build  a  wharf  adjacent 
to  the  land,  whereas  he  in  fact  knew  that  the  lands  under  the  water 
had  been  previously  granted,  the  purchasers  were  allowed  to  recover 
for  the  fraud.  And  in  a  recent  case  before  Lord  Eldon,  he  adverts 
to  the  general  principle  that  parties  dealing  for  an  estate  have  a  right 
to  put  each  other  at  arms  length;  and  that  if  the  purchaser  knows 
there  is  a  mine  upon  the  estate,  and  the  vendor  makes  no  enquiry,  the 
former  is  not  bound  to  give  him  information  thereof.    But  he  says : 

'"Very  little  is  sufficient  to  affect  the  application  of  that  principle.  If  a 
word,  if  a  single  word,  be  dropped  which  tends  to  mislead  the  vendor,  that 
principle  will  not  be  allowed  to  operate."     Turner  v.  Harvey,  Jacob's  R.  ITS. 

And  certainly  if  the  purchaser  does  any  act,  or  makes  any  declara- 
tion, with  the  intention  of  misleading  the  seller  and  preventing  him 
from  ascertaining  the  real  situation  of  the  property,  and  at  the  same 
time  conceals  from  him  a  fact  which  he  knows  to  be  material,  he  is 
guilty  of  a  fraudulent  deception. 

From  the  statement  in  the  bill  this  case  appears  to  be  one  of  that 
description.  The  defendant  Palmer  had  discovered  a  valuable  mine  on 
the  lands  of  Livingston,  which  were  then  wild  and  uncultivated  and 
lay  remote  from  the  residence  of  the  latter.  Knowing  that  he  could 
not  obtain  the  land  if  he  discovered  the  fact  of  the  existence  of  the 
mine,  he  does  not  content  himself  with  making  a  bargain,  in  the  lan- 
guage of  Lord  Eldon,  at  arms  length;  but  he  falsely  and  fraudulently 
represents  the  land  as  being  of  no  value  except  for  a  sheep  pasture, 
and  states  that  he  wants  it  for  that  purpose.  By  this  deception  the 
vendor  is  thrown  completely  off  his  guard,  and  he  contracts  to  sell  the 
land  at  the  usual  rate  or  price,  of  rough  broken  land  in  that  region,  in- 
stead of  directing  his  agent,  near  the  premises,  to  enquire  and  ascertain 
its  true  value. 

But  I  think  there  is  an  unsuperable  objection  to  the  complainant's 
recovering  upon  his  bill  in  its  present  shape.  Although  the  conveyance 
of  the  land  was  obtained  by  a  fraudulent  misrepresentation,  it  was  not 
void.  It  was  only  voidable,  at  the  election  of  the  vendor.  And  the 
defendants  or  some  of  them  were  in  the  actual  possession  of  the  prem- 
ises, claiming  title  to  the  same  under  their  deed,  at  the  time  of  the  con- 


572  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Ch.  2 

veyance  to  the  complainant.  The  legal  title  to  this  property  could  not 
pass  to  the  complainant,  under  that  conveyance,  while  it  was  thus  held 
adversely.  If  John  Livingston  was  still  living  he  would  be  a  necessary 
party  to  a  bill  to  rescind  the  sale  on  the  ground  of  fraud.  Since  his 
death,  all  his  heirs  at  law,  or  the  devisees  of  this  particular  part  of 
his  estate,  are  necessary  parties.  I  lay  out  of  question  what  was  said 
on  the  argument  as  to  this  conveyance  to  the  complainant  being  in  the 
nature  of  a  testamentary  disposition  of  his  property,  to  carry  into  effect 
a  previous  arrangement.  The  deed  of  January  1820,  is  not  set  up  in 
the  bill  as  a  devise  of  the  estate,  but  as  an  absolute  grant;  neither  is 
it  stated  to  have  been  executed  in  due  form  of  law  as  a  will  of  real 
estate. 

The  demurrer  must  therefore  be  allowed,  with  liberty  to  the  com- 
plainant to  amend  his  bill  by  making  all  the  heirs  at  law,  or  the  dev- 
isees of  John  Livingston,  parties  thereto,  on  payment  of  costs.  And 
if  he  does  not  amend  within  sixty  days,  the  bill  must  be  dismissed,  with 
costs  to  the  defendants. 

It  may  be  proper  however  to  suggest  that  if  the  fact  is,  as  stated  by 
the  defendant's  counsel,  that  John  Livingston  devised  no  part  of  this 
land  to  the  complainant,  but  that  he  actually  made  a  will  by  which  it 
was  devised  to  other  persons,  urtder  the  general  description  of  all  the 
residue  of  his  estate,  no  amendment  can  help  the  complainant.  In  that 
case  it  will  be  necessary  to  dismiss  the  bill  in  this  suit,  and  to  bring  a 
new  action  in  the  names  of  those  to  whom  the  legal  title  passed  on  the 
death  of  John  Livingston,  if  they  shall  be  advised  to  proceed  further 
in  this  matter. 


MARGRAF  v.  MUIR. 

(Commission  of  Appeals  of  New  York,  1874.     57  N.  T.  155.) 

Appeal  from  order  of  the  General  Term  of  the  Supreme  Court  in 
the  second  judicial  department,  reversing  a  judgment  in  favor  of  plain- 
tiff, entered  upon  the  report  of  a  refereee  and  granting  a  new  trial. 

This  action  was  against  the  vendor  for  specific  performance  of  a 
contract  to  convey  a  lot  of  land,  situate  in  Westchester  county,  and 
for  damages  for  breach  of  the  contract  in  case  it  could  not  be  specific- 
ally performed. 

The  defendant  is  the  widow  of  Alexander  Muir,  who  died  intestate 
in  1858,  seized  of  a  lot  of  land  in  Westchester  county.  He  left  six 
children,  three  of  whom  were  yet  minors  when  the  contract  in  ques- 
tion was  made.  The  defendant  with  her  children,  resided  in  Brook- 
lyn, and  the  plaintiff  resided  in  Westchester  county,  near  the  lot  in 
question.  She  did  not  know  what  the  lot  was  worth,  but  he  knew  it  was 
worth  $2,000  in  consequence  of  its  recent  rise  in  value.  This  knowl- 
edge he  concealed  from  the  defendant  and  contracted  with  her  to  pur- 
chase it  for  $800.     She  contracted  in  her  own  name,  expecting  that 


Sec.  8)  EQUITABLE  DEFENSES  573 

those  of  her  children  who  were  of  age  would  unite  with  her  in  the 
conveyance,  and  that  she  could  get  from  the  court  the  right  to  convey 
on  behalf  of  her  minor  children.  Before  the  making  of  the  contract 
the  lot  had  been  sold  for  taxes,  and  a  lease  thereof  given  in  pursuance 
of  such  sale.  At  the  time  of  making  the  contract,  the  plaintiff  knew 
that  the  lot  belonged  to  defendant's  children  and  that  proceedings 
would  have  to  be  taken  in  some  court  to  give  her  the  right  to  convey ; 
and,  he  also  knew,  that  the  land  had  been  sold  for  taxes,  and  this  lat- 
ter fact  she  did  not  know.  The  referee  found  that  the  lot  was  worth 
$2,000.  And  ordered  judgment  for  the  plaintiff  for  $1,200,  the  differ- 
ence between  the  contract  price  and  the  value  of  the  lot.  Further  facts 
appear  in  the  opinion.     *     *     * 

Earl,  Com.81  This  was  an  unconscionable  contract  and  could  not 
be  specifically  enforced  on  the  ground  of  the  inadequacy  of  the  con- 
sideration. The  plaintiff  lived  near  the  lot  and  knew  its  value.  The 
defendant  lived  at  a  distance  and  did  not  know  its  value.  While  the 
plaintiff  did  not  make  any  misrepresentations,  he  concealed  his  knowl- 
edge of  the  recent  rise  in  value  of  the  lot  and  took  advantage  of  her 
ignorance,  and  thus  got  from  her  a  contract  to  convey  to  him  the  lot 
for  but  a  little  more  than  one-third  of  its  value.  Such  a  contract,  it 
is  believed,  has  never  yet  been  enforced  in  a  court  of  equity  in  this 
country.  When  a  contract  for  the  sale  of  lands  is  fair  and  just  and 
free  from  legal  objection,  it  is  a  matter  of  course  for  courts  of  equity 
to  specifically  enforce  it.  But  they  will  not  decree  specific  perform- 
ance in  cases  of  fraud  or  mistake,  or  of  hard  and  unconscionable  bar- 
gains, or  when  the  decree  would  produce  injustice,  or  when  such  a  de- 
cree would  be  inequitable  under  all  the  circumstances.  2  Story,  Eq. 
Jur.  §  769;  Willard,  Eq.  Jur.  262;  Osgood  v.  Franklin,  2  Johns.  Ch. 
1,  7  Am.  Dec.  513 ;  Id.,  14  Johns.  527 ;  Seymour  v.  Delancey,  6  Johns. 
Ch.  222;  Seymour  v.  Delancy,  3  Cow.  531,  15  Am.  Dec.  270.     *     *     * 

The  General  Term  did  not  therefore  err  in  reversing  the  judgment, 
and  its  order  should  be  affirmed  and  judgment  absolute  ordered  against 
the  plaintiff,  with  costs. 

All  concur. 

Order  affirmed  and  judgment  accordingly. 


HETFIELD  v.  WIIXEY. 

(Supreme  Court  of  Illinois,  1883.     105  111.  2S6.) 

Appeal  from  the  Appellate  Court  for  the  First  District;  heard  in 
that  court  on  appeal  from  the  Circuit  Court  of  Cook  County. 

Mr.  Chief  Justice  Scott  82  delivered  the  opinion  of  the 
Court.     *     *     * 

The  bill  is  to  enforce  the  specific  performance  of  a  written  agree- 
ment between  complainant  and  defendant,  concerning  a  sale  by  the 

si  Part  of  the  opinion  is  omitted.  82  Part  of  the  opinion  is  omitted. 


574  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

former  to  the  latter  of  his  interest  in  the  firm  of  Frank  Field  &  Co., 
a  firm  then  and  previously  engaged  in  manufacturing  crackers  and 
confectioneries.  As  respects  the  terms  of  the  agreement  there  can  be 
no  controversy,  as  it  is  signed  by  the  respective  parties.  It  obligated 
defendant  to  pay  complainant  $5000  for  his  interest  in  the  firm  of 
Frank  Field  &  Co. — $1000  of  which  sum  was  to  be  paid  on  or  before 
the  1st  day  of  August  next  after  the  making  of  the  contract,  $2000  in 
one  year,  and  $2000  in  two  years,  the  latter  payments  to  be  evidenced 
by  two  promissory  notes,  bearing  interest  at  the  rate  of  eight  per  cent 
per  annum,  which  said  notes  were  to  be  secured  by  a  mortgage  on 
lands  of  defendant  described  in  the  bill.  On  the  hearing,  the  circuit 
court  decreed  a  specific  performance  of  the  contract,  and  that  decree 
was  affirmed  by  the  Appellate  Court  for  the  First  District.  The  cor- 
rectness of  the  decision  of  the  latter  court  is  called  in  question  on  this 
appeal  of  defendant. 

The  defence  made  is,  that  the  contract  is  not  fair, — that  defendant 
was  induced  to  enter  into  it  under  a  misapprehension  of  the  real  facts, 
and  that  complainant  contributed  to  that  result  by  statements  not  en- 
tirely candid  or  accurate,  upon  which  defendant  confidently  relied,  and 
was  thus  overreached  in  the  transaction.  The  rule  is  a  familiar  one 
that  applications  for  the  specific  performance  of  a  contract  are  within 
the  sound  legal  discretion  of  the  court  hearing  the  cause.  That  discre- 
tion, of  course,  is  a  sound  legal  discretion,  controlled  always  by  the 
equitable  circumstances  of  the  case,  and  not  by  the  mere  caprice  of  the 
chancellor.  This  branch  of  the  law  is  so  familiar  it  is  hardly  necessary 
to  restate  principles  so  well  understood.  Before  a  court  of  equity  will 
compel  the  specific  performance  of  a  contract,  it  must  appear  it  was 
founded  on  a  good  and  valuable  consideration,  and  is  reasonable,  fair 
and  just  in  all  its  parts.  It  is  for  the  reason  a  court  of  chancery  will 
not  lend  its  aid  to  give  a  party  the  benefit  of  an  unreasonable  or  unjust 
contract,  the  enforcement  of  which  would  work  a  serious  hardship. 
If  his  contract  is  a  legal  one,  and  its  specific  performance,  if  com- 
pelled, would  be  oppressive,  the  party  seeking  a  remedy  must  find  it 
in  the  law  courts,  and  not  ask  a  court  of  chancery  to  assist  him.  This 
court  has  had  frequent  occasion  to  say,  a  court  of  equity  is  not  bound 
to  enforce  every  contract,  even  though  it  be  a  legal  one,  and  there 
might  exist  no  sufficient  reason  for  annulling  it.  Equity  will  withhold 
its  aid  if  there  be  anything  that  makes  it  unreasonable  or  inequitable 
the  party  should  have  performance  of  his  agreement. 

It  appears  defendant  performed  the  contract  in  part  by  making  pay- 
ment of  most  of  the  first  installment  agreed  to  be  paid,  and  then  ceased 
to  do  more.  Shall  he  now  be  compelled  to  go  forward  and  complete 
his  agreement?  To  do  so  would  undoubtedly  subject  defendant  to 
very  serious  loss.  On  the  principle  just  stated,  equity  will  hesitate  to 
compel  the  execution  of  a  contract  the  performance  of  which  would 
be  oppressive  on  the  obligated  party.  Considering  the  whole  evidence 
contained  in  the  record,  it  is  impossible  to  escape  the  conviction  it 


Sec.  S)  EQUITABLE   DEFENSES  575 

would  subject  defendant  to  considerable  loss  to  compel  him  to  perform 
the  contract  under  the  circumstances.  The  assets  of  the  firm  were  not 
near  so  valuable  as  defendant  supposed  them  to  be.  The  concern  owed 
many  more  local  bills  than  he  had  any  reason  to  anticipate.  It  is  said 
he  should  have  examined  the  books  to  have  ascertained  more  accu- 
rately the  value  of  the  firm  assets.  There  are  two  answers  to  this  sug- 
gestion :  First,  the  books  did  not  show  to  a  casual  observer  the  exact 
condition  of  the  accounts  due  the  firm,  whether  good  or  bad ;  and  sec- 
ond, the  books  kept  by  the  regular  book-keeper  did  not  show  all  the 
local  bills  owing  by  the  firm.  That  class  of  bills  only  appeared  on  a 
private  memorandum  book  kept  by  one  member  of  the  firm,  who  had 
charge  of  that  branch  of  the  business.  This  fact  was  known  to  com- 
plainant, and  was  not  known  to  defendant  at  the  time  of  the  sale.  When 
complainant  referred  defendant  to  the  books  for  information,  he  did  not 
advise  him  where  the  private  memorandum  book  containing  an  account 
of  the  city  bills  owing  by  the  firm  could  be  found.  Had  defendant  ex- 
amined the  books  as  any  prudent  man  would  have  done,  it  will  be  pre- 
sumed he  would  have  examined  only  such  as  were  kept  by  the  book- 
keeper of  the  firm.  It  could  hardly  be  expected  he  would  have  inquired 
whether  the  several  partners  kept  private  memoranda  of  matters  per- 
taining to  the  firm  business.  It  is  proved  there  were  several  thousand 
dollars  of  city  bills  owing  by  the  firm  that  did  not  appear  on  the  book- 
keeper's books.  The  amount  was  certainly  sufficient  to  very  materi- 
ally affect  the  value  of  the  firm  assets.  Of  these  city  bills  defendant 
did  not  seem  to  have  any  knowledge  when  he  executed  the  written 
agreement  it  is  sought  by  this  bill  to  enforce  by  a  decree  in  chancery. 
Complainant  had  full  knowledge,  and  he  ought  to  have  communicated 
to  defendant  that  information.  He  must  have  known  the  amount  of 
the  city  bills  very  materially  affected  the  value  of  his  interest  in  the 
firm  he  was  selling  to  defendant.  In  this  respect  he  does  not  stand  so 
fair  that  he  may  invoke  the  aid  of  a  court  of  equity. 

It  will  be  remembered  that  the  contract  was  made  on  the  6th  day  of 
July,  1880,  and  it  was  some  time  in  October  before  defendant  refused 
to  perform  it,  and  offered  to  rescind  the  agreement.  That,  it  is  said, 
wras  too  late ;  that  he  should  have  discovered  sooner  he  had  been  over- 
reached, and  offered  to  rescind  the  contract.  That  may  be,  and  doubt- 
less is,  true ;  but  defendant  is  not  asking  the  aid  of  a  court  of  equity 
to  enable  him  to  rescind  the  agreement.  Nor  is  it  a  material  inquiry 
now  whether  defendant  could  rescind  the  contract  after  the  lapse  of 
so  great  a  period.  A  more  serious  question,  and  one  with  which  the 
court  has  now  to  deal,  is,  whether  complainant  has  shown  a  contract 
so  fairly  obtained,  and  so  just,  that  he  may  invoke  the  aid  of  a  court 
of  chancery  to  compel  a  specific  performance.  In  view  of  all  the  cir- 
cumstances in  evidence  it  can  hardly  be  said  that  he  has.  His  con- 
tract with  defendant  may  be  a  legal  one,  and  defendant  may  be  re- 
quired to  abide  it  or  answer  in  damages.  That  question  need  not  now 
be  determined.     Conceding  that  agreement  is  obligatory  on  both  par- 


576  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

ties,  under  all  the  circumstances  it  seems  most  proper  they  should  be 
referred  to  the  law  courts  to  adjust  the  difficulties  between  them. 
Whatever  claim  complainant  may  have  against  the  defendant,  arising 
out  of  the  agreement,  may  be  compensated  by  damages  recoverable  in 
an  action  at  law.  It  is  no  answer  to  this  view  of  the  law  to  say  that 
complainant  may  have  told  defendant,  in  the  office  of  the  lawyer  who 
prepared  the  papers,  he  did  not  know'  what  his  interest  in  the  firm  was 
worth,  and  that  he  wanted  it  understood  he  was  selling  his  interest, 
•  whatever  it  might  be,  for  the  sum  named  in  the  contract.  He  may 
have  told  him  all  this,  and  yet  if  he  obtained  an  unfair  contract  from 
defendant  by  failing  to  disclose  material  facts  affecting  the  value  of 
the  interest  he  was  selling,  equity  will  not  decree  the  execution  of  the 
agreement  in  his  favor.  It  will  leave  him  to  his  remedy  at  law,  what- 
ever it  may  be. 

The  judgment  of  the  Appellate  Court  will  be  reversed  and  the  cause 
remanded. 

Judgment  reversed. 


WHITTED  v.  FUQUAY. 

(Supreme  Court  of  North  Carolina,  1900.    127  N.  C.  6S,  37  S.  E.  141.) 

FNjrches,  J.83  This  is  an  action  upon  an  alleged  contract  for  the 
sale  of  land  in  which  a  specific  performance  is  demanded.  The  relief 
prayed  for  was  refused,  and  plaintiffs  appealed  to  this  court.  There 
were  two  issues  submitted  to  the  jury,  upon  which  they  passed: 

"(1)  Did  the  defendant,  A.  P.  Fuquay,  contract  and  agree  in  writing  to  con- 
vey to  plaintiffs  the  lands  described  in  complaint  at  the  price  of  $1,000,  as  of 
date  19th  November,  1898,  reserving  one  acre  near  spring?    Ans.  Yes. 

•'(2)  Would  the  specific  enforcement  of  such  contract  be  oppressive  and  in- 
equitable?    Ans.  Yes." 

There  were  other  issues  submitted,  but  they  were  not  passed  upon 
by  the  jury.     *     *     * 

Then,  does  the  evidence  show  that  it  would  oppress,  or  would  be  op- 
pressive, on  the  defendant  to  require  him  to  perform  this  contract, — 
that  is,  to  convey  land  recently  worth  $300  for  $1,000?  And  does  this 
justify  him  in  withholding  from  the  plaintiff  the  right  he  had  to  have 
the  contract  specifically  performed,  because  the  jury  found  that  it 
would  be  oppressive  for  him  to  do  so,  without  its  being  found  that  the 
plaintiff  practiced  a  fraud  on  the  defendant,  or  that  he  in  some  way 
dealt  unfairly  with  the  defendant,  or  that  he  took  some  unfair  advan- 
tage of  him  in  the  transaction,  or  that  plaintiff  suppressed  some  fact 
from  the  defendant  of  which  he  had  knowledge  and  the  defendant  did 
not  have,  and  by  reasonable  diligence  could  not  have.  Without,  at 
least,  some  of  these  elements,  we  are  unable  to  see  why  a  specific  per- 
formance should  not  have  been  granted.     There  must  be  something 

83  Part  of  the  opinion  is  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  577 

more  than  the  fact  that  a  party  had  made  a  bad  trade  to  relieve  him 
from  his  obligation  to  perform  it.  The  simple  fact  that  the  defendant 
sold  a  tract  of  land  worth  $1,500  for  $1,000  will  not  do  so,  and  this 
is  all  the  defendant  can  complain  of,  as  he  sold  it  to  another  for  $1,500, 
after  coming  to  this  county,  seeing  the  land,  and  knowing  all  about 
the  railroads.  The  defendant  was  raised  on  this  land,  and  knew  every 
foot  of  it.  There  had  been  no  minerals  found  upon  it,  to  change  its 
intrinsic  value,  of  which  the  plaintiffs  knew  and  the  defendant  did  not. 
Nothing  had  happened  to  the  land  but  what  the  defendant  knew.  The 
only  thing  alleged  by  the  defendant  is  that  two  railroads  had  been 
built,  one  from  Raleigh  to  the  land,  and  another  from  Apex  to  a  point 
near  the  land,  and  sawmills  had  been  erected  near  the  land,  that  en- 
hanced its  value.  These  roads  are  public  enterprises,  open  and  notori- 
ous, and  of  equal  knowledge  to  all  persons.  The  sawmills  were  the 
result  of  the  construction  of  the  roads,  and  it  would  hardly  seem  prob- 
able that  the  defendant,  who  owned  the  tract  of  land  only  worth  $3 
per  acre  a  few  years  ago,  would  not  have  been  quickened  to  find  out 
something  of  the  cause,  when  he  had  a  dozen  applications  from  differ- 
ent parties  to  buy  it  at  a  price  above  $10  per  acre.  But  defendant  tes- 
tified that  he — 

"had  heard  rumors  of  a  railroad  contemplated  to  the  property.  *  *  *  Had 
heard  rumors  that  railroad  was  completed,  but  gave  it  no  credence.  These 
rumors  came  in  a  letter  from  the  locality ;  letter  written  by  either  one  of  my 
brothers  or  Mr.  Blanchard.  *  *  *  Forty  or  fifty  or  sixty  or  perhaps  ninety 
days  before  the  17th  November  a  brother  of  witness,  who  lived  in  one  and  one- 
half  miles  of  spring,  wrote  that  he  believed  there  was  to  be  a  railroad,  be- 
cause Mr.  Angier  got  some  hands  in  part  off  his  land,  grading  the  road." 

It  is  a  well-settled  rule  that  any  knowledge  of  a  fact  the  truth  of 
which  may  be  ascertained  by  proper  inquiry  puts  the  party  on  notice, 
and  deprives  him  of  his  equity.  Ijames  v.  Gaither,  93  N.  C.  358.  But, 
upon  a  thorough  examination  of  the  evidence  (consisting  principally 
of  the  correspondence),  we  see  nothing  concealed  from  the  defendant, 
or  unfair  in  the  transaction,  on  the  part  of  plaintiffs, — nothing  that  ap- 
peals to  the  court  to  cause  it  to  withhold  from  the  plaintiffs  a  specific 
performance  of  the  contract,  taking  it  that  there  was  a  contract  to  sell. 
Bryson  v.  Peck,  supra.  We  are  therefore  of  the  opinion  that  plain- 
tiffs' sixth  prayer  for  instruction,  "that  there  is  no  sufficient  evidence 
in  the  case  to  authorize  the  jury  to  answer  the  second  issue,  'Yes,'  and, 
if  the  jury  believe  the  evidence,  they  will  answer  said  issue,  'No,'  " 
should  have  been  given. 

Error.     New  trial. 

Faircloth,  C.  J.  I  agree  to  a  new  trial,  but  not  with  the  opinion  on 
the  merits. 

Boke  Eq.— 37 


578         srECinc  performance  of  contracts       (Ch.  2 

Mcpherson  v.  kissee. 

(Supreme  Court  of  Missouri,  Division  No.  2,  1912.    239  Mo.  664,  144  S.  W.  410.) 

Ejectment  for  41.60  acres  of  land  in  Taney  county.  Judgment  was 
given  for  defendant  Kissee  in  the  circuit  court  of  Taney  county  on 
October  26,  1911,  specifically  enforcing  a  contract  to  exchange  the 
land  in  controversy  for  a  farm  owned  by  said  defendant.  From  this 
judgment  plaintiffs  appeal. 

Plaintiffs  were  the  owners  of  35  head  of  hogs,  a  log  wagon,  and  the 
41.60  acres  in  controversy,  upon  which  land  was  located  a  flouring 
mill,  all  of  which  property  they  agreed  to  exchange  for  the  equity  of 
defendant  Kissee  in  a  farm  of  240  acres  in  Dade  county,  Mo.  After 
execution  of  the  contract  for  exchange  of  property,  plaintiffs  allowed 
defendant  Kissee  to  take  actual  possession  of  the  personal  property 
and  flouring  mill  before  the  abstract  of  title  to  defendant's  property 
was  submitted  to  them.  Upon  examining  the  abstract  of  title,  plain- 
tiffs declined  to  complete  the  exchange  of  property,  and  demanded 
that  they  be  restored  to  possession  of  the  flouring  mill,  on  the  alleged 
ground  that  defendant's  farm  was  incumbered  for  a  larger  amount 
than  was  represented  by  him  in  the  contract.  Defendant  Kissee  de- 
clined to  surrender  possession  of  the  mill,  whereupon  this  action  en- 
sued. 

The  correctness  of  the  judgment  below  rests  upon  a  proper  con- 
struction of  the  following  written  contract  between  plaintiffs  and  said 
defendant  Kissee: 

«  *  «  *  jj-  js  ao;reet]  an(j  understood  by  and  between  us,  tbe  undersigned 
E.  C.  Kissee,  and  H.  S.  MePberson,  tbat  eacb  of  us  furnish  good  abstract  of 
title  to  premises  described  and  tbat  we  furnish  each  other  a  general  war- 
ranty deed,  duly  executed  and  acknowledged  to  premises  described  and  owned 
and  controlled  by  each  of  us ;  tbe  lands  and  property  agreed  to  be  sold  by 
H.  S.  MePberson  and  the  Bradleyville  Milling  Company  to  be  free  and  clear 
of  any  incumbrances  whatever ;  the  lands  agreed  to  be  sold  by  R.  C.  Kissee, 
to  be  sold  subject  to  two  deeds  of  trust  to  secure  payment  of  $5,- 
000.00.     *     *     *  " 

The  defendant  Kissee  admits  that,  when  the  foregoing  contract  was 
signed,  there  were  outstanding  mortgages  against  his  farm  in  Dade 
county,  as  follows :  A  first  mortgage  of  $4,000  to  a  Kansas  City  firm, 
a  second  mortgage  of  $1,000  to  the  Golden  City  Bank,  and  a  third 
mortgage  for  $803  in  favor  of  the  same  parties  to  whom  the  first  mort- 
gage was  given.  However,  he  avers  that  the  $803  mortgage  was  given 
for  part  of  the  interest  on  the  $4,000  loan,  and  really  did  not  create  a 
separate  indebtedness,  and  hence  the  contract  truthfully  represented 
the  incumbrances  on  the  property  at  $5,000.  While  these  mortgages 
were  not  introduced  in  evidence,  it  appears  reasonably  clear  by  the  rec- 
ord that  the  $4,000  mortgage  could  not  have  been  paid  off  and  dis- 
charged without  paying  the  third  mortgage  of  $803  in  full. 

Brown,  J.84     *     *     *     It  was  the  duty  of  defendant  Kissee  to  in- 

84  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  579 

form  plaintiffs  fully  of  the  amount  and  nature  of  the  incumbrances 
upon  the  property  he  undertook  to  trade  to  them ;  and,  as  he  failed  to 
perform  that  duty,  he  is  not  entitled  to  a  decree  of  specific  perform- 
ance.    *     *     * 


FALCKE  v.  GRAY. 

(In  Chancery.  1859.    29  Law  J.  Ch.  [N.  S.]  28.) 

Kindersley,  V.  C.,85  after  stating  the  facts  of  the  case,  said :  *  * 
The  interference  of  a  court  of  equity,  although  of  daily  occurrence, 
is  something  which  is  exceptional,  and  although  discretionary,  is  not 
to  be  used  arbitrarily,  but  must  be  governed  according  to  ascertained 
rules,  and  must  not  be  exercised  when  in  the  view  of  the  court  it  would 
do  that  which  would  be  unreasonable  and  shocking  to  the  feelings  of 
mankind.  If  there  were  nothing  more  in  the  case  than  that  Air.  Falcke 
bought  of  Mrs.  Gray  property  worth  £200  for  £40,  I  think  I  ought  to 
say,  "bring  your  action,  for  I  will  not  assist  you."  But  it  appears  to 
me  that  in  this  case  there  are  circumstances  which  render  it  clear  that 
I  ought  to  refuse  specific  performance.  This  transaction  was  not  the 
case  of  a  seller  endeavouring  to  get  the  best  price  for  his  commodity 
and  a  buyer  endeavouring  to  give  the  smallest.  The  clear  intention  of 
Airs.  Gray  was,  that  there  should  be  put  upon  the  articles  what  was  a 
fair  and  reasonable  price;  and  though  she  was  told  by  Air.  Brend  that 
he  was  not  a  judge  of  these  matters,  still  she  asked  his  opinion,  and  he 
said,  "Suppose  we  say  £40."  Air.  Falcke,  to  do  him  justice,  does  not 
appear  to  have  pressed  the  matter ;  but  still  Airs.  Gray  must  be  held 
to  have  considered  that  that  was  a  fair  and  reasonable  valuation.  She 
could  not  positively  tell.  She  says  it  was  a  legacy  from  a  lady  who  was 
reported  to  have  had  an  offer  from  George  the  Fourth  of  £100  for  the 
jars.  But  what  was  Air.  Falcke's  position?  He  says  he  knew  very 
well  that  it  was  not  a  reasonable  price;  and  was  this,  then,  what  Airs. 
Gray  intended  ?  Knowing  the  value  of  the  articles,  Air.  Falcke  allows 
the  contract  to  be  signed  on  this  footing ;  and  the  question  is,  whether 
he  can  come  to  the  court,  and  say,  "Compel  Airs.  Gray  to  perform  this 
contract"?  This  court  is  not  a  court  of  honour,  and  is  not  to  decide 
the  case  because  one  of  the  parties  has  not  acted  as  a  man  of  honour 
ought  to  act.  I  admit  that  these  articles  are  of  fluctuating  value,  yet 
still  they  have  a  market  value.  I  admit  that  I  could  not  set  aside  this 
contract;  yet  it  appears  to  me  that,  consistently  with  justice,  I  ought 
to  refuse  to  interfere  to  enforce  the  contract.  In  doing  his  I  ought  to 
dismiss  this  bill,  without  costs,  as  against  Airs.  Gray.  It  was,  indeed, 
contended  that  she  ought  not  to  have  been  a  party,  and  that  the  bill 
ought  to  have  been  filed  against  the  defendants,  Alessrs.  Watson,  alone. 
I  think  that,  under  the  circumstances,  the  plaintiff  was  right  in  making 

8  5  The  statement  of  facts,  here  omitted,  as  well  as  the  omitted  part  of  the 
opinion,  is  printed  on  page  91,  supra. 


5S0  specific  performance  of  contracts  (Ch.  2 

Mrs.  Gray  a  defendant.  Then,  as  regards  Messrs.  Watson,  it  has  not 
been  proved  that  they  knew  anything  of  the  previous  sale  to  Mr. 
Falcke.  and  the  plaintiff  can  have  no  relief  against  them.  On  the  whole 
case,  therefore,  the  bill  must  be  dismissed,  without  costs  against  Mrs. 
Gray,  but  with  costs  against  Messrs.  Watson. 


REDGRAVE  v.  HURD. 

(In  Chancery,  1SS1.    20  Ch.  Div.  1.) 

In  January,  1880,  the  plaintiff,  a  solicitor  of  Birmingham,  inserted 

in  the  Law  Times  the  following  advertisement : 

"Law  Partnership. — An  elderly  solicitor  of  moderate  practice,  with  exten- 
sive connections  in  a  very  populous  town  in  a  midland  county,  contemplates 
shortly  retiring,  and  having  no  successor  would  first  take  as  partner  an  ef- 
ficient lawyer  and  advocate  about  forty,  who  would  not  object  to  purchase 
advertiser's  suburban  residence,  suitable  for  a  family,  value  £1600,  three- 
fourths  of  which  might  remain  on  security — no  premium  for  business  and  in- 
troduction. A  large  field  is  here  open  for  an  efficient  man,  and  great  ad- 
vantages for  free  education  of  sons.  Address  R.  J.,  Xo.  1919,  10  Wellington 
Street,  Strand." 

The  defendant  applied  by  letter  to  the  address  indicated,  and  a  cor- 
respondence ensued,  the  negotiation  proceeding  on  the  footing  that  the 
plaintiff  should  receive  the  defendant  as  his  partner  and  transfer  to 
him  a  moiety  of  his  practice  and  the  plaintiff's  leasehold  house  for 
£1600.  On  the  12th  of  February  the  plaintiff  and  defendant  had  two 
interviews,  at  the  latter  of  which  the  defendant's  wife  was  present. 
There  was  a  direct  conflict  of  evidence  as  to  what  passed  at  these  in- 
terviews, the  plaintiff  asserting  that  he  stated  the  business  to  bring  him 
in  about  £200  a  year,  the  defendant  and  his  wife  saying  that  the  plain- 
tiff stated  it  to  bring  it  from  £300  to  £4C0  a  year.  The  parties  were 
examined  orally  in  court,  and  Mr.  Justice  Fry  held  that  greater  weight 
was  to  be  attributed  to  the  evidence  of  the  defendant  and  his  wife  than 
to  that  of  the  plaintiff,  and  held  that  the  plaintiff  had  either  represented 
his  business  as  bringing  in  about  £300  a  year,  or  from  £300  to  £400  a 
year. 

On  the  14th  of  February  the  defendant  wrote  to  the  plaintiff: 

"Of  course  I  should  duly  rely  on  your  promise  to  do  all  you  could  to  ex- 
tend the  business  among  your  friends.  Still  I  should  be  glad  to  have  some 
idea  as  to  the  amount  of  business  done  at  your  office  in  the  past  three  years 
and  the  nature  of  the  nucleus  with  which  we  should  start.  Would  you,  there- 
fore, be  able  to  give  me  an  hour  next  Tuesday  to  go  into  this  matter  and  set- 
tle the  terms  of  partnership?" 

On  Tuesday,  the  17th  of  February,  the  parties  accordingly  had  an 
interview  at  the  plaintiff's  office.  The  plaintiff  produced  to  the  defend- 
ant three  summaries  of  business  done  in  1877,  1878,  1879.  These 
summaries  shewed  gross  receipts  not  quite  amounting  to  £200  in  a 
year.    The  defendant  asked  how  the  difference  was  made  up,  and  the 


Sec.  8)  EQUITABLE   DEFENSES  581 

plaintiff  shewed  him  a  quantity  of  letters  and  papers  which  he  stated 
to  relate  to  other  business  which  he  had  done.  No  books  of  account 
wrere  produced,  the  plaintiff  not  having  kept  any  books  which  shewed 
the  amount  of  his  business,  but  the  plaintiff  shewed  the  defendant  some 
letter-books  and  diaries  and  a  day-book.  The  defendant  did  not  exam- 
ine any  of  the  books,  letters,  and  papers  thus  produced,  but  only  looked 
cursorily  at  them,  and  ultimately  agreed  to  purchase  the  house  and 
take  a  share  in  the  business  for  £1600.  Mr.  Justice  Fry  came  to  the 
conclusion  that  if  the  letters  and  papers  to  which  the  plaintiff  referred 
had  been  examined  they  would  only  have  shewn  business  to  the  amount 
of  £5  or  £6  a  year.  The  defendant  wished  the  written  agreement  to  set 
out  that  the  £1600  was  the  consideration  for  the  purchase  both  of  the 
house  and  the  share  in  the  practice,  but  the  plaintiff  refused  to  assent 
to  this,  and  an  agreement  was  drawn  up  and  signed  on  the  2d  of  March, 
1880,  by  which  the  defendant  agreed  to  purchase  the  house  for  £1600, 
the  practice  not  being  referred  to.  The  defendant  paid  a  deposit  of 
£100,  and  on  the  17th  of  April,  1880,  was  let  into  possession  of  the 
house,  and  removed  thither  with  his  family  from  Stroud ;  but  finding, 
as  he  alleged,  that  the  practice  was  utterly  worthless,  he  gave  up  pos- 
session, and  refused  to  complete  the  purchase.  The  plaintiff,  in  June, 
1880,  commenced  an  action  for  specific  performance  of  the  written 
agreement  to  purchase  the  house.     *     *     * 

Mr.  Justice  Fry  decided  for  the  plaintiff.     The  defendant  appealed. 

JESSKL,  M.  R.86  This  is  an  appeal  from  a  decision  of  Mr.  Justice 
Fry,  granting  specific  performance  of  a  contract  by  the  defendant  to 
buy  a  house  from  the  plaintiff,  and  dismissing  with  costs  a  counter- 
claim by  the  defendant  asking  to  rescind  the  contract,  and  also  asking 
for  damages  on  the  ground  of  deceit  practised  by  the  plaintiff  in  re- 
spect to  the  agreement.     *     *     * 

As  regards  the  facts  of  this  case,  I  agree  with  the  conclusions  of 
Mr.  Justice  Fry  on  every  point  but  one,  and  my  failure  to  agree  with 
him  in  that  one  is  the  cause  of  my  concurring  in  reversing  his  decision. 
What  he  finds  in  effect  is  that  the  defendant  Hurd  was  induced  to 
enter  into  the  contract  by  a  material  misrepresentation  made  to  him  by 
the  plaintiff  Redgrave,  but  he  comes  to  the  conclusion  that  either  he  did 
not  finally  rely  upon  that  representation,  or  that  if  he  did  rely  upon 
it  he  made  an  inquiry  which,  although  ineffectual  and  made,  as  he  says, 
carelessly  and  inefficiently,  bound  him  in  a  court  of  equity,  and  pre- 
vented him  from  saying  that  he  relied  on  the  representation.  I  have 
already  dealt  with  that  as  a  matter  of  law,  and  I  will  deal  with  it  pres- 
ently as  a  matter  of  fact,  because  I  think  there  was  an  omission  to 
notice  a  most  material  fact,  or  rather,  I  should  say,  an  omission  to 
give  sufficient  weight  to  it,  for  it  is  noticed  in  the  judgment  which  is 
now  appealed  from.     *     *     * 

&6  The  statement  of  facts  is  abridged  and  parts  of  the  opinions  of  Jessel, 
M.  R.,  and  Lush,  L.  J.,  and  all  of  the  concurring  opinion  of  Baggallay,  L.  J., 
are  omitted. 


582  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

Then  the  learned  judge  goes  on  to  say: 

"According  to  the  conclusion  which  I  come  to  upon  the  evidence,  the  books 
wore  there  before  the  defendant,  and  although  he  did  not  trouble  to  look  into 
tbem  he  had  the  opportunity  of  doing  so.  In  rny  judgment  if  he  had  intended 
to  rely  upon  that  parol  representation  of  business  beyond  that  which  ap- 
peared in  the  papers,  having  the'  materials  before  him,  he  would  have  made 
some  inquiry  into  it.    But  he  did  nothing  of  the  sort." 

Now  in  that  respect  I  am  sorry  to  say  that  the  learned  judge  was  not 
correct.  There  were  no  books  which  shewed  the  business  done.  The 
plaintiff  did  not  keep  any  such  books,  and  had  nothing  but  his  diaries, 
and  some  letter  books ;  and  therefore,  it  is  a  mistake  to  suppose  that 
there  were  any  books  before  the  defendant  which  he  could  look  into 
to  ascertain  the  correctness  of  the  statements  made  by  the  plaintiff ; 
and  the  whole  foundation  of  the  judgment  on  this  part  of  the  case,  even 
if  it  had  been  well  founded  in  law,  fails  in  fact,  because  the  defendant 
was  not  guilty  of  negligence  in  not  doing  that  which  it  was  impossible 
to  do,  no  books  being  in  existence  which  would  shew  the  amount  of 
business  done.    Then  the  learned  judge  continues  : 

"He  did  nothing  of  the  sort.  I  think  the  true  result  of  the  evidence  is  this, 
that  the  defendant  thought  that  if  he  could  have  even  such  a  nucleus  of  busi- 
ness as  these  papers  disclosed,  he  could  by  the  energy  and  skill  which  he  pos- 
sessed make  himself  a  good  business  in  Birmingham." 

Then  that  being  so  the  learned  judge  came  to  the  conclusion  either 
that  the  defendant  did  not  rely  on  the  statement,  or  that  if  he  did  rely 
upon  it  he  had  shewn  such  negligence  as  to  deprive  him  of  his  title  to 
relief  from  this  court.  As  I  have  already  said,  the  latter  proposition 
is  in  my  opinion  not  founded  in  law,  and  the  former  part  is  not  found- 
ed in  fact;  I  think  also  it  is  not  founded  in  law,  for  when  a  person 
makes  a  material  representation  to  another  to  induce  him  to  enter  into 
a  contract,  and  the  other  enters  into  that  contract,  it  is  not  sufficient 
to  say  that  the  party  to  whom  the  representation  is  made  does  not  prove 
that  he  entered  into  the  contract,  relying  upon  the  representation.  If  it 
is  a  material  representation  calculated  to  induce  him  to  enter  into  the 
contract,  it  is  an  inference  of  law  that  he  was  induced  by  the  represen- 
tation to  enter  into  it,  and  in  order  to  take  away  his  title  to  be  relieved 
from  the  contract  on  the  ground  that  the  representation  was  untrue, 
it  must  be  shewn  either  that  he  had  knowledge  of  the  facts  contrary 
•to  the  representation,  or  that  he  stated  in  terms,  or  shewed  clearly  by 
his  conduct,  that  he  did  not  rely  on  the  representation.  If  you  tell  a 
man,  "You  may  enter  into  partnership  with  me,  my  business  is  bring- 
ing in  between  £300  and  £400  a  year,"  the  man  who  makes  that  repre- 
sentation must  know  that  it  is  a  material  inducement  to  the  other  to 
enter  into  the  partnership,  and  you  cannot  investigate  as  to  whether  it 
was  more  or  less  probable  that  the  inducement  would  operate  on  the 
mind  of  the  party  to  whom  the  representation  was  made.  Where  you 
have  neither  evidence  that  he  knew  facts  to  shew  that  the  statement  was 
untrue,  or  that  he  said  or  did  anything  to  shew  that  he  did  not  actually 
rely  upon  the  statement,  the  inference  remains  that  he  did  so  rely,  and 


Sec.  8)  EQUITABLE   DEFENSES  583 

the  statement  being  a  material  statement,  its  being  untrue  is  a  sufficient 
ground  for  rescinding  the  contract.  For  these  reasons  I  am  of  opinion 
that  the  judgment  of  the  learned  judge  must  be  reversed  and  the  appeal 
allowed. 

As  regards  the  form  of  the  judgment,  as  the  appellant  succeeds  on 
the  counter-claim,  I  think  it  would  be  safer  to  make  an  order  both  in 
the  action  and  the  counter-claim,  rescinding  the  contract  and  ordering 
the  deposit  to  be  returned.  As  I  have  already  said,  it  is  not  a  case  in 
which  damages  should  be  given.     *     *     * 

Lush,  L.  J.  I  entirely  agree  with  my  learned  brothers  as  to  the 
propositions  of  law  applicable  to  this  case  which  have  been  laid  down 
by  the  Master  of  the  Rolls,  and  as  they  have  been  so  clearly  and  point- 
edly expressed  I  do  not  think  it  at  all  necessary  to  repeat  them,  because 
I  have  not  myself  the  least  qualification  to  suggest  as  to  those  propo- 
sitions. And  so  far  they  differ  from  one  part  of  the  judgment  of  the 
learned  Judge  in  the  Court  below,  in  which  he  appears  to  hold  that 
where  a  false  representation  has  been  made  and  papers  are  handed  to 
the  party  to  whom  it  is  made,  from  which  if  he  chose  he  might  detect 
the  falsehood,  and  he  does  not  do  so,  he  is  in  the  same  position  as  if  he 
had  done  so.  I  entirely  differ  from  that  view,  and  think  what  my 
learned  brother  said  was  the  correct  view  of  the  law,  that  where  a 
false  representation  has  been  made  it  lies  on  the  party  who  makes  it, 
if  he  wishes  to  escape  its  effect  in  avoiding  the  contract,  to  shew 
that,  although  he  made  the  false  representation  the  defendant,  the 
other  party,  did  not  rely  upon  it.  The  onus  probandi  is  on  him  to 
shew  that  the  other  party  waived  it,  and  relied  on  his  own  knowledge. 
Nothing  of  that  kind  appears  here.  On  the  question  of  fact,  I  regret 
to  say,  that  I  cannot  follow  the  learned  Judge  of  the  Court  below,  in 
the  inference  he  draws  from  the  facts  which  were  before  him.    *    *    * 

The  misrepresentation  as  to  the  business  therefore  entitles  the  de- 
fendant to  be  discharged  from  his  contract  for  the  purchase  of  the 
house ;  but  I  agree,  for  the  reasons  stated  by  the  Master  of  the  Rolls, 
that  he  is  not  entitled  to  damages. 


VII.  Hardship 
KIEN  v.  STUKELEY. 

(High  Court  of  Parliament,  1722.    1  Brown,  P.  C.  191,  1  E.  R.  506.) 

The  respondent  being  seised  in  fee  of  a  messuage  and  lands  at  Hol- 
beach,  in  Lincolnshire,  let  on  lease  at  the  yearly  rent  of  £20  clear  of 
all  deductions,  except  the  land-tax,  by  articles  of  agreement  between 
him  and  the  appellant,  dated  the  20th  of  July,  1720,  did  covenant  and 
agree,  that  for  the  considerations  therein  after-mentioned,  he  would, 
on  or  before  the  29th  day  of  December  then  next,  at  the  proper  costs 


584  srrcciFic  performance  of  contracts  (Ch.  2 

and  charges  of  the  appellant,  make  to  the  appellant,  his  heirs  and  as- 
signs, for  ever,  a  good  estate  in  fee-simple  of  the  premises,  to  the  satis- 
faction of  the  appellant  and  his  counsel.  And  by  the  same  articles,  the 
appellant  did  promise  and  agree,  that  upon  such  assurance  and  con- 
veyance being  made  and  executed,  he  would  pay  to  the  respondent 
£800,  being  forty  years  purchase ;  upon  condition  that  the  premises 
did  then  pay  yearly  rent  of  £20,  otherwise  to  abate  in  proportion  to 
forty  years  purchase ;  and  that  the  appellant  should  have  the  rents  from 
Lady-day  then  last,  and  all  the  wood  and  timber-trees,  and  other  trees 
then  growing  and  being  upon  the  premises.  And  at  the  time  of  execut- 
ing these  articles,  the  appellant  paid  the  respondent  £120  in  part  of  the 
purchase-money,  who  gave  a  receipt  for  the  same  accordingly. 

At  the  time  of  making  this  purchase,  the  appellant  intended  to  pay 
for  the  same,  by  the  sale  of  South-Sea  stock,  which  then  bore  the  ex- 
travagant price  of  £1000  per  cent;  but  this  intention  being  frustrated, 
by  some  delay  in  making  out  the  title,  the  appellant  declined  to  com- 
plete his  purchase. 

Whereupon,  in  Hilary  term,  1720,  the  respondent  exhibited  his  bill 
against  the  appellant  in  the  Court  of  Exchequer,  for  a  specific  per- 
formance of  the  articles,  and  to  have  the  remainder  of  the  purchase- 
money  paid ;  to  which  bill,  the  appellant,  by  his  answer,  insisted,  that 
in  regard  the  plaintiff  had  not  made  out  his  title  within  the  time  lim- 
ited by  the  articles,  and  that  the  price  thereby  stipulated  was  extrava- 
gant and  unreasonable,  he  ought  not  to  have  the  aid  of  a  Court  of 
Equity  to  support  the  articles,  or  decree  a  specific  performance  thereof. 

But  when  the  cause  came  to  be  heard,  on  the  8th  of  February,  1721, 
the  Court  decreed,  that  the  said  articles  of  agreement  should  be  duly 
performed ;  and  ordered,  that  the  Plaintiff's  title  deeds  should  be  forth- 
with brought  before  the  Deputy  Remembrancer,  and  that  he  should 
report  the  plaintiff's  title  to  the  premises,  and  compute  what  was  due 
to  him  from  the  defendant,  for  the  interest  of  £680,  being  the  re- 
mainder of  the  said  purchase-money,  from  the  29th  of  September, 
1720:  and  that  the  defendant  should  pay  the  plaintiff  the  said  £680  and 
interest,  upon  his  executing  the  conveyances  of  the  premises,  and 
should  take  and  receive  to  his  own  use  the  rents  and  profits  of  the 
premises,  which  accrued  due  from  Lady-day,  next  before  the  date  of 
the  said  articles. 

From  this  decree,  the  defendant  appealed ;  insisting  that  the  premises 
lying  in  the  Fens  of  Lincolnshire,  were  not,  at  any  time,  really  worth 
more  than  fifteen  years  purchase,  on  account  of  the  accidents  and  nec- 
essary outgoings,  which  those  kind  of  estates  are  liable  to ;  and  although 
at  the  height  of  South-Sea  stock,  lands,  as  well  as  every  thing  else, 
were  raised  to  an  extravagant  price;  yet,  as  that  proceeded  from  the 
general  delusion  which  all  men  lay  under,  as  to  the  imaginary  value  of 
South-Sea  stock,  and  a  supposed  vast  increase  of  their  riches,  which 
very  soon  appeared  chimerical  and  groundless,  such  an  agreement  as 
the  present,  made  at  that  particular  juncture,  under  such  circumstances, 


Sec.  8)  EQUITABLE   DEFENSES  585 

and  upon  such  hard  and  unequal  terms,  ought  not  to  be  aided  or  carried 
into  execution  by  a  Court  of  Equity ;  but  the  party  should  be  left  to 
such  remedy  as  he  could  have  at  law. 

On  the  other  side  it  was  contended  that  there  was  no  pretence  of 
fraud  or  surprize  in  obtaining  the  articles ;  but,  on  the  contrary,  the  ap- 
pellant entered  into  them  with  great  deliberation,  was  well  apprised 
of  the  value  of  the  estate,  and  had  the  articles  drawn  by  his  own  solic- 
itor. That  to  compel  a  specific  performance  of  articles,  concerning  the 
purchase  of  lands,  was  the  proper  business  of  a  Court  of  Equity ;  and 
hardly  a  term  passed  without  instances  of  decrees  of  this  kind.  And, 
that  at  the  time  of  entering  into  these  articles,  lands  in  that  part  of  the 
country  were  at  forty  years  purchase;  and  the  respondent  could  have 
sold  the  lands  in  question  at  that  rate,  for  ready  money. 

But,  after  hearing  counsel  on  this  appeal,  it  was  ordered  and  ad- 
judged, that  the  decree  therein  complained  of,  should  be  reversed;  and 
that  the  respondent's  bill  in  the  Court  of  Exchequer  should  be  dis- 
missed without  costs. 


BERNEY  v.  PITT. 

(In  Chancery,  1686.    2  Vern.  14,  23  E.  R.  620.) 

The  plaintiff  being  a  young  man,  as  he  alleged,  and  his  father  ten- 
ant for  life  only  of  a  great  estate,  which  by  his  death  was  to  come  to 
the  plaintiff  in  tail ;  and  during  his  life  allowing  the  plaintiff  but  a 
narrow  allowance,  he  became  indebted,  and  borrowed  £2000  of  the  de- 
fendant in  1675,  and  entered  into  two  judgments  of  £5000  apiece,  de- 
feasanced  each  of  them,  that  if  the  plaintiff  outlived  his  father,  and 
within  a  month  after  his  father's  death,  paid  the  defendant  £5000,  and 
if  the  plaintiff  should  marry  in  the  life-time  of  his  father,  then  if  he 
should  from  such  marriage  during  his  father's  life  pay  the  defendant  in- 
terest for  his  £5000,  the  defendant  should  vacate  the  judgment;  with 
this  farther  clause  in  the  defeasance  that  it  was  the  intent  of  the  parties, 
if  the  plaintiff  did  not  outlive  his  father,  that  the  money  should  not  be 
repaid.  January,  1679,  the  plaintiff's  father  died,  and  to  be  relieved 
against  the  said  judgments  upon  payment  of  the  £2000  lent  with  inter- 
est, was  the  bill ;  which  complained  of  a  fraud,  and  a  working  upon  the 
plaintiff's  necessity  when  in  streights. 

This  cause  came  first  to  be  heard  in  Hillary-Term,  27  Car.  II,  before 
the  Lord  Nottingham,  who  in  regard  the  judgments  were  for  money 
lent,  and  not  for  wares  taken  up  to  sell  again  at  under-value,  as  im- 
provident heirs  used  to  do ;  and  in  regard  of  the  express  clause  in  the 
defeasance  of  the  defendant's  losing  all,  if  the  plaintiff  died  before  the 
father,  did  not  think  fit  to  relieve  the  plaintiff  against  the  bargain  it- 
self, without  paying  the  £5000  with  interest  from  a  month  after  the 
plaintiff's  father's  death ;  and  did  decree  upon  the  payment  of  the  £5000 
with  interest,  the  defendant  should  acknowledge  satisfaction  upon  the 


586  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

judgment;  and  the  money  was  paid,  being  £5390,  and  the  judgments 
vacated  accordingly. 

And  now  the  cause  coming  to  be  re-heard  at  the  plaintiff's  instance, 
before  the  Lord  Chancellor  Jefferies,  it  was  insisted  that  there 
was  no  true  difference  in  the  case  of  an  unconscionable  bargain,  wheth- 
er it  be  for  money  or  for  wares ;  and  that  the  inserting  the  clause  in 
the  defeasance,  that  the  defendant  should  lose  his  money,  if  the  plaintiff 
died  before  his  father,  did  not  differ  the  case  in  reason  at  all  from  any 
other  bargain  made  by  the  plaintiff,  or  other  tenant  in  tail,  "to  be  paid 
for  at  their  father's  death ;  for  that  in  these  cases,  if  the  tenant  in  tail 
died  living  the  father,  the  debt  would  be  lost  of  course,  and  therefore, 
the  expressing  of  it  particularly  in  the  defeasance,  made  the  bargain  the 
worse,  as  being  done  to  colour  a  bargain,  that  appeared  to  the  defend- 
ant himself  unconscionable ;  and  though  there  was  not  in  this  case  any 
proof  of  any  practice  used  by  the  defendant,  or  any  on  his  behalf  to 
draw  the  plaintiff  into  this  security ;  yet  in  respect  merely  to  the  uncon- 
scionableness  of  the  bargain,  the  Lord  Chancellor  discharged  the  Lord 
Nottingham's  decree;  and  did  decree  the  defendant  Pitt  to  refund  to 
the  plaintiff,  all  the  money  he  had  received  of  him,  except  the  £2000 
originally  lent,  and  the  interest  for  the  same. 


WILLAN  v.  WILLAN. 

(In  Chancery,  1814.     2  Dow,  H.  L.  274.) 

John  Wilian,  of  How  Hatch,  South  Weald,  Essex,  appellant's  uncle, 
in  1792,  held  the  farm  of  Brownswood,  Hornsey,  from  the  Prebendary 
of  St.  Paul's,  under  a  lease  renewable  every  seven  years  at  a  fine  at 
the  will  of  the  Prebendary.  Wilian,  the  uncle,  died  August  11,  1792,  at 
the  age  of  82,  having  devised  his  freehold  estates  to  his  great  nephew, 
William  Wilian,  for  life,  and  to  the  son  of  W.  Wilian  in  remainder, 
and  limited  his  leasehold  estates  as  nearly  as  possible  in  the  same  way 
as  the  freehold.  On  the  6th  August,  1792,  while  the  uncle  was  confined 
to  bed  by  the  illness  of  which  he  died,  an  agreement  was  entered  into 
between  him  and  his  nephew,  the  appellant,  who  then  held  the  Horn- 
sey farm  of  his  uncle  under  a  sub-lease;  which  agreement,  signed  by 
both  parties,  and  witnessed  by  the  attending  physician  and  apothecary, 
was  in  these  terms  : 

"It  is  hereby  agreed,  between  John  Wilian,  of  How  Hatch,  in  South  Weald, 
Esq.,  of  the  one  part,  and  his  nephew,  John  Wilian,  of  the  Bull  and  Moufeh  Inn, 
London,  on  the  other  part,  that  the  present  lease  of  the  farm  at  Hornsey, 
which  the  said  John  Wilian,  of  the  Bull  and  Mouth,  now  has  of  his  uncle,  shall 
he  cancelled,  and  a  new  lease  of  21  years,  renewable  every  seven  years  for 
ever,  or  so  long  as  the  said  John  Wilian,  Esq.,  or  his  assigns,  hold  the  same 
from  the  Prebendary  of  St.  Paul's,  shall  he  granted  of  the  farm  that  he  now 
holds,  and  also  of  that  farm  now  let  to  William  Stap,  and  also  of  that  now 
let  to  Mary  Collier,  at  the  yearly  rent  of  £565  clear  of  land  tax,  and  all  other 
taxes,  to  commence  at  Michaelmas,  IT'.M. 

"And  it  is  farther  agreed,  that  if  any  lines  shall  he  demanded  on  account  of 
an  increase  of  buildings  on  any  of  the  above  farms,  the  said  John  Wilian,  of 
the  Bull  and  Mouth  Inn,  shall  pay  those  fines." 


Sec.  8)  EQUITABLE   DEFENSES  587 

A  lease  having  been  executed  in  terms  of  this  agreement  by  the 
trustees  under  the  uncle's  will,  William  Willan,  the  great  nephew, 
alarmed  at  the  increase  of  the  fines,  which  threatened  to  render  the 
Hornsey  lease  of  no  value  to  him,  filed  his  bill  in  chancery,  praying 
that  it  might  be  declared  that  the  agreement  had  been  unduly  obtained, 
and  that  it  might  be  set  aside ;  and  that  the  lease  founded  upon  it 
might  be  declared  to  have  been  executed  by  mistake,  and  might  be  de- 
livered up,  &c. ;  or  at  least,  that  the  stipulation  for  perpetual  renewal 
might  be  declared  to  be  unreasonable,  and  to  have  been  obtained  by 
surprise  and  imposition  upon  the  uncle  without  consideration,  and  that 
it  ought  to  have  no  effect,  &c. 

Elizabeth  Willan,  the  uncle's  widow,  had,  on  the  5th  August,  writ- 
ten by  his  desire  to  the  nephew,  stating,  that — 

"the  uncle  was  ill,  wished  to  give  him  the  preference  of  Hornsey,  and  begged 
That  he  would  come  and  talk  about  it." 

The  nephew  came  next  day  along  with  the  Rev.  Joseph  Baines,  a 
clergyman  of  unblemished  character,  and  much  esteemed  by  the  uncle. 
The  nephew  and  Baines  went  into  the  uncle's  bed-room,  where  the 
agreement  was  prepared,  and  then  the  physician  and  apothecary  were 
called  up  to  witness  the  signing.  The  widow  was  not  present  during 
any  part  of  this  transaction,  but  in  a  quarter  of  an  hour  after  the 
nephew  had  left  the  room,  the  uncle  sent  for  him  again,  and,  in  the 
widow's  presence,  said, 

"John,  that  agreement  must  not  stand;   it  is  giving  the  estate  away." 

The  appellant  replied : 

"You,  sir,  have  left  the  estate  to  my  son,  on  failure  of  William  Willan's 
having  children,  so  I  shall  be  making  the  farm  better." 

And  added : 

"If  you  do  not  approve  of  it  when  you  are  better,  the  agreement  shall  be 
cancelled." 

The  physician  on  his  examination  (the  apothecary  and  Baines  had 
died  some  time  before  the  bill  was  filed)  stated  that  on  the  day  when 
the  said  agreement  was  prepared  and  signed,  the  uncle  was  in  a  state 
of  the  greatest  imbecility  of  mind  and  body,  and  totally  incapable  of 
attending  to  or  understanding  any  business  that  required  thought,  re- 
flection, or  consideration ;  that  he  hesitated  to  witness  the  signing,  and 
would  not  have  done  so,  had  he  not  been  informed,  and  believed,  that 
it  was  merely  a  common  lease,  of  which  the  terms  might  have  been 
before  considered.  The  deposition  of  the  widow  and  several  others 
went  to  show  that  the  uncle  was  of  sufficiently  sound  mind  at  this  time, 
though  the  widow  admitted  that  his  mind  occasionally  wandered. 

The  uncle  had  on  the  same  day  (August  6)  executed  a  codicil  to  his 
will.  The  uncle  and  nephew  did  not  appear  to  have  lived  on  terms  of 
intimacy.  It  ought  to  be  observed,  that  in  1789,  Willan,  the  uncle, 
had  made  an  agreement  for  a  lease  of  certain  other  premises  at  Horn- 


588  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

sey,  held  in  the  same  manner,  with  one  Hoare,  covenanting  to  renew 
perpetually.    But  there  he  took  a  fine,  and  an  advance  of  rent. 

The  agreement  was  set  aside  in  the  court  below,  oh  the  ground  of 
its  having  been  a  surprise  on  both  parties,  and  the  lease  executed  in 
consequence  was  decreed  to  be  delivered  up.  The  decree  was  affirmed 
on  a  rehearing,  and  thereupon  the  nephew  appealed. 

Lord  Eldox  [Chancellor]. S7  He  had  not  proceeded  in  his  judg- 
ment below  on  the  ground  that  the  agreement  was  fraudulent,  though 
he  thought  it  would  have  been  a  fraudulent  use  of  it  to  carry  it  into 
effect.     *     *     * 

But  this  had  appeared  to  him  to  be  an  agreement  obtained  by  sur- 
prise, and  in  this  sense,  that  it  was  a  surprise  on  both  parties ;  and  that 
the  appellant  had  agreed  to  give  it  up,  if  it  had  the  effect  of  going  be- 
yond what  was  intended.     *     *     * 

He  had  stated  below,  and  he  still  thought,  that  the  testator  intended 

to  give  the  appellant  some  additional  advantage,  but  not  the  advantage 

of  this  perpetual  renewal,  &c.    He  was  of  opinion  that  the  evidence  bore 

him  out  in  this,  that  the  uncle  was  not  absolutely  of  non-sane  mind, 

but  that  he  was  in  such  a  state  of  imbecility,  arising  from  indisposition, 

that  he  might  easily  at  the  time  misconceive  the  effect  of  the  agreement ; 

and,  in  point  of  fact,  it  did  afterwards  occur  to  him  that  it  might  have 

a  different  effect  from  what  was  intended,  and  that  the  estate  must  in 

a  short  time  be  purchased  at  a  rate  which  would  leave  nothing  to  the 

lessor.     It  appeared  that  he  desired  his  wife  to  call  the  appellant,  who 

had  not  left  the  house,  into  his  room,  and  that  when  the  appellant  came, 

the  testator  said, — not  in  these  exact  words,  but  in  effect : 

"This  matter  must  be  reconsidered — the  agreement  must  not  stand — it  is 
giving  away  the  estate." 

The  appellant  then  honestly  said : 

"You  have  left  the  estate  to  my  son,  in  failure  of  William  Willan's  having 
children;  so  I  shall  be  making  the  farm  better.  If  you  do  not  approve  of  it 
when  you  recover,  it  shall  be  given  up." 

It  had  been  strongly  objected  that  this  evidence  ought  not  to  have 
been  received.  But  the  appellant  had  read  it,  and,  independent  of  that, 
the  evidence  of  this  conversation  was  material,  for  the  purpose  of 
showing  that  there  existed  such  a  misunderstanding  as  that  against 
which  the  bill  prayed  to  be  relieved ;  and  besides,  the  interrogatories 
led  to  it.     *     *     * 

When  he  spoke  of  surprise,  he  merely  meant,  that  it  was  a  case 
where,  from  imbecility,  and  the  absence  of  proper  advice,  the  testator 
did  not  understand  the  effect  of  what  he  did,  and  that  it  was  uncon- 
scionable in  equity  that  an  agreement  should  be  executed  which  was  a 
surprise  on  both  parties. 

It  had  then  been  insisted,  that  if  one  lease  could  not  be  granted,  at 
least  the  agreement  ought  not  to  have  been  delivered  up ;  and  that  this 

"  Parts  of  the  opinion  are  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  589 

was  one  of  the  cases  where,  though  equity  would  not  execute  the 
agreement,  it  would  leave  the  party  to  his  remedy  at  law.  He  thought 
this  case  did  not  fall  within  that  distinction.  He  did  not  say  that  here 
there  was  any  dishonesty ;  but  if  an  agreement  was  obtained  by  sur- 
prise, under  such  circumstances  as  occurred  in  this  case  (vide,  16  Ves. 
86,)  it  was  against  equity  to  permit  any  use  to  be  made  of  it. 

Then  it  had  been  said,  that  a  lease  had  been  actually  executed  by  the 
trustees  upon  the  foundation  of  this  agreement.  The  answer  was,  that 
the  trustees  granted  it  without  sufficient  knowledge  of  the  circum- 
stances, and  that  their  cestui  que  trusts  ought  not  to  be  prejudiced. 

These  were  the  grounds  on  which  he  had  proceeded  below,  and  with 
this  statement  he  should  leave  the  case  with  their  Lordships.  But,  in 
justice  to  himself,  to  their  Lordships,  and  the  parties,  he  had  again 
examined  the  case  diligently,  and  if  he  had  seen  cause  to  alter  his  opin- 
ion, their  Lordships  would  give  him  credit  so  far  as  to  believe  that  no 
one  could  have  been  more  ready  to  avow  the  change  and  to  act  upon  it. 

Lord  Redesdale.  This  was  a  bill  to  set  aside  an  agreement  en- 
tered into  at  a  time  when  one  of  the  parties  was  on  his  death-bed,  and 
clearly  in  a  state  of  imbecility,  and  also  to  set  aside  an  actual  lease 
founded  upon  it,  on  this  ground,  that  the  uncle,  when  he  signed  it, 
neither  knew  nor  understood  the  contents  of  it,  and  that  advantage 
was  taken  of  his  circumstances  to  get  his  signature. 

The  effect  of  the  agreement  was  clearly  to  put  an  end,  in  no  very 
long  time,  to  the  value  of  the  property  to  the  lessor;  for  the  facts 
were  these  [states  them] — the  only  stipulation  in  favour  of  the  lessor 
being,  that  if  there  should  be  an  increase  of  fines  on  account  of  new 
buildings,  they  should  be  paid  by  the  lessee.  All  the  rest,  arising  from 
improvements  in  agriculture,  &c,  were  to  fall  on  the  estate.  It  was 
scarcely  possible  to  suppose  that  any  man  in  full  possession  of  his 
faculties  could  enter  into  such  an  agreement  for  valuable  consideration. 
Then  it  was  said,  that  this  was  partly  for  natural  love  and  affection. 
But  where  an  agreement  purported  in  the  body  of  it  to  be  for  valuable 
consideration,  it  could  never,  though  obtained  by  a  relation,  be  sup- 
ported on  the  ground  of  natural  love  and  affection ;  for  if  it  could, 
every  agreement  made  with  a  relation  must  be  supported,  however  in- 
adequate the  consideration. 

The  nephew  came  to  the  uncle's  house  in  consequence  of  a  letter 
written  to  the  former  by  order  of  the  uncle,  and  the  letter  stated  the 
object  to  be  to  give  him  a  lease  in  preference  to  others.  The  uncle  was, 
at  the  time,  not  incapable  of  making  an  ordinary  lease,  or  a  codicil  to 
his  will,  which  he  did  the  same  day,  but  was  incapable  of  applying  him- 
self to  a  contract  of  this  kind,  which  required  deliberation  and  calcula- 
tion, for  this  was  clearly  a  contract  for  valuable  consideration.  Doctor 
Kirkland  attended  as  a  witness :  he  remonstrated  that  the  uncle  was  not 
then  in  a  condition  to  attend  to  business,  and  he  was  informed  that  this 
was  a  mere  lease  between  landlord  and  tenant,  the  terms  of  which  had 
been  settled  before.     No  calculations  appeared  to  have  been  entered 


590  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

into  by  the  parties,  or  if  entered  into,  they  were  perfectly  false ;  for 
the  agreement  was  such,  that  the  lease  would  soon  produce  nothing 
to  the  lessor,  who  must  therefore  abandon  it,  as  he  was  entitled  to  do ; 
for  there  was  no  contract  binding  him  at  all  events  to  renew.  Sup- 
pose there  had  been  no  evidence  of  debility  at  the  time,  it  might  be 
questioned  whether  such  an  instrument,  obtained  under  such  circum- 
stances, without  any  previous  consultation  as  to  the  terms  of  the  con- 
tract, might  not  be  considered  as  the  effect  of  surprise. 

Another  circumstance  had  been  brought  into  the  cause, — the  agree- 
ment for  the  lease  to  Hoare,  in  which  also  the  lessor  covenanted  to 
renew,  and  the  lessee  covenanted  not  to  erect  new  buildings.  Possibly 
the  lessor  might  have  entered  into  this  agreement  without  having  suffi- 
ciently considered  the  terms  of  it;  but  at  any  rate  the  terms  were  very 
different  from  those  of  the  agreement  now  impeached.  There  the  les- 
sor received  a  fine  of  £225  and  an  advance  of  rent. 

He  did  therefore  conceive  that  the  respondent  had  made  out  the 
charge  that  the  uncle  did  not  understand  the  effect  of  the  agreement, 
and  that  advantage  was  taken  of  his  situation  to  induce  him  to  sign  it. 
There  appeared  to  him  no  contrariety  in  the  evidence  as  to  the  state  in 
which  the  uncle  was  at  the  time  of  the  signature.  He  was  capable  of 
making  a  codicil  to  his  will,  but  not  of  doing  anything  which  required 
deliberation.  This  besides  was  a  bargain,  and  different  in  its  nature 
from  that  expression  of  volition  required  in  making  a  will. 

If  the  whole  of  Mrs.  Willan's  evidence  was  to  be  received  and  be- 
lieved, the  uncle  himself  afterwards  considered  it  as  an  improvident 
act.  If  the  conversation  stated  by  her  actually  took  place,  it  showed 
that  the  effect  of  the  agreement  had  before  been  understood  by  neither 
the  one  nor  the  other.  But  then  it  was  said  that  this  evidence  ought 
not  to  have  been  received,  because  that  point  was  not  directly  in  issue. 
It  appeared  to  him  that  it  ought  to  be  received, — 1st,  Because  he  con- 
sidered it  as  evidence  of  the  surprise  which  was  directly  in  issue,  as 
evidence  of  the  mutual  misunderstanding,  or  at  least  of  misunderstand- 
ing in  the  uncle ;  2d,  Because  it  came  out  on  the  examination  for  the 
Appellant;  and,  3d,  Because  it  was  read  by  the  appellant  himself.  He 
could  not  object  to  his  own  evidence,  thus  adopted,  and  say  that  he 
could  have  answered  it  by  other  evidence.  According  to  the  argument 
at  the  bar,  if  twenty  facts  were  stated  in  the  bill,  and  all  were  denied 
by  the  answer,  and  a  single  witness  deposed  to  each  fact,  there  must 
be  issues  to  try  them  all.     He  did  not  think  the  rule  went  that  length. 

His  conception  of  the  case  then  was  this, — that  where  a  contract  was 
manifestly  unreasonable,  if  one  of  the  parties,  taken  by  surprise  while 
in  a  state  of  debility,  was  made  to  depart  from  an  original  intention, 
and  to  act  contrary  to  a  previous  design,  then  the  contract  ought  to  be 
set  aside,  as  this  was  an  advantage  taken  of  his  infirm  state. 

Then  a  question  was  made,  whether  the  agreement  might  not  have 
effect  as  to  one  lease.  It  appeared  to  him  that  it  could  not.  When  the 
agreement  was  found  to  be  so  unreasonable  that  it  could  not  be  exe- 


SeC.  8)  EQUITABLE   DEFENSES  591 

cuted  in  toto,  they  could  not  draw  the  line.  They  could  not  say  what 
the  uncle  really  meant  to  do.  They  had  no  evidence  of  his  intention 
but  this  agreement,  which  was  bad. 

Another  question  was,  whether  the  agreement  ought  to  have  been 
delivered  up.  He  thought  it  perfectly  clear,  that  where  an  agreement 
was  obtained  under  such  circumstances, — as  by  surprise,  for  example, 
— that  it  was  not  fit  to  be  acted  upon  in  equity,  it  was  unfit  that  it  should 
be  acted  upon  at  law,  and  in  such  cases  the  practice  was  to  order  it  to 
be  delivered  up;  or,  if  an  action  was  brought  upon  it,  to  order  a  per- 
petual injunction  to  restrain  that  action.  He  could  not  see  why,  if  it 
was  improper  to  act  on  this  agreement  in  equity,  it  should  be  acted 
on  at  law.  His  opinion  therefore  was,  that  the  decree  ought  to  be 
affirmed,  and  he  was  authorized  to  state,  that  a  noble  and  learned  Lord 
(Carlton),  not  now  present,  but  who  had  attended  at  the  hearing, 
concurred  in  that  opinion. 

Decree  affirmed. 


YOUNG  v.  CLERK. 

(In  Chancery,  1720.     Prec.  Ch.  537,  24  E.  R.  241.) 

The  bill  was  to  have  a  specific  execution  of  articles,  whereby  the 
defendant  had  agreed  to  let  the  plaintiff  a  lease  of  the  premises  for  18 
years,  at  the  rate  of  £67.  10s.  per  ann. 

The  case  was  thus :  The  plaintiff,  for  about  20  years  last  past,  had 
held  the  premises,  as  tenant  to  one  Thomas  Goodhew,  at  the  rent  of 
£40  per  ann.  Thomas  Goodhew  was  entitled  to  those  lands,  under  a 
lease  of  21  years,  with  power  of  a  reversal  from  the  Archbishop  of 
Canterbury ;  and  on  his  death,  which  happened  about  two  years  since, 
the  estate  came  to  Henry  Goodhew,  his  brother,  by  virtue  of  a  family 
settlement  made  the  20th  of  December,  1689;  and  thereupon  his  lease 
being  determined,  he  applied  to  Henry  Goodhew  for  a  new  lease; 
but  before  a  new  lease  was  made  he  likewise  died,  having  first  made  his 
will,  and  thereby  devised  this  estate  to  his  daughter,  with  whom  the 
defendant  after  intermarried,  and  thereby  in  her  right  became  entitled 
to  the  premises  for  the  residue  of  the  lease,  with  a  power  of  reversal ; 
and  thereupon  the  plaintiff  applied  to  him  likewise  for  a  new  lease  to 
make  up  the  compleat  term  of  21  years,  which  Thomas  Goodhew  had 
agreed  with  him  for,  and  of  which  there  was  about  IS  years  to  come. 

The  defendant  had  never  seen  the  land,  and  knew  nothing  of  the 
nature  or  value  thereof,  and  therefore  desired  him  to  consider  it,  and 
come  and  see  the  lands  which  lay  near  Canterbury,  before  he  came  to 
any  agreement  concerning  them :  it  appeared,  and  was  fully  proved  in 
the  cause,  that  the  lands  were  worth,  and  were  actually  let  by  the  plain- 
tiff to  under-tenants  at  £3  and  £3.  10s.  an  acre  per  ann.,  being  hop 
lands,  and  the  tenants  were,  by  covenants  in  their  leases,  to  plant  them 
and  leave  them  planted  with  hops,  to  lay  on  so  many  load  of  dung 


592  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

every  year,  to  bear  all  parish  taxes,  and  to  be  at  other  expenses,  so 
that  the  plaintiff  had  £167  per  ami.  coming  in  by  them,  without  any 
expense  on  his  part,  though  he  had  never  paid  more  than  £40  per  aim., 
rent  to  Thomas  Goodhew. 

^ 'hen  the  defendant  went  down  to  Canterbury,  he  did  take  a  view 
of  the  lands  in  the  plaintiff's  company,  who  had  promised  and  engaged 
him  to  lie  at  his  house;  but  it  did  not  appear  that  he  had  any  oppor- 
tunity whatsoever  of  informing  himself  otherwise  than  from  the 
plaintiff  himself,  who  was  continually  with  him,  what  the  value  of 
the  lands  was,  nor  had  the  defendant  himself  any  judgment  on  a  bare 
view  of  the  lands  what  they  were  worth  per  ann. ;  but  he  asked  the 
plaintiff  to  let  him  see  the  counterpart  of  the  leases  he  had  made  to  his 
under-tenants,  which  would  have  fully  informed  him  therein,  but  that 
was  shuffled  off,  on  pretence  he  could  not  find  them,  or  that  they  were 
left  with  a  friend  of  his,  and  so  the  defendant  knew  nothing  of  the 
rent  the  plaintiff  received  from  his  under-tenants,  or  the  terms  on 
which  they  held  the  lands ;  and  it  was  fully  proved  in  the  cause,  that 
the  defendant  expressed  great  dissatisfaction  thereat,  and  was  unwill- 
ing to  come  to  any  articles  of  agreement  with  the  plaintiff ;  but  by  the 
importunity  of  the  plaintiff,  and  others  then  present,  he  was  prevailed 
on  to  agree  to  it,  and  thereupon  the  articles  in  question  were  drawn  up 
and  executed  between  them  ;  after  which  the  defendant  discovered  the 
imposition,  and  that  the  plaintiff  had  above  £100  per  ann.  clear  above 
the  rents  he  was  to  pay  him,  and  that  without  any  trouble  or  expense 
whatsoever  on  his  part:  the  defendant  on  discovery  of  this,  and  in- 
forming himself  fully  of  the  value  and  nature  of  the  land,  thereupon 
refused  to  execute  a  lease  pursuant  to  the  articles ;  and  to  oblige  him 
to  it  was  this  bill  brought. 

Lord  Chancellor  was  clear  of  opinion,  that  this  court  was  not 
bound  to  decree  a  specific  execution  of  articles,  where  they  appeared 
to  be  unreasonable,  or  founded  on  a  fraud,  or  where  it  would  be  un- 
just or  unconscionable  to  assist  them ;  that  from  the  circumstances  of 
this  case,  these  articles  were  plainly  of  that  sort;  that  though  there  was 
no  direct  fraud  proved,  yet  from  the  great  undervalue  of  the  land, 
and  that  too  without  any  expense  whatsoever  on  the  plaintiff's  part,  it 
appeared  to  him  to  be  an  unreasonable  and  shameful  contract ;  that  it 
was  indeed  good  at  law,  and  therefore  left  the  plaintiff  to  his  legal 
remedy  for  recovery  of  what  damages  he  could  by  non-performance 
of  the  articles,  but  dismissed  the  bill  as  to  any  specific  execution  thereof. 


Sec.  8)  EQUITABLE   DEFENSES  593 


v.  WHITE. 


(In  Chancery,  181S.    3  Swanst  108,  note.) 

The  bill  was  ,for  a  specific  performance  of  an  agreement  by  which 
the  defendant  was  to  take  a  lease  of  a  way-leave  over  the  plaintiff's 
close,  at  the  yearly  rent  of  £10,  for  the  use  of  a  colliery  which  the 
defendant  intended  to  take ;  and  was  likewise  to  employ  the  plaintiff's 
son  in  the  colliery  during  the  term,  and  allow  him  £20  per  annum 
during  the  first  7  years,  and  £30  the  second  :  at  the  close  of  the  articles, 
the  defendant  obliged  himself  to  the  performance  under  a  penalty. 
After  the  execution  of  them,  some  other  colliers  took  a  lease  ot  otner 
lands,  which,  as  well  as  the  plaintiff's,  lay  between  the  colliery  and  the 
river,  and  so  rendered  the  plaintiff's  way  leave  useless  to  the  defend- 
ant; and  the  defendant  could  not  obtain  a  lease  of  the  colliery,  and  the 
lease  that  he  was  to  take  being  for  the  use  of  the  colliery,  though 
there  was  no  fraud  proved  in  the  plaintiff  hindering  the  defendant  from 
taking  the  other  way-leaves  or  the  colliery, 

Yet  my  Lord  would  not  decree  a  specific  performance,  but  directed 
only  a  quantum  damnificavit  by  the  defendant's  not  taking  the  lease ; 
and  that  part  that  related  to  the  employing  the  son,  he  totally  rejected, 
there  being  no  colliery  to  employ  him  in. — Lord  Colchester's  MSS.,  in 
a  collection  entitled  as  containing  cases  from  Easter,  1706,  to  Michael- 
mas, 1713. 


HELLING  v.  LUMLEY. 

(In  Chancery,  1858.    3  De  Gex  &  J.  493,  44  E.  R.  1358.) 

These  were  two  appeals  from  the  decision  of  Vice-Chancellor  Stuart, 
holding  that  the  Plaintiff  was  entitled  to  the  enjoyment  of  a  box 
No.   124  at  the  opera  house,  of  which  the  Defendant  was  the   les- 

The  Lord  Justice  Turner.  This  is  a  bill  filed  by  the  trustee  of 
a  deed  of  the  15th  of  March,  1823,  claiming  either  the  possession  or 
occupation  of  box  No.  124  at  the  opera  house,  or  an  equivalent  in 
money.     [His  Lordship  read  the  prayer  of  the  bill] 

The  case  arises  thus:  In  the  year  1792  a  lease  of  the  opera  house 
was  granted  to  William  Taylor,  through  whom  Edmund  Waters 
claimed  title.  By  this  lease  it  was  provided  that  with  the  exception  of 
certain  specified  boxes,  not  including  No.  124,  no  box  should  be  let 
for  a  greater  term  than  that  of  the  season,  or  from  year  to  year.  Rut 
the  forty-one  specified  boxes  might  be  let  without  any  such  restriction. 
The  lease  contained  a  covenant  for  renewal.  The  term  having  become 
vested  in  Waters,  he,  on  the  25th  August,  1821,  contracted  to  sell  his 

8  8  The  statement  of  facts  is  abridged. 
Boke  Eq  —  38 


594  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

interest  in  the  lease,  and  in  any  renewed  terms  to  Chambers.  That 
contract  contained  a  reservation  in  these  terms:  [His  Lordship  read 
it.]  So  that  Waters  reserved  the  right  of  possession  of  box  Xo.  124 
for  Himself  and  his  nominees  during  the  term  and  any  renewed  term. 
Having  this  reserved  right  Waters  settled  it  by  the  assignment  of 
March,  1823,  upon  trusts  for  the  benefit  of  his  creditors,  and  the  Plain- 
tiff is  the  present  trustee  of  that  deed.  The  Vice-Chancellor  was  of 
opinion  that  the  Court  ought  to  declare  the  Plaintiff  entitled  as  against 
the  Defendants  Lumley  and  Lord  Ward,  to  the  benefit  of  the  reserva- 
tion of  the  box,  and  that  the  Defendants,  and  all  claiming  under  them 
are  bound  to  give  the  occupation  of  the  box  according  to  the  terms  of 
the  reservation,  and  His  Honour  granted  an  injunction  and  directed 
accounts  as  sought  by  the  bill.  From  that  decision  two  appeals  have 
been  brought,  one  by  each  Defendant. 

In  the  first  place  it  is  said  that  if  the  Court  enforces  specific  perform- 
ance of  the  agreement  constituted  by  the  reservation,  the  consequence 
will  be  a  forfeiture  of  the  lease  under  which  the  landlord  may  re-enter. 
And  it  is  said  that  Courts  of  Equity  do  not  decree  a  specific  perform- 
ance of  an  agreement  of  which  the  consequence  would  be  a  forfeiture. 
But  when  a  Defendant  sets  up  the  consequence  of  forfeiture  as  a  de- 
fence to  a  bill  for  specific  performance,  the  Court  must  be  well  satisfied, 
before  it  admits  the  validity  of  such  a  defence,  that  forfeiture  will  fol- 
low from  the  specific  performance  of  the  agreement,  and  it  must  also 
look  at  the  fact  by  whose  acts  and  conduct  the  forfeiture  would  be  oc- 
casioned. The  Court  will  not  permit  a  Defendant  to  put  himself  in 
such  a  position  as  that  his  performance  of  his  agreement  shall  create 
a  forfeiture,  and  then  to  turn  round  and  say  that  the  Plaintiff  shall  not 
have  a  specific  performance  of  the  agreement,  because  the  Defendant 
has  by  his  own  act  enabled  the  landlord  to  enter,  upon  the  agreement 
being  performed.  How  does  the  present  case  stand  in  that  poinl  of 
view?  The  original  lease  contained  a  contract  that  no  box,  except 
forty-one  which  were  specified,  should  be  leased  except  for  the  season, 
or  from  year  to  year.  This  lease  has,  however,  expired,  and  therefore 
there  could  not  possibly  now  be  any  breach  of  the  contract  contained  in 
it.  A  new  lease  was  granted  in  1845,  and  it  appears  that  although 
forty-one  boxes  were  also  excepted  in  the  new  lease  they  were  not 
specified,  so  that  the  Defendant  Lumley  had  a  right  to  deal  as  he 
pleased  with  any  forty-one  boxes  which  he  thought  fit,  he  having  a 
power  of  selection  for  that  purpose.  In  the  year  1845,  therefore,  Mr. 
Lumley  was  in  this  position.  He  had  power  to  select  the  box  No.  124 
as  one  which  he  might  be  at  liberty  to  lease  otherwise  than  for  the  sea- 
son, or  from  year  to  year.  By  so  making  his  selection  he  would  have 
the  power  to  perform  specifically  the  contract  constituted  by  the  reser- 
vation. He  thought  proper  to  select  forty-one  other  boxes,  and  having 
so  selected  he  then  says  he  cannot  grant  a  lease  or  carry  out  the  res- 
ervation in  the  deed  of  1821,  because,  having  already  made  his  selec- 
tion of  forty-one  boxes,  not  including  Xo.  124,  he  would  by  selecting 


Sec.  8)  EQUITABLE   DEFENSES  595 

that  box  have  selected  forty-two  instead  of  forty-one  boxes.  If,  there- 
fore, there  was  any  danger  of  a  forfeiture  being  incurred  under  the 
covenant  contained  in  the  lease,  it  would  be  occasioned  by  the  act  of 
Air.  Lumley,  and  not  by  the  act  of  the  Plaintiff.  Now,  Mr.  Lumley 
took,  as  is  admitted,  with  notice  of  the  reservation,  and  must  be  bound 
by  it.  If,  then  he  has  put  it  out  of  his  power  to  perform  the  agree- 
ment constituted  by  the  reservation,  the  consequences  must  fall  upon 
him  and  not  on  the  Plaintiff.  I  am  not,  however,  satisfied  that  the  per- 
formance of  the  agreement  contained  in  the  reservation  would  create 
a  forfeiture,  for  the  contract  may  admit  of  this  interpretation — that 
the  lessee  might  let  anyone  occupy  the  box  No.  124  from  night  to  night 
during  several  successive  seasons,  and  I  do  not  see  anything  to  prevent 
his  doing  so.  But  if  there  were  it  would  arise  from  the  act  of  Lumley 
and  not  from  the  contract.  The  first  ground  therefore  cannot  be  main- 
tained. 

But  then  it  is  said  that  in  truth  there  was  no  such  right  in  existence 
in  Waters  at  the  time  of  the  agreement,  and  that  the  true  construction 
of  the  reservation  is  to  confine  it  to  such  right  (if  any)  as  Waters  had, 
and  that  if  he  had  none  the  reservation  was  inoperative.  I  think  that 
this  argument  scarcely  requires  an  answer  to  be  given  to  it.  For  the 
right  which  is  referred  to  in  the  reservation  is  a  right  of  occupation  for 
six  persons,  not  only  during  the  whole  of  the  original  but  during  any 
renewed  term.  It  is  further  argued  that  this  was  a  mere  personal 
right,  and  that  the  intention  of  the  parties  simply  was  that  Waters 
should  personally  enjoy  the  occupation  of  the  box.  The  terms  of  the 
agreement  do  not,  in  my  opinion,  admit  of  that  construction.  This 
appears  to  me  to  be  clear  from  the  use  of  the  word  "nominees,"  shew- 
ing that  Waters  might  grant  to  anyone  the  right  of  occupying  the  box. 
There  appears  to  me  nothing  which  prevented  Waters  from  selling  that 
right.  Some  argument  has  also  been  grounded  on  the  delay  which  has 
taken  place  in  enforcing  the  agreement.  But  I  think  that  there  has 
been  no  such  delay  as  to  displace  the  right. 

It  should,  I  think,  be  noticed  in  the  decree  that  the  Defendants  de- 
cline to  make  the  compensation  which  is  prayed  by  the  bill.  I  think 
the  decree  right,  with  that  exception,  and  that  the  Appellants  should 
pay  the  costs. 

The  Lord  Justice  Knight  Bruce.  We  have  thought  it  as  well  to 
make  a  slight  alteration  in  the  language  of  the  decree,  but  it  will  create 
no  substantial  difference.  A  single  appeal  would  have  been  frivolous 
and  vexatious ;   the  two  appeals  are  doubly  so. 


596  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

DOWSON  v.  SOLOMON. 

(In  Chancery,  1859.    1  Drew.  &  S.  1,  62  E.  R.  27S.) 

On  the  8th  of  June,  1858,  the  unexpired  term  of  thirty-three  years 
in  a  house  and  premises  at  Champion  Hill,  Surrey,  held  under  a  lease 
from  the  master,  wardens,  &c.,  of  Dulwich  College,  was  sold  by  auc- 
tion subject  to  certain  particulars  and  conditions  of  sale,  and  the  De- 
fendant, Leon  Solomon,  having  been  declared  the  purchaser  at  such 
sale,  signed  the  memorandum  of  agreement  for  the  purchase,  and  paid 
the  deposit  on  the  purchase-money. 

By  the  conditions  subject  to  which  the  property  was  sold,  it  was 
provided  that  the  purchaser  should  pay  to  the  vendors  the  remainder 
of  his  purchase-money  and  complete  the  purchase  on  the  20th  of  July, 
1858,  and  should  be  let  into  possession  from  that  day,  and  that  up  to 
that  time  all  outgoings  should  be  cleared  by  the  vendors,  but  that  if  the 
purchase  should  not  be  completed  on  the  day  fixed  for  completion  the 
purchaser  should  pay  £5  per  cent,  on  his  purchase-money  until  the 
same  should  be  paid,  and  should  not  be  entitled  to  compensation  on  ac- 
count of  such  delay.     *     *     * 

The  vendors  were  trustees  for  sale  under  a  will ;  and  in  the  month 
of  June  Mr.  Dowson,  one  of  the  trustees,  and  who  it  appeared  acted 
for  himself  and  his  co-trustees  in  the  matter,  went  to  the  office  of  the 
insurance  company  where  the  premises  had  been  insured  to  pay  the 
premium  on  the  policy,  and  finding  that  it  would  expire  on  the  24th  of 
June,  and  expecting  that  the  purchase  would  have  been  completed  on 
the  20th  of  the  following  July,  the  day  fixed  for  completion,  he  re- 
newed the  policy  for  one  month  only,  which  month  would  expire  on 
the  24th  of  July.  Mr.  Dowson  did  not  give  the  purchaser,  or  even  his 
own  co-trustees,  notice  that  he  had  renewed  the  policy  for  only  one 
month,  and  on  the  24th  of  July,  1858,  the  policy  expired. 

When  the  parties  met  for  completion  on  the  26th  of  August.  1858. 
the  purchaser  applied  for  the  receipt  for  the  last  premium  on  the  pol- 
icy of  insurance,  and  on  ascertaining  that  the  policy  had  dropped  he 
refused  to  complete,  on  the  ground  that  the  lease  from  Dulwich  College 
was  forfeited  by  reason  of  the  breach  of  covenant,  but  the  purchaser 
subsequently  offered  to  complete  if  the  vendors  would  obtain  from 
Dulwich  College  a  waiver  of  the  forfeiture.  This  however,  the  ven- 
dors refused  to  do. 

The  vendors'  solicitors  then  offered  that  either  the  vendor  or  the 
purchaser  should  insure  the  premises  without  prejudice  to  any  ques- 
tions between  them ;  but  the  purchaser  refused  to  take  either  course, 
and  on  the  7th  of  September  following  the  purchaser  gave  the  vendors 
notice  that  his  contract  for  purchase  was  at  an  end,  and  demanded  the 
return  of  his  deposit  money.     *     *     * 

The  Vice-chancellor  [Sir  R.  T.  Kindersley].89    This  is  a  suit 

8»  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  597 

by  vendors  for  specific  performance  of  a  contract  to  purchase  a  certain 
leasehold  house  and  premises.  The  Defendant,  the  purchaser  insists 
that  by  reason  of  the  dropping  of  the  insurance  the  title  became  defec- 
tive, and  that  therefore  the  contract  is  at  an  end;  or,  at  all  events,  that 
it  is  a  case  in  which  the  Court  will  not  under  the  circumstances  decree 
specific  performance.     *     *     * 

The  main  ground,  and  one  raising  a  question  of  considerable  diffi- 
culty, upon  which  I  am  unable  to  find  any  direct  authority  to  guide  me, 
is  what  is  the  effect  of  the  dropping  of  the  insurance  after  (though  very 
shortly  after)  the  day  fixed  for  the  completion  of  the  contract,  and  aft- 
er the  title  had  been  accepted  by  the  purchaser.  The  second  edition  of 
sale  fixed  the  20th  of  July  for  the  completion  of  the  contract ;  and  by 
that  condition  all  outgoings  up  to  that  time  were  to  be  cleared  by  the 
vendors.  On  that  day,  therefore,  according  to  the  intention  and  agree- 
ment of  the  parties,  the  vendors  were  to  convey  the  property  to  the 
purchaser  on  receiving  the  purchase-money.  The  effect  of  such  a  con- 
tract is,  in  my  opinion,  this :  that  from  the  date  of  the  contract  the 
vendors  became  trustees  of  the  property,  the  beneficial  interest  remain- 
ing in  themselves  until  the  20th  of  July,  the  day  fixed  for  completion ; 
and  from  that  day  (supposing  the  contract  should  happen  not  to  be 
then  completed)  and  the  legal  estate  still  remaining  in  the  vendors,  they 
were  trustees  for  the  purchaser,  in  whom  the  beneficial  interest  then 
was  from  that  day,  and  thus  the  relation  of  trustees  and  cestuis  que 
trust  was  constituted  between  them.  But  it  must  be  observed  that  this 
relation  of  trustee  and  cestuis  que  trust  is  not  absolute  and  complete ; 
it  is  conditional  and  sub  modo.  It  is  conditional  on  the  vendors  mak- 
ing out  a  good  title,  which  they  may  never  be  able  to  do,  and  it  is  also 
conditional  on  the  purchaser  paying  his  purchase-money,  which  he  may 
never  be  able  to  do.  The  relation  of  trustee  and  cestuis  que  trust  is  so 
far  constituted  that  the  purchaser  has  become  in  equity  the  owner  of 
the  premises.     *     *     * 

Looking,  then,  at  these  parties  as  being  to  a  certain  extent  trustees 
and  cestuis  que  trust,  but  being,  in  truth,  vendors  and  purchasers,  the 
question  is  this,  how  long  did  it  continue  to  be  the  duty  of  the  vendors, 
under  these  circumstances,  to  keep  up  the  insurance  and  to  perform 
the  other  covenants  in  the  lease  so  as  to  prevent  a  forfeiture?  (I  need 
not  refer  to  the  other  covenants,  it  is  quite  sufficient  to  take  this  one, 
which  is  the  covenant  in  question ;  for  whatever  applies  to  this  cove- 
nant would  apply  to  any  of  the  others.)  That  up  to  the  20th  of  July, 
the  day  fixed  for  the  completion  of  the  contract,  it  was  their  duty  to 
keep  up  the  insurance,  and  not  only  to  do  so  but  to  do  it  at  their  own 
expense,  I  have  no  doubt ;  for,  by  the  express  terms  of  the  contract, 
the  vendors  were  to  clear  all  outgoings  up  to  that  day.  But  the  ques- 
tion is,  was  it  their  duty  to  do  so  after  the  day  fixed  for  the  completion 
of  the  purchase?  And,  first,  was  it  their  duty  to  keep  up  the  insurance 
after  that  day  at  their  own  expense?  Now,  to  try  this  question,  let 
me  suppose  that  the  purchaser  knew  (as  he  did  know)  that  by  the  terms 


598  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

of  the  lease  the  estate  was  liable  to  forfeiture  if  the  insurance  dropped. 
He  knew  that  perfectly  well  at  least  from  the  time  of  the  delivery  of 
the  abstract ;  but  let  me  suppose  he  not  only  knew  that,  'but  that  he 
also  knew  on  what  day  the  insurance  would  expire,  and  that  he  refused 
to  provide  the  money  to  pay  the  premiums  for  renewing  the  policy, 
insisting  that  the  vendors  were  bound  to  pay  it  out  of  their  own  pock- 
ets ;  while  on  the  other  hand  the  vendors  offered  to  renew  the  policy 
if  the  purchaser  would  supply  the  money ;  the  question  would  be — 
what  ought  to  be  the  view  of  the  Court  upon  such  a  state  of  things? 
If  such  were  the  state  of  circumstances  I  should  not  hesitate  to  decide 
that  question  against  the  purchaser.  Not  only  was  the  purchaser,  in 
my  opinion,  so  far  the  owner,  at  least  from  the  20th  of  July,  the  day 
fixed  for  the  completion  of  the  contract,  as  that  the  property  was 
thenceforth  at  his  risk,  but  by  the  express  terms  of  the  contract  the 
vendors  were  to  clear  all  outgoings  up  to  that  day,  which  necessarily 
implies  that  after  that  day  the  vendors  were  not  to  be  held  liable  for 
any  outgoings.  Therefore,  upon  the  dry  question  by  whom  the  ex- 
pense of  renewing  the  insurance  after  the  20th  of  July  ought  to  have 
been  borne,  I  am  of  opinion  that  it  ought  to  have  been  borne  by  the 
purchaser.  If  so,  the  question  between  the  parties  to  resolve  itself  into 
this ;  was  it  so  far  the  duty  of  the  vendors  to  inform  the  purchaser, 
that  is  voluntarily  to  give  him  the  information  of  the  day  on  which  the 
existing  policy  would  expire,  that  their  omission  to  do  so,  followed  by 
the  dropping  of  the  insurance,  entitles  the  purchaser  to  say  that  there 
is  an  end  of  the  contract?  That  seems  to  me  to  be  the  point  into  which 
the  whole  question  resolves  itself  as  between  these  parties ;  and  I  think 
the  question  must  be  tried  upon  the  same  grounds  as  if  upon  the  drop- 
ping of  the  insurance  the  lessors  had  actually  entered  for  the  forfeiture 
and  avoided  the  lease. 

Xow  I  do  not  think  that  it  can  be  laid  down  as  a  general  proposition 
that  the  omission  of  the  vendors  to  give  that  information,  followed  by 
a  forfeiture  (if  it  had  been  so),  is  of  itself  sufficient  to  avoid  the  con- 
tract. To  try  that  general  question,  upon  which  I  can  find  no  direct 
authority,  let  me  divest  the  present  case  of  its  peculiarities,  and  let  me 
suppose  that  at  the  time  of  the  contract  on  the  8th  of  June  there  had 
been  an  existing  policy  which  had  (say)  six  months  to  run,  and  that  for 
some  reason,  not  arising  from  any  difficulty  as  to  the  vendors'  title 
(which  the  purchaser  had  accepted),  the  completion  had  been  delayed 
beyond  the  expiration  of  those  six  months.  The  purchaser  knew  just 
as  well  as  the  vendors  of  the  covenant  in  the  lease  to  keep  the  premises 
insured,  and  that  a  breach  of  that  covenant  involved  a  forfeiture  of  the 
term.  That  was  all  apparent  on  the  face  of  the  abstract  which  had 
been  in  his  hands  ever  since  about  the  16th  of  June,  and  which  had  been 
carefully  examined  by  his  legal  advisers.  The  purchaser  had  accepted 
the  title  shewn  by  that  abstract  at  least  as  early  as  the  14th  of  July, 
and  he  knew  or  he  must  be  taken  to  have  known  that  at  least  from  the 
20th  of  July,  the  day  fixed  for  completion,   the  property  was  at  his 


Sec.  8)  EQUITABLE   DEFENSES  599 

risk,  there  being  nothing  which  could  then  prevent  the  ultimate  com- 
pletion of  the  purchase  but  his  own  failure  to  pay  his  purchase-money, 
the  title  having  been  accepted.  He  knew  further,  or  he  must  be  taken 
to  have  known,  that  it  was  for  him  to  provide  the  money  necessary  to 
pay  the  premium  on  renewing  the  policy  of  insurance.  He  had  become 
in  equity  the  owner  of  the  property.  Was  it  not  then,  to  say  the  least, 
extreme  negligence  on  his  part  to  make  no  inquiry  and  take  no  trouble 
on  the  subject?  Though  he  had  become  the  equitable  owner  of  the 
property  he  did  not  give  himself  the  trouble  to  inquire  when  the  policy 
would  expire.  If  he  had  inquired  of  the  vendors  and  had  received 
from  them  no  information,  or  false  information,  as  to  the  time  at 
which  the  policy  would  expire,  then  indeed  the  case  would  assume  a 
very  different  aspect.  But  having  himself  forgotten  or  neglected  to 
make  the  inquiry,  does  it  die  in  his  mouth  to  complain  that  the  vendors 
forgot  or  neglected  to  give  the  information  voluntarily  ?  I  am  not  say- 
ing that  in  such  case  there  would  be  no  negligence  on  the  part  of  the 
vendors ;  but  the  question  which  I  am  at  this  time  considering  is  this, 
whether  it  can  be  laid  down  as  a  general  proposition  applicable  to  all 
cases  (applicable  for  example  to  such  a  case  as  I  have  been  supposing), 
that  the  omission  of  the  vendors  to  inform  the  purchaser  of  the  day 
on  which  the  insurance  would  expire,  the  purchaser  making  no  inquiry 
on  the  subject,  is  of  itself  sufficient  to  avoid  the  contract.  I  am  not 
prepared  to  lay  down  such  a  general  rule.  If  the  relation  of  trustee 
and  cestui  que  trust  were  so  constituted  between  these  parties  from  and 
after  the  20th  of  July  as  that  all  the  reasoning  applicable  to  the  case 
of  pure  trustee  and  cestui  que  trust  would  be  applicable  to  them,  I  ap- 
prehend there  can  be  no  doubt  that  it  would  have  been  the  duty  of  the 
cestui  que  trust  to  have  provided  the  trustee  with  money  to  keep  up  the 
insurance  if  he  had  wished  it  done,  which  of  course  he  would  to  pre- 
vent a  forfeiture ;  and  although  the  trustee  would  be  much  to  blame 
who  omitted  to  give  voluntarily  to  the  cestui  que  trust  all  the  informa- 
tion he  possessed  in  relation  to  the  matters,  I  cannot  say  that  the  omis- 
sion of  the  trustee  to  give  that  information  would  be  a  reason  why  that 
trustee  should  be  liable  to  make  good  the  value  of  the  property  to  the 
cestui  que  trust.  There  may  have  been  negligence  in  each,  certainly 
as  much  negligence  in  the  purchaser  as  there  was  in  the  vendor,  and  in- 
finitely more  inexcusable  and  extraordinary  negligence,  considering  that 
from  the  20th  of  July  at  all  events  the  purchaser  was  the  beneficial 
owner  of  the  property,  and  one  would  have  thought  that  for  his  own 
interest  he  would  have  been  more  vigilant,  and  more  attentive  to  a 
question  of  the  greatest  importance  with  reference  to  the  very  exist- 
ence of  the  property  which  he  had  agreed  to  purchase. 

But  there  are  in  the  present  case  certain  special  and  peculiar  cir- 
cumstances which  lead  me  to  the  conclusion  that  it  is  one  of  those  cases 
in  which  the  Court  ought  not  to  decree  specific  performance.  The 
vendors  knew,  at  least  Mr.  Dowson  (who  seems  to  have  been  the  one 
of  the  trustees  for  sale,  who  acted  for  the  others)  knew,  that  the  policy 


600  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

which  existed  at  the  date  of  the  contract  would  expire  on  the  24th  of 
June,  that  is  not  quite  a  month  before  the  day  fixed  for  the  completion 
of  the  purchase;  and  Mr.  Dowson,  knowing  that  it  was  the  duty  of 
the  vendors  to  renew,  went  to  the  insurance  office  and  renewed  the  in- 
surance ;  but  instead  of  the  ordinary  policy  for  twelve  months,  he  re- 
newed by  taking  a  policy  for  one  month  only,  so  as  to  carry  the  insur- 
ance on  to  the  24th  of  July,  that  is,  only  four  days  beyond  the  day  fixed 
for  the  completion  of  the  contract,  expecting,  no  doubt,  that  the  com- 
pletion would  take  place  on  that  day,  and  probably  intending  on  that 
day,  when  they  met  to  complete,  to  give  the  information  to  the  pur- 
chaser, who  would  then  have  just  time  enough  to  renew  the  insurance. 
Now,  I  see  no  reason  to  suspect  that  Mr.  Dowson  intended  any  harm 
to  the  purchaser;  indeed  he  could  have  no  motive  for  that.  I  assume, 
according  to  his  own  representation,  that  he  had  completely  forgotten 
that  matter,  and  unfortunately  he  not  only  forgot  to  mention  the  mat- 
ter to  the  purchaser,  but  he  also  forgot  to  mention  it  to  his  own  co- 
trustees, or  to  the  solicitor  for  the  vendors.  This  conduct,  however  un- 
intentionally on  the  part  of  Mr.  Dowson,  in  effect  operated  as  a  trap 
into  which  the  purchaser  would  fall  if  he  should  omit  to  exercise  due 
diligence ;  and  unfortunately  the  purchaser  fell  into  it.  I  do  not  mean 
to  say  that  the  vendors  were  bound  to  renew  for  a  year ;  but  if  in  re- 
newing they  thought  fit  to  run  the  matter  so  fine  as  to  cause  great  risk 
to  the  purchaser,  they  must  not  be  surprised  if  a  Court  of  Equity  re- 
fuses to  lend  them  its  assistance  against  the  purchaser.  Moreover, 
when  the  fact  of  the  dropping  of  the  insurance  was  discovered  on  the 
26th  of  August  at  the  meeting  which  was  held  for  the  purpose  of  com- 
pletion, the  purchaser  offered  still  to  complete  the  purchase  if  the  ven- 
dors would  procure  a  letter  or  document  from  the  lessors  to  the  effect 
that  they  would  not  take  advantage  of  the  forfeiture.  This  proposal 
was  unfortunately  declined  by  the  vendors ;  and  on  the  7th  of  Septem- 
ber the  purchaser  sent  them  a  written  notice  declining  altogether  to 
complete  the  contract.  The  vendors,  it  is  true,  did  afterwards  think 
better  of  the  matter,  and  ultimately  effected  a  new  insurance,  and  pro- 
cured from  the  lessors  a  letter  waiving  the  forfeiture.  But  the  pur- 
chaser adhered  to  his  notice  of  the  7th  of  September,  and  therefore 
the  waiver  was  too  late.  Under  all  the  circumstances  I  am  of  opinion 
that  I  ought  not  to  assist  the  vendors  by  decreeing  specific  perform- 
ance;  and  therefore  the  bill  must  be  dismissed,  but  without  costs. 


Sec.  8)  EQUITABLE   DEFENSES  601 

PEACOCK  v.  PEN  SON. 

(In  Chancery  before  Lord  Langdale,  1S48.    11  Beav.  355,  50  E.  R.  854.) 

This  bill  was  filed  by  Peacock  against  Penson  and  Hunter,  praying 
as  against  them,  the  specific  performance  of  an  agreement  entered  into 
by  the  Plaintiff  for  the  purchase  of  Lot  17  of  land,  which,  together 
with  other  lots,  was  put  up  to  sale  by  auction  on  the  16th  of  July,  1844. 

Part  of  the  land,  including  Lot  17  (being  that  in  question),  belonged 
exclusively  to  Penson ;  but  the  other  part  belonged,  in  equity,  exclu- 
sively to  Hunter,  under  a  contract  previously  entered  into  between 
them;  and  the  legal  estate  of  the  whole  was  outstanding  in  a  mort- 
gagee. The  whole  was  sold  together,  and  under  the  same  conditions 
of  sale. 

Conditions  and  particulars  of  sale  had  been  printed  and  circulated, 
and  referred  to  a  map  denoting  the  positions  and  quantities  of  the  sev- 
eral lots,  and  describing  the  existing  road  and  certain  proposed  new 
roads  intended  to  be  made  on  the  property,  comprising  all  the  lots. 
The  description,  among  other  things,  stated,  that  about  twenty-seven 
acres  of  ground  "were  well  adapted  for  building  purposes,  and  set  out 
with  good  roads,  and  would  afford  frontages  eligible  for  the  erection 
of  genteel  residences  of  a  superior  description;"  and  it  was  stated, 
"that  the  proposed  plan  by  which  the  lots  were  to  be  sold,  secured  to 
each  lot  wide  and  handsome  roads."  The  twelfth  condition  of  sale 
provided : 

"That  the  vendor  should,  at  his  own  expense,  within  six  calendar  months, 
make  and  plant  with  lime  trees  the  roads  marked  on  the  plan  as  intended 
roads,  and  form  and  gravel  the  footpaths,  and  should  be  repaid  by  the  pur- 
chasers of  Lots  6  to  17  inclusive,  the  expenses  thereof,  in  proportion  to  their 
frontages,  respectively,  to  such  intended  roads." 

By  the  fourteenth  condition  of  sale: 

"If  any  mistake  should  be  made  in  the  description  of  the  premises,  or  any 
other  error  whatsoever  should  appear  in  the  particulars  of  the  estate,  such 
mistake  or  error  should  not  annul  the  sale,  but  be  made  matter  of  compensa- 
tion to  be  settled  in  the  usual  way  by  arbitration." 

At  the  sale,  the  Plaintiff  was  the  highest  bidder  for  and  purchaser 
of  Lot  V7  belonging  to  Penson,  for  £255,  and  he  signed  an  agreement 
to  become  the  purchaser  of  that  lot  accordingly.  Part  of  the  land  was 
leasehold,  and  it  turned  out,  that  by  the  terms  of  the  lease,  one  of  the 
roads  contemplated  could  not  be  made  through  it,  as  proposed,  without 
incurring  a  forfeiture  of  the  lease.  Under  these  circumstances  a  dis- 
pute arose  between  the  parties  as  to  the  vendor's  obligation  to  make 
this  new  road.  The  Plaintiff  required  the  vendor  to  make  it;  but  the 
Defendant  said,  that  he  could  not  do  so  without  incurring  a  forfeiture. 
The  parties  being  unable  to  come  to  any  arrangement,  this  bill  was  filed 
by  the  purchaser  for  a  specific  performance.     *     *     * 

The  cause  now  came  on  for  hearing. 


602  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

Tiif  Master  of  the,  Rolls.90     *     *     *     It  is  an  agreement  for 

the  sale  of  a  very  small  lot  of  land,  sold  by  auction  with  several  other 

lots,  and  the  conditions  state  : 

"That  the  land  is  set  out  with  good  roads,  and  would  afford  frontages  eligi- 
ble for  the  erection  of  genteel  residences  of  a  superior  description,"  and  "that 
the  proposed  plan  by  which  the  lots  will  be  sold,  secures  to  each  lot  wide  and 
handsome  roads." 

I  cannot  doubt  that  this  representation  would  be  sufficient  to  induce 
persons  to  buy,  on  the  notion  that  they  would  be  surrounded  by  re- 
spectable villas,  and  a  deviation  from  this  plan  might  lead  to  quite  a 
different  result.  I  believe  that  persons  desirous  of  purchasing  land  for 
building  purposes,  are  most  anxious  to  know  whether  the  neighbour- 
hood will  be  respectable  or  not. 

It  has  been  argued,  that  if  approaches  are  afforded  to  each  house, 
that  is  all  that  could  be  required,  and  further,  that  the  vendors  are 
merely  answerable  in  damages ;  but  I  cannot  think  the  Plaintiff  has 
no  interest  in  the  several  roads  proposed  to  be  made,  although  there 
may  be  great  difficulty  in  ascertaining  the  value  of  such  interest. 

The  question  is,  whether  he  has  been  induced  to  purchase  the  land, 
in  part  at  least,  by  the  representation  that  by  the  plans  means  were  af- 
forded of  collecting  a  respectable  neighbourhood,  and  whether  the  ven- 
dor did  not  hold  out  reasonable  expectations  that  the  land  would  be  so 
laid  out  as  to  be  occupied  by  persons  having  "genteel  residences  of  a 
superior  description." 

I  think  that  the  not  unreasonable  demand,  which  the  Plaintiff  made 
before  the  suit,  for  a  compensation,  ought  not  to  deprive  him  of  his 
equitable  right,  and  I  consider  him  entitled  to  a  decree  for  specific  per- 
formance to  the  extent  to  which  it  can  be  performed,  if  he  is  willing 
to  take  it  with  an  abatement. 

I  will  take  time  to  consider  what  decree  ought  to  be  made.     *     *     * 

But  it  appears  to  me  that  the  vendor  could  not  make  the  road  with- 
out incurring  a  risk  of  forfeiture  of  the  piece  of  leasehold  through 
which  it  should  pass,  or  of  being  sued  by  the  lessor ;  and  that  this  is 
not  a  case  in  which  the  Defendant  ought  to  be  called  upon  to  incur  that 
risk.     Harnett  v.  Yeilding,  2  Sch.  &  Lef.  549. 

I  think  that  the  Plaintiff  is  entitled  to  a  specific  performance  of  the 
agreement  without  any  stipulation  as  to  the  new  road  in  question,  and 
if  he  desires  it,  I  will  refer  it  to  the  Master  to  inquire,  what,  if  any, 
damage  will  be  sustained  by  him  in  consequence  of  the  road  not  being 
formed. 

Compensation  was  offered  before  the  bill  was  filed,  I  have  read  the 
proceedings  with  great  regret.  The  Plaintiff  seems  to  have  acted  as  his 
own  solicitor,  and  with  less  caution  than  he  probably  would  have  used 
in  the  case  of  a  client.  I  dismiss  the  bill  with  costs  against  Hunter  and 
YVarde ;  and  as  against  Penson,  whose  contract  gave  rise  to  the  ques- 
tion, I  give  no  costs  up  to  the  hearing. 

9<>  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  603 

LEWIS  v.  BOND. 
(In  Chancery,  1S53.     IS  Beav.  85,  52  E.  R.  34.) 

In  1846  the  Defendant  Bond  obtained  a  building  lease  for  ninety- 
nine  years  under  the  Marquis  of  Bute,  which  contained  a  covenant 
against  carrying  on  a  beer-shop  or  any  offensive  trade  upon  the  prem- 
ises, and  a  proviso  for  re-entry  on  breach  of  the  covenants. 

The  Defendant  subsequently  agreed  to  grant  a  lease  of  the  premises 
to  the  Plaintiff  with  the  usual  covenants.  The  Plaintiff  entered  into 
possession  before  any  under-lease  had  been  granted,  and  he  opened  a 
beer-shop ;  and,  persisting  in  this  course  of  conduct,  the  Defendant 
ejected  him.  The  Plaintiff  filed  this  claim  for  the  specific  perform- 
ance of  the  agreement  'for  a  lease. 

Mr.  Denny,  for  the  Plaintiff,  argued  that  the  forfeiture  had  been 
waived  by  the  Marquis  of  Bute ;  and,  as  the  Plaintiff  was  willing  to 
take  such  lease  as  the  Defendant  could  grant,  the  Defendant  could  not 
raise  the  objection. 

Mr.  Pearson,  for  the  Defendant,  argued  that  an  under-lease,  with- 
out the  restrictive  covenants,  could  not  be  granted,  and  that  the  Plain- 
tiff had  notice  of  the  terms  of  the  original  lease ;  secondly,  that  the 
acts  which  would  forfeit  the  lease,  if  granted,  would  also  forfeit  the 
right  to  a  specific  performance. 

The  following  cases  were  cited :  Flight  v.  Barton,  3  Myl.  &  K.  282 ; 
Doe  d.  Ambler  v.  YVoodbridge,  9  B.  &  Cr.  376 ;  Gregory  v.  Wilson,  9 
Hare,  683;  Cosser  v.  Colliuge,  3  Myl.  &  K.  283;  Neap  v.  Abbott, 
Cooper,  333 ;  Marquis  Townshend  v.  Stangroom,  6  Ves.  328 ;  Mason 
v.  Armitage,  13  Ves.  25  ;  Macher  v.  The  Foundling  Hospital,  1  Ves. 
&  B.  188;  and  Piatt  on  Leases. 

The  Master  of  the  Rolls  [Sir  John  Romillv].  What  I  have  to 
consider  is,  whether  the  Plaintiff  is  entitled  to  a  specific  performance 
of  the  lease  for  fourteen  years  on  the  terms  to  be  determined  in  Cham- 
bers. I  am  of  opinion  that  the  circumstances  of  the  case  preclude  the 
Plaintiff  from  such  specific  performance.  The  Plaintiff  takes  the 
agreement,  knowing  that  the  Defendant  is  tenant  under  the  Marquis 
of  Bute.  That  is  itself  constructive  notice  of  the  lease,  and  he  must 
be  deemed  to  have  known  that  the  Defendant  could  only  grant  a  lease 
with  such  restrictions  as  those  under  which  he  held. 

The  evidence  is  distinct  that  the  Plaintiff  was  aware  of  the  covenant 
in  the  lease  in  1852,  for,  in  that  year,  he  applied  to  the  trustees  of  the 
Marquis  of  Bute  as  to  the  question  arising  from  the  carrying  on  of  a 
beer-shop.  If  up  to  that  time  there  was  a  waiver  as  to  the  past,  there 
was  no  promise  that  the  objectionable  trade  might  be  carried  on  for 
the  future.  It  was  expressly  said  that  they  could  make  no  agreement 
on  the  subject.  There  can  be  no  question  but  that  the  Plaintiff  con- 
tinued to  carry  on  the  same  business,  and  the  continuance  of  the  breach 
of  covenant  gave  a  right  of  re-entry. 


604  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

In  September  the  Defendant  gave  the  Plaintiff  notice  to  quit,  with 
an  intimation  that  if  he  relinquished  the  objectionable  trade  he  might 
continue  possession  of  the  premises.  He  chose  to  continue  it,  and  to 
commit  a  forfeiture. 

It  is  true  that  this  Court  will  relieve  in  some  cases,  though  in  others 
it  will  not,  as  in  the  case  of  a  breach  of  a  covenant  to  insure.  But  the 
Court  will  not  compel  a  grant  of  that  which,  if  already  granted,  would 
have,  been  forfeited. 

I  am  of  opinion  that  I  cannot  grant  a  specific  performance  in  this 
case.  It  is  a  trifling  suit  for  £2  a  year,  and  the  Plaintiff  must  pay  the 
costs. 


MURDFELDT  et  al.  v.  NEW  YORK,  W.  S.  &  B.  RY.  CO. 

K  'curt  of  Appeals  of  New  York,  1886.    102  N.  Y.  703,  7  N.  E.  404.) 

*  *  *  The  plaintiff  in  this  action  seeks  a  specific  performance  of 
the  covenant  for  this  under-passage,  and  the  trial  court  found  that  it 
was  not  a  case  calling  for  the  exertion  of  the  power  of  the  court  in 
that  direction,  and  the  general  term  was  like-minded. 

Earl,  J.91  In  view  of  the  difficulty  in  constructing  a  useful  passage 
under  the  railroad,  and  the  inutility  to  plaintiffs  of  such  passage,  if 
constructed  it  was  certainly  within  the  discretion  of  the  court  below, 
in  the  exercise  of  its  equitable  jurisdiction,  to  deny  specific  perform- 
ance of  defendant's  contract  to  construct  the  passage,  and  leave  the 
plaintiffs  to  their  remedy  for  damages  for  breach  of  the  covenant. 
Trustees  of  Columbia  College  v.  Thacher,  87  N.  Y.  311,  41  Am.  Rep. 
365.     *     *     * 

The  judgment  should  be  affirmed,  with  costs.    All  concur. 


BROWNE  v.  COPPINGER. 

(In  Chancery  in  Ireland,  before  the  Right  Hon.  Maziere  Brady,  1854. 

4  Ir.  Ch.  72.) 

The  petition  in  this  case  prayed  the  specific  performance  of  an  al- 
leged agreement  to  grant  a  new  lease  of  certain  lands  in  the  county  of 
Cork,  held  by  the  petitioner  from  the  respondent  for  the  residue  of  a 
term  of  31  years  from  the  25th  of  March,  1824.  No  formal  agreement 
in  writing  had  been  made,  but  the  respondent  had  forwarded  to  the 
son  of  the  petitioner  a  draft  lease,  inclosed  in  the  following  letter : 

"Dear  Maurice — I  now  send  you  the  draft  lease  according  to  promise. 

"Yours,  very  truly,  W.  R.  Coppinger." 

This  was  relied  on  as  a  sufficient  agreement  to  take  the  case  out  of 
the  statute  of  frauds.    The  case  made  by  the  respondent  in  his  affidavit 

9i  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Sec.  8)  EQUITABLE   DEFENSES 


605 


was,  that  the  petitioner,  who  was  tenant  of  the  respondent  under  a 
lease  of  1824,  had,  in  the  year  1851,  applied  to  the  respondent  for  a 
reversionary  lease  of  the  lands,  which  the  respondent  declined  to  grant. 
The  petitioner  then  proceeded  to  take  successive  exhausting  crops  out 
of  the  land,  and  told  the  respondent,  on  his  remonstrating: 

"That  if  he  did  not  give  her  a  new  lease  upon  her  own  terms,  she  would 
squeeze  every  atom  of  substance  out  of  it." 

Under  this  pressure,  the  respondent  verbally  agreed  to  grant  a  new 
lease,  and  accordingly  prepared  the  draft  mentioned  in  the  petition, 
which  he  forwarded  on  the  19th  of  October,  1852.  No  further  step 
was  taken  by  either  party  until  the  6th  of  March,  1853,  when  an  inter- 
view took  place  under  the  following  circumstances : 

The  lease  of  1824  reserved  a  right  of  way,  across  a  portion  of  the 
demised  lands,  to  the  lessor  and  some  of  his  tenants,  and  the  same  res- 
ervation was  contained  in  the  draft  of  1852.  The  petitioner  obstructed 
this  way,  and  on  the  respondent  remonstrating  with  her,  she  declared 
she  would  not  allow  the  use  of  the  way,  nor  take  any  lease  reserving  it ; 
that  she  wanted  no  lease  from  the  respondent,  and  that  she  would  work 
the  worth  of  her  money  out  of  the  ground,  during  the  residue  of  her 
unexpired  term:  on  this,  the  respondent  said  he  would  not  grant  any 
lease  not  reserving  that  right  of  way.  In  October,  1853,  the  petitioner, 
for  the  first  time,  applied  to  the  respondent  to  have  the  draft  lease  ex- 
ecuted, which  he  refused  to  do.92     *     *     * 

The  Lord  Chancellor.  Whatever  may  be  the  extreme  law  of  the 
case,  the  petition  here  seems  founded  on  a  scanty  measure  of  con- 
science. The  petitioner  begins  by  telling  the  landlord  that,  having  but 
a  few  years  of  her  term  unexpired,  she  intends  to  deprive  the  land  of 
value,  in  her  own  phrase  "to  squeeze  every  atom  of  substance  out  of 
it."  That  might  have  been  summura  jus,  but  it  was  also  without  doubt 
summa  injuria — a  more  apt  illustration  of  the  maxim  could  scarcely 
be  conceived.  Such  threats  may  compel  the  landlord  to  yield,  but  when 
the  lessee  comes  here  to  ask  this  court  to  enforce  rights  acquired  by 
such  means,  she  must  prove  a  clear  contract.  Now,  what  took  place 
here?  It  is  alleged  that  Mr.  Coppinger  yielded,  and  arranged  that  he 
would  give  a  new  lease;  but  of  that  we  have  no  evidence,  save  the 
letter  inclosing  the  draft  renewal :  of  course  that  is  perfectly  good  evi- 
dence, but  only  to  the  extent  of  submitting  to  grant  the  lease  upon 
the  terms  appearing  in  the  draft ;  and  it  would  have  been  quite  sufficient 
if  those  terms  had  been  accepted,  but  until  they  were  accepted  there 
was  no  contract  which  could  be  enforced.  That  draft  was  not  returned 
for  twelve  months  afterwards ;  and  six  months  after  it  had  been  sent, 
on  a  controversy  arising  as  to  a  right  of  way,  the  lessee  refused  to  ac- 
cept the  lease  on  the  terms  contained  in  the  draft.  As  I  said,  there 
must  be  clear  evidence  of  the  existence  of  a  contract,  and  the  real  evi- 
dence here  is  evidence  of  waiver  of  any  contract  which  may  have  ex- 

82  The  statement  of  facts  is  abridged. 


606  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Ch.  2 

isted.  It  certainly  is  not  a  case  in  which  the  court  is  inclined  to  en- 
force a  contract — a  case  founded  on  extreme  right,  or  rather  on  ex- 
treme wrong,  injury  and  fraud.  I  assuredly  will  never  countenance 
attempts  to  make  such  claims  the  foundation  of  rights  in  this  court, 
and  I  shall  therefore  dismiss  this  petition,  with  costs.03 


MOETZEL  &  MUTTERA  v.  KOCH. 

(Supreme  Court  of  Iowa,  1904.    122  Iowa,  196,  97  X.  W.  1079.) 

Appeal  from  District  Court,  Scott  County;  James  W.  Bollinger, 
Judge. 

Action  in  equity  for  specific  enforcement  of  an  alleged  oral  contract 
for  the  sale  of  real  estate.  Decree  for  plaintiffs,  and  defendant  ap- 
peals. 

Weaver,  J.94  The  evidence  tends  to  show  that  in  the  forenoon  of 
April  7,  1902,  a  member  of  the  plaintiff  firm  and  defendant  met  in  a 
saloon  in  the  city  of  Davenport,  where,  with  the  assistance  of  one  Car- 
roll, a  real  estate  agent,  and  others  gathered  about  the  same  table,  a 
verbal  agreement  was  entered  into  by  which  defendant  was  to  convey 
the  plaintiffs  a  certain  improved  lot  in  said  city  at  the  price  of  $25,000, 
of  which  sum  $5,000  was  to  be  paid  in  cash  on  the  execution  of  the 
papers,  and  the  remainder,  with  interest  at  5  per  cent.,  to  be  secured 
by  mortgage  upon  the  property,  payable  in  5  or  10  years,  at  plaintiffs' 

!»3  In  Kimberley  v.  Jennings  (1S36)  6  Sim.  340,  Vice  Chancellor  Shadwell 
snid:  "It  does  not  clearly  appear  to  be  the  meaning  of  the  Agreement,  that, 
if  the  event  happened  that  the  Defendant  did  not  continue,  during  the  whole 
term  of  Six  Years,  in  the  Service  of  the  Plaintiffs,  he  should  be  disabled  from 
engaging  in  any  other  Service  or  Employment  for  the  remainder  of  the  term. 
It  has  been  assumed,  in  the  course  of  the  Argument,  that  this  part  of  the 
Agreement  is  to  be  taken  by  itself,  and  that,  whatever  might  happen  during 
the  term,  the  Defendant  should  not  engage  in  any  other  Employment.  But, 
attending  to  the  whole  of  the  Agreement,  the  true  Construction  of  it  seems 
to  be  that,  during  such  portion  of  the  term  as  the  Defendant  should  continue 
in  the  Service  of  the  Plaintiffs,  he  should  uot  enter  into  any  other  Employ- 
ment :  but,  if  he  should  be  dismissed  during  the  term,  then  that  he  might  en- 
gage himself  in  the  Service  of  other  Persons.  Supposing,  however,  the  mean- 
ing of  the  Agreement,  to  be  such  as  I  have  stated  it  to  be  still  it  would  afford 
a  strong  reason  against  the  interference  of  the  Court ;  for  it  would  be  what 
is  commonly  termed  'a  Hard  Bargain' ;  inasmuch  as  the  Agreement  is  so  con- 
structed that  if,  from  illness  or  any  other  cause  over  which  the  Defendant 
could  have  no  control,  he  should  become  incapable  of  serving  the  Plaintiffs, 
they  have  the  option  either  of  discharging  him,  or  discontinuing  the  payment 
of  his  Salary,  and  insisting  that,  for  the  remainder  of  the  Six  Years,  he  shall 
not  engage  in  the  Service  of  any  other  Individual.  Nothing  could  be  more 
harsh  towards  a  young  Man  dealing  with  great  Traders,  than  that  he  should 
be  allowed  to  enter  into  an  Agreement,  which  placed  him  so  entirely  in  their 
power.  And,  although  events  have  happened  which  have  precluded  the  Plain- 
tiffs from  availing  themselves  of  this  harsh  Stipulation,  still  I  must  look  at 
the  Agreement  as  it  was  originally  concocted,  in  order  to  see  whether,  on  the 
whole,  it  was  such  as  this  Court  would  countenance." 

»4  Parts  of  the  opinion  are  omitted. 


Sec.  S)  EQUITABLE   DEFENSES  GOT 

option.  Upon  reaching  the  agreement  as  to  the  terms  of  the  transac- 
tion, there  was  paid  by  plaintiffs  to  defendant,  it  is  claimed,  the  sum 
of  $500,  in  part  satisfaction  of  the  cash  installment.  The  defendant 
denies  entering  into  the  agreement  or  receiving  any  part  of  the  alleged 
price  of  the  property,  and  further  attempts  to  show  that  the  time  of 
the  alleged  sale  he  was  badly  intoxicated,  and  had  no  adequate  or  rea- 
sonable comprehension  of  the  nature  of  the  transaction.  It  is  on  the 
question  of  fact  involved  in  this  claim  that  the  determination  of  this 
case  depends.     *     *     * 

His  wife  swears  that  at  this  time  her  husband  had  been  upon  a  pro- 
longed debauch,  and  in  this  she  is  strongly  corroborated.  She  says 
that  he  was  in  the  habit  of  "getting  up  in  the  night  and  drinking,"  and 
during  the  night  of  April  6th  he  drank  more  or  less,  and  was  "full''  in 
the  morning.  He  himself  says  that  he  had  "perhaps  a  pint  or  so"  be- 
fore leaving  home.  It  is  shown  by  others  that  he  early  made  the  round 
of  several  saloons,  and  was  intoxicated  at  half  past  7  that  forenoon. 
About  8  o'clock  he  was  met  by  Carroll,  and  some  talk  ensued  about 
the  sale  of  the  property.  Nothing  definite  was  arrived  at,  and  they 
separated;  the  defendant  going  to  Abel's  saloon,  where  the  deal  was 
afterward  made,  and  Carroll  going  to  the  plaintiffs'  place  of  business. 
In  a  short  time  Carroll  sought  defendant,  and  found  him  sitting  at  a 
table  in  a  back  room  at  Abel's.  Of  his  condition  at  that  time  Abel 
testifies  that,  in  his  opinion,  Koch  was  drunk,  and,  to  his  knowledge, 
had  been  in  that  condition  for  three  weeks.  Two  other  witnesses  who 
saw  him  there  say  that  he  sat  at  the  table  with  his  head  bent  over  in 
drunken  stupor,  and  they  heard  him  say :  "I  don't  want  to  sell  my  prop- 
erty. I  want  to  see  my  wife  first" — and  mumbled  something  else,  which 
was  not  understood.     *     *     * 

While  there  is  some  conflict  in  the  testimony  upon  this  point,  we  think 
it  fairly  shown  that,  when  the  terms  of  the  sale  were  inquired  about, 
defendant  did  not  undertake  to  state  them  for  himself,  but  Carroll  stat- 
ed them,  and  obtained,  it  is  claimed,  some  sort  of  assent  thereto  from 
the  defendant.  Muttera  then  produced  the  $500,  and  defendant  hesi- 
tated or  refused  to  take  it,  saying  that  he  would  have  to  change  his 
will,  and  would  have  trouble  with  his  wife,  whereupon  Koester  took 
the  money  and  counted  it  for  him.  Then,  as  plaintiffs'  witness  says, 
Koch  "had  the  money  lying  in  front  of  him,  and  he  commenced  to 
waver,  as  though  he  wanted  to  back  out" ;  and  at  this  juncture  Koester 
again  came  to  the  rescue,  telling  him  it  would  be  a  disgrace  for  him  to 
back  out,  assured  him  he  was  getting  a  good  bargain,  and  advised  him 
to  complete  the  sale.  This  argument  seems  to  have  proved  effective, 
and  (defendant  having  taken  the  money)  Koester  adds : 

"Then  we  all  set  them  up,  and  took  a  drink.  I  think  we  must  have  drank 
seven  or  eight  rounds  after  the  sale  was  sanctioned." 

It  farther  appears  that  at  this  point,  defendant  having  spoken  of  go- 
ing to  plaintiffs'  saloon  to  "spend  some  money  with  the  boys,"  Koester 


608  SrECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

interfered,  and  suggested  that  he  take  the  $500  across  the  street  and 
deposit  it ;  and,  upon  defendant's  refusal  so  to  do,  Koester  himself  took 
the  money  to  the  bank,  and  brought  the  certificate  back  to  the  defend- 
ant. Notwithstanding  the  seven  or  eight  drinks  just  taken  by  defend- 
ant, in  addition  to  numerous  other  potations  indulged  in  that  morning, 
Koester  solemnly  assures  us  Koch  was  still  "as  sober  as  a  judge,"  and 
perfectly  competent  to  do  business ;  and  yet,  in  spite  of  this  extraor- 
dinary demonstration  of  Koch's  judicial  equilibrium,  his  friend  thought 
it  wise  to  assume  this  unusual  measure  of  guardianship  for  the  protec- 
tion of  one  whose  abundant  capacity  to  protect  himself  he  repeatedly 
and  emphatically  affirmed.  The  contract  itself  is  not  without  a  bearing 
upon  the  fact  here  under  inquiry.  Plaintiffs  insist  that  the  property  is 
worth  not  to  exceed  $20,000,  yet  say  that  defendant  was  to  permit  $20,- 
000  of  the  purchase  price  to  be  deferred  for  10  years,  with  interest  at 
5  per  cent.  This  interest  is  treated  in  argument  as  payable  annually, 
but  we  fail  to  find  anything  in  the  alleged  contract  or  in  the  decree  of 
the  district  court  which  would  enable  defendant  to  enforce  collection 
of  interest  till  the  end  of  the  10-year  period.  The  financial  responsi- 
bility of  plaintiffs  is  not  such  as  to  materially  aid  the  defendant's  securi- 
ty. A  very  material  part  of  the  value  of  the  property  is  in  the  building 
constructed  upon  it,  yet  there  was  no  stipulation  or  agreement  to  keep 
it  insured  for  the  benefit  of  the  mortgage;  the  order  by  the  district 
court  to  that  effect  having  no  basis  in  the  contract  pleaded  or  proved. 

As  an  entirety  the  contract  was  a  reckless  and  improvident  one  on 
defendant's  part,  and,  while  that  fact  may  not  be  sufficient  to  justify 
us  in  holding  it  invalid,  it  has  some  tendency  to  corroborate  the  claim 
that  Koch,  normally  a  person  of  some  business  capacity,  was  not  en- 
tirely himself  when  he  agreed  to  its  terms.  That  he  was  intoxicated 
to  some  degree,  at  least,  when  the  contract  was  made,  is  hardly  open 
to  doubt.  When  the  evidence  is  carefully  read,  we  find  no  witness 
present  on  that  occasion  who  undertakes  to  say  that  defendant  was  not 
more  or  less  under  the  influence  of  liquor;  and  the  chief  difference 
between  the  witnesses  appears  to  be  upon  the  abstract  question  as  to 
the  degree  of  inebriety  which  must  exist  before  a  man  can  be  said  to  be 
drunk  or  incapacitated  for  business.  The  very  fact  that,  with  the  par- 
ties all  living  in  the  same  city,  and  having  their  own  respective  places  of 
business,  plaintiffs  should  deem  it  necessary,  on  receiving  word  from 
Carroll,  to  take  the  $500  and  hasten  to  the  saloon  where  defendant  was 
to  be  found;  that  Carroll,  and  not  defendant,  should  have  been  the 
man  to  state  the  terms  of  the  sale ;  that  Koester,  and  not  defendant, 
should  count  the  money;  that  plaintiffs  at  this  juncture  should  have 
taken  the  precaution  to  engage  counsel  to  protect  interests  not  then 
threatened  by  any  dispute ;  that  Koester  should  have  taken  the  reluctant 
and  wavering  defendant  in  hand,  and,  by  rebuke,  argument,  and  persua- 
sion, brace  him  up  to  the  point  of  taking  possession  of  the  money  lying 
before  him,  and  should  then  persuade  him  to  return  it,  in  order  that  it 
might  be  deposited  in  the  bank,  and  not  squandered  in  a  drunken  de- 


Sec.  8)  EQUITABLE   DEFENSES  009 

bauch — these  things,  with  others  tending  in  the  same  direction,  are  so 
unusual,  if  not  so  inconsistent  with  the  ordinary  course  of  legitimate 
business,  that,  when  added  to  the  direct  testimony  bearing  upon  de- 
fendant's condition,  we  are  convinced  he  did  not  and  could  not  give  in- 
telligent assent  to  the  agreement  now  sought  to  be  enforced.  At  any 
rate,  the  equity  of  plaintiffs'  claim  is  not  so  clear,  nor  is  the  contract 
itself  so  manifestly  fair  and  just,  that  specific  performance  will  be  de- 
creed. It  is  an  elementary  proposition  that  the  enforcement  of  specific 
performance  is  not  a  matter  of  right,  but  rests  in  the  sound  discretion 
of  the  chancellor.  It  may  easily  happen  that  circumstances  which  will 
not  justify  the  setting  aside  of  a  contract  may  yet  be  ample  grounds 
for  refusing  to  order  its  specific  enforcement.  It  is  enough  if,  in  the 
judgment  of  the  court,  the  result  of  such  enforcement  will  tend  to  in- 
justice or  oppression,  or  to  the  triumph  of  fraud  or  imposition.  The 
contract  must  not  only  be  fairly  procured,  but  fair  in  itself.  Story's  Eq. 
Jur.  §§  750-769;  Rust  v.  Conrad,  47  Mich.  449,  11  N.  W.  265,  41 
Am.  Rep.  720;  Harper  v.  Sexton,  22  Iowa,  443 ;  Smith  v.  Shepherd,  36 
Iowa,  253;  Clark  v.  Maurer,  77  Iowa,  717,  42  N.  W.  522.  Applying 
this  test,  we  are  abidingly  satisfied  that  plaintiffs  are  not  entitled  to 
specific  performance. 

It  is  urged  by  appellees  that,  whatever  may  have  been  the  merits  of 
the  case  originally,  defendant  should  be  held  to  have  ratified  the  con- 
tract. We  have  examined  the  record  bearing  upon  this  proposition, 
and  believe  it  sufficiently  appears  that  defendant  tendered  back  the  $500, 
and  repudiated  the  alleged  agreement,  within  a  reasonable  time  after 
he  became  sufficiently  sober  to  intelligently  transact  business,  and 
learned  of  the  nature  of  the  transaction  in  which  it  was  claimed  that 
he  had  taken  part.     We  think  there  was  no  ratification. 

It  follows  that  the  decree  of  the  district  court  must  be  reversed,  and 
the  plaintiffs'  bill  dismissed.    Reversed. 


WAITE  et  al.  v.  O'NEIL  et  al. 
(Circuit  Court  of  the  United  States,  W.  D.  Tennessee,  1S96.    72  Fed.  34S.) 

This  was  a  bill  by  Charlotte  H.  Waite  and  others  against  J.  N. 
O'Neil  and  others  for  a  specific  performance  of  the  covenants  of  a 
lease,  and  for  other  relief. 

The  plaintiff,  for  herself  and  as  guardian  for  her  children,  in  May, 
1881,  executed  to  the  defendants  O'Neil  &  Co.  a  lease  to  the  river  front 
and  landing  in  front  of  four  lots  in  South  Memphis,  with  ample  space 
for  a  roadway  along  the  landing  at  all  stages  of  the  water,  and  no  more  ; 
the  said  landing  to  be  used  for  the  moving,  storing  and  unloading  of 
coal,  wood  and  ice  barges  or  boats.  The  plaintiff  covenanted  to  keep 
and  secure  the  defendant  lessee  in  the  peaceful  use  and  possession  of 
Boke  Eq. — 39 


G10  SrECIFIC   PERFORMANCE   OF   CONTRACTS  (Oh.  2 

said  premises  during  the  term  of  the  lease,  unless  default  of  payment 
of  rent  or  other  condition  of  the  contract  be  made ;  and  the  defendant 
lessee  agreed  to  deliver  up  the  premises,  at  the  expiration  of  the  lease, 
in  good  order  and  condition,  and  to  make  good  all  damages  to  said 
premises,  except  the  usual  wear  and  proper  use  of  the  same,  and  to 
keep  the  roadway  thereon  in  repair. 

In  the  early  part  of  1886  the  banks  of  the  river,  through  the  opera- 
tion of  currents,  began  to  cave  away,  and  in  April,  1886,  the  extraordi- 
nary flood  then  prevailing  swept  out  of  existence  a  large  part  of  these 
lots,  and  their  river  front,  as  it  did  much  of  the  adjacent  property. 
This  caving  was  so  serious  that  it  amounted  almost  to  a  public  calamity, 
and  demanded  and  received  at  the  hands  of  the  property  owners  and 
the  government  of  the  United  States  costly  efforts  to  restrain  the 
ravages,  that  resulted  to  some  extent  favorably.  The  landing,  how- 
ever, was  never,  fit  for  any  further  use  by  the  lessees  after  the  destruc- 
tion began. 

The  proof  establishes,  beyond  controversy,  that  the  destructive  in- 
fluences were  beyond  the  control  of  a  single  property  holder,  and  that 
the  lessees  could  not,  by  the  expenditure  of  any  reasonable  sum  of 
money,  have  done  anything  to  arrest  the  erosion  caused  by  the  currents 
of  the  river,  which  destroyed  their  property  and  that  of  the  plaintiff  in 
these  premises.     *     *     * 

It  is  also  proved  that  the  lessor  herself  did  nothing  to  arrest  the 
progress  of  destruction,  unless  the  disputed  subscription  to  the  fund  by 
her  can  be  taken  as  an  effort  in  that  direction. 

The  document  constituting  the  lease  between  the  parties  shows  that 
it  was  written  upon  the  ordinary  form  of  a  lease  of  real  estate,  found, 
printed,  at  the  stationers' ;  that  some  of  the  covenants  therein  are  writ- 
ten into  the  blank  form,  and-  others  are  found  in  the  printed  portion 
which  contains  also  some  interlineation.  After  the  date  line,  found  in 
the  opening  clause  of  the  lease,  that  which  follows  is  written  in  down 
to  the  words : 

"And  the  said  first  party  covenants  that  she  will  keep  and  secure  the  said 
second  party  in  peaceful  use  and  possession,"  etc. 

In  the  printed  covenant  for  re-delivery  to  the  lessor  in  good  condi- 
tion, and  to  make  good  all  damages  to  said  premises,  except  the  usual 
wear  and  proper  use  of  the  same,  and  to  keep  the  roadway  thereon 
in  repair,  these  last  words  about  the  roadway  are  written  in.  After  the 
printed  covenant  for  the  service  of  process  in  the  absence  of  the  les- 
sees, the  covenant  for  the  construction  of  the  roadway  at  the  expense 
of  the  lessees,  and  against  unnecessary  digging  in  the  ground,  is  writ- 
ten in  the  blank  form,  down  to  the  printed  words  of  the  covenant 
against  alterations  or  repairs  by  the  lessees  without  the  consent  of  the 
lessor. 

The  bill  was  filed  to  enforce  a  specific  performance  of  these  cove- 
nants, or,  in  lieu  thereof,  damages  for  their  nonperformance,  for  the 
collection  of  the  rent  not  paid,  and  for  general  relief.    The  defendants 


Sec.  8)  EQUITABLE   DEFENSES  Gil 

make  their  answer  a  cross  bill,  as  they  may  in  the  state  court  from 
which  the  case  was  removed,  and  pray  a  rescission  of  the  lease  and  an 
injunction  against  the  collection  of  the  notes  given  for  the  rent.    *    *     * 

Hammond,  J.95  *  *  *  It  does  not  seem  to  me  that  the  landlord 
has  any  better  claim  than  that  against  a  tenant  for  compensation  for 
destruction  that  comes,  without  his  fault,  from  external  forces,  such 
as  storms,  floods,  earthquakes,  and  the  like,  in  the  absence  of  an  ex- 
press warranty,  in  the  sense  that  the  very  words  are  used  in  the  con- 
tract to  make  it  express  and  clear,  and  not  in  the  sense  of  being  implied 
from  other  expressed  words  in  the  covenants,  however  broad,  winch 
may  be  made  to  stretch  over  such  an  injury  by  expansion  of  construc- 
tion. Chancellor  Walworth  tells  us  that  it  was  a  law  of  Sesostris,  an 
Egyptian  king,  that,  if  the  violence  of  the  river  should  wash  away  a 
part  of  the  land,  the  tenant  should  be  proportionately  abated  in  his 
rent;  but  I  do  not  find  it  anywhere  adjudged,  as  the  result  of  the  ordi- 
nary covenants  on  either  side,  that  either  party  to  a  lease  shall  be 
liable  in  damages  to  the  other  for  the  results,  direct  or  consequential, 
of  such  destruction.  Where  it  can  be  done  reasonably  within  the  power 
of  ordinary  business  operations,  either  party  may  under  such  covenants 
be,  and  often  they  are,  required  to  repair  and  restore  and  rebuild,  or 
pay  the  cost  of  doing  these  things,  and  often  very  hard  bargains  are 
so  enforced ;  but  these  demands  fall  within  the  ordinary  description  of 
injury  that  is  in  a  sense  reparable,  and  not  to  the  re-creation  of  things 
that  have  been  utterly  destroyed,  as  land  that  is  swept  away  by  flood, 
as  this  was.  In  the  absence  of  an  express  covenant  to  the  contrary, 
such  losses  fall  on  the  owners,  each  according  to  his  holding;  to  the 
lessor  or  landlord  that  which  he  has  owned,  and  to  the  lessee  or  tenant 
that  which  he  has  used.  Tayl.  Landl.  &  Ten.  §§  329,  347,  360,  373, 
386. 

On  the  other  hand,  the  tenant  must  always  pay  the  rent  under  such 
circumstances.  Viterbo  v.  Friedlander,  120  U.  S.  707,  712,  7  Sup.  Ct. 
962,  30  L.  Ed.  776.  There  was,  for  a  long  time,  a  great  struggle  to 
break  away  from  this  seemingly  harsh  rule,  and  introduce,  as  an 
equity,  a  reduction  or  abatement  of  the  rent  when  the  property  was  de- 
stroyed. No  less  a  personage  than  Mr.  Justice  Story  urged  it  as  counsel 
in  one  of  the  cases  cited  below,  and  was  told  by  the  bench  that  the  con- 
tention had  been  finally  overthrown.  Chancellor  Kent  states  the  same 
thing  in  his  text,  and  it  is  now  well  understood  to  be  as  Mr.  Justice 
Gray  states  it  in  the  case  last  cited.  Mr.  Taylor,  in  his  work  on  Land- 
lord and  Tenant,  so  often  quoted  and  commended  in  the  highest  places, 
seems  to  approve  the  discarded  suggestion  of  an  equitable  abatement 
"where  a  part  of  the  land  is  lost  to  the  tenant  by  the  act  of  God,"  and 
states  that  he  is  not  liable  for  the  whole  rent,  "as  where  the  sea  break 
in  and  overflow  a  part  of  the  land."    He  cites  for  this  the  ancient  Case 

»5  The  statement  of  facts  has  been  rewritten  and  pa  its  of  the  opinion  are 
omitted. 


G12  SPECIFIC  PERFORMANCE   OF  CONTRACTS  (Cll.  2 

of  Richards  le  Taverner,  Dyer,  56a,  and  Rolle,  Abr.  p.  236,  pi.  1 ;  but, 
on  subsequent  consideration,  the  courts  became  thoroughly  hostile  to 
this  view,  at  least  so  far  as  it  relates  to  that  kind  of  loss  for  which  the 
tenant  is  in  no  sense  himself  responsible.     *     *     * 

But,  moreover,  as  before  stated,  a  court  of  equity  will  not  specifically 
enforce  such  hard  bargains,  even  where  there  is  an  express  covenant. 
Tayl.  Landl.  &  Ten.  §  268.  Therefore,  if  the  defendants  here  had  cove- 
nanted in  the  use  of  this  land  to  indemnify  the  plaintiff  against  all  loss 
by  flood  or  currents,  and  it  came  about  that  the  loss  was  so  enormous 
as  to  destroy  the  whole  ground,  river  landing  and  all,  so  that  a  restora- 
tion was  impossible,  and  the  money  it  would  have  taken  to  stop  the  de- 
struction was  so  out  of  proportion  to  the  value  of  the  thing  leased  as  to 
make  it  unconscionable,  a  court  of  equity  would,  in  its  discretion,  re- 
fuse specific  performance. 

Hardness  of  bargain  alone  will  not  suffice  to  stay  the  hand  of  a  court 
of  equity,  and  it  was  so  decreed  in  the  case  of  a  lease  of  telegraph 
wires  where  the  rent  money  was  inadequate.  Telegraph  Co.  v.  Harri- 
son, 145  U.  S.  459,  471,  12  Sup.  Ct.  900,  36  L.  Ed.  776.  But  it  was 
refused  where  the  circumstances  showed  that  it  was  unconscionable 
to  compel  a  man  to  comply  with  a  contract  that  was  oppressive.  Manu- 
facturing Co.  v.  Gormully,  144  U.  S.  224,  237,  12  Sup.  Ct.  632,  36  L. 
Ed.  414.  And  in  another  case,  where  it  was  refused  because  the  proof 
was  doubtful,  the  rule  is  stated  that,  while  the  discretion  to  withhold 
relief  is  not  to  be  exercised  capriciously  or  arbitrarily,  but  according  to 
settled  principles,  it  must  always  be  done  with  reference  to  the  facts  of 
the  particular  case.  Hennessey  v.  Woolworth,  128  U.  S.  439,  9  Sup.  Ct. 
109,  32  L.  Ed.  500;  Nickerson  v.  Nickerson,  127  U.  S.  668,8  Sup.  Ct. 
1355,  32  L.  Ed.  314;  Cheney  v.  Libby,  134  U.  S.  68,  78, 10  Sup.  Ct.  498, 
33  L.  Ed.  818.  In  Dalzell  v.  Manufacturing  Co.,  149  U.  S.  325,  13  Sup. 
Ct.  886,  37  L.  Ed.  749,  the  court  quotes  approvingly  Lord  Hardwicke's 
rule  that  the  contract  must  be  "certain,  fair,  and  just  in  all  its  parts." 
In  the  case  of  Railroad  Co.  v.  Cromwell,  91  U.  S.  643,  23  L.  Ed.  367, 
Mr.  Justice  Bradley  said  the  court  would  not  shut  its  eyes  to  the  evi- 
dent character  of  the  transaction.  In  Marr  v.  Shaw  (C.  C.)  51  Fed. 
860,  it  is  said  that  "where,  upon  a  review  of  all  the  circumstances  of 
the  case,  it  is  patent  that  it  will  produce  hardship  or  injustice  to  either 
of  the  parties,"  specific  performance  will  be  refused.  And  in  Pullman 
Palace  Car  Co.  v.  Texas  &  P.  R.  Co.  (C.  C.)  11  Fed.  625,  specific  per- 
formance was  refused  because  the  contract  was  unconscionable  as 
against  the  public. 

All  these  cases  cite  the  leading  case  of  Willard  v.  Tayloe,  8  Wall, 
557,  19  L.  Ed.  501,  so  much  relied  on  here,  where  the  contract  was  de- 
creed to  be  performed  upon  conditions  which  provided  against  its  in- 
equitable features,  which  is  impossible  in  this  case.  Mr.  Story  sums 
up  the  result  by  saying  that  "courts  of  equity  will  not  decree  specific 
performance,  except  in  cases  where  it  would  be  strictly  equitable  to 
make  such  a  decree" ;  and  Mr.  Pomeroy,  by  saying  that,  "if  the  con- 


Sec.  8)  EQUITABLE   DEFENSES  613 

tiact  is  unfair,  one-sided,  unjust,  unconscionable,  or  affected  by  any- 
other  inequitable  feature,  or  its  enforcement  would  be  oppressive  or 
hard  on  the  defendant,  *  *  *  or  would  work  any  injustice,  *  *  * 
its  specific  performance  will  be  refused."  1  Story,  Eq.  Jur.  §  750; 
3  Pom.  Eq.  Jur.  §  1405. 

It  must  be  conceded  that  any  court  charged  with  such  a  wide  dis- 
cretion must  look  carefully  to  the  legal  principles  that  control  it,  and 
relieve  it  of  all  arbitrariness  and  capriciousness,  lest  we  descend  into 
a  mere  substitution  of  irregular  and  desultory  judgment  for  that  which 
is  guided  by  "the  established  doctrine  and  settled  principles  of  equity," 
as  mentioned  by  Mr.  Justice  Bradley  in  Willard  v.  Tayloe,  8  Wall.  557, 
19  L.  Ed.  501.  But,  on  the  preceding  page,  he  cites  approvingly  Lord 
Hardwicke's  judgment,  which  refused  to  compel  a  tenant,  under  a 
covenant  to  repair,  to  pull  down  and  rebuild  houses  which  did  not  com- 
ply with  the  covenant.    London  v.  Nash,  1  Ves.  Sr.  12. 

It  was  not,  in  my  judgment,  within  the  contemplation  of  the  parties, 
or  either  of  them,  to  provide  by  the  covenants  of  this  lease  against  the 
calamity  that  came  upon  this  lessor  and  lessee  by  the  extraordinary 
and  unprecedented  destruction  of  the  banks  of  the  river  in  front  of 
this  city, — a  violence  of  nature  which  at  one  time  threatened  to  carry 
away  a  considerable  portion  of  the  city  itself,  by  undermining  its 
foundations  and  establishing  the  channels  of  the  river  where  streets 
and  houses  had  been,  which  thing  has  been  done  before  under  our  eyes 
in  front  of  this  very  city,  where  the  ground  for  the  houses  and  streets 
is  now  again  restored  after  years  of  submersion.  The  unconscionable 
character  of  the  demand  does  not  arise  out  of  the  covenants  them- 
selves, but  out  of  the  construction  that  is  now  put  upon  them,  and  the 
demand  for  damages  for  the  not  doing  of  things  which  it  is  not  certain 
would  have  stopped  the  ravages  if  they  had  been  done ;  and  this,  in 
lieu  of  a  specific  performance  which  might  not  have  been  decreed  if 
the  covenants  for  it  had  existed.  If  the  very  demand  now  made  had 
been  expressed  in  the  words  of  the  covenant,  under  the  principles  and 
cases  cited,  it  would  be  inequitable  to  grant  it  and  it  would  be  refused. 

We  have  seen  how  the  courts  have  struggled  against  the  attempt  to 
introduce  hardship  as  an  equitable  relief  in  favor  of  the  lessee,  as 
against  the  lessor's  demand  for  rent,  when  the  property  has  been  par- 
tially or  wholly  destroyed  without  his  fault.  Surely,  a  court  of  equity 
will  not  superadd  to  the  burden  of  the  rent  that  of  damages  and  com- 
pensation for  the  value  of  the  property,  upon  either  improvident  cove- 
nants so  binding  him,  or  by  implication  upon  words  not  expressing 
that  especial  and  particular  obligation ;  certainly  not,  if  it  have  any  dis- 
cretion in  the  matter. 

Decree  for  the  rent  and  interest,  with  reference  to  fix  amount,  if 
necessary. 


614  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

HOPE  v.  WALTER. 

(Chancery  Division.     [1900]  1  Ch.  257.) 

Appeal  by  the  defendant  from  a  decision  of  Cozens-Hardy,  J. 
[1899]  1  Ch.  879. 

LindeEy,  M.  R.  I  feel  rather  strongly  that  this  is  a  case  in  which  it 
would  be  wrong  to  decree  specific  performance.  It  would  be  little 
short  of  a  scandal,  to  my  mind,  if  the  court,  having  the  power  of  re- 
fusing the  extraordinary  remedy  of  specific  performance,  were  to 
thrust  down  the  throat  of  an  innocent  buyer  the  obligation  of  becoming 
the  landlord  of  a  brothel.  I  acquit  the  plaintiffs  of  anything  like  de- 
ception. They  are  the  trustees  for  sale,  and  they  were  perfectly  ig- 
norant of  the  nature  of  the  house  which  they  put  up  for  sale ;  but  they 
did  put  up  for  sale  property  which  they  described  as  "an  eligible  free- 
hold house  fit  and  proper  for  investment" — I  do  not  attach  any  im- 
portance to  the  word  "eligible" :  it  is  the  ordinary  auctioneer's  lan- 
guage; but  still,  there  it  is — "subject  to  a  quarterly  tenancy  of  £55  a 
year."  They  did  not  know  of  anything  which  would  make  it  oppres- 
sive or  objectionable  to  require  specific  performance  of  that  contract 
when  that  contract  was  made.  They  did  not  know  that  the  person  who 
was  in  possession  of  the  house,  and  who  was  their  tenant  subject  to  the 
term  of  a  quarter's  notice,  had  been  convicted  of  keeping  a  brothel,  and 
that  he  was  still  keeping  it.  I  do  not  say  that  they  ought  to  have 
known.  They  probably  were  gentlemen  living  at  a  distance,  and  knew 
nothing  at  all  about  it.  That  observation  also  applies  to  the  purchaser. 
When  he  entered  into  the  contract  to  buy  this  house  he  had  no  notion 
that  he  was  entering  into  a  contract  which  would  put  him  in  the  posi- 
tion of  a  person  buying  a  brothel.  That  never  entered  into  his  mind, 
and  he  was  no  more  to  blame  for  not  finding  it  out  than  the  vendors. 
But  before  the  time  came  for  completion  he  did  find  it  out,  and  he  re- 
fused to  complete. 

Now  it  is  said  that,  having  regard  to  the  authorities,  the  objection  he 
has  raised  is  one  which  ought  not  to  prevail.  I  am  not  prepared  to  say 
that  his  counterclaim  by  which  he  asks  to  set  aside  the  contract  on  this 
ground  can  be  supported.  I  am  of  opinion  that  it  cannot.  Neither  am 
I  prepared  to  say  that  the  plaintiffs  could  not  maintain  an  action  for 
damages,  if  any  were  sustained,  for  breach  of  contract.  As  to  that  I 
say  nothing.  But,  when  the  court  is  asked  to  exercise  the  extraordi- 
nary jurisdiction  it  possesses  in  the  way  of  specific  performance,  then 
I  say  that  the  objection  which  has  been  raised  is  one  which  ought  to 
induce  the  court  to  hold  its  hand.  Just  consider  the  position  quite  apart 
from  <the  legal  aspect  of  the  case,  to  which  I  will  refer  presently.  A 
man  who  becomes  the  landlord  of  a  brothel  is  not  in  an  agreeable  posi- 
tion as  regards  character:  there  is  an  obloquy,  a  stigma  attaching  to 
it  which  he  ought  not  to  be  called  upon  to  bear.  Then,  looking  at  his 
legal  liability,  we  find  that  under  the  Criminal  Law  Amendment  Act, 


Sec.  S)  EQUITABLE   DEFENSES  015 

1885,  although  he  does  not  let  the  house  as  a  brothel,  still,  knowing  the 
facts,  he  will  be  liable  as  the  lessor  of  a  brothel  to  be  fined  unless  he 
evicts  the  tenant.  Is  that  the  position  in  which  this  court  ought  to  put 
an  innocent  man  who  buys  a  house  described  as  an  eligible  freehold 
investment?  I  say,  No.  I  do  not  say  we  have  not  jurisdiction  to  do 
it;  but  I  say  it  would  be  contrary  to  those  principles  of  justice  and 
fairness  by  which  this  court  is  always  guided  in  exercising  that  ex- 
traordinary jurisdiction. 

We  have  been  referred  to  several  authorities,  but  the  only  one  of 
any  importance  is  the  case  of  Lucas  v.  James,  7  Hare,  410,  which  to 
my  mind  is  distinguishable.  .  There  a  house  in  Curzon  Street  was  put 
up  for  sale,  and  a  gentleman  bought  it.  Then  he  found  out,  not  that 
that  house  was  a  brothel,  or  that  there  was  anything  amiss  with  it,  but 
that  some  few  doors  off  there  was  a  disreputable  house,  and,  not  liking 
the  neighbourhood,  he  refused  to  complete.  It  is  unnecessary  to  say 
whether  the  decision  in  that  case  was  right  or  wrong,  and  I  express 
no  opinion  upon  it ;  but  it  was  a  totally  different  case  from  this,  and 
the  ground  on  which  I  wish  to  put  my  judgment  is  this :  that  this  court 
will  not  compel  a  man  to  buy  a  property  which,  if  he  takes  no  steps  to 
prevent  it,  will  expose  him,  as  owner,  to  criminal  proceedings  by  rea- 
son of  its  state  at  the  time  of  the  sale.  If  he  knows  or  ought  to  know 
the  state  of  the  property,  that  proposition  may  not  apply ;  but  to  force 
that  position  upon  an  innocent  purchaser  would  be  wrong. 

Vaughan  Williams,  L.  J.  I  am  of  the  same  opinion.  I  do  not 
think  it  necessary  to  add  anything. 

Romer,  L.  J.  I  feel  more  doubt  about  the  case  than  the  Master  of 
the  Rolls,  but  I  do  not  differ  from  his  judgment. 

LindlEy,  M.  R.  The  action  and  the  counter-claim  will  be  dismissed 
without  costs.    The  appellant  will  have  the  costs  of  the  appeal. 


FITZPATRICK  v.  DORLAND. 

(Supreme  Court  of  New  York,  1882.    27  Hun,  291.) 

Appeal  from  a  judgment  refusing  a  decree  of  specific  performance. 

Brady,  J.90  This  action  was  brought  to  compel  the  specific  per- 
formance of  a  contract  in  writing  dated  the  14th  day  of  July,  1866,  by 
which  the  defendant  agreed  to  sell  to  one  Philip  Fitzpatrick,  and  the 
latter  agreed  to  purchase,  three  lots  of  land  in  this  city  for  the  sum  of 
$18,000. 

On  the  day  before  the  contract  was  signed,  one  Patrick  Cuff  com- 
menced an  action  in  this  court  against  the  respondent  to  compel  her 
to  convey  the  same  lots  to  him,  claiming  that  under  an  agreement 
therefor  made  between  him  and  her  she  agreed  to  sell  him  the  lots  for 
a  sum  named. 

so  Parts  of  the  opinions  are  omitted. 


61G  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

By  an  arrangement  between  the  parties  a  provision  was  made  in'  re- 
gard to  that,  and  it  was  in  terms  that  if  Cuff  succeeded  in  obtaining  a 
decree  for  the  conveyance  of  the  lots  to  him  the  respondent  should  re- 
turn to  Fitzpatrick  all  the  money  he  had  paid  under  the  contract  with 
interest,  and  on  the  other  hand  that  the  deed  should  be  delivered  by  her 
to  Fitzpatrick  as  soon  as  the  Cuff  suit  was  decided  in  her  favor  and 
upon  ten  days'  notice.  The  contract  with  Fitzpatrick  was  duly  as- 
signed by  him  to  the  plaintiff. 

The  action  brought  by  Cult  was  tried  before  Judge  Gierke,  who  dis- 
missed the  complaint,  and  judgment  was  entered  in  favor  of  the  de- 
fendant in  October,  1867.  Cuff  appealed  to  the  General  Term  and  the 
judgment  below  was  reversed.  An  appeal  was  then  taken  to  the  Court 
of  Appeals,  and  in  September,  1874,  the  case  was  sent  back  for  a  new 
trial,  and  was  again  tried  before  Judge  Lawrence,  who  in  1880  denied 
Cuff's  claim  for  a  specific  performance,  but  directed  judgment  in  his 
favor  for  damages  and  costs.  This  judgment  was  entered  in  Febru- 
ary, 1880.  That  action  being  thus  ended  in  favor  of  the  respondent, 
the  plaintiff,  on  the  seventeenth  of  May  following,  delivered  to  her  a 
letter,  stating  that  he  was  prepared  to  carry  out  the  contract  that  had 
been  made  with  his  assignor.  He  seems,  indeed,  to  have  done  every- 
thing that  was  necessary  to  entitle  him  to  the  benefit  and  advantage 
of  the  contract,  whatever  they  may  have  done. 

It  also  appeared  that  at  the  time  the  contract  in  question  was  made 
the  defendant  was  an  invalid,  very  infirm,  and  pecuniarily  embarrass- 
ed, and  that  the  main  inducement  to  the  making  of 'the  contract  was 
the  receipt  of  the  money  which  would  have  been  paid  to  her  had  the 
contract  been  performed  within  the  time  expected.  It  further  ap- 
peared that  between  the  time  of  the  execution  of  the  contract  and  the 
trial  of  this  case  the  premises  had  increased  largely  in  value ;  that  a 
large  amount  of  taxes  and  assessments  had  accumulated  and  remained 
unpaid;  and  that  large  sums  were  <lue  for  mortgages,  judgments  and 
interest,  which  also  remained  unpaid,  although  much  had  been  paid 
by  the  defendant  for  principal  and  interest  of  mortgages  and  judg- 
ments. It  also  appears  that  during  the  intervening  period  named  the 
premises  remained  vacant ;  that  no  income  was  derived  from  them  ex- 
cept during  the  last  year  or  two  and  then  in  an  amount  almost  nomi- 
nal.    *     *     * 

The  learned  justice  in  the  court  below  delivered  the  following  opin- 
ion: 

"Larkemore,  J.  *  *  *  After  fifteen  years  of  litigation  on  defendant's 
part  to  protect  her  title  to  the  property,  the  plaintiff  now  asks  specific  per- 
formance of  the  contract,  according  to  its  original  terms.  It  is  evident  that 
the  parties  to  the  contract  in  question  never  contemplated  so  long  a  delay  in 
its  consummation.  That  the  vendor  should  bear  all  the  burdens  of  the  prop- 
erty for  fifteen  years,  and  then  be  compelled  to  convey  it  for  the  contract 
price,  would  seem  inequitable,  especially  when  the  value  has  increased  three- 
fold. The  amount  paid  for  taxes,  assessments  and  interest  on  the  premises, 
nearly  equals,  if  it  does  not  exceed,  said  contract  price.  Equity  will  not  de- 
cree specific  performance  of  a  contract  when  it  would   work  injustice,  and 


Sec.  8)  EQUITABLE   DEFENSES  617 

where  (as  in  this  case)  it  is  obvious  that  the  contracting  parties  never  ex- 
pected or  intended  the  results  that  have  followed  their  action.  Margraf  v. 
Muir,  57  N.  Y.  158 ;  Peters  v.  Delaplaine,  49  N.  Y.  362 ;  Cuff  v.  Dorland,  55 
Barb.  481. 

"Nor  was  the  tender  of  May  27,  1880,  even  if  in  valid  form,  good  in  sub- 
stance. The  plaintiff  offered  for  execution  a  full  warranty  deed,  whereby  de- 
fendant was  obliged  to  pay  all  existing  liens  upon  the  premises  for  taxes  and 
assessments,  thus  giving  him  tbe  full  benefit  of  the  large  increase  in  value,  and 
depriving  her  of  the  full  consideration  of  the  contract. 

"It  was  no  fault  of  defendant's  that  the  Cuff  suit  was  not  earlier  deter- 
mined.    Plaintiff's  assignor  contracted  in  view  of  that  event,  which  finds  the  ' 
relations  of  the  parties  changed,  the  rights  of  third  parties  intervening  and 
performance  of  the  contract  impracticable. 

"This  action  was  brought  for  strict  equitable  relief;  no  other  was  sought. 
This  must  be  denied  for  the  reasons  above  stated,  but  according  to  our  present 
practice  this  action  must  be  held  to  enable  tbe  plaintiff,  if  he  so  elect,  to  prove 
and  recover  his  damages.     Sternberger  v.   McGovern,  56  N.  Y.  12.     *     *     * 

"Judgment  is  therefore  ordered  in  conformity  with  the  views  above  ex- 
pressed, and  we  think  that  this  conclusion  should  be  sustained." 

In  Peters  v.  Delaplaine,  49  N.  Y.  362,  to  which  he  refers  it  was  said 
by  Chief  Justice  Church,  as  the  result  of  the  cases  bearing  upon  the 
question,  the  granting  or  withholding  specific  performances  was  within 
the  discretion  of  the  court,  and  would  not  be  granted  when  it  would 
be  against  conscience  and  justice  to  direct  it.  In  that  case  the  property 
had  increased  in  value  from  $30,000  to  $300,000  and  during  all  the 
time  the  vendor,  and  those  who  from  time  to  time  succeeded  to  this 
estate,  had  received  large  sums  of  rents,  issues  and  profits  and  neces- 
sarily paid  the  taxes  and  assessments  upon  the  property ;  and  the  spe- 
cific performance  of  the  contract,  it  was  said,  would  necessarily  re- 
quire the  statement  of  an  account  with  the  several  parties  and  with  re- 
spect to  the  receipts  and  expenditures  connected  with  the  premises. 
So  in  this  case  the  lots  in  question  were  in  the  possession  of  grantor 
and  yielded  a  very  insignificant  income  for  a  short  period,  but  were 
subject  to  taxes  and  assessments  and  other  incumbrances,  an  account 
of  which  must  necessarily  be  taken  in  order  to  show  the  correct  rela- 
tions of  the  parties  to  each  other  under  this  contract  if  a  specific  per- 
formance were  to  be  decreed.  It  would  indeed  seem  to  be  against  con- 
science and  justice  to  allow  the  plaintiff  to  succeed  in  obtaining  a  de- 
cree of  this  court  directing  a  specific  performance  of  the  contract  when 
the  property  had  increased  to  a  sum  in  value  more  than  double  the 
amount  he  was  to  pay  for  it,  and  with  sums  due  for  taxes  and  assess- 
ments exceeding  more  than  one-half  of  the  price  to  be  paid  originally, 
the  result  of  which  would  be  that  the  defendant  would  receive  compar- 
atively nothing  for  her  property. 

It  is  not  necessary  to  state  the  numerous  reasons  why  the  contract 
should  not  be  enforced  after  such  a  lapse  of  time,  and  after  the  inter- 
vention of  the  facts  and  circumstances  affecting  the  relation  of  the  par- 
ties which  are  disclosed  by  the  evidence  in  the  case.  It  cannot  be  enter- 
tained for  a  moment  that  any  court  of  equity,  in  the  exercise  of  a  dis- 
cretion vested  in  it,  would  grant  a  decree  for  a  specific  performance  ir* 
such  a  case. 


618  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

The  judgment,  however,  provides  for  the  payment  of  the  costs  and 
disbursements  by  the  plaintiff  upon  the  decree  for  a  specific  perform- 
ance of  the  contract  rendered  against  him,  whilst  the  action  is  contin- 
ued to  enable  him,  if  he  so  elects,  to  pursue  his  legal  remedy  for  dam- 
ages, if  any,  that  he  may  have  sustained.  We  do  not  understand  upon 
what  authority  such  a  judgment  is  entered.  The  case  was  not  termi- 
nated by  the  judgment  interlocutory,  for  such  it  must  be  regarded,  but, 
as  we  have  seen,  the  action  was  continued  to  enable  the  plaintiff  to  ob- 
tain relief  in  damages,  if  any  he  should  have  sustained.  The  provision 
in  regard  to  the  costs,  therefore,  is  erroneous  and  the  judgment  must 
be  modified  by  relieving  the  plaintiff  from  liability  for  any  costs  until 
the  determination  of  the  action,  in  case  he  should  elect  to  proceed  to 
recover  damages,  which  he  has  the  right  to  do  under  the  judgment. 
It  is  ordered,  therefore,  that  the  judgment  be  modified  in  the  respect 
named,  and  affirmed  as  to  the  remainder,  without  costs  of  this  appeal 
to  either  party. 

Davis,  P.  J.,  and  Ingalls,  J.,  concurred. 

Judgment  modified  as  directed  in  opinion. 


MORLEY  v.  CLAVERING. 

(In  Chancery,  I860.    29  Beav.  S4,  54  E.  R.  558.1 

The  Plaintiffs,  being  possessed  of  three  leasehold  houses  in  Pimlico, 
instructed  an  auctioneer  to  sell  them.  On  the  25th  of  November,  1859. 
the  Defendant,  Mr.  Clavering,  offered  to  purchase  them.  The  leases 
were  examined  on  the  8th  of  December,  by  the  clerk  of  the  Defend- 
ant's solicitor,  who  took  notes  of  the  contents,  and  on  the  same  day 
the  Defendant's  solicitor  wrote  to  the  auctioneer,  that — - 

"on  looking  over  the  lease,  he  found  the  contents  of  so  special  a  nature  that 
he  could  not  advise  his  client  to  take  the  premises,  and  that  he  had  written 
for  instructions." 

On  the  13th  of  December  the  Defendant's  solicitor  himself  inspected 
the  leases,  and  he  afterwards  signed  an  agreement  on  behalf  of  the 
Defendant  to  purchase  the  leases  for  £600.  On  the  24th  of  December 
the  Defendant  declined  to  complete,  because  the  covenants — 

'"were  most  restrictive  and  against  the  trades  which  would  be  carried  on  on 
the  premises." 

The  vendors  filed  their  bill  in  February,  1860,  for  the  specific  per- 
formance of  the  contract. 

The  Defendant  resisted  the  performance.  He  said  that  the  premises 
had  been  taken  for  the  purpose  of  opening  an  establishment  for  lec- 
tures on  dancing  and  music,  and  *is  a  place  of  public  amusement,  sim- 
ilar to  St.  James'  Hall,  Piccadilly,  under  the  title  of  "St.  James'  Hall 
and  Restaurant." 


Sec.  8)  EQUITABLE   DEFENSES  019 

That  the  partition  between  the  three  houses  had  been  taken  down 
for  the  purpose  of  uniting  them  into  one,  and  that  the  landlord  had 
given  notice  to  reinstate  them,  and  to  put  the  premises  into  repair ;  and 
that  if  not  done  before  the  25th  of  March,  an  eviction  would  take 
place,  and  the  leases  be  forfeited. 

He  said  that  the  covenants  in  the  leases  entirely  prevented  the  prem- 
ises being  used  for  the  purposes  of  the  establishment  intended  (mean- 
ing used  for  the  trade  of  a  victualler). 

The  Defendant  attempted  to  make  out  that  the  auctioneer  and  the 
Plaintiffs  knew  that  the  Defendant  made  the  purchase  with  the  inten- 
tion of  carrying  on  the  restaurant,  which  was  prohibited  by  the  lease ; 
they,  however,  said  that  they  understood  it  was  to  be  used  as  "a  danc- 
ing academy  and  a  concert  room."  The  Court,  however,  decided  on 
the  assumption  of  their  knowledge.97     *     *     * 

The  Master  of  the  Rolls  [Sir  John  Romilly].  I  think  there  is 
no  defence  to  this  suit,  and  that  the  Plaintiff  is  entitled  to  a  decree  for 
specific  performance.  The  case  is  this :  Three  leases  of  three  houses 
in  Pimlico  were  advertized  to  be  sold  by  the  Plaintiff.  The  purchaser, 
by  his  agent,  carefully  inspected  all  the  leases,  knew  what  the  cove- 
nants were,  and  the  amount  of  knowledge  in  this  respect  was  common 
to  both  parties.  '  Knowing  the  contents  of  the  leases,  the  Defendant, 
by  his  solicitor,  executes  a  contract  for  purchasing  them,  and  now  he 
asks  that  he  may  not  be  compelled  to  perform  his  contract,  on  the 
ground  that  the  covenants  of  the  leases  are  different  from  what  he 
thought,  and  do  not  enable  him  to  effect  the  object  he  had  in  view,  and 
that  the  vendor  knew  to  what  purpose  it  was  his  intention  of  using  the 
premises. 

Suppose  this  to  be  so,  still  both  parties  were  on  an  equal  footing, 
each  knew  the  contents  of  the  deeds  and  the  effect  of  the  covenants 
contained  in  them.  It  is  not  the  duty  of  the  vendor  to  say  to  the  pur- 
chaser, "You  will  not  be  able  under  these  covenants  to  effect  your  ob- 
ject;" it  is  for  the  purchaser  to  ascertain  for  himself  whether  what 
he  purchases  will  answer  his  purpose.  It  is  impossible  to  get  out  of  a 
contract  by  saying,  "I  told  the  vendor  what  my  intention  was,  and  he 
failed  to  give  me  his  opinion,  derived  from  information  which  was 
common  to  both,  that  I  could  not  carry  my  intention  into  effect."  In 
every  case,  a  purchaser  has  some  private  reason  for  purchasing  and 
also  for  changing  his  mind  afterwards,  when  he  does  so. 

The  purchaser  says  that  he  may  be  prevented  carrying  his  intentions 
into  effect,  by  reason  of  being  compelled  to  build  party  walls,  which 
will  prevent  the  premises  being  used  for  purposes  he  intended.  He 
knew,  when  he  entered  into  the  contract,  that  he  might  be  called  on 
at  any  time  to  do  so;  it  is  just  as  remote  at  present  as  it  was  then,  and 
it  is  probable  that,  if  the  rent  be  paid  and  the  premises  put  in  repair, 
he  will  not  be  interfered  with.     It  is  impossible  to  say,  "I  misunder- 

07  The  statement  of  facts  is  abridged. 


620  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

stood  the  matter,"  he  may  have  made  a  mistake  in  law,  but  if  he  has, 
it  will  not  affect  his  liability  to  perform  his  contract. 

He  says,  that  one  covenant  prohibits  the  sale  of  provisions  as  a  vic- 
tualler, but  his  own  solicitor  himself  examines  the  leases,  and  after 
that  he  enters  into  contract.  Flight  v.  Barton,  3  Myl.  &  K.  282,  and 
the  other  cases,  where  the  purchaser  did  not  inspect  the  deed,  but  relied 
on  the  statement  of  strangers,  have,  therefore,  no  application.  I  am 
of  opinion  that  the  Plaintiff  is  entitled  to  a  decree  for  specific  perform- 
ance. 

On  a  motion  to  add  to  the  decree,  on  the  24th  of  January,  1861,  it 
was  ordered  that  the  assignment  of  the  leases  should  bear  date  the  10th 
of  January,  1860,  the  day  on  which,  according  to  the  terms  of  the  con- 
tract, it  ought  to  have  been  completed. 


HAYWOOD  v.  COPE. 

(In  Chancery,  1S5S.     25  Beav.  140,  53  E.  R.  589.) 

The  Plaintiff  was  seised  of  a  farm  called  the  Bank  End  Farm,  situ- 
ate in  the  parish  of  Norton  in  the  moors,  in  Staffordshire,  and  of  the 
coals  and  minerals  under  it,  and  for  working  which  shafts  had  been 
previously  sunk,  which  had  been  visibly  abandoned.  The  farm  con- 
sisted of  about  twenty-seven  acres,  two  roods,  and  two  perches. 

The  Defendant  applied  to  the  Plaintiff  for  a  lease  of  the  coal  mines, 
and  after  some  negotiations,  and  after  the  Defendant,  accompanied  by 
some  friends,  had  examined  the  shaft,  as  far  as  was  possible  (see  25 
Beav.  p.  148),  the  Plaintiff  and  Defendant,  on  the  15th  of  January, 

1855,  signed  the  following  agreement : 

"Mr.  Charles  Cope  agrees  with  Howard  Haywood,  Esq.,  for  those  two  seams 
of  coals  known  as  the  two-feet  coal  and  three-feet  coal,  lying  under  lands  to  be 
.hereafter  defined  in  the  Bank  End  estate,  near  Norton  in  the  county  of  Staf- 
ford, at  the  rate  of  ninepence  per  ton  for  all  coals  and  slack  going  over  a 
weighing  machine,  112  lbs.  to  cwt.,  or  2240  lbs.  per  ton,  minimum  rent  £100 
per  annum,  on  lease  of  fourteen  3'ears.  Mr.  Cope  to  pay  for  all  surface  tres- 
pass, at  the  rate  of  £5  per  acre,  to  commence  paying  minimum  rent  within 
eighteen  months  from  date  of  agreement,  all  coals  and  slack  sold  or  raised  in 
the  intermediate  time  to  be  paid  for,  at  the  rate  of  9d.  per  ton.  Howard  Hay- 
wood, Esq.,  agrees  to  let  to  Mr.  Charles  Cope  the  before-mentioned  two  scams 
of  coals  at  the  price  before  mentioned." 

Shortly  after  the  agreement  had  been  signed  the  Defendant  entered 
Into  possession.  He  commenced  working  the  coal  mines,  and  he  con- 
tinued to  work  them  regularly  until  July,  1855,  and  off  and  on  until 
October,  1856. 

On  the  26th  of  May,  1855,  the  Plaintiff's  solicitor  forwarded  to  the 
Defendant,  for  his  approval,  a  draft  lease,  in  which  the  particulars  of 
the  land  under  which  the  mines  lay  were  denned  and  scheduled.  The 
Defendant  made  no  objection  to  the  draft,  and  retained  it,  notwith- 
standing various  applications  made  to  him  to  return  it.    At  Christmas, 

1856,  the  Defendant  first  objected  that  the  coals  had  not  turned  out  so 


Sec.  8)  EQUITABLE   DEFENSES  621 

well  as  he  expected,  and  in  January,  1857,  he  declined  to  accept  a 
lease — 

"on  the  ground  that  the  mines  were  not  (as  he  alleged)  what  they  were  rep- 
resented to  be,  either  as  to  thickness  or  quality ;  and  that  his  surveyor  had 
stated  that  the  coal  was  absolutely  not  worth  getting." 

The  Defendant  afterwards  returned  the  draft  lease. 

On  the  26th  of  March,  1857,  the  Plaintiff  filed  this  bill,  for  a  specific 
performance  of  the  contract ;  for  an  account  of  the  coal  worked,  and 
for  payment  by  the  Defendant  of  the  royalty  and  rent. 

The  Defendant  resisted  the  specific  performance  on  the  ground  of 
the  uncertainty  of  the  contract,  of  the  misrepresentation  and  conceal- 
ment of  the  Plaintiff,  of  the  delay  which  had  occurred,  and  of  the 
hardship  of  being  obliged  to  pay  £100  a  year  during  the  remainder  of 
the  time,  without  receiving  any  benefit  from  the  mines. 

The  Master  of  the  Rolls  [Sir  John  Romilly].98  I  am  of  opin- 
ion  that   the   Plaintiff   is   entitled  to  a   decree   for   specific   perform- 


ance. 


* 


Then  it  is  said  that  this  is  an  extremely  hard  case,  that,  in  point  of 
fact,  the  Plaintiff  is  insisting  upon  the  Defendant  paying  him  £1400 
for  a  thing  that  has  turned  out  to  be  literally  worth  nothing,  and  that 
according  to  the  discretion  which  the  Court  exercises  in  such  cases,  it 
cannot  compel  specific  performance  of  the  contract.  Upon  this  sub- 
ject, which  is  one  upon  which  I  have  before  made  several  observations, 

1  will  refer  again  to  a  passage  which  I  have  always  considered  binding 
upon  me,  for  it  is  most  important  that  the  profession,  and  those  who 
have  to  advise  in  reference  to  this  subject,  should  understand  the  rule 
which  is  adopted  in  this  and  the  other  Courts,  which  is,  that  the  dis- 
cretion of  the  Court  must  be  exercised  according  to  fixed  and  settled 
rules ;  you  cannot  exercise  a  discretion  by  merely  considering  what,  as 
between  the  parties,  would  be  fair  to  be  done ;  what  one  person  may 
consider  fair,  another  person  may  consider  very  unfair ;  you  must 
have  some  settled  rule  and  principle  upon  which  to  determine  how  that 
discretion  is  to  be  exercised.  Lord  Eldon  observes,  in  the  case  of 
White  v.  Damon,  7  Ves.  35 : 

"I  agree  with  Lord  Rosselyn,  that  giving  specific  performance  is  matter  of 
discretion ;  but  that  is  not  an  arbitrary  capricious  discretion.  It  must  be 
regulated  upon  grounds  that  will  make  it  judicial." 

I  also  refer,  as  I  believe  I  have  upon  former  occasions,  to  a  passage 
in  the  celebrated  argument  of  the  Master  of  the  Rolls  in  Burgess  v. 
Wheate,  1  Eden,  214,  where,  at  the  conclusion,  he  cites  a  well-known 
passage  from  Sir  Joseph  Jekyll's  judgment  (in  Cowper  v.  Earl  Cowper, 

2  Peere  W.  752,  753),  upon  the  subject  of  the  discretion  of  the  Court, 

and  gives  his  own  opinion.     He  says : 

'•And  though  proceedings  in  equity  are  said  to  be  Secundum  discretionem 
boni  viri,  yet,  when  it  is  asked  vir  bonus  est  quis,  the  answer  is,  qui  consulta 
patrum,  qui  leges  juraque  servat.     And  as  it  is  said  in  Rooke's  case,  5  Rep. 

»8  Parts  of  the  opinion  are  omitted. 


622  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Cll.  2 

99b,  that  discretion  is  a  science,  not  to  act  arbitrarily  according  to  men's  wills 
and  private  affections,  so  the  discretion  which  is  to  be  exercised  here  is  to  be 
governed  by  the  rules  of  law  and  equity,  which  are  not  to  oppose,  but  each, 
in  its  turn,  to  be  subservient  to  the  other.  This  discretion  in  some  cases  fol- 
lows the  law  implicitly;  in  others  assists  it  and  advances  the  remedy;  in 
others,  again,  it  relieves  against  the  abuse  or  allays  the  rigour  of  it;  but  in 
no  case  does  it  contradict  or  overturn  the  grounds  and  principles  thereof,  as 
have  been  sometimes  ignorantly  imputed  to  this  Court.  That  is  a  discre- 
tionary power  which  neither  this  nor  any  other  Court,  not  even  the  highest, 
acting  in  a  judicial  capacity,  is  by  the  constitution  entrusted  with.  This  de- 
scription is  full  and  judicious,  and  what  ought  to  be  imprinted  upon  the  mind 
of  every  Judge."     1  Eden,  214. 

If,  therefore,  in  a  case  of  this  description,  I  were  to  say  that  accord- 
ing to  my  discretion  I  ought  to  leave  these  persons  to  their  action  at 
law,  upon  what  principle  or  ground  could  I  do  it,  except  that  in  a  mat- 
ter of  speculation  it  has  turned  out  very  favourable  to  one  party,  and 
very  unfavourable  to  the  other.  It  is  obvious  that  in  the  case  of  a  sale 
by  auction,  if  the  property  is  sold  for  an  extremely  inadequate  value, 
it  is  impossible  for  the  person  to  repudiate  the  contract.  The  mere 
principle  of  what  might  have  been  fair,  or  what  might  have  been  a 
right  thing  to  do  between  the  parties,  had  all  the  elements  of  value 
been  known  which  have  .since  transpired,  cannot  be  a  ground  for  ex- 
ercising or  regulating  the  discretion  of  the  Court  when  all  the  facts 
which  were  then  in  existence  were  known  to  both  parties.  I  can  un- 
derstand that  the  Court  will  exercise  a  discretion,  and  will  not  enforce 
the  specific  performance  of  a  contract,  where  to  decree  the  perform- 
ance of  the  contract  will  be  to  compel  a  person,  who  has  entered  inad- 
vertently into  it,  to  commit  a  breach  of  duty,  such  as  where  trustees 
have  entered  into  a  contract,  the  performance  of  which  would  be  a 
breach  of  trust.  Those  are  cases  where,  by  a  fixed  and  settled  rule, 
the  Court  is  enabled  to  exercise  its  discretion;  but  the  mere  inade- 
quacy or  excess  of  value  is  not  in  my  opinion  a  ground  for  exercising 
any  such  discretion  as  that  which  is  suggested  in  this  case.  That  this 
is  a  very  hard  case  there  is  no  doubt,  and  it  may  be  extremely  proper 
for  the  Plaintiff  to  make  an  abatement  in  respect  of  it,  but  that  is  a 
totally  different  matter,  one  which  is  in  the  forum  of  his  own  con- 
science, but  not  one  which  I  can  notice  judicially.  In  my  opinion,  this 
is  a  contract  which  was  fairly  entered  into  between  the  parties ;  there  is 
nothing  to  invalidate  it,  and  the  usual  decree  must  therefore  be  made 
for  the  specific  performance  of  the  contract,  with  costs  to  the  present 
time.  A  reference  must  be  directed  to  Chambers  to  settle  the  lease  in 
case  the  parties  differ.     *     *     * 


Sec.  8)  EQUITABLE   DEFENSES  623 

REVELL  v.  HUSSEY. 

(In  Chancery  in  Ireland  before  Lord  Manners,  1S13.    2  Ball  &  B.  2S0.) 

The  Bill  prayed,  that  the  Defendant  James  Hnssey  might  be  de- 
creed to  execute  a  Renewal  of  the  Lease  granted  by  him  to  Thomas 
Hussey,  the  other  Defendant,  pursuant  to  a  Covenant  for  that  Purpose 
contained  in  the  Le'ase;  and  that  the  Defendant  Thomas  Hussey  might 
then  execute  a  Renewal  of  the  Plaintiff's  Lease;  who  offered  to  pay 
all  the  Expenses. 

In  1793,  the  Archbishop  of  Dublin  granted  a  Lease  of  four  hundred 
and  ninety-seven  Acres  of  the  See  Lands,  for  twenty-one  years,  at 
a  yearly  Rent,  to  the  Defendant  James  Hussey ;  who  soon  after  de- 
mised seventy  Acres  of  the  same  lands  to  the  Defendant  Thomas  for 
a  Term  of  Years,  reserving  an  annual  rent ;  he  covenanted,  That  he, 
James  Hussey,  would,  from  Time  to  Time,  use  his  best  Endeavours  to 
obtain  a  Renewal  from  the  Archbishop,  and  that  so  often  as  he  should 
obtain  a  Renewal  of  his  Lease,  that  he  would  execute  a  Renewal  to 
Thomas,  without  Fine  or  Consideration. 

On  the  17th  of  November,  1798,  Thomas  Hussey  executed  a  Lease 
of  twenty-nine  Acres  of  those  Lands  to  Henry  Pentland,  for  sixteen 
years,  at  £37  Rent :  the  Lease  contained  the  following  covenant : 

"That  the  said  Thomas  Hussey,  his  Heirs,  &c,  shall  (as  often  as  the  Lord 
Archbishop  of  DubUn  shall  renew  for  James  Hussey,  Esquire,  his  Heirs,  &c.) 
renew  for  him  the  said  Henry  Pentland,  his  Executors,  &c,  without  Fine  or 
any  other  Expense  whatever,  except  that  of  the  Leases." 

In  1803,  Henry  Pentland,  in  Consideration  of  £1200,  assigned  his  in- 
terest in  this  Lease  to  the  Plaintiff. 

In  March,  1809,  the  Archbishop  of  Dublin  granted  a  Renewal  of 
James  Hussey's  Lease,  for  which  James  Hussey  was  obliged  to  pay  a 
Fine  of  £3000,  instead  of  £90,  the  Fine  formerly  paid  on  each  Re- 
newal ;  James  Hussey  then  applied  to  the  several  Persons  holding 
those  Lands  under  him,  to  contribute  rateably  to  reimburse  him ;  with 
this  Application  the  Plaintiff  would  not  comply ;  the  Defendants  there- 
upon refused  to  grant  him  a  Renewal  of  his  Lease.  It  appeared,  that  in 
several  of  the  Leases  granted  by  James  Hussey  of  the  See  Lands, 
there  were  Covenants  of  Renewal  similar  to  that  contained  in  the 
Lease  to  Thomas  Hussey,  and  in  others  there  were  Covenants,  that  on 
the  Tenant  paying  a  Fine  Certain,  he,  James  Hussey,  would  grant  him 
a  Renewal. 

The  Lord  Chancellor."  *  *  *  But  on  Behalf  of  the  De- 
fendants, it  is  contended,  that  the  Situation  of  the  Parties  has  been 
materially  altered  since  the  entering  into  this  Contract;  that  although 
it  was  advantageous  to  James  at  the  Time  to  grant  this  Lease  to 
Thomas  Hussey  at  a  Rent  certain,  and  without  any  Fine  of  Renewal, 
yet,  by  subsequent  Events,  and  from  the  immense  Fine  that  has  been 

9  9  Parts  of  the  opinion  are  omitted. 


024  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

exacted  from  James  Hussey,  by  the  Archbishop  of  Dublin,  the  Nature 
of  the  Property  has  been  so  changed,  that  unless  the  Tenants  deriving 
under  him  would  contribute  proportionally  to  the  Fine,  it  would  now 
be  attended  with  great  Loss  to  him  to  renew ;  and  the  case  of  Davis 
v.  Hone,  2  Scho.  &  Lef.  341,  has  been  relied  on  in  Support  of  this  Ar- 
gument :  and  indeed  had  it  not  been  for  that  Case,  I  do  not  believe  that 
the  Plaintiff's  Right  of  Renewal  would  have  been  resisted.  It  is 
always  unsatisfactory  to  abstract  altogether  the  Reasoning  of  the  Court 
in  any  Reported  Case,  from  the  Facts  to  which  that  Reasoning  is  meant 
to  apply ;  it  has  a  Tendency  only  to  misrepresent  one  Judge,  and  to  mis- 
lead another.     *     *     * 

When  this  Case  was  first  stated,  I  thought  it  very  very  much  re- 
sembled, in  Principle,  those  Cases  of  Contracts,  where  a  material 
Change  in  the  Value  of  the  Property  had  happened  after  the  equitable 
Title  was  complete,  and  before  the  legal  Conveyance  was  executed ; 
in  which  Cases,  whether  it  be  to  enhance  or  to  reduce  the  Value  of 
the. Property,  it  falls  upon  the  Purchaser;  as  for  Instance,  if  a  Rever- 
sion be  contracted  for,  with  one  or  more  good  Lives  upon  it,  and  after 
the  Contract  is  entered  into,  but  before  the  Conveyance  is  executed, 
all  the  Lives  fall  in,  the  Purchaser  may  enforce  the  Agreement  in 
Equity,  although  the  Estate,  by  the  Events  that  had  happened,  had  be- 
come worth  double  the  Sum  agreed  upon  for  it  (see  White  v.  Nutt, 

1  P.  Wms.  61) ;  so  on  the  other  Hand,  if  the  Estate  be  depreciated,  the 
Contract  will  be  enforced  against  the  Purchaser.  The  Defendant's 
Counsel  have  referred  to  a  Dictum  of  Sir  Joseph  Jekyll,  in  the  case  of 
Stent  v.  Baylis,  2  P.  Wins.  217,  but  that  Dictum  of  Sir  Joseph  Jekyll 
was  declared  by  Lord  Eldon,  in  Mellor  v.  Paine,  6  Ves.  349,  to  be  un- 
supported ;  and  indeed,  the  Case  of  Mellor  v.  Paine,  and  that  of  Mor- 
timer v.  Capper,  2  Bro.  Ch.  Ca.  154,  have  established  the  Principle,  that 
subsequent  Events  will  not  vary  a  Contract  fairly  entered  into.     (See 

2  Ves.  &  Bea.  387.) 

Mr.  Radcliffe  referred  to  the  Case  of  Faine  v.  Browne,  2  Ves.  Sen. 
307,  where  a  Man  being  entitled  to  an  Estate  under  his  Father's 
Will,  with  a  Provision,  that  if  he  sold  it  within  a  certain  Period,  Half 
the  Purchase-money  should  go  to  another ;  he  being  a  drunken  Fellow, 
had  agreed  to  sell  it,  and  refused  to  Execute  the  Contract,  and  a  Bill 
was  brought  to  compel  the  Performance;  but  Lord  Hardwicke  dis- 
missed the  Bill;  and  why?  Because  the  Contract,  at  the  time  of  en- 
tering into  it,  was  unreasonable,  as  the  Vendor  was  in  effect  selling 
his  Patrimony  for  one  half  its  Value.  The  Point  that  has  been  con- 
sidered in  all  the  Cases,  and  on  which  they  all  turn,  is,  was  the  Trans- 
action, when  originally  entered  into,  fair  and  reasonable?  Was  there 
no  undue  Advantage  taken ;  nothing  suppressed,  nothing  mistaken ;  if 
it  were  so,  I  do  not  know  what  Authority  this  Court  has  to  vary  Men's 
Contracts,  because  eventually  they  have  become  more  advantageous  to 
one  Party,  or  more  prejudicial  to  the  other,  than  was  contemplated  by 
either.     Lord  Redesdale,  in  Evans  v.  Walshe,  says,  if  the  Defendant 


Sec.  8)  EQUITABLE   DEFENSES  625 

will  not  renew,  let  him  permit  the  Plaintiff  to  stand  in  his  Situation  ; 
the  same  Offer  is  made  in  this  Case. 

Another  Topic  has  been  insisted  upon  by  the  Counsel  for  the  De- 
fendant ;  and  that  is,  that  it  is  in  the  Discretion  of  the  Court  to  decree 
or  refuse  the  Specific  Execution  of  a  Contract.  It  is  so ;  but  that  Dis- 
cretion is  regulated  and  restrained  by  Principles  as  well  known  and 
established,  as  any  other  Branch  of  the  Law  of  this  Court  (see  Goring 
v.  Nash,  3  Atk.  187) ;  and  the  Period  at  which  the  Court  is  to  examine 
the  Agreement  between  the  Parties,  is  the  Time  when  they  contracted  ; 
for  if  the  Court  were,  as  is  contended  for,  to  vary  an  Agreement,  de- 
liberately entered  into  by  the  Parties,  from  the  happening  of  subsequent 
Circumstances,  I  do  not  know  when  it  would  stop.     *     *     * 

It  is  then  said,  the  Plaintiff  has  no  Remedy  at  Law  ;  why,  that  is  per- 
haps additional  Reason  for  granting  Relief  here.  Since  then  it  hap- 
pens that  in  this  Case  there  is  a  Hardship,  or  an  Inconvenience,  where 
ought  it  to  fall?  On  him  who  has  taken  it  upon  himself,  or  on  him 
who  is  expressly  indemnified  against  it,  and  who  has  purchased  his 
Interest  at  full  Value?  Surely,  to  refuse  Relief  in  this  Case,  would  be 
to  give  the  Defendant  James  Hussey  the  Benefit  of  a  Fraud,  which 
he  has  enabled  the  other  Defendant  to  practise  upon  the  Plaintiff. 

For  these  Reasons,  I  think  the  Plaintiff  entitled  to  the  Relief  he 
prays;  but  it  being  a  fair  Question,  and  one  raised  by  the  Decision  of 
Davis  v.  Hone,  I  decree  the  Renewal,  without  Costs. 


SOUTHERN  RY.  CO.  v.  FRANKLIN  &  P.  R.  CO. 

(Supreme  Court  of  Appeals  of  Virginia,  1899.     96  Va.  693,  32  S.  E.  485, 

44  L.  R.  A.  297.) 

Appeal  from  circuit  court,  Franklin  County.  Suit  by  the  Franklin 
&  Pittsylvania  Railroad  Company  against  the  Southern  Railway  Com- 
pany.   From  a  decree  for  plaintiff,  defendant  appeals. 

Riely,  J.,1  delivered  the  opinion  of  the  court.  The  Franklin  &  Pitt- 
sylvania Railroad  Company  (hereinafter  called  the  "Franklin  Com- 
pany") was  incorporated  by  an  act  of  the  general  assembly  of  Virginia 
of  March  12,  1878,  and  authorized  to  construct  a  railroad  from  some 
point  on  the  main  line  of  the  Washington  City,  Virginia  Midland  & 
Great  Southern  Railroad  Company  (hereinafter  called  the  "Midland 
Company"),  or  any  branch  thereof,  in  the  county  of  Pittsylvania,  to 
Rocky  Mount,  the  county  seat  of  Franklin  county. 

On  September  19,  1878,  it  made  a  lease  of  its  road,  to  take  effect 
when  the  same  was  completed,  to  John  S.  Barbour,  receiver,  in  the 
chancery  suit  of  Graham  against  the  Washington  City,  Virginia  Mid- 
land &  Great  Southern  Railroad  Company,  pending  in  the  circuit  court 

i  Parts  of  the  opinion  are  omitted. 
Boke  Eq.— 40 


G26  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cil.  2 

of  the  city  of  Alexandria,  for  the  term  of  34  years,  at  the  annual  rent- 
al of  $7,000.  The  lease  was  made  subject  to  the  ratification  of  the 
stockholders  of  the  Franklin  Company  and  the  approval  and  confirma- 
tion of  the  said  court.  It  was  duly  ratified  by  the  f ormer,  and  approv- 
ed and  confirmed  by  the  latter.  The  road  was  constructed  and  equip- 
ped by  the  lessor,  and  delivered  to  the  lessee  on  April  15,  1880,  from 
which  date  the  lease  was  to  run  for  34  years. 

The  Southern  Railway  Company  having,  on  June  18,  1894,  duly  ac- 
quired, by  purchase  and  conveyance,  the  road  owned  by  the  Midland 
Company  when  the  lease  was  made,  and  along  with  it  the  lease  to  Bar- 
bour, receiver,  by  the  Franklin  Company,  plainly  manifested  an  inten- 
tion, in  the  summer  of  1897,  to  abandon  and  cease  to  operate  the  leased 
road.  In  anticipation  of  such  action  by  the  Southern  Railway  Com- 
pany, and  to  prevent  the  consequences  that  would  result  from  it,  the 
Franklin  Company  brought  its  suit  in  equity  in  the  circuit  court  of 
Franklin  county,  charging  in  its  bill  that  the  Southern  Railway  Com- 
pany intended  to  abandon  and  cease  to  operate  under  the  lease  the  road 
of  the  complainant  after  July  1,  1897,  and  asking  that  it  be  enjoined 
and  restrained  from  doing  so.  The  Southern  Railway  Company  filed 
its  answer  to  the  bill,  and  admitted  the  charge  of  the  complainant. 

Is  the  defendant  company  bound  to  operate  the  leased  road  during 
the  term  of  the  lease,  or  may  it  rightfully  abandon  and  cease  to  op- 
erate it?  This  is  the  first  question  presented  for  our  determination. 
Its  solution  depends  upon  the  provisions  of  the  lease.     *     *     * 

It  is  apparent  that  a  principal  object  of  the  incorporators  of  the 
Franklin  Company  was  to  furnish  railroad  facilities  to  the  citizens  of 
Franklin  county  by  connecting  by  rail  Rocky  Mount,  the  county  seat, 
with  the  main  line  of  the  Midland  Company,  and  thereby  secure  rail- 
road communication  with  all  sections  of  the  state  and  country  reached 
by  that  road  and  its  connections.  It  was  to  this  end  that  the  county  of 
Franklin  subscribed  to  and  paid  for  in  its  bonds  $200,000  of  the  capital 
stock  of  the  Franklin  Company.  And  the  consummation  of  this  ob- 
ject was  the  main  inducement  on  the  part  of  the  Franklin  Company 
to  enter  into  the  lease  with  the  Midland  Company ;  while  the  induce- 
ment to  enter  into  it  on  the  part  of  John  S.  Barbour,  receiver,  was,  as 
expressed  in  his  reports  to  the  circuit  court  of  Alexandria,  to  obtain, 
as  he  believed,  a  valuable  feeder  to  his  line  of  railroad.  That  the  lease 
was  in  the  contemplation  of  the  parties  thereto  at  the  time  the  Franklin 
Company  obtained  its  charter  is  shown  by  the  eighth  section  thereof, 
whereby  it  is  expressly  made — 

"lawful  for  said  company  to  lease  its  road,  or  any  part  thereof,  to  the  Wash- 
ington City,  Virginia  Midland  &  Great  Southern  Railroad  Company,  or  any 
other  railroad  company  chartered  by  the  commonwealth." 

It  is  apparent,  upon  a  fair  construction  of  the  whole  instrument,  con- 
sidered in  the  light  of  the  circumstances  under  which  it  was  made, 
that  it  was  within  the  contemplation  of  the  parties  and  their  intention 
that  the  road  should  be  maintained  and  operated  during  the  entire  term 


Sec.  8)  EQUITABLE  DEFENSES  627 

of  the  lease;  and,  when  we  come  to  examine  its  provisions  critically, 
the  obligation  to  do  so,  though  not  expressed  in  words,  is  plainly  im- 
plied.    *     *     * 

The  enforcement  of  the  contract  is  also  objected  to  on  the  ground 
of  hardship.  It  is  not  pretended  that  the  lease  was  induced  by  fraud 
or  false  representations  of  facts.  On  the  contrary,  it  was  entered  into 
after  due  deliberation,  was  reasonable  and  fair  when  made,  and,  as  de- 
clared in  the  preamble,  "deemed  judicious  and  beneficial"  to  both  par- 
ties. Operation  under  it  has  demonstrated  that  the  Franklin  Company, 
instead  of  becoming  "a  valuable  feeder"  to  the  main  line  of  the  lessee, 
has  proved  to  be  an  unprofitable  adjunct.  The  hardship  is  due,  in  the 
main,  to  miscalculation  in  making  the  contract,  and  in  part  to  subse- 
quent events  and  a  change  of  circumstances  in  no  wise  attributable  to 
the  lessor. 

It  is  not  doubted  that  there  are  adjudged  cases  which  hold  that  a 
court  of  equity  will  not  decree  specific  performance  of  the  agreement 
where  it  would  entail  great  hardship,  and  the  hardship  was  due,  in 
some  measure,  at  least,  to  the  conduct  of  the  other  party.  Booten  v. 
Scheffer,  21  Grat.  474;  Gish's  Ex'r  v.  Jamison,  96  Va.  312,  31  S.  E. 
521;  and  Willard  v.  Tayloe,  8  Wall.  564,  19  L,  Ed.  501. 

But  we  question  whether  a  court  of  equity  ever  refuses  specific  per- 
formance upon  the  sole  objection  of  hardship,  where  the  contract  in  its 
inception  was  fairly  and  justly  made,  and  the  hardship  is  the  result  of 
miscalculation,  or  is  caused  by  subsequent  events  or  a  change  of  cir- 
cumstances, and  the  party  seeking  performance  is  wholly  without  fault. 
In  Marble  Co.  v.  Ripley,  10  Wall.  356,  19  L.  Ed.  955,  Mr.  Justice 
Strong,  in  speaking  of  contracts  that  were  supposed  to  be  fair  and 
equal  when  made,  but  in  the  lapse  of  time  have  become  bad  bargains, 
said: 

"Besides,  it  is  by  no  means  clear  that  a  court  of  equity  will  refuse  to  decree 
the  specific  performance  of  a  contract,  fair  when  it  was  made,  but  which  has 
become  a  hard  one  by  the  force  of  subsequent  circumstances  and  changing 
events." 

The  element  of  risk  enters  more  or  less  into  every  contract,  and  the 
obligation  to  perform  it  cannot  be  allowed  to  depend  upon  the  question 
whether  it  has  proved  to  be  advantageous  or  disadvantageous.  It 
would  be  a  travesty  upon  justice,  and  the  reputed  sanctity  of  contracts 
would  be  of  little  avail,  if  parties  could  refuse  the  performance  of 
contracts  having  some  years  to  run,  which  were  fairly  entered  into, 
and  believed  to  be  just  and  equal  when  made,  merely  because  from 
contingencies,  whose  possibility  might  have  been  foreseen,  they  had 
turned  out,  in  the  course  of  execution,  to  be  a  losing,  instead  of  a 
profitable,  bargain. 

In  Schmidtz  v.  Railroad  Co.  [101  Ky.  441,  41  S.  W.  1015,  38  L.  R. 
A.  809],  supra,  it  appeared  that  the  lessor  was  largely  indebted  to  the 
defendant  company,  the  assignee  of  the  lease,  for  moneys  furnished 
for  it  under  the  contract  of  lease,  and  to  be  repaid  by  it;  that  judg- 


628  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

ment  had  been  recovered  for  the  amount,  and  an  effort  made  to  sell 
the  leased  road  to  pay  it,  but  nothing  could  be  made,  because  no  one 
would  give  anything  for  the  road  subject  to  the  mortgage  subsisting 
upon  it.  It  also  appeared  that  the  leased  road  was  being  run  at  a  heavy 
loss,  the  necessary  cost  of  operating  having  exceeded  the  receipts  in 
the  sum  of  $199,411.70.  The  defendant  claimed  that  it  would  be 
harsh  and  inequitable,  under  these  circumstances,  to  require  it  to  con- 
tinue to  operate  the  road ;  but  the  court  held  that  the  facts  in  the  case 
were  not  such  as  to  release  the  defendant  from  performing  the  contract. 
Nor  can  the  objection  of  hardship,  made  in  the  case  before  us,  avail  to 
stay  the  hands  of  the  court. 

Objection  is  made  to  the  decree  appealed  from  that  it  enjoins  the  ap- 
pellant from  abandoning  or  ceasing  to  operate  the  road  as  it  was  then 
operating  it,  without  regard  to  the  exigencies  of  the  case.  The  decree 
simply  requires  the  same  train  service  as  the  appellant  had  deemed  to 
be  proper  and  necessary  during  the  three  years  it  had  been  in  control 
and  operation  of  the  road.  It  is  to  be  presumed  that  it  was  then 
running  only  such  trains,  and  with  such  cars,  as  its  experience  showed 
were  required.  This  would  seem  to  be  reasonable  and  proper,  and  to 
furnish  no  good  ground  of  complaint. 

The  further  objection  is  made  to  the  decree  that  it  requires  the  ap- 
pellant to  operate  the  entire  line  from  Rocky  Mount  to  Franklin  Junc- 
tion, which  includes  seven  miles  not  belonging  to  the  appellee,  but  is  the 
property  of  the  appellant.  This  seven  miles  is  a  branch  road  of  the 
Midland  Company,  running  out  from  its  main  line  to  a  place  called 
Pittsville,  and  was  in  existence  when  the  lease  was  made ;  and  the  pro- 
visions of  the  lease  clearly  show  that  it  was  the  understanding  and 
agreement  of  the  parties  thereto  that  the  Franklin  Company  was  to 
construct  its  road  to  the  western  terminus  of  the  branch  road,  so  as  to 
obtain  connection  with  the  main  line.  Without  the  branch  road,  there 
would  be  no  connection  between  the  new  road  and  the  main  line.  It 
was  by  means  of  the  branch  road  that  the  new  road  was  to  become  "a 
valuable  feeder  to  the  traffic  of  the  main  line."  It  is  plainly  implied  in 
the  lease  that  the  branch  road  was  to  be  operated  in  conjunction  with 
the  new  road.  The  two  have  been  operated  together  as  one  line  ever 
since  the  beginning  of  the  lease.  They  were  so  operated  by  the  original 
lessee  and  all  of  his  successors,  and  were  being  so  operated  by  the  ap- 
pellant when  this  controversy  arose.  The  branch  road  is  essential  to 
the  use  and  enjoyment  of  the  road  of  the  Franklin  Company,  and  the 
court  committed  no  error  in  the  respect  complained  of. 

We  find  no  error  in  the  decree  appealed  from,  except  in  dismissing 
the  case  from  the  docket.  The  court  should  have  reserved  the  right 
to  make  additional  orders  from  time  to  time,  as  circumstances  might 
require,  and  kept  the  case  on  the  docket  for  that  purpose.  The  decree 
will  be  amended  in  this  respect,  and  as  so  amended  will  be  affirmed. 

Keith,  P.,  dissenting. 

Amended  and  affirmed. 


Sec.  S)  EQUITABLE   DEFENSES  629 


HART  v.  BROWN  et  al. 

(Supreme  Court  of  New  York,  Special  Term,  Monroe  County,  1893. 
6  Misc.  Kep.  238,  27  N.  Y.  Supp.  74.) 

Action  by  Hart  against  Mrs.  Brown  and  another  for  the  specific  per- 
formance of  a  contract  by  defendant  Brown  to  open  a  street. 

RumsEy,  J.2  The  defendant  Brown,  in  the  month  of  November, 
1888,  conveyed  to  the  plaintiff  a  lot  of  land  extending  51  feet  on  Mt. 
Hope  avenue,  and  running  back  a  distance  of  about  119  feet.  At 
the  time  of  the  conveyance  Mrs.  Brown  was  the  owner  of  a  consider- 
able tract  of  land,  out  of  which  this  lot  was  carved.  She  covenanted 
in  her  deed  to  the  plaintiff  to  open  a  street  along  the  north  side  of  his 
lot,  and  extending  beyond  it  to  South  avenue,  which  was  several  hun- 
dred feet  east  of  the  rear  of  his  lot.  By  her  contract  this  street  was  to 
be  opened  within  two  years  from  the  1st  of  April,  1889.  Before  that 
time,  however,  she  conveyed  the  whole  tract  of  land  to  the  Oak  Hill 
Cemetery  Association,  which  is  also  made  a  party  to  this  action,  but 
which  has  not  appeared  or  served  any  answer.  Consequently,  that  as- 
sociation does  not  object  to  the  granting  of  the  judgment  which  is 
asked  for  in  the  plaintiff's  complaint.  Indeed,  it  is  not  in  a  condition 
to  object,  for  the  deed  from  Mrs.  Brown  to  the  association  is  made  sub- 
ject to  all  the  covenants  contained  in  her  deed  to  the  plaintiff,  and  con- 
sequently the  cemetery  association  takes  subject  to  the  plaintiff's  deed, 
and  cannot  prevent  the  performance  of  the  contract  by  Mrs.  Brown 
if  she  were  to  be  compelled  to  perform  it.  Pom.  Spec.  Perf.  Cont.  § 
465.  It  appears  by  the  proofs  in  the  case  that,  after  the  action  had 
been  commenced,  the  interest  of  the  Oak  Hill  Cemetery  Association 
in  the  property  was  sold  and  purchased  by  one  John  B.  Y.  Warner. 
As  a  notice  of  pendency  of  this  action  was  filed,  however,  before  that 
sale  was  made,  Mr.  Warner  took  subject  to  whatever  rights  the  plain- 
tiff should  be  adjudged  to  possess. 

The  plaintiff.,  for  this  property,  paid  the  sum  of  $2,340.  He  bought 
for  the  purpose  of  setting  up  a  factory  for  the  manufacture  of  tomb- 
stones and  monuments,  which  he  might  sell  to  people  who  buried  their 
dead  in  the  Mt.  Hope  Cemetery,  the  entrance  to  which  was  directly 
across  the  street  from  the  lot  that  he  bought.  To  fit  the  premises  for 
that  use,  he  built  upon  them  a  building  adapted  to  his  business,  but 
which  was  so  placed  that,  in  connection  with  another  building  then 
upon  the  land,  it  occupied  the  whole  width  of  the  lot,  leaving  him  no 
means  of  access  for  wagons  to  the  rear  of  his  lot,  except  over  the  new 
street  which  was  to  be'  opened  immediately  upon  the  north  side  of  it, 
in  pursuance  of  Mrs.  Brown's  agreement.  He  testifies  (and  his  evi- 
dence is  amply  sustained)  that  it  would  be  practically  impossible  for 
him  to  carry  on  his  business  upon  this  lot  unless  he  should  be  able 
to  deliver  weighty  masses  of  stone  upon  the  rear  part  of  his  lot,  where 

2  Tarts  of  the  opinion  are  omitted. 


G30  SPECIFIC  PERFORMANCE  OF  CONTRACTS  (Cll.  '1 

he  can  do  such  work  as  is  necessary  upon  them  to  fit  them  for  monu- 
ments, and  that  this  can  only  be  done  if  he  has  access  to  the  rear  of  his 
lot  for  wagons  and  trucks  along  this  new  street.  For  this  reason  it 
will  be  seen  that  it  is  of  some  considerable  importance  to  him  to  have 
this  contract  performed,  at  least  so  far  as  to  give  him  a  right  of  way 
to  the  rear  of  his  lot.  He  testifies,  also,  that  the  street,  if  opened,  will 
become  a  considerable  thoroughfare  for  persons  having  occasion  to 
visit  Mt.  Hope  Cemetery,  and  that  it  would  be  of  considerable  advan- 
tage to  him,  and  add  greatly  to  the  value  of  his  business,  if  he  could 
display  his  goods  on  the  north  side  of  his  lot  in  the  same  way  that  he 
does  now  upon  the  front  of  his  lot.  This  advantage,  however,  is  some- 
what fanciful,  and  can,  I  think,  hardly  be  made  to  serve,  by  itself,  as 
a  reason  for  requiring  the  specific  performance  of  the  contract,  al- 
though I  have  no  doubt  it  would  be  a  proper  matter  to  consider  in  the 
assessment  of  damages. 

It  appears  from  the  evidence,  and  is  practically  undisputed,  that  in 
1888,  when  this  property  was  sold  to  the  plaintiff,  Mrs.  Brown  was 
preparing  to  lay  it  out  into  lots,  and  to  open  streets  upon  it,  which  she 
intended  to  put  upon  the  market.  One  of  these  streets  was  delineated 
upon  a  map  directly  north  of  the  plaintiff's  premises,  and  extending 
from  Alt.  Hope  avenue  to  South  avenue.  It  was  this  street  which  the 
plaintiff  expected  to  have  opened,  and  which  he  now  desires  the  court 
to  require  her  to  open.  For  some  reason  Mrs.  Brown  did  not  open 
the  street  by  the  1st  of  April,  1891,  as  she  agreed,  and  in  September 
of  that  year  her  time  to  do  so  was  extended  until  July,  1892,  and  for 
that  extension,  and  the  damages  accruing  to  the  plaintiff  for  her  fail- 
ure to  open  the  street  before,  she  paid  the  plaintiff  $399.  At  the  time 
when  she  made  the  original  contract,  and  for  a  considerable  time  after- 
wards, there  was  a  good  market  for  city  lots  upon  the  outskirts  of  the 
city  of  Rochester,  where  this  land  lay,  and,  if  her  land  had  then  been 
put  upon  the  market,  she  would  undoubtedly  have  been  able  to  pay  the 
expense  of  performing  her  contract,  and  have  sold  the  lots  at  remun- 
erative prices.  Before  the  time,  however,  within  which  she  was,  by 
the  extension,  to  perform  the  contract,  the  sale  of  lots  in  all  the  out- 
skirts of  the  city  of  Rochester  had  fallen  off  very  considerably,  and 
it  had  become  practically  impossible  to  put  this  property  on  the  market 
in  that  way.  The  expense  of  opening  this  street  from  Mt.  Hope  avenue 
to  South  avenue,  and  of  completing  the  grading  of  it,  would  be  about 
$6,000.  Before  the  lots  which  were  to  be  laid  out  on  each  side  of  it 
could  be  sold,  it  would  be  necessary  to  grade  them  to  the  level  of  the 
street  at  considerable  expense,  or  else  the  expense  of  doing  the  neces- 
sary grading  would  have  to  come  out  of  the  purchase  price  of  the 
lots.  In  either  event  a  very  considerable  loss  would  accrue  to  the  own- 
er of  the  premises.  The  defendant  claims  that  this  new  condition  of 
affairs,  which  was  unforeseen  at  the  time  the  contract  was  entered  into, 
has  rendered  the  contract  excessively  burdensome  to  her,  so  that  it 
would  be  a  great  hardship  to  require  her  to  perform  it,  and  for  that 


Sec.  8)  EQUITABLE  DEFENSES  631 

reason  she  claims  that  a  judgment  for  specific  performance  should  not 
be  ordered. 

It  is  a  well-settled  rule,  in  actions  of  this  nature,  that  not  only  must 
the  agreement,  the  performance  of  which  is  sought,  be  fair  and  rea- 
sonable, but  that  its  specific  execution  must  not  be  oppressive ;  that  is, 
it  must  not  be  such  that  its  performance  will  work  a  great  hardship 
to  the  parties.  Pom.  Spec.  Perf.  Cont.  §  185.  While  this  general  rule 
is  well  settled,  it  has  always  been  a  serious  question  whether  the  unfair- 
ness and  hardship  which  will  stand  in  the  way  of  a  judgment  for  spe- 
cific performance  must  exist  at  the  time  of  the  making  of  the  contract, 
or  whether  it  is  sufficient  if,  by  subsequent  events  and  changing  cir- 
cumstances, a  contract  which  was  originally  fair  and  unexceptional 
has  become  so  onerous  that  specific  performance  will  be  denied,  al- 
though, if  there  had  been  no  change  in  circumstances,  the  defendant 
would  have  been  compelled  to  perform  it.  Mr.  Fry,  in  his  work  on 
Specific  Performance,  says : 

"That  the  question  of  the  hardship  of  a  contract  is  generally  to  be  judged 
of  at  the  time  at  which  it  is  entered  into.  If  it  be  then  fair  and  just,  it  will 
be  immaterial  that  it  may,  by  the  force  of  subsequent  circumstances  or  change 
of  events,  have  become  less  beneficial  to  one  party,  except  where  these  sub- 
sequent events  have  been  in  some  way  due  to  the  party  who  seeks  the  per- 
formance of  the  contract."     Fry,  Spec.  Perf.  182. 

However  accurate  this  may  be  as  a  statement  of  the  law  interpreted 
by  the  English  courts,  as  to  which  I  have  not  examined,  it  cannot,  I 
think,  be  said  to  be  the  law  in  this  country,  and  certainly  not  in  this 
state.  Judge  Story  says  that  courts  of  equity  will  not  proceed  to  de- 
cree a  specific  performance  of  a  contract  where,  from  a  change  of  cir- 
cumstances or  otherwise,  it  would  be  unconscientious  to  enforce  it. 
Story,  Eq.  Jur.  §  750a.  Mr.  Pomeroy  discusses  the  question  at  con- 
siderable length,  and  comes  to  the  conclusion  that,  although  agreements 
may  be  fair  and  just  when  made,  their  enforcement  may  be  interfered 
with  and  prevented  by  subsequent  unforeseen  events,  which  introduced 
a  sufiicient  element  of  inequality,  unfairness,  or  hardship.  Pom.  Spec. 
Perf.  Cont.  ,§§  178,  187.  The  leading  case  on  that  subject  in  this  coun- 
try, outside  of  the  state  of  New  York,  is  Willard  v.  Tayloe,  8  Wall 
557,  19  L.  Ed.  501,  which  was  decided  by  the  supreme  court  of  the 
United  States  in  1869.  *  *  *  The  court  laid  down  the  rule  that 
the  discretionary  power  of  the  court  in  ordering  a  specific  performance 
of  the  contract  will  not  be  exercised,  although  the  contract  may  have 
been  originally  fair  and  equal  in  its  terms,  if  its  enforcement,  from 
subsequent  events,  or  even  from  collateral  circumstances,  would  work 
hardship  or  injustice  to  either  of  the  parties.     *     *     * 

There  can  be  no  doubt,  I  think,  in  this  case,  that  it  would  be  exceed- 
ingly oppressive  upon  the  defendant  to  be  compelled  to  perform  this 
contract  to  open  this  street  at  the  present  time.  The  expense  of  it  is 
large, — almost  three  times  the  amount  that  was  paid  by  the  plaintiff  for 
his  land.  It  is  certain  that  the  defendant  cannot,  for  many  years  at 
least,  receive  any  profit  from  the  sales  of  lots  along  this  street,  which 


632  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

she  had  expected  to  sell  at  a  profit  immediately  on  the  street  being 
opened.  The  opening  of  the  street  further  back  than  the  rear  of  his  lot 
would  be  of  comparatively  small  importance  to  the  plaintiff.  Certain- 
ly, any  injury  which  he  would  suffer  by  not  opening  it  could  be  very 
easily  compensated  for  in  damages.  For  this  reason.  I  think  the  case 
is  one  where  specific  performance  should  be  denied. 

But  the  complaint  should  not,  I  think,  be  dismissed.  It  is  well  set- 
tled now,  in  this  state,  that  in  actions  of  this  kind,  where  the  plaintiff 
fails  to  show  himself  entitled  to  equitable  relief,  the  court  may  retain 
the  action  for  the  purpose  of  giving  him  compensation  by  way  of  dam- 
ages. It  was  always  within  the  power  of  the  court  to  give  damages 
instead  of  specific  performance,  where  the  case  was  such  that  that 
course  was  proper.  It  would  have  been  competent  in  this  case  for  the 
court  at  the  special  term  to  have  taken  evidence  upon  the  question  of 
damages,  and  awarded  the  damages  if  no  specific  performance  should 
have  been  given.  But  a  better  way,  I  think,  is  to  deny  the  application 
for  relief  by  way  of  specific  performance,  and  to  direct  the  question 
of  damages  to  be  tried  by  a  jury  at  the  circuit.  This  course  was  ap- 
proved by  the  court  of  appeals,  and  is  the  one  which  I  think  should  be 
followed  in  this  case.  Sternberger  v.  McGovern,  56  X.  V.  12.  The 
contract  between  the  parties  is  entire, — simply  to  open  this  street  from 
one  end  to  the  other, — and  for  that  reason  the  defendant  cannot,  I 
think,  be  required  to  open  a  part  of  the  street,  and  to  pay  damages  for 
a  failure  to  perform  the  rest  of  her  contract.  Martin  v.  Colby,  42 
Hun,  1. 

But  the  defendant  Brown  in  this  case  offered,  upon  the  trial,  to  stip- 
ulate that  specific  performance  might  be  adjudged  of  this  contract  so 
far  as  to  require  her  to  open  the  street  from  Mt.  Hope  avenue  to  the 
rear  of  the  plaintiff's  premises,  thereby  giving  him  the  right  of  way 
into  the  rear  of  his  land,  and  that  the  damages  which  he  suffered,  if 
any,  by  reason  of  the  failure  to  open  the  street  clear  through  to  South 
avenue,  might  be  assessed  by  a  jury.  While  I  would  not  feel  at  lib- 
erty, I  think,  to  order  such  a  judgment  except  upon  the  stipulation  of 
the  parties,  yet  I  have  no  doubt  that  a  judgment  to  that  effect  would 
come  nearer  than  any  other  to  working  out  a  right  result.  For  that 
reason,  as  the  defendant  is  willing  that  such  judgment  should  be  ren- 
dered against  her,  the  findings  will  provide  for  such  a  judgment  if  the 
plaintiff  sees  fit  to  accept  it.  If  he  does  not,  the  only  judgment  can  be 
that  the  case  be  sent  to  a  jury  for  trial  upon  the  question  of  damages. 
Judgment  accordingly. 


Sec.  8)  EQUITABLE  DEFENSES  033 

TRUSTEES  OF  COLUMBIA  COLLEGE  v.  THACHER. 

(Court  of  Appeals  of  New  York,  18S2.    S7  N.  Y.  311,  41  Am.  Rep.  365.) 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court 
of  the  city  of  New  York,  entered  upon  an  order  made  June,  1880, 
which  affirmed  a  judgment  in  favor  of  plaintiff,  entered  upon  a  deci- 
sion of  the  court  on  trial  at  Special  Term. 

The  action  was  brought  to  enforce  the  observance  of  certain  cove- 
nants in  an  agreement  made  on  the  25th  of  July,  1859,  between  the 
plaintiffs  and  Joseph  D.  Beers,  who  then  owned  adjacent  portions  of 
the  block  of  land  between  Fifth  and  Sixth  avenues  and  Fiftieth  and 
Fifty-First  streets,  New  York,  in  respect  to  the  mode  of  improvement 
and  the  future  occupation  of  their  respective  portions. 

The  case  upon  a  former  appeal  is  reported  in  70  N.  Y.  440,  26  Am. 
Rep.  615.  Beers  owned  the  portion  of  the  block  on  the  westerly  or 
Sixth  avenue  side,  and  the  plaintiffs  the  land  adjoining  on  the  east. 
The  property  was  then  vacant.  The  general  object  of  the  agreement 
as  stated  therein,  was  "to  provide  for  the  better  improvement  of  the 
said  lands,  and  to  secure  their  permanent  value,"  which  was  to  be  ac- 
complished by  the  erection,  by  both  parties,  of  dwelling  houses  of  a 
superior  class,  which  were  to  be  set  back  eight  feet,  and  to  be  used 
exclusively  as  dwelling  houses,  the  covenant  of  Beers  for  himself,  his 
heirs  and  assigns  being  not  to  erect,  establish  or  carry  on — 

"in  any  manner,  on  any  part  of  the  said  lands,  any  stable,  school-house,  en- 
gine-house, tenement  or  community  house,  or  any  kind  of  manufactory,  trade 
or  business  whatsoever,  or  erect  or  build,  or  commence  to  erect  or  build,  any 
building  or  edifice  with  intent  to  use  the  same,  or  any  part  thereof,  for  any 
of  the  purposes  aforesaid." 

The  covenant  of  the  plaintiffs  was,  that  they  would  insert  similar 
restrictions  in  all  leases  executed  by  them.  The  defendant  Lynch  ac- 
quired title  to  the  lot  on  the  corner  of  Fiftieth  street  and  Sixth  avenue 
by  sundry  mesne  conveyances  from  Beers,  each  of  which  expressed 
that  it  was  made  subject  to  this  agreement.  She  erected  a  four-story 
brown-stone  front  dwelling-house  upon  the  premises,  of  the  full  width 
thereof,  fronting  on  and  entered  by  a  high  stoop  from  Fiftieth  street; 
having,  in  the  basement  story  in  front,  by  the  side  of  the  stoop,  and  on 
the  side  opening  on  Sixth  avenue,  French  windows,  two  of  which,  on 
Sixth  avenue,  and  one  on  Fiftieth  street,  were  used  as  entrance  doors 
to  the  basement  and  offices  hereinafter  mentioned.  At  the  time  of  the 
commencement  of  this  action,  defendant  Yates  occupied  a  portion  of 
the  basement  as  a  dwelling  for  himself  and  family,  having  in  one  room 
thereof  a  real  estate  office,  and  using  it  for  that  business,  with  a  busi- 
ness sign ;  and  the  defendant  Blaisdell  occupied  a  room  in  said  office 
for  receiving  orders  for  painting,  having  also  a  business  sign.  During 
the  pendency  of  this  action  the  defendant  Thacher  became  the  owner 
of  the  said  premises,  having  purchased  the  same  with  notice  of  said 


634  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

agreement  and  of  this  action,  and  he  was  made  a  defendant  herein  by 
an  order  of  the  court,  upon  his  own  application.    The  court  found : 

That  said  "Thacher  permits  certain  parts  of  the  house  upon  said  premises 
to  be  occupied  by  his  tenants  for  the  purpose  of  trade  and  business ;  that  is 
to  say,  apartments  in  the  first  story  of  said  house  for  the  business  of  a  tailor 
and  for  that  of  a  milliner,  and  apartments  in  the  basement  of  said  house  for 
the  business  of  an  insurance  agent,  of  a  newspaper  dealer,  of  two  express  car- 
riers, and  of  a  tobacconist,  which  trades  or  business  were  carried  on  in  the 
said  house  at  the  time  of  the  trial.  That  the  several  trades  or  business  car- 
ried on  as  aforesaid  by  the  defendants,  Yates  and  Blaisdell,  at  the  time  of 
the  commencement  of  the  action,  and  by  the  tenants  of  the  defendant  Thacher 
at  the  time  of  the  trial,  were  violations  of  the  agreement  above  set  forth,  and 
of  the  spirit  as  well  as  the  letter  thereof.  That  since  the  action  was  begun 
an  elevated  railway  has  been  built  in  the  Sixth  avenue,  running  by  the  said 
premises,  and  a  station  thereof  established  at  the  intersection  of  Fiftieth  street 
and  the  Sixth  avenue,  in  front  of  said  premises,  and  that  the  said  railway 
and  station  affect  the  said  premises  injuriously,  and  render  them  less  profita- 
ble for  the  purpose  of  a  dwelling-house,  but  do  not  render  their  use  for  busi- 
ness purposes  indispensable  to  their  practicable  and  profitable  use  and  occu- 
pation. The  said  railway  and  station,  however,  do  not  injuriously  affect  all 
the  property  fronting  on  Fiftieth  street  and  included  in  the  said  covenant, 
but  only  a  comparatively  small  part  thereof." 

Danforth,  J.3  The  validity  and  binding  obligation  of  the  covenant 
cannot  be  questioned  by  the  defendant  Thacher.  Trustees  of  Colum- 
bia College  v.  Lynch,  70  N.  Y.  440,  26  Am.  Rep.  615.  Moreover  it 
appears  that  he  bought  with  notice,  not  only  of  the  agreement,  but  of 
this  action.  He  therefore  could  not  take  the  property  without  per- 
forming the  obligation  attached  to  it,  and  must  be  deemed  to  have  tak- 
en it  at  his  own  peril,  to  the  extent  of  such  judgment  as  might  be  ren- 
dered in  the  action.  It  is  claimed  in  his  behalf  that  the  business 
charged  in  the  complaint  to  have  been  carried  on  does  not  come  within 
the  prohibition  of  the  covenant.  This  question  was  not  raised  upon  the 
former  trial,  and  of  course  there  is  nothing  in  our  decision  (70  N.  Y., 
supra)  to  prevent  its  litigation  upon  the  trial  then  ordered,  and  now  un- 
der review.  The  words  are  very  plain ;  they  include  "any  kind  of  man- 
ufactory, trade  or  business  whatsoever,"  upon  the  premises.  The  com- 
plaint shows  their  occupation  in  part  by  "a  real  estate  and  insurance 
broker  or  agent,"  and  in  part  by  "sign  and  fresco  painters,"  while  the 
finding  of  the  trial  judge — and  this  is  somewhat  more  important — 
shows  that  "the  business  of  a  tailor  and  milliner,  of  a  newspaper  agent, 
express  carriers,  a  tobacconist,  as  well  as  that  of  an  insurance  agent," 
were  carried  on  by  permission  of  the  defendant  at  the  time  of  the  trial. 
It  would  be  a  useless  waste  of  time  to  argue  that  these  vocations — for 
employment  or  profit,  whether  described  in  the  complaint,  or  found  by 
the  court — have  no  relation  to  the  exclusive  use  to  which  the  premises 
were  set  apart.  In  such  a  suit  as  this,  the  relief  which  the  court  can 
give  must  depend  upon  the  condition  of  things  at  the  time  of  the  trial. 
We  have  no  doubt  that  the  conclusion  of  the  trial  judge  was  right  upon 
the  point  presented,  and  agree  with  him,  that  these  several  trades  or  oc- 

3  Parts  of  the  opinion  are  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  635 

cupations  were  violations,  not  only  of  the  spirit,  but  also  of  the  letter 
of  the  covenant. 

Now  having  before  us  a  covenant  binding  the  defendant,  and  his 
breach  of  it,  if  there  is  nothing  more,  the  usual  result  must  follow, 
viz.:  an  injunction  to  keep  within  the  terms  of  the  agreement.  *  :;:  * 
It  is  now  claimed  by  the  appellant  that  there  has  been  such  an  entire 
change  in  the  character  of  the  neighborhood  of  the  premises  as  to  de- 
feat the  object  and  purpose  of  the  agreement,  and  that  it  would  be  in- 
equitable to  deprive  the  defendant  of  the  privilege  of  conforming  his 
property  to  that  character,  so  that  he  could  use  it  to  his  greater  advan- 
tage, and  in  no  respect  to  the  detriment  of  the  plaintiff.  The  agree- 
ment before  us  recites  that  the  object  which  the  parties  to  the  covenant 
had  in  view  was  "to  provide  for  the  better  improvement  of  the  lands, 
and  to  secure  their  permanent  value."  It  certainly  is  not  the  doctrine 
of  courts  of  equity  to  enforce  by  its  peculiar  mandate,  every  contract 
in  all  cases  even  where  specific  execution  is  found  to  be  its  legal  in- 
tention and  effect.  It  gives  or  withholds  such  decree  according  to  its 
discretion,  in  view  of  the  circumstances  of  the  case,  and  the  plaintiff's 
prayer  for  relief  is  not  answered,  where  under  those  circumstances  the 
relief  he  seeks  would  be  inequitable.  Peters  v.  Delaplaine,  49  N.  Y. 
362;  Margraf  v.  Muir,  57  X.  Y.  155 ;  Mathews  v.  Terwilliger,  3  Barb. 
51 ;  Radcliffe  v.  Warrington,  12  Vesey,  331.  If  for  any  reason  there- 
fore not  referable  to  the  defendant,  an  enforcement  of  the  covenant 
would  defeat  either  of  the  ends  contemplated  by  the  parties,  a  court  of 
equity  might  well  refuse  to  interfere,  or  if  in  fact  the  condition  of  the 
property  by  which  the  premises  are  surrounded  has  been  so  altered 
"that  the  terms  and  restrictions"  of  the  covenant  are  no  longer  appli- 
cable to  the  existing  state  of  things.  1  Story  Eq.  Jur.  (10th  ed.),  §  750. 
And  so  though  the  contract  was  fair  and  just  when  made,  the  inter- 
ference of  the  court  should  be  denied  if  subsequent  events  have  made 
performance  by  the  defendant  so  onerous  that  its  enforcement  would 
impose  great  hardship  upon  him,  and  cause  little  or  no  benefit  to  the 
plaintiff.  Willard  v.  Tayloe,  8  Wall.  557,  19  L.  Ed.  501 ;  Thomson 
v.  Harcourt,  2  Brown  Pari.  415;  Davis  v.  Hone,  2  Sch.  &  Lef.  340; 
Baily  v.  De  Crespigny,  L.  R.,  4  O.  B.  180 ;  Clarke  v.  Rochester,  Lock- 
port  &  Niagara  Falls  R.  Co.,  18~Barb.  350.     *     *     * 

In  the  case  before  us  the  plaintiffs  rely  upon  no  circumstance  of  eq- 
uity, but  put  their  claim  to  relief  upon  the  covenant  and  the  violation 
of  its  conditions  by  the  defendant.  They  have  established  by  their 
complaint  and  proof,  a  clear  legal  cause  of  action.  If  damages  have 
been  sustained  they  must,  in  any  proper  action,  be  allowed.  But  on 
the  other  hand,  the  defendant  has  exhibited  such  change  in  the  condi- 
tion of  the  adjacent  property,  and  its  character  for  use,  as  leaves  no 
ground  for  equitable  interference,  if  the  discretion  of  the  court  is  to  be 
governed  by  the  principles  I  have  stated,  or  the  cases  which  those  prin- 
ciples have  controlled.  The  general  current  of  business  affairs  has 
reached  and  covered  the  entire  premises   fronting  on   Sixth   avenue, 


636  SPECIFIC  PERFORMANCE   OF   CONTRACTS  (Ch.  2 

both  above  and  below  the  lot  in  question.  If  this  was  all  however  the 
plaintiffs  would  be  justified  in  their  claim,  for  it  is  apparent  from  the 
agreement  that  such  encroachment  was  anticipated,  and  that  the  par- 
ties to  it  intended  to  secure  the  property  in  question  from  the  disturb- 
ance which  business  would  necessarily  produce.  But  the  trial  court 
has  found  that  since  the  action  was  begun  an  elevated  railway  has  been 
built  in  the  Sixth  avenue.  It  runs  past  the  premises,  and  a  station  has 
been  established  in  front  of  them,  at  the  intersection  of  Fiftieth  street. 
He  finds  that: 

'"The  railway  and  station  affect  the  premises  injuriously  and  render  them 
less  profitable  for  the  purpose  of  a  dwelling-house,  but  do  not  render  their 
use  for  business  purposes  indispensable  to  their  practicable  and  profitable  use 
and  occupation." 

The  evidence  sustains  the  finding.  The  premises  may  still  be  used 
for  dwellings,  but  the  occupants  are  not  likely  to  be  those  whose  con- 
venience and  wishes  were  to  be  promoted  by  the  covenant,  persons  of 
less  pecuniary  ability,  and  willing  to  sacrifice  some  degree  of  comfort 
for  economy,  transient  tenants  of  still  another  class,  whose  presence 
would  be  more  offensive  to  quiet  and  orderly  people  who  might  reside 
in  the  neighborhood.  Not  only  large  depreciation  in  rents  when  occu- 
pied, but  also  frequent  vacancies  have  followed  the  construction  of  the 
road.  Its  trains,  propelled  by  steam,  run  at  intervals  of  a  few  minutes 
until  midnight.  The  station  covers  from  fifteen  to  twenty  feet  of  the 
street  opposite  the  defendant's  premises.  Half  the  width  of  the  side- 
walk is  occupied  by  its  elevated  platform.  From  it,  persons  waiting 
for  the  trains,  or  there  for  other  purposes,  can  look  directly  into  the 
windows.  Noise  from  its  trains  can  be  heard  from  one  avenue  to  the 
other. 

It  is  obvious,  without  further  detail,  that  the  construction  of  this 
road  and  its  management  have  rendered  privacy  and  quiet  in  the  adja- 
cent buildings  impossible,  and  so  affected  the  premises  of  the  defend- 
ant, and  all  those  originally  owned  by  him,  who,  with  the  plaintiff,  en- 
tered into  the  covenant,  that  neither  their  better  improvement  nor  per- 
manent value  can  be  promoted  by  enforcing  its  observance.  Nor  are 
the  causes  of  this  depreciation  transient.  The  platform  of  the  railroad 
station,  which  renders  inspection  of  the  interior  of  the  house  easy  to 
all  observers ;  the  stairs,  which  render  the  road  accessible,  must  re- 
main so  long  as  the  road  is  operated ;  and  the  noise  and  smoke  are 
now,  at  least,  an  apparent  necessity,  consequent  upon  its  operation.  It 
is  true,  the  covenant  is  without  exception  or  limitation,  but  I  think  this 
contingency  which  has  happened  was  not  within  the  contemplation  of 
the  parties.  The  road  was  authorized  by  the  Legislature,  and  by  rea- 
son of  it  there  has  been  imposed  upon  the  property  a  condition  of 
things  which  frustrates  the  scheme  devised  by  the  parties,  and  deprives 
the  property  of  the  benefit  which  might  otherwise  accrue  from  its  ob- 
servance. This  new  condition  has  already  affected,  in  various  ways 
and  degrees,  the  uses  of  property  in  its  neighborhood,  and  property 


Sec.  8)  iLQUITABLB   DEFENSES  637 

values.  It  has  made  the  defendant's  property  unsuitable  for  the  use 
to  which,  by  the  covenant  of  his  grantor,  it  was  appropriated,  and  if, 
in  face  of  its  enactment  and  the  contingencies  flowing  from  it,  the 
covenant  can  stand  anywhere,  it  surely  cannot  in  a  court  of  equity. 
The  land  in  question  furnishes  an  ill  seat  for  dwelling-houses,  and  it 
cannot  be  supposed  that  the  parties  to  the  covenant  would  now  select 
it  for  a  residence,  or  expect  others  to  prefer  it  for  that  purpose.  And 
although  the  land  has  not  itself  been  taken  as  in  Baily  v.  De  Crespigny, 
supra,  for  actual  occupation  by  the  railroad,  the  railroad  has  incum- 
bered the  walks  and  streets  about  it,  and  taken  away  those  advantages 
of  situation  which  induced  its  owners  to  dedicate  it  to  dwellings  in- 
stead of  stores,  and  to  retirement  rather  than  to  the  bustle  of  business. 
Submission  to  this  is  necessary,  because  it  is  authorized  by  the  Legis- 
lature, and  so  the  defendant  is  made  incapable  of  carrying  out,  if  he 
should  desire  it,  the  wishes  of  those  by  whose  agreement  he  would  oth- 
erwise be  bound. 

There  is,  I  think,  no  merit  in  the  respondent's  suggestion  that  the 
change  in  the  character  of  the  neighborhood  is  insufficient  so  long  as 
it  does  not  extend  to  all  the  property  affected  by  the  agreement.  If  this 
assumption  is  well  founded — if  the  influence  of  the  road  is  felt  only 
by  the  portion  of  land  owned  by  the  defendant,  it  is  still  apparent  that 
the  original  design  of  the  parties  has  been  broken  up  by  acts  for  which 
neither  the  defendant  nor  his  grantors  are  responsible,  that  the  object 
of  the  covenant  has  been,  so  far  as  the  defendant  is  concerned,  de- 
feated, and  that  to  enforce  it  would  work  oppression,  and  not  equity. 

To  avoid  this  result  the  judgment  appealed  from  should  be  reversed, 
and  the  complaint  dismissed,  but  as  this  result  is  made  necessary  by 
reason  of  events  occurring  since  the  commencement  of  the  action,  it 
should  be  without  costs. 

All  concur. 

Judgment  reversed  and  complaint  dismissed. 


TURLEY  v.  NOWELL. 

(Supreme  Court  of  North  Carolina,  1868.    62  N.  C.  301.) 

Bill  for  a  specific  performance  of  a  contract  to  -convey  land,  filed  to 
Spring  Term,  1866,  of  the  Court  of  Equity  for  Cleveland,  and  set  for 
hearing  and  transferred  to  this  court  at  Fall  Term,  1867. 

The  bill  sought  a  specific  performance  of  the  following  contract : 

"Received,  Shelby,  N.  C,  December  1,  1864,  from  T.  W.  Turley,  six  thou- 
sand dollars  in  Confederate  notes,  in  full  of  the  house  and  lot  in  the  town  of 
.Shelby,  being  the  same  on  which  I  now  reside,  which  I  have  sold  to  the  said 
Turley  and  for  which  I  will  execute  a  warranty  deed  as  soon  as  presented. 

"J.  P.  Nowell." 

The  contract  was  admitted  by  the  defendant,  but  he  declined  to  per- 
form it  upon  the  ground  that  at  the  time  when  the  property  was  sold 


638  srEciFic  performance  of  contracts  (Ch.  2 

it  was  worth  at  least  one  thousand  dollars  "in  good  money,"  and  that 
the  scrip  received  by  him  under  the  contract  was  not  worth,  by  the 
scale,  more  than  one  hundred  and  seventy  dollars ;  and  that  very  soon 
after  the  contract  was  made  he  became  satisfied  of  this,  and  offered  to 
the  plaintiff  to  pay  back  what  he  had  received,  also  to  make  a  deed  if 
he  would  pay  him  a  reasonable  sum  for  the  same,  etc. 

There  was  a  replication,  but  no  proofs ;  and  the  cause  was  set  down 
upon  bill,  answer  and  exhibits. 

Pearson,  C.  J.  The  plaintiff  is  entitled  to  a  specific  performance  of 
the  contract.  The  parties  were  their  own  judges  as  to  the  value  of  the 
property  and  the  value  of  Confederate  notes,  and  there  is  no  allegation 
of  fraud  or  imposition.  Indeed  the  only  ground  on  which  the  defend- 
ant resists  the  equity  of  the  plaintiff  is  the  fact  that  by  the  result  of 
the  war  Confederate  notes  became  of  no  value,  but  he  needed  such 
notes  at  the  time  he  made  the  contract,  accepted  them  in  payment  for 
the  land,  and  must  abide  the  loss. 

That  the  contract  was  not  illegal  is  settled.  Phillips  v.  Hooker,  62 
N.  C.  193. 

PER  Curiam.    Decree  for  the  plaintiff. 


HALE  v.  WILKINSON. 

(Supreme  Court  of  Appeals  of  Virginia,  1S71.    21  Grat.  75.) 

This  was  a  suit  in  the  Circuit  Court  of  Carroll  county,  brought  in 
March,  1866,  by  James  Wilkinson,  against  Fielding  L.  Hale,  to  enforce 
the  specific  execution  of  a  contract  for  the  sale  and  purchase  of  land. 
It  appears  that  on  the  14th  of  August,  1863,  by  agreement  under  seal, 
Hale  sold  to  Wilkinson  a  house  and  lot,  including  about  fourteen  acres 
of  land,  for  ten  thousand  dollars,  payable  in  Confederate  money,  one 
half  to  be  paid  in  three,  and  the  other  half  in  six  months,  from  the 
date.  Wilkinson  did  not  pay  all  the  purchase  money  as  it  fell  due,  but 
paid  it  during  the  months  of  November,  1863,  March,  May  and  De- 
cember, 1864,  and  in  January,  1865,  Hale  receiving  it,  and  giving  re- 
ceipts for  the  nominal  amounts  paid  as  so  much  paid  in  part  of  the 
purchase  money. 

In  September,  1865,  Hale  put  Wilkinson  into  possession  of  the  prop- 
erty, under  a  written  agreement,  by  which  Wilkinson  was  to  rent  it ; 
and  if  it  should  be  determined  that  Wilkinson  was  entitled  to  have  the 
contract  executed,  then  he  was  not  to  pay  the  rent. 

Hale  in  his  answer,  filed  on  the  day  the  bill  was  filed,  insisted :  That 
the  contract,  when  it  was  made,  was  utterly  null  and  void,  and  in  open 
and  plain  defiance  of  law :  That  the  contract  wholly  failed  for  want  of 
consideration,  which  was  Confederate  money,  and,  at  the  time  the  con- 
tract was  made,  it  was  a  highly  penal  crime  to  pass  or  receive  it,  and 
the  circulation  of  it  forbidden  by  law :    That  the  plaintiff  did  not  per- 


Sec.  8)  EQUITABLE   DEFENSES  639 

form  his  contract  by  paying  the  purchase  money  when  it  fell  due,  but 
the  payments  were  made  long  after  it  was  due,  and  when  the  money 
had  greatly  depreciated,  and  was  in  fact  worthless ;  that  the  receipts 
were  not  intended  to  express  the  receipt  by  the  defendant  of  so  much 
of  the  purchase  money  as  was  stated  therein,  but  only  so  many  dollars 
of  Confederate  money,  to  be  estimated  at  the  value  when  it  should  have 
been  paid;  that  they  all  express  to  be  'in  part  payment,"  or  "towards,'' 
etc. :  That  his  sole  object  in  selling  was  to  remove  to  Alabama,  which 
was  defeated  by  the  delay  of  the  plaintiff  in  paying  the  money,  though 
he  had  removed  since  the  war :  That  if  he  had  been  paid  promptly  he 
could  have  purchased  property  then  that  would  have  suited  him ;  and 
that  the  property  he  sold  was  worth,  in  gold,  at  the  time  $6,000,  for 
which  he  had  in  fact  received  not  more  than  $425  at  the  utmost. 

There  is  proof  that  at  the  time  of  the  contract,  and  since  the  war, 
the  property  was  worth  $6,000  in  gold,  and  that  Hale  talked  of  moving 
South,  and  was  making  arrangements  to  do  so  about  the  time  of  the 
sale  of  the  property,  and  that  he  complained  frequently  of  Wilkinson's 
failure  to  make  the  payments  for  it.  The  value  in  gold  of  the  money 
received  by  Hale,  at  the  time  of  the  receipt,  a  witness  fixed  from  a 
table  in  his  possession,  at  $384.98%. 

On  the  22d  of  March,  1866,  the  cause  came  on  by  consent  to  be 
heard,  when  the  court  decreed  that  Hale  should  convey  the  property 
to  Wilkinson ;  and  by  a  decree  of  the  24th  of  August,  1866,  Hale  hav- 
ing failed  to  make  the  deed,  a  commissioner  was  appointed  to  do  it. 
And  from  this  decree  Hale  applied  for  and  obtained  an  appeal  to  the 
late  District  court  at  Abingdon,  by  which  court,  on  the  18th  of  July, 
1868,  the  decree  of  the  Circuit  court  of  the  24th  of  August,  1866,  was 
affirmed.  From  this  decree  Hale  applied  to  this  court  for  an  appeal, 
which  was  allowed. 

AIoncurE,  P.,4  delivered  the  opinion  of  the  court.     *     *     * 

To  determine  whether  the  consideration  was  adequate,  and  whether 
the  court  can  now  refuse  to  decree  specific  performance  of  the  contract 
on  the  ground  of  inadequacy  of  consideration,  we  must  carry  ourselves 
back  to  the  date  of  the  contract,  and  the  time  when  the  purchase  mon- 
ey was  paid.  If,  at  that  time,  the  consideration  would  have  been 
deemed  adequate ;  if  the  court  would  then  have  decreed  a  specific  ex- 
ecution of  the  contract,  had  this  suit  then  been  brought,  it  follows,  I 
think,  necessarily,  that  the  consideration  must  now  be  deemed  ade- 
quate, and  the  court  must  now  decree  such  specific  execution.  Can 
there  be  a  doubt,  that  if  this  suit  had  then  been  brought,  the  consider- 
ation would  then  have  been  considered  adequate,  and  the  court  would 
then  have  decreed  specific  execution?  I  think  none  whatever.  Here 
is  a  case  in  which  parties  sui  juris,  perfectly  competent  to  make  a  con- 
tract, fairly  enter  into  one  with  each  other  for  the  sale  and  purchase 
of  a  tract  of  land,  at  a  price  agreed  upon  between  them,  payable  ill 

*  Parts  of  the  opinion  are  omitted. 


G40  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

Confederate  money,  the  only  currency  of  the  country  at  the  time,  and 
for  a  long  time  before  and  afterwards ;  and  the  purchase  money  is 
fully  paid.  Had  not  the  vendee,  then,  a  right  to  have  the  title  to  the 
land?  Could  the  vendor,  then,  have  lawfully  withheld  the  title? 
Would  not  a  court  of  equity,  then,  have  compelled  the  vendor  to  con- 
vey the  title  to  the  vendee  ?  Why  not  ?  Was  not  the  money  for  which 
the  parties  contracted,  and  which  was  received  in  payment,  lawful 
money?  Even  the  Supreme  Court  of  the  United  States,  we  have  seen, 
has  decided  that  it  was,  for  all  the  purposes  of  money,  in  the  business 
transactions  of  the  country.     *     *     * 

We  must  therefore  consider  this  case  as  we  would  consider  it  if  the 
payments  had  been  duly  made  at  maturity.  And  so  considering  it,  I 
cannot  conceive  of  any  ground  on  which  a  suit  by  the  vendee  for  spe- 
cific execution  of  the  contract  after  such  payment  and  during  the  war 
could  have  been  resisted. 

If  I  be  right  in  that,  as  I  think  I  certainly  am,  does  it  not  inevitably 
follow,  that  the  consideration  must  now  be  deemed  adequate,  and  the 
court  must  now  decree  such  specific  execution  ?  Can  the  continued  de- 
fault of  the  vendor  until  after  the  war,  in  not  executing  a  contract 
which  he  ought,  and  might  have  been  compelled  to  have  executed  dur- 
ing the  war,  give  him  any  advantage  over  the  vendee  ?     *     *     * 

If  the  present  value  of  Confederate  money  is  to  be  considered  in  de- 
termining whether  a  consideration  paid  in  it  during  the  war  was  ade- 
quate, instead  of  the  value  at  that  time,  then  we  must  not  only  refuse 
to  compel  the  specific  performance  of  a  contract  founded  on  such  con- 
sideration, but  we  must  undo  and  set  aside  every  executed  contract 
or  transaction  which  was  founded  on  such  consideration ;  because,  if 
there  be  any  inadequacy  at  all  on  account  of  the  present  value  of  Con- 
federate money,  which  is  utterly  worthless,  it  must  of  necessity  be  so 
great  as  to  shock  the  moral  sense;  and  that  is  a  sufficient  ground  for 
setting  aside  an  executed  contract.  The  establishment  of  such  a  doc- 
trine would  produce  incalculable  evils  in  our  southern  country,  and 
make  it  almost  a  pandemonium. 

Upon  the  whole,  I  am  of  opinion  that  there  is  no  error  in  the  decree, 
and  that  it  ought  to  be  affirmed. 

Decree  affirmed. 


WILLARD  v.  TAYLOE. 

(Supreme  Court  of  the  United  States,  1SG9.    8  Wall.  (75  U.  S.)  557, 
19  L.  Ed.  501.) 

Appeal  from  the  Supreme  Court  of  the  District  of  Columbia. 

This  was  a  suit  in  equity  for  the  specific  performance  of  a  contract 
for  the  sale  of  certain  real  property  situated  in  the  city  of  Washington, 
in  the  District  of  Columbia,  and  adjoining  the  hotel  owned  by  the  com- 
plainant, Willard,  and  known  as  Willard's  Hotel. 


Sec.  8)  EQUITABLE   DEFENSES  641 

The  facts  out  of  which  the  case  arose  were  as  follows : 

In  April,  1854,  the  defendant  leased  to  the  complainant  the  property 
in  question,  which  was  generally  known  in  Washington  as  "The  Man- 
sion House,"  for  the  period  of  ten  years  from  the  1st  of  May  follow- 
ing, at  the  yearly  rent  of  twelve  hundred  dollars.  The  lease  contained 
a  covenant  that  the  lessee  should  have  the  right  or  option  of  purchas- 
ing the  premises,  with  the  buildings  and  improvements  thereon,  at  any 
time  before  the  expiration  of  the  lease,  for  the  sum  of  twenty-two 
thousand  and  five  hundred  dollars,  payable  as  follows :  two  thousand 
dollars  in  cash,  and  two  thousand  dollars,  together  with  the  interest  on 
all  the  deferred  instalments,  each  year  thereafter  until  the  whole  was 
paid ;  the  deferred  payments  to  be  secured  by  a  deed  of  trust  on  the 
property,  and  the  vendor  to  execute  to  the  purchaser  a  warranty  deed 
of  the  premises,  subject  to  a  yearly  ground-rent  of  three  hundred  and 
ninety  dollars. 

At  the  time  of  this  lease  gold  and  silver,  or  bank  bills  convertible 
on  demand  into  it,  were  the  ordinary  money  of  the  country,  and  the 
standard  of  values.  In  1861  the  rebellion  broke  out,  lasting  till  1865. 
In  the  interval,  owing  to  the  influx  of  people,  property  in  the  metrop- 
olis used  for  hotels  greatly  increased  in  value,  and  as  was  alleged  by 
Tayloe,  who  produced  what  he  deemed  a  record  to  show  the  fact,  the 
complainant,  Willard,  assigned  an  undivided  half  of  the  property  which 
had  been  leased  to  him  as  above  mentioned  to  a  brother  of  his.  In 
December,  1861,  the  banks  throughout  the  country  suspended  payments 
in  specie,  and  in  1862  and  1863,  the  Federal  Government  issued  some 
hundred  millions  of  notes,  to  be  used  as  money,  and  which  Congress 
declared  should  be  a  tender  in  the  payment  of  debts.  Coin  soon  ceased 
to  circulate  generally,  and  people  used,  in  a  great  degree,  the  notes  of 
the  government  to  pay  what  they  owed. 

On  the  15th  of  April,  1864,  two  weeks  before  the  expiration  of  the 
period  allowed  the  complainant  for  his  election  to  purchase — the  prop- 
erty having  greatly  increased  in  value  since  1854,  the  year  in  which 
the  lease  was  made — the  complainant  addressed  a  letter  to  the  defend- 
ant, inclosing  a  check,  payable  to  his  order,  on  the  Bank  of  America, 
in  New  York,  for  two  thousand  dollars,  as  the  amount  due  on  the  1st 
of  May  following  on  the  purchase  of  the  property,  with  a  blank  receipt 
for  the  money,  and  requesting  the  defendant  to  sign  and  return  the  re- 
ceipt, and  stating  that  if  it  were  agreeable  to  the  defendant  he  would 
have  the  deed  of  the  property,  and  the  trust  deed  to  be  executed  by 
himself,  prepared  between  that  date  and  the  1st  of  May.  To  this  let- 
ter the  defendant,  on  the  same  day,  replied  that  he  had  no  time  then 
to  look  into  the  business,  and  returned  the  check,  expressing  a  wish 
to  see  the  complainant  for  explanations  before  closing  the  matter. 

On  the  following  morning  the  complainant  called  on  the  defendant 
and  informed  him  that  he  had  two  thousand  dollars  to  make  the  first 
payment  for  the  property,  and  offered  the  money  to  him.  The  money 
Boke  Eq—  41 


042  SrECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

thus  offered  consisted  of  notes  of  the  United  States,  made  by  act  of 
Congress  a  legal  tender  for  debts.  These  the  defendant  refused  to  ac- 
cept, stating  that  he  understood  the  purchase-money  was  to  be  paid 
in  gold,  and  that  gold  he  would  accept,  but  not  the  notes,  and  give  the 
receipt  desired.  It  was  admitted  that  these  notes  were  at  the  time 
greatly  depreciated  in  the  market  below  their  nominal  value.5     *     *     * 

On  the  29th  of  April  the.  complainant,  finding  that  the  defendant  had 
left  the  city,  and  perceiving  that  the  purchase  was  not  about  to  be  com- 
pleted within  the  period  prescribed  by  the  covenant  in  the  lease,  and  ap- 
prehensive that  unless  legal  proceedings  were  taken  by  him  to  enforce 
its  execution  his  rights  thereunder  might  be  lost,  instituted  the  present 
suit.     *     *     * 

The  bill  concluded  with  a  prayer  that  the  court  decree  a  specific  per- 
formance of  the  agreement  by  the  defendant,  and  the  execution  of  a 
deed  of  the  premises  to  the  complainant;  the  latter  offering  to  per- 
form the  agreement  on  his  part  according  to  its  true  intent  and  mean- 
insr.     *     ^     ^ 

Mr.  Justice  Field.6  *  *  *  This  contract  is  plain  and  certain 
in  its  terms,  and  in  its  nature  and  in  the  circumstances  attending  its 
execution  appears  to  be  free  from  objection.  The  price  stipulated  for 
the  property  was  a  fair  one.  At  the  time  its  market  value  was  under 
fifteen  thousand  dollars,  and  a  greater  increase  than  one-half  in  value 
during  the  period  of  ten  years  could  not  then  have  been  reasonably  an- 
ticipated. 

When  a  contract  is  of  this  character  it  is  the  usual  practice  of  courts 
of  equity  to  enforce  its  specific  execution  upon  the  application  of  the 
party  who  has  complied  with  its  stipulations  on  his  part,  or  has  sea- 
sonably and  in  good  faith  offered,  and  continues  ready  to  comply  with 
them.  But  it  is  not  the  invariable  practice.  This  form  of  relief  is  not 
a  matter  of  absolute  right  to  either  party ;  it  is  a  matter  resting  in  the 
discretion  of  the  court,  to  be  exercised  upon  a  consideration  of  all 
the  circumstances  of  each  particular  case.  The  jurisdiction,  said  Lord 
Erskine,  "is  not  compulsory  upon  the  court,  but  the  subject  of  discre- 
tion. The  question  is  not  what  the  court  must  do,  but  what  it  may  do 
under  [the]  circumstances,  either  exercising  the  jurisdiction  by  grant- 
ing the  specific  performance  or  abstaining  from  it."  * '  *  •*  It  is 
the  advantage  of  a  court  of  equity,  as  observed  by  Lord  Redesdale  in 
Davis  v.  Hone  [2  Sch.  &  Lef.  348],  that  it  can  modify  the  demands  of 
parties  according  to  justice,  and  where,  as  in  that  case,  it  would  be  in- 
equitable, from  a  change  of  circumstances,  to  enforce  a  contract  specif- 
ically, it  may  refuse  its  decree  unless  the  party  will  consent  to  a  con- 
scientious   modification    of    the    contract,    or,    what    would    generally 

5  Between  the  15th  of  April  and  May  1,  1864,  $1  in  gold  was  worth  from 
$1.73  to  $1.S0  in  United  States  notes. 

e  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  643 

amount  to  the  same  thing,  take  a  decree  upon  condition  of  doing  or 
relinquishing  certain  things  to  the  other  party. 

In  the  present  case  objection  is  taken  to  the  action  of  the  complain- 
ant in  offering,  in  payment  of  the  first  instalment  stipulated,  notes  of 
the  United  States.  It  was  insisted  by  the  defendant  at  the  time,  and 
it  is  contended  by  his  counsel  now,  that  the  covenant  in  the  lease  re- 
quired payment  for  the  property  to  be  made  in  gold.  The  covenant 
does  not  in  terms  specify  gold  as  the  currency  in  which  payment  is  to 
be  made;  but  gold,  it  is  said,  must  have  been  in  the  contemplation  of 
the  parties,  as  no  other  currency,  except  for  small  amounts,  which 
could  be  discharged  in  silver,  was  at  the  time  recognized  by  law  as  a 
legal  tender  for  private  debts. 

Although  the  contract  in  this  case  was  not  completed  until  the  prop- 
osition of  the  defendant  was  accepted  in  April,  1864,  after  the  passage 
of  the  act  of  Congress  making  notes  of  the  United  States  a  legal  tender 
for  private  debts,  yet  as  the  proposition  containing  the  terms  of  the 
contract  was  previously  made,  the  contract  itself  must  be  construed  as 
if  it  had  been  then  concluded  to  take  effect  subsequently.     *     *     * 

We  proceed  to  consider  whether  any  other  circumstances  have  arisen 
since  the  covenant  in  the  lease  was  made,  which  renders  the  enforce- 
ment of  the  contract  of  sale,  subsequently  completed  between  the  par- 
ties, inequitable.     *     *     * 

It  is  true,  the  property  has  greatly  increased  in  value  since  April, 
1854.  Some  increase  was  anticipated  by  the  parties,  for  the  covenant 
exacts,  in  case  of  the  lessee's  election  to  purchase,  the  payment  of  one- 
half  more  than  its  then  estimated  value.  If  the  actual  increase  has  ex- 
ceeded the  estimate  then  made,  that  circumstance  furnished  no  ground 
for  interference  with  the  arrangement  of  the  parties.  The  question, 
in  such  cases,  always  is,  was  the  contract,  at  the  time  it  was  made,  a 
reasonable  and  fair  one?  If  such  were  the  fact,  the  parties  are  con- 
sidered as  having  taken  upon  themselves  the  risk  of  subsequent  fluctu- 
ations in  the  value  of  the  property,  and  such  fluctuations  are  not  al- 
lowed to  prevent  its  specific  enforcement.  Here  the  contract,  as  al- 
ready stated,  was,  when  made,  a  fair  one,  and  in  all  its  attendant  cir- 
cumstances, free  from  objection.  The  rent  reserved  largely  exceeded 
the  rent  then  paid,  and  the  sum  stipulated  for  the  property  largely  ex- 
ceeded its  then  market  value.     *     *     * 

Upon  a  full  consideration  of  the  positions  of  the  defendant  we  per- 
ceive none  which  should  preclude  the  complainant  from  claiming  a 
specific  performance  of  the  contract. 

The  only  question  remaining  is,  upon  what  terms  shall  the  decree  be 
made  ?  and  upon  this  we  have  no  doubt. 

The  parties,  at  the  time  the  proposition  to  sell,  embodied  in  the  cov- 
enant of  the  lease,  was  made,  had  reference  to  the  currency  then  rec- 
ognized by  law  as  a  legal  tender,  which  consisted  only  of  gold  and  sil- 
ver coin.  It  was  for  a  specific  number  of  dollars  of  that  character 
that  the  offer  to  sell  was  made,  and  it  strikes  one  at  once  as  inequitable 


044  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

to  compel  a  transfer  of  the  property  for  notes,  worth  when  tendered 
in  the  market  only  a  little  more  than  one-half  of  the  stipulated  price. 
Such  a  substitution  of  notes  for  coin  could  not  have  been  in  the  pos- 
sible expectation  of  the  parties.  Nor  is  it  reasonable  to  suppose,  if  it 
had  been,  that  the  covenant  would  ever  have  been  inserted  in  the  lease 
without  some  provision  against  the  substitution.  The  complainant 
must,  therefore,  take  his  decree  upon  payment  of  the  stipulated  price 
in  gold  and  silver  coin.     Whilst  he  seeks  equity  he  must  do  equity. 

The  decree  of  the  court  below  will,  therefore,  be  reversed,  and  the 
cause  remanded  with  directions  to  enter  a  decree  for  the  execution,  by 
the  defendant  to  the  complainant,  of  a  conveyance  of  the  premises  with 
warranty,  subject  to  the  yearly  ground-rent  specified  in  the  covenant 
in  the  lease,  upon  the  payment  by  the  latter  of  the  instalments  past 
due,  with  legal  interest  thereon,  in  gold  and  silver  coin  of  the  United 
States,  and  upon  the  execution  of  a  trust  deed  of  the  premises  to  the 
defendant  as  security  for  the  payment  of  the  remaining  instalments  as 
they  respectively  become  due,  with  legal  interest  thereon,  in  like  coin ; 
the  amounts  to  be  paid  and  secured  to  be  stated,  and  the  form  of  the 
deeds  to  be  settled,  by  a  master ;  the  costs  to  be  paid  by  the  complain- 
ant. 

The  Chief  Justice;,  with  Nelson,  J.,  concurred  in  the  conclusion  as 
above  announced — that  the  complainant  was  entitled  to  specific  per- 
formance on  payment  of  the  price  of  the  land  in  gold  and  silver  coin- — 
but  expressed  their  inability  to  yield  their  assent  to  the  argument  by 
which,  in  this  case,  it  was  supported. 


GODING  v.  BANGOR  &  A.  R.  CO. 
(Supreme  Judicial  Court  of  Maine,  1901.    94  Me.  542,  48  Atl.  114.) 

Report  from  supreme  judicial  court,  Aroostook  county. 

Action  by  Llewellyn  Goding  against  the  Bangor  &  Aroostook  Rail- 
road Company. 

Bill  in  equity  praying  for  specific  performance,  heard  on  bill,  an- 
swer, and  proofs. 

From  the  allegations  in  the  plaintiff's  bill  it  appears  that  on  the  10th 
of  December,  1895,  he  executed  and  delivered  to  the  defendant  com- 
pany, in  consideration  of  $150,  a  warranty  deed  of  a  strip  of  land  in 
Masardis,  containing  2%  acres,  for  a  right  of  way ;  that  the  defendant 
company  agreed  to  construct  and  maintain  a  farm  crossing  on  this  strip 
of  land.  He  also  alleged  in  his  bill  that  prior  to  the  delivery  of  this 
deed,  and  at  the  date  of  its  delivery,  also,  the  person  to  whom  he  deliv- 
ered the  deed,  and  from  whom  he  received  the  money  consideration 
therein  named,  as  agent  of  the  company,  agreed  that  the  company 
would  construct  such  farm  crossing,  and  that  relying  upon  such  agree- 
ment he  delivered  the  deed  of  the  right  of  way ;    and  he  prayed  the 


Sec.  S)  EQUITABLE   DEFENSES  045 

court  to  decree  that  this  alleged  oral  contract  be  specifically  performed. 
The  answer  denied  the  contract  to  construct  the  farm  crossing. 

Argued  before  Wiswell,  C.  J.,  and  Emery,  Whitehouse,  Savage, 
and  Fogler,  JJ. 

Wiswsll,  C.  J.  The  defendant's  railroad  extends  through  the  plain- 
tiff's farm.  The  right  of  way  therefor  was  obtained  by  a  deed  .from 
the  plaintiff  to  the  railroad  company  for  a  consideration  named  there- 
in, of  $150.  But  the  plaintiff  claims  that  there  was  an  additional  con- 
sideration ;  that  the  defendant's  agent  who  procured  the  conveyance 
of  the  right  of  way,  and  who  agreed  with  the  plaintiff  in  relation  to 
the  terms  for  such  conveyance,  promised,  in  behalf  of  the  company,  as 
a  further  consideration  therefor,  that  the  railroad  company  should 
build  and  maintain  a  farm  crossing  on  the  plaintiff's  farm  across  the 
railroad  track.  In  this  bill  in  equity  the  plaintiff  seeks  a  decree  for  a 
specific  performance  of  this  alleged  contract.  The  case  comes  to  the 
law  court  upon  report. 

The  plaintiff's  contention  is  denied  by  the  defendant,  and  there  con- 
sequently arises  an  issue  of  fact,  about  which  there  is  considerable  con- 
troversy between  the  parties.  But  we  do  not  deem  it  necessary  to  de- 
termine this  question.  Assuming,  without  deciding,  that  the  alleged 
agreement  was  made  as  part  of  the  consideration  for  the  conveyance, 
we  do  not  think  that  specific  performance  should  be  decreed. 

'The  granting  of  a  decree  for  specific  performance  is  always  discre- 
tionary with  the  court.  The  contract  relied  upon  in  any  case  may  be 
proved  in  the  most  satisfactory  manner,  and  still  there  may  be  rea- 
sons why  the  court,  in  the  exercise  of  its  discretion,  should  not  compel 
the  specific  performance  of  that  contract.  We  think  that  such  reasons 
exist  in  this  case,  and  that  before  a  court  should  compel  a  railroad  com- 
pany to  build  and  maintain  a  grade  crossing  over  its  track,  excepting 
cases  where  public  convenience  may  require  it.  or  perhaps  where  there 
might  be  very  great  individual  inconvenience  if  it  were  not  ordered, 
the  court  should  be  satisfied  that  the  danger  to  public  travel  will  not 
thereby  be  much  increased,  or  that  the  additional  burden  placed  upon 
the  railroad  company  would  not  be  greatly  disproportionate  to  the 
benefit  that  would  be  derived  by  the  individual. 

Very  much  is  required  of  railroads  to  meet  the  demands  of  the  pub- 
lic for  the  rapid  transportation  of  passengers  and  freight,  to  comply 
with  which  the  utmost  diligence  must  be  exercised,  and  everything  that 
affords  unnecessary  opportunities  for  danger  must  be  done  away  with. 
A  grade  crossing  over  a  railroad  track  is  a  place  of  recognized  danger, 
and  every  additional  crossing  necessarily  increases  to  some  extent  that 
danger.  The  time  has  not  yet  arrived  when  such  crossings  can  be  dis- 
pensed with  altogether,  at  least  in  sparsely-settled  communities,  but 
they  should  not  be  unnecessarily  increased  for  the  mere  convenience  of 
an  individual.  At  least,  we  think  the  court  should  not  compel  the 
maintenance  of  such  a  crossing  unless  good  and  sufficient  reasons  exist 
therefor. 


046  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

In  this  case,  in  the  opinion  of  the  court,  the  benefit  that  would  be 
derived  by  the  plaintiff  if  a  decree  were  granted  would  be  slight  in 
comparison  with  the  additional  burden  placed  upon  the  railroad  com- 
pany, and  the  danger  to  travel  upon  the  railroad  would  be  considerably 
increased.  It  appears  that  just  north  of  the  place  of  the  proposed 
crossing  there  is  a  cut  for  a  distance  of  870  feet,  through  which  the 
railroad  track  runs  on  a  curve,  so  that  a  train  coming  south  would  en- 
ter this  cut  near  the  northerly  limit  of  the  plaintiff's  land,  and  continue 
on  a  curve  all  the  way  through  this  cut  until  it  reached  the  place  of 
the  proposed  farm  crossing,  which,  because  of  the  curve  and  cut,  would 
be  shut  out  from  the  view  of  the  approaching  train.  It  is  argued,  and 
it  seems  to  us  with  much  force,  that  upon  this  account  the  proposed 
crossing  would  be  much  more  dangerous  than  under  other  conditions. 
South  of  the  place  of  the  proposed  crossing,  and  only  230  feet  distant 
therefrom,  there  is  already  a  highway  crossing  over  the  track,  so  that 
if  this  crossing  were  ordered  there  would  be  two  grade  crossings  with- 
in a  distance  of  230  feet.  And  by  reason  of  this  highway  crossing  over 
the  railroad  track  the  plaintiff  can,  with  slight  inconvenience,  use  that 
crossing  for  his  purpose. 

For  these  reasons,  we  do  not  think  that  the  relief  asked  for  should  be 
granted.  We  are,  perhaps,  more  ready  to  come  to  this  conclusion  be- 
cause of  the  fact  that  the  plaintiff  is  not  without  ample  remedy.  If  he 
is  right  in  his  contention,  he  may  recover  adequate  pecuniary  compen- 
sation for  any  and  all  damages  that  he  has  sustained  by  reason  of  the 
failure  of  the  company  to  perform  the  contract  made  by  its  authorized 
agent  in  this  respect. 

As  we  have  come  to  this  conclusion  for  the  reasons  above  stated, 
and  not  because  of  a  decision  adverse  to  the  plaintiff  upon  the  issue  of 
fact,  the  bill  should  be  dismissed,  without  costs. 

So  ordered. 


HAMLIN  v.  STEVENS. 

(Court  of  Appeals  of  New  York,  1903.    177  N.  Y.  39,  69  N.  E.  118.) 

Appeal  from  Supreme  Court,  Appellate  Division,  Fourth  Depart- 
ment. 

Action  by  Charles  A.  Hamlin,  administrator  of  Lyman  Stevens, 
against  Julia  E.  Stevens  and  others.  From  a  judgment  of  the  Appel- 
late Division,  affirming  a  judgment  of  the  Special  Term  (78  App.  Div. 
629,  79  N.  Y.  Supp.  1133),  construing  the  will  of  Lyman  Stevens,  Ly- 
man A.  Stevens  appeals. 

Vann,  J.7  This  action  was  brought  for  the  construction  of  the  will 
of  Lyman  Stevens,  deceased,  with  reference  to  certain  questions  not 
material  on  this  appeal.     The  appellant  was  not  made  a  party  in  the 

7  Parts  of  the  opinion  are  omitted. 


Sec.  8)  EQUITABLE   DEFENSES  647 

first  instance,  but  he  was  permitted  to  come  in  as  a  defendant,  and  to 
raise  two  issues  :  (1)  That  according  to  the  terms  of  the  will,  when  con- 
sidered in  the  light  of  surrounding  circumstances,  he  was  one  of  the 
residuary  legatees ;  (2)  that  he  was  entitled  to  one-third  of  the  resid- 
uary estate  by  virtue  of  a  contract  alleged  to  have  been  made  in  his 
interest  between  his  father  and  the  testator  when  he  was  an  infant. 
The  Special  Term  found  against  him  upon  both  issues,  and  the  judg- 
ment entered  accordingly  was  affirmed  by  the  Appellate  Division,  one 
of  the  justices  dissenting.  From  the  judgment  of  affirmance  Lyman 
A.  Stevens  appealed  to  this  court. 

The  will  was  drawn  by  the  testator  himself  but  two  days  before  his 
death.  He  first  bequeathed  to  Lyman  A.  Stevens,  whom  he  described 
as  his  "nephew,"  the  sum  of  $6,000,  and  by  the  next  clause  he  devised 
to  his  "oldest  daughter  Mary  L.  Hamlin"  a  house  and  lot  in  confirma- 
tion of  a  former  informal  gift,  and  gave  her  a  legacy  of  $2,000.  He 
then  devised  to  his  "second  daughter  Grace  S.  Loomis,"  also  in  con- 
firmation of  a  former  informal  gift,  a  house  and  lot,  and  bequeathed 
her  $2,000  in  money.  His  fourth  gift,  of  $1,000,  for  the  benefit  of  a 
religious  organization,  was  followed  by  the  residuary  clause,  whereby 
he  instructed  his  executors — 

"to  administer,  execute  and  keep  employed  all  that  remains  of  my  estate  for 
the  use,  benefit  and  comfort  of  my  beloved  wife  Julia  E.  Stevens  during  her 
natural  life,  *  *  *  and  at  the  decease  of  my  wife  the  residue  remaining 
of  my  estate  shall  be  divided  equally  between  our  children  or  their  heirs." 

The  main  reliance  of  the  appellant  is  upon  the  alleged  contract.    The 

trial  judge  found  that  the  testator — 

"never  made  a  contract  with  the  defendant  Lyman  A.  Stevens,  or  with  his 
parents,  whereby  and  wherein  he  agreed  to  give  to  the  said  Lyman  A.  Stevens 
any  share  of  his  property  at  his  decease,  and  that  there  is  no  clear  and  con- 
vincing evidence  establishing  such  a  contract." 

As  this  finding  was  based  on  conflicting  evidence,  we  are  not  asked 
to  review  it,  but  we  are  asked  to  set  it  aside  and  grant  a  new  trial,  be- 
cause incompetent  evidence  was  received  by  the  trial  court,  although 
duly  objected  to  by  the  appellant.  In  order  to  decide  the  points  raised, 
it  becomes  necessary  to  state  the  leading  facts.  The  testator  died  on 
the  16th  of  October,  1891,  leaving  a  widow,  said  two  daughters,  and 
an  estate  valued  at  $65,000.  The  appellant  is  the  son  of  Leonard  Stev- 
ens, a  brother  of  the  testator,  and  his  wife,  Sarah,  who  lived  in  Huron 
county,  Ohio.  He  resided  with  his  parents  until  April,  1869,  when, 
at  the  age  of  11  years,  he  came  to  Syracuse,  and  lived  with  his  uncle, 
the  testator. 

"From  that  time  onward,"  as  the  trial  justice  said  in  his  opinion,  "he  formed 
a  part  of  the  family  of  Lyman  Stevens,  and  seems  to  have  been  treated  with 
all  the  regard  and  affection  of  a  son.  He  was  reared,  educated,  and  clothed 
by  his  uncle,  and  on  his  part  seems  to  have  repaid  the  latter  for  his  care  by 
affection  and  gratitude  and  by  services  similar  to  those  which  a  child  would 
have  rendered  to  a  father.  He  helped  his  uncle  about  his  farms  and  about  his 
business,  and  the  uncle  often  referred  to  him  as  his  righthand  man  and  as 


64S  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

his  son.  On  several  occasions  he  stated  that  he  knew  no  difference  between 
Lyman  and  his  other  children,  and  that  he  should  make  no  difference  be- 
tween him  and  them  when  he  came  to  divide  his  estate." 

When  he  was  19  or  20  years  old,  the  testator  paid  him  wages  at  the 
rate  of  $10  a  month,  and  after  he  became  of  age  $15  a  month,  and 
charged  him  with  all  sums  paid  to  him  or  for  his  benefit.  His  board 
was  without  charge.  Leonard  Stevens,  his  father,  died  a  good  many 
years  ago,  but  his  mother,  who  was  77  years  old  when  her  deposition 
was  taken  before  the  trial,  testified  that  in  the  fall  of  1868  the  testator, 
while  on  a  visit  to  his  brother  in  Ohio, 

"asked  if  we  were  willing  that  Lyman,  his  namesake,  should  come  to  live  with 
him  as  his  own  son.  He  said  that,  if  we  would  allow  him  to  come  and  live 
with  him  until  he  was  twenty-one,  he  would  educate  him.  and  he  should  share 
in  whatever  earthly  wealth  he  had  at  his  death.  The  subject  was  then 
dropped.  In  January,  next  year  (1869),  brother  Lyman  came  to  visit  us  again. 
*  *  *  My  husband  suggested  that  in  such  a  matter  we.  should  have  some 
legal  papers.  My  brother-in-law  stated  that  he  could  not  see  the  necessity  of 
any  such  a  thing ;  that  he  considered  his  word  just  as  binding  as  any  papers 
that  could  be  drawn  up.  He  said:  'You  need  have  no  misgivings.  I  shall 
always  regard  him  as  my  own  son,  and  always  treat  him  as  such.'  He  said 
that  whatever  worldly  wealth  that  he  should  have  to  dispose  of  at  the  time  of 
his  death  they  should  share  and  share  alike,  his  two  daughters  and  Lyman." 


The  appellant  testified  that  when  he  was  20  or  21  years  of  age  his 
father  showed  these  letters  to  him,  and  he  remembered  that  each  con- 
tained the  statement : 

"That,  if  I  was  allowed  to  come  and  live  with  my  uncle  until  I  was  twenty- 
one  years  old,  I  should  share  equally  with  Mary  and  Grace  in  whatever  prop- 
erty he  had  to  dispose  of  at  the  time  of  his  death." 

He  could  not  state  anything  else  that  the  letters  contained,  except 
that  they  were  signed  by  his  uncle,  and  addressed  to  his  father,  and 
possibly  to  his  mother.     *     *     * 

After  probate  of  the  will  the  amount  due  the  appellant  for  unpaid 

wages  according  to  the  books  of  the  testator  was  paid  him,  and  he  gave 

a  receipt — 

"in  full  for  all  demands  of  every  kind  and  nature  against  the  estate  of  Lyman 
Stevens,  deceased,  except  the  legacy  as  stated  in  the  will." 

He  accepted  the  bequest  of  $6,000  without  objection,  and  without 
notice  of  any  claim  by  virtue  of  the  contract.  About  nine  years  after 
the  probate  of  the  will  this  action  was  commenced  to  obtain  a  construc- 
tion thereof  with  reference  to  subjects  not  now  material.  In  the  mean- 
time the  executors  had  advertised  for  claims,  but  none  was  presented 
by  the  appellant,  who  does  not  appear  to  have  given  any  notice  of  the 
existence  of  a  contract  until  after  this  action  was  commenced. 

Contracts  of  the  character  in  question  have  become  so  frequent  in 
recent  years  as  to  cause  alarm,  and  the  courts  have  grown  conservative 
as  to  the  nature  of  the  evidence  required  to  establish  them,  and  in  en- 
forcing them,  when  established,  by  specific  performance.  Such  con- 
tracts are  easily  fabricated  and  hard  to  disprove,  because  the  sole  con- 


Sec.  8)  EQUITABLE   DEFENSES  649 

tracting  party  on  one  side  is  always  dead  when  the  question  arises. 
They  are  the  natural  resort  of  unscrupulous  persons  who  wish  to  de- 
spoil the  estates  of  decedents.  In  Shakspeare  v.  Markham,  72  N.  Y. 
400,  403,  this  court  declared  that : 

"Contracts  claimed  to  have  been  entered  into  with  aged  or  infirm  persons,  to 
be  enforced  after  death  to  the  detriment  and  the  disinheriting  of  lawful  heirs, 
who  otherwise  would  be  entitled  to  their  estates,  are  properly  regarded  with 
grave  suspicion  by  courts  of  justice,  and  should  be  closely  scrutinized,  and  only 
allowed  to  stand  when  established  by  the  strongest  evidence." 

While  such  contracts  are  sometimes  enforced  by  the  courts,  it  is 
only  when  they  have  been  established  by  evidence  so  strong  and  clear 
as  to  leave  no  doubt,  and  when  the  result  of  enforcing  them  would  not 
be  inequitable  or  unjust.  Thus,  in  a  recent  case  the  agreement  was  in 
writing,  there  were  no  children  to  be  disinherited,  and  no  will  to  show 
the  understanding  of  the  decedent.  Winne  v.  Winne,  166  N.  Y.  263, 
59  N.  E.  832,  82  Am.  St.  Rep.  647.     In  deciding  that  case  we  said : 

"In  cases  of  this  character,  where  it  appears  for  any  reason  that  the  en- 
forcement of  an  agreement  would  be  unfair,  inequitable,  or  unjust,  the  rem- 
edy should  be  denied.     *     *     * " 

We  are  of  the  opinion  that  no  view  of  the  evidence  in  the  case  before 
us  would  warrant  the  conclusion  that  the  alleged  contract  was  made. 
Assuming  that  the  trial  judge  believed  that  the  appellant  and  his  moth- 
er intended  to  tell  the  truth,  still,  owing  to  their  deep  interest,  it  would 
be  unsafe  to  base  a  finding  on  their  testimony  when  it  may  be  followed 
by  such  grave  consequences.  Such  contracts  are  dangerous.  They 
threaten  the  security  of  estates,  and  throw  doubt  upon  the  power  of  a 
man  to  do  what  he  wills  with  his  own.  The  savings  of  a  lifetime  may 
be  taken  away  from  his  heirs  by  the  testimony  of  witnesses  who  speak 
under  the  strongest  bias  and  the  greatest  temptation,  with  all  the  dan- 
gers which,  as  experience  shows,  surround  such  evidence.  The  truth 
may  be  in  them,  but  it  is  against  sound  policy  to  accept  their  statements 
as  true  under  the  circumstances  and  with  the  results  pointed  out.  Such 
contracts  should  be  in  writing,  and  the  writing  should  be  produced,  or, 
if  ever  based  upon  parol  evidence,  it  should  be  given  or  corroborated 
in  all  substantial  particulars  by  disinterested  witnesses.  Unless  they 
are  established  clearly  by  satisfactory  proofs,  and  are  equitable,  specific 
performance  should  not  be  decreed.  We  wish  to  be  emphatic  upon 
the  subject,  for  we  are  impressed  with  the  danger,  and  aim  to  protect 
the  community  from  the  spoliation  of  dead  men's  estates  by  proof  of 
such  contracts  through  parol  evidence  given  by  interested  witnesses. 

During  the  trial  of  this  action  certain  evidence  was  received  under 
the  objection  and  exception  of  the  appellant,  which  we  regard  as  in- 
competent ;  but,  in  view  of  what  has  been  said,  it  is  obvious  that  it 
could  not  have  affected  the  result.  No  competent  evidence  was  ex- 
cluded, and,  if  all  the  testimony  in  favor  of  the  respondents  were  re- 
jected, still  the  evidence  in  favor  of  the  appellant  would  not  have  jus- 
tified the  trial  court  in  finding  that  the  alleged  contract  was  made.    The 


G50  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Cll.  2 

error  therefore  was  harmless,  and  the  judgment  should  be  affirmed, 
with  costs. 

Parker,  C.  J.,  and  Gray,  BarteETT,  Haight,  Cuelen,  and  Wer- 
ner, JJ.,  concur. 

Judgment  affirmed. 


SECTION  9.— RIGHTS  OF  PURCHASER  FOR  VALUE  WITH- 
OUT NOTICE 


POTTER  v.  SANDERS. 

(In  Chancery,  1846.    6  Hare,  1,  67  E.  R.  1057.) 

G.  S.  Sanders  was  seized  in  fee  of  three  closes  of  land,  in  Byfield, 
in  the  county  of  Worcester,  subject  to  a  mortgage  of  £500,  which  he 
offered  to  sell  at  the  price  of  £950,  upon  the  condition  that  the  purchas- 
er should  not  require  a  covenant  for  the  production  of  certain  title- 
deeds  which  Sanders  was  unable  to  obtain.  Potter,  being  informed 
of  this  offer,  wrote  to  Sanders  a  letter,  dated  the  20th  of  April,  1844, 
offering  £800  for  the  land,  taking  the  title  as  it  stood.  In  reply  to  this 
letter  Sanders  wrote  to  Potter  as  follows : 

"Bewley  Mill,  Redditch,  April  23,  1844. 
"Sir — I  received  your  favour  this  morning,  and  in  reply  beg-  to  say  that  I 
accept  of  your  offer  of  £S0O  for  the  land  at  Byfield.     I  have  written  to  Mr. 
Gery  by  this  post,  who  shall  let  you  know  when  the  deeds  are  ready,  which  I 
believe  will  be  in  a  few  days.    Will  that  be  convenient  to  you? 

'Yours,  &c,  G.  S.  Sanders." 

This  letter  was  put  into  the  post  office  on  the  day  of  its  date.  San- 
ders also  wrote  to  Gery  a  letter  of  the  same  date,  as  follows : 

"Dear  Sir — I  have  written  to  Mr.  Potter  to  say  that  he  shall  have  the  land 
ac  Byfield  for  £800.  I  have  told  him  that  I  have  no  doubt  but  that  you  will 
have  the  conveyance  ready  in  a  few  days.  Can  you  do  so?  As  I  am  short  of 
cash,  would  you  ask  him  if  he  would  pay  me  £100  as  a  deposit,  instanter? 
Perhaps  it  would  not  inconvenience  him,  and  it  would  be  of  great  service  to 
me.  You  could  give  him  a  proper  receipt,  signed  by  me,  and  which  would 
make  our  bargain  more  firm.  I  suppose,  as  Mr.  Potter  intends  to  pay  off  the 
mortgage,  it  will  be  necessary  for  the  mortgagees  to  sign  the  deed  ;  and  I 
have  no  doubt  but  that  one  of  them  will  wish  to  be  present  at  the  settling,  to 
receive  the  £500  and  interest.  You  need  not  tell  Potter  as  from  me,  but  hint 
to  him,  that  if  he  does  not  complete  the  purchase  without  delay,  his  chance 
'  will  be  gone. 

"Yours,  &c,  G.  S.  Sanders." 

While  this  correspondence  was  going  on  with  Mr.  Gery  and  Potter, 
Sanders  was  also  in  communication  with  another  party,  who  was  will- 
ing to  purchase  the  land.  On  the  8th  of  April  S.  Gardner,  as  the  agent 
of  William  Coates,  applied  to  Sanders'  father,  who  lived  at  Daventry, 
for  the  price  of  the  land,  and  the  father  on  the  same  day  wrote  to  San- 
ders the  following  letter: 


Sec.  9)       RIGHTS  OF  PURCHASER  FOR  VALUE  WITHOUT  NOTICE  651 

"Dear  George — My  principal  reason  for  writing  is  to  know  the  lowest  price 
you  will  take  for  your  land  at  Bytiekl.  I  have  had  a  person  to  inquire  after 
it  to-day.  He  wishes  for  an  answer  immediately ;  so  please  to  send  me  word 
directly  on  receipt  of  this. 

"Yours,  &c,  Thomas  Sanders." 

This  communication  was  answered  by  a  letter  from  Sanders  to  his 

father,  dated  the  12th  of  April,  1844,  as  follows : 

"My  Dear  Father — Unluckily  I  did  not  send  for  my  letters  yesterday,  so  did 
not  have  your  kind  note  till  this  morning.  I  hope  the  delay  will  not  be  of 
consequence.  My  lowest  price  for  the  Byfleld  land  is  £925;  and  I  will  pay 
for  the  conveyance,  which  will  take  the  £25.  I  should  think  the  timber  on 
the  land  is  worth  £50,  and  that  the  purchaser  would  have  into  the  bargain. 
I  must  admit  I  should  be  glad  to  sell  it,  and  will  leave  it  to  you  to  dispose 
of  it,  if  possible,  sliould  the  parties  offer  even  a  less  sum;  although  I  think 
it  ought  not  to  go  under  the  £925.  Mr.  Gery  would  be  employed  to  convey, 
as  he  has  already  in  his  possession  a  draft  of  the  deed. 

"Yours,  &c,  G.  S.  Sanders." 

The  father  thereupon  wrote  the  following  letter,  dated  the  13th  of 
April,  1844,  to  Gardner: 

"I  have  heard  from  my  son  this  morning.  He  is  willing  to  take  for  his  land 
E950,  the  timber  included,  or  less,  if  the  timber  be  valued.  I  shall  be  glad  to 
hear  from  you  as  soon  as  convenient." 

On  the  23d  of  April  Sanders  wrote  to  his  father : 

"My  Dear  Father — rotter  has  written  to  offer  me  £800  for  the  land  at  By- 
field.  Have  you  heard  anything  from  the  party  you  wrote  to  me  about?  Per- 
haps if  the  party  applying  to  you  has  no  connection  with  Potter,  he  would  be 
induced  to  give  more  if  he  knew  that  I  had  received  an  offer  from  another 
party.  I  received  Potter's  letter  this  morning,  and  am  now  off  to  market,  so 
have  only  time  to  say  all  are  well." 

In  the  morning  of  the  24th  of  April,  1844,  an  interview  took  place 
between  Gardner  and  Sanders'  father,  at  the  house  of  the  latter,  at 
Daventry,  at  which  the  father,  on  behalf  of  Sanders,  agreed  (absolute- 
ly, as  the  witnesses  deposed)  to  sell  to  Gardner,  as  the  agent  of  Coates, 
the  three  closes  of  land  for  £900;  and  the  timber  upon  it  to  be  taken 
at  a  valuation.  Sanders  was  informed  of  this  contract  by  the  follow- 
ing letter  from  his  father : 

"In  reply  to  yours,  received  this  morning,  I  have  to  say  that,  if  you  approve 
of  it,  I  have  sold  your  land  at  Byfield  for  £900 ;  the  timber  upon  it  to  be 
taken  at  a  fair  valuation,  and  the  purchaser  to  pay  for  the  conveyance,  and 
you  for  the  title.  The  purchaser  is  acquainted  with  the  title,  and  will  pay  for 
the  land  at  Midsummer  or  Michaelmas  next ;  which  you  think  proper.  I  have 
promised  to  give  an  answer  on  Saturday  next,  if  I  can  learn  from  you  before 
that  time.     I  hope  you  will  be  pleased  with  what  I  have  done." 

The  transactions  after  the  24th  of  April,  1844,  were  these : 
By  a  letter,  dated  the  24th  of  April,  but  bearing  the  post-mark  of  the 
26th,  Sanders  stated  to  Potter  that  his  father  had  sold  the  land  before 
the  letter  to  Potter  of  the  23d  of  April  was  written.  Sanders,  in  reply, 
was  informed  by  Mr.  Gery,  in  a  letter  of  the  28th  of  April,  that  Pot- 
ter insisted  upon  his  contract,  and  that  he  (Mr.  Gery)  thought  there 
was  no  alternative  for  Sanders  but  to  submit  to  perform  it.  Sanders, 
in  a  letter  to  Mr.  Gery  of  the  30th  of  April,  acquiesced  in  this  view, 
and  reiterated  his  request  for  the  immediate  payment  of  £100  in  part 


652  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

of  the  purchase-money.  Other  communications  passed  with  reference 
to  the  performance  of  the  contract  and  preparation  of  the  conveyance, 
and  on  the  7th  of  May  Potter  paid  Sanders  £100  in  part  of  his  pur- 
chase-money of  £800.  On  the  other  hand  Sanders,  on  the  26th  of 
April,  replied  to  his  father's  letter  of  the  24th  of  April  thus : 

"My  Dear  Father — I  am  inueh  pleased  with  the  bargain  you  have  made  for 
me.  I  should  wish  the  purchase  to  te  completed  at  Midsummer.  As  Aplin 
will  have  to  make  the  conveyance,  the  title  is  sure  to  be  correct.  Who  is  the 
purchaser?" 

On  the  27th  of  April  a  memorandum  of  agreement  was  drawn  up 
in  writing  and  signed  by  Sanders'  father  as  the  agent  of  Sanders,  and 
Gardner  as  the  agent  of  Coates,  in  the  terms  of  the  contract  already 
stated,  with  the  additional  provision  that,  at  Midsummer,  the  purchase 
was  to  be  completed  and  possession  given  to  the  purchaser. 

At  the  time  of  the  foregoing  transactions  neither  Coates  nor  Gard- 
ner, his  agent,  had  any  notice  of  the  contract  which  Sanders  had  made 
with  Potter;  but  Gardner  received  notice  of  that  contract  early  in 
May,  and  on  the  14th  of  the  same  month  formal  notice  thereof  was 
given  to  Coates ;  and  Coates  and  Sanders  were  informed  that  Potter 
insisted  upon  his  right  to  have  the  contract  performed. 

By  indentures,  dated  the  31st  of  May  and  the  1st  of  June.  1844, 
Sanders  and  the  mortgagees,  by  his  appointment,  conveyed  the  land  to 
Coates,  in  consideration  of  the  payment  by  the  latter  of  the  purchase- 
money  mentioned  in  the  memorandum  of  agreement  of  the  27th  of 
April. 

The  bill  was  filed  by  Potter  against  Sanders  and  Coates ;  and  it 
prayed  that  Sanders  might  be  decreed  specifically  to  perform  his  con- 
tract with  Potter  for  sale  of  the  land,  and  that  Coates  might  be  de- 
clared to  be  a  trustee  for  Potter,  and  that  Coates  and  Sanders  might 
be  decreed  to  convey  the  premises  to  Potter ;  or  if  it  should  appear 
that  Coates  had  no  notice  of  the  contract  with  Potter  before  the  con- 
veyance, then  that  an  account  might  be  taken  of  what  was  due  to  Pot- 
ter from  Sanders  for  principal  and  interest  on  the  £100,  and  that  San- 
ders might  be  ordered  to  pay  the  same  and  the  costs  of  the  suit  to  Pot- 
ter. 

Gardner,  who  was  the  agent  of  Coates,  stated  in  his  evidence  that, 
on  the  17th  of  April,  1844,  he  made  an  offer  for  the  land  to  Sanders' 
father,  who  promised  him  the  refusal  for  a  week,  and  that  he  com- 
pleted the  contract  on  the  24th  of  April,  on  which  day  the  week  would 
expire. 

The;  Vicf,-Chancexlor  [Sir  Jamics  Wigkam],  after  stating  the 
facts  which  took  place  before  and  on  the  24th  of  April,  and  the  subse- 
quent conveyance  to  Coates :  The  above  facts  are,  I  believe,  sufficient 
to  raise  the  question  at  issue  between  the  parties ;  for  I  lay  out  of  the 
case  the  argument  at  the  Bar  founded  upon  the  facts  deposed  to  by 
Gardner,  but  not  suggested  in  the  pleadings,  that  the  Defendant's  con- 
tract of  the  24th  of  April  is  to  be  referred  to  the  17th  of  April.    The 


Sec.  9)       EIGHTS  OF  PURCHASER  FOR  VALUE  WITHOUT  NOTICE  653 

answer  is  most  explicit  that  the  Defendant's  contract  was  on  the  24th 
and  upon  that  issue  is  joined.  Neither  the  payment  of  the  £100,  which 
was  made  after  notice  of  the  Defendant's  agreement,  nor  the  corre- 
spondence and  communications  which  took  place  between  the  different 
parties  after  the  23d  of  April,  appear  to  me  to  affect  the  question  in 
the  cause,  except  as  they  clearly  show  upon  whom  the  costs  of  this  suit 
ought  to  fall.  On  the  27th  of  April,  1844,  the  Plaintiff  received  a  let- 
ter from  Defendant  Sanders,  dated  the  24th  of  April,  but  having  the 
post  office  mark  of  the  26th,  and  which  cannot  by  any  possibility  be 
correctly  dated,  in  which  he  says,  not  very  candidly,  that  when  his  let- 
ter of  the  23d  was  written,  his  father  had  made  the  contract  with 
Coates.  Sanders  was  soon  afterwards  informed  by  a  letter  from  Mr. 
Gery  that  the  plaintiff  insisted  upon  the  performance  of  the  contract ; 
and  from  that  time  he  apparently  considered  the  Plaintiff  entitled  to 
the  benefit  of  his  contract.  He  desired  Gery  to  proceed  with  the  con- 
veyance, suggested  that  a  formal  agreement  in  writing  be  prepared  to 
make  the  matter  safe ;  and  on  the  7th  of  May  received  from  the  Plain- 
tiff £100  on  account  of  his  purchase.  However,  on  or  soon  after  the 
14th  of  May  his  views  were  altered,  and  he  appears  then  to  have  con- 
sidered the  Defendant  Coates,  entitled  to  a  performance  of  the  con- 
tract entered  into  on  his  behalf.  None  of  these  matters,  however  fer- 
tile they  may  have  been  as  topics  for  observation  upon  conduct,  appear 
to  me  to  affect  the  dry  legal  questions  to  which  I  am  bound  to  confine 
myself. 

The  first  question  is  whether  the  Plaintiff's  contract  has  not  priority, 
in  point  of  time,  over  the  verbal  contract  made  with  Coates  on  the  24th 
of  April.  If  that  question  be  answered  in  the  affirmative,  it  will  dis- 
pose of  the  wdiole  case.  For  the  property  comprised  in  the  contract 
would  cease  to  belong  to  the  vendor  from  the  moment  that  contract 
was  concluded;  and  I  am  quite  clear  (in  the  circumstances  which  I 
have  detailed)  that  Coates  can  derive  no  advantage  from  the  convey- 
ance of  the  legal  estate  taken  after  notice  of  the  Plaintiff's  agreement 
for  purchase,  and  whilst  his  own  position  was  unaltered  by  payment  of 
purchase-money,  or  otherwise,  under  an  agreement  which,  if  the  Plain- 
tiff's contract  had  priority,  would  be  void  from  the  beginning. 

For  the  purpose  of  answering  the  question  whether  the  Plaintiff's 
contract  had  priority,  I  was  at  one  moment  inclined  to  direct  an  inquiry 
(the  answer  to  which  I  felt  certain  I  might  anticipate)  at  what  hour  of 
the  24th  of  April  the  letter  of  the  23d  was  delivered  at  the  Plaintiff's 
residence  in  the  regular  course  of  post.  I  cannot  doubt  that  it  would 
be  delivered  before  the  verbal  contract  with  Coates  was  made ;  and,  if 
so,  that  would  decide  the  case.  But,  upon  further  consideration,  I 
think  it  unnecessary  to  direct  that  inquiry.  The  delivery  of  the  letter 
on  the  24th  was  merely  the  completion  of  an  act  by  which  the  vendor 
had  bound  himself  on  the  23d.  If  the  vendor  had  died  on  the  23d  aft- 
er posting  the  letter  of  that  date,  I  can  scarcely  entertain  a  doubt  but 
that  the  Plaintiff  would  in  this  Court  have  been  the  owner  of  the  estate 


0'u4  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

as  against  the  heir  of  the  vendor.  But  without  carrying  the  point  fur- 
ther, I  think  the  vendor,  when  he  put  into  the  post  office  the  letter  to 
the  Plaintiff  of  the  23d  of  April,  did  an  act  which,  unless  it  were  in- 
terrupted in  its  progress,  concluded  the  contract  between  himself  and 
the  Plaintiff.  I  cannot,  in  short,  doubt  but  that  the  letter  of  the  23d 
was  a  revocation  of  the  authority  which  the  vendor  had  given  to  his 
father  to  make  a  contract  for  him  for  the  sale  of  the  estate.  Independ- 
ently, therefore,  of  the  consideration  that  the  contract  with  Coates  of 
the  24th  of  April  was  a  verbal  contract  only,  I  think  the  Plaintiff  is  en- 
titled to  a  decree. 

In  the  preceding  observations  I  have  assumed  that  the  agreement 
made  with  Coates  on  the  24th  was  absolute  in  the  first  instance.  But 
from  the  contemporaneous  letter  of  Sanders,  the  father,  it  may  be 
doubted  whether  the  agreement  was  not  conditional ;  and  if  that  were 
so,  there  can  be  no  doubt  that  Sanders'  letter  of  the  23d  of  April  to 
the  Plaintiff  was  received  before  Sanders  could  have  assumed  to  con- 
form to  the  agreement  made  by  his  father. 

Mr.  Romilly  asked  that  the  decree  might  provide  for  the  payment  by 
Sanders  of  the  costs  of  Coates. 

The,  Vice:  Chancellor  [Sir  JamLs  Wigram]  said  that  Coates  was 
aware  of  the  facts  of  the  case  when  he  took  his  conveyance.  If  San- 
ders had  covenanted  to  indemnify  Coates,  he  did  not  require  the  as- 
sistance of  this  Court  to  obtain  his  costs.  If  he  had  not  such  an  ex- 
press covenant,  the  Court  would  not  imply  one. 

Decree  for  specific  performance  of  the  Plaintiff's  contract.  All  nec- 
essary parties  to  convey.  Account  of  the  purchase-money  remaining 
due,  and  of  the  rents  and  profits.  Costs  against  both  Defendants  ;  but 
if  any  part  of  such  costs  shall  be  recovered  against  Coates,  Coates  to 
be  at  liberty,  in  the  name  of  the  Plaintiff,  to  recover  such  costs  over 
against  Sanders,  Coates  undertaking  to  indemnify  the  PlaintiS  in  re- 
spect of  the  costs  of  such  proceedings  as  he  may  take  for  that  pur- 
pose.8 

s  In  Jerrard  v.  Saunders  (1794)  2  Ves.  721,  723,  30  E.  R.  723,  Lord  Chancellor 
Loughborough  thus  voices  the  favored  position  of  the  purchaser  for  value 
without  notice:  "It  was  laid  down  by  [Lord  Nottingham]  that  against  a  pur- 
chaser for  valuable  consideration  this  Court  had  no  jurisdiction.  Fagg's  Case 
(1673)  6  State  Trials  1121  (cited  Earl  of  Huntington  v.  Greenville  [16S2]  1 
Vera.  52),  was  determined  by  him ;  the  Defendant  had  picked  up  from  the  con- 
veyancer's table  the  deed,  that  affected  his  title ;  and  though  he  got  it  in  that 
manner,  Lord  Nottingham  would  not  oblige  him  to  set  it  forth.  A  case,  that 
occurred  to  my  recollection,  produced  many  points:  it  is  Basset  v.  Nosworthy 
(1673)  Finch,  102.  The  Plaintiff  took  up  the  cause  as  heir  of  Lady  Seymour, 
claiming  under  a  legal  title:  the  Defendant  set  up  a  purchase  for  a  valuable 
consideration  without  notice:  Lord  Bridgeman  had  over-ruled  the  plea;  in 
consequence  of  which  a  great  variety  of  proceedings  took  place  in  this  Court. 
It  came  before  Lord  Nottingham;  he  reversed  Lord  Bridgeman's  order;  and 
suppressed  all  the  proceedings  that  took  place  in  consequence  of  the  produc- 
tion and  discovery.  The  book  does  not  state  it  amiss:  'A  purchaser  bona  Me 
without  notice  of  any  defect  in  his  title  at  the  time,  he  made  the  purchase, 
may  buy  in  a  statute,  or  mortgage,  or  any  other  incumbrance ;  and  if  he  can 
defend  himself  at  law  by  any  such  incumbrance  bought  in,  his  adversary  shall 


Sec.  9)       RIGHTS  OF  PURCHASER  FOR  VALUE  WITHOUT  NOTICE  G55 

TAYLOR  v.  BAKER. 

(Court  of  the  Exchequer,  1818.    5  Price,  307.) 

The  plaintiff  filed  this  bill  in  the  character  of  a  prior  incumbrancer, 
with  notice,  praying-,  to  be  let  in  to  redeem  a  previous  mortgage  subse- 
quently assigned  to  the  defendant  Baker ;  and  that  a  posterior  fraudu- 
lent sale  to  him  might  be  set  aside;  and  for  an  injunction  of  a  pending 
action  of  ejectment.9     *     *     * 

Richards,  Lord  Chief  Baron,  having  stated  all  the  circumstances 
of  the  case  with  much  particularity,  both  at  the  commencement,  and 
in  the  other  corresponding  part  of  the  judgment,  observed:  ^"hen 
Strong  mortgaged  the  premises  to  the  plaintiff,  he  was  merely  the  own- 
er of  the  equity  of  redemption,  which  he  conveyed  to  Taylor  by  the 
deed  of  October,  1814.  Afterwards  Baker  proposed  to  purchase  the 
property ;  and  he  admits,  that  during  that  treaty  Strong  informed  him, 
that  he  had  given  the  plaintiff  a  judgment,  or  warrant  of  attorney,  so 
that  he  clearly  had  notice  that  some  sort  of  security  had  passed  from 
Strong  to  Taylor,  and  that  was  certainly  such  notice  of  an  existing 
prior  incumbrance,  as  should  have  put  him  on  further  inquiry.  Soon 
after  that  the  plaintiff's  attorney  shewed  the  deeds  to  Metcalfe,  Baker's 
attorney,  so  that,  undoubtedly,  the  treaty  and  the  purchase  were  com- 
pleted after  admitted  notice.  Then,  Baker  having  procured  the  first 
mortgage  to  be  assigned  to  him,  the  court  could  not  interfere  to  re- 
strain him  from  getting  the  possession  by  law,  because  he  had  clearly 
acquired  the  legal  estate. 

On  that  part  of  the  case,  the  rule  certainly  is,  that  between  parties 
who  have  equal  equity,  whoever  gets  the  legal  estate  shall  be  preferred : 
but  then  there  must  be  equal  equity,  not  only  in  their  titles,  but  in  the 
transactions  on  which  their  claims  are  founded.  Here  (it  is  true)  both 
parties  were  equitable  incumbrancers,   but  the  plaintiff  was  a   prior 

never  be  aided  in  a  Court  of  equity  for  setting  aside  such  incumbrance ;  for 
equity  will  not  disarm  a  purchaser,  but  assist  him ;  and  precedents  of  this 
nature  are  very  ancient  and  numerous;  Tiz.  where  the  Court  hath  refused  to 
give  any  assistance  against  a  purchaser  either  to  an  heir,  or  to  a  widow,  or  to 
the  fatherless,  or  to  creditors,  or  even  to  one  purchaser  against  another.'  I 
am  perfectly  satisfied  upon  the  general  reasoning,  that  this  Court  will  never 
extend  its  jurisdiction  to  compel  a  purchaser,  who  has  fully  and  in  the  most 
precise  terms  denied  all  the  circumstances  mentioned  as  circumstances,  from 
which  notice  may  be  inferred,  to  go  on  to  make  a  farther  answer  as  to  all  the 
circumstances  of  the  case,  that  are  to  blot  and  rip  up  his  title.  To  do  so 
would  be  to  act  against  the  known  established  principles  of  this  Court.  I 
think,  it  has  been  decided,  that  against  a  purchaser  for  valuable  consideration 
without  notice  this  Court  will  not  take  the  least  step  imaginable.  (See  Wal- 
wyn  v.  Lee  [1S03]  9  Yes.  24.)  I  believe,  it  is  decided,  that  you  cannot  even 
have  a  bill  to  perpetuate  testimony  against  him.  I  am  pretty  sure,  it  is  de- 
termined, that  no  advantage,  the  law  gives  him,  shall  be  taken  from  him  by 
this  Court.  The  doctrine  as  to  the  jurisdiction  of  this  Court  is  this:  you 
cannot  attach  upon  the  conscience  of  the  party  any  demand  whatever,  where 
be  stands  as  a  purchaser  having  paid  his  money,  and  denies  all  notice  of  the 
circumstances  set  up  by  the  bill." 
'J  The  statement  of  facts  is  abridged. 


656  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

mortgagee;  and  though  the  defendant  Baker  had  acquired  the  legal 
estate,  it  is  clear  that  before  taking  his  mortgage,  and  thereby  getting 
the  legal  estate,  he  knew  that  Taylor  had,  at  that  time,  an  honest  charge 
on  the  estates :  and  even  had  it  been  but  a  judgment,  it  would  still  have 
been  a  lien  on  the  land,  and  therefore  such  notice  of  some  species  of 
prior  incumbrance  as  would  have  bound  the  mortgagee,  and  it  became 
Baker's  duty  to  ascertain  as  he  might  have  done  the  true  state  of  the 
fact. 

In  all  events,  then,  supposing  Baker  to  have  any  right  at  all  against 
the  plaintiff,  it  could  only  be  on  the  ground  of  the  money  (if  any)  which 
had  been  actually  paid  by  him  on  Strong's  account,  prior  to  the  2d  of 
January.  But  he  would  not  be  entitled  even  to  that,  if  he  had  had,  in 
point  of  fact,  notice  of  the  plaintiff's  prior  incumbrance,  which  I  cannot 
but  consider  that  he  had ;  and  I  think  that  there  is  no  difference  in 
this  case,  in  point  of  law,  whether  it  were  a  judgment  or  a  mortgage, 
and  notice  of  one  was  equivalent  to  notice  of  the  other. 

As  to  the  costs,  notwithstanding  the  rule,  that  a  mortgagee  generally 
is  entitled  to  costs,  yet  when  there  has  been  unfair  dealing,  that  forms 
an  exception;  therefore  the  defendants  Baker  and  Strong  must  not  be 
allowed  costs. 

The  ejectment  being  founded  on  a  legal  right,  I  cannot  restrain  the 
defendant  from  proceeding.     In  all  other  respects  I  shall. 

Decree  for  the  plaintiff,  with  costs. 


ATTORNEY  GENERAL  v.  WILKINS. 

(In  Chancery,  1S53.    17  Beav.  285,  51  E.  R.  1045.) 

The;  Master  of  thk  Rolls  [Sir  John  Romilly].10  :;:  *  * 
The  information  was  filed  to  enforce  a  legal  right  to  a  rent  charge,  and 
the  defences  set  up  in  answer  are :  First,  a  purchase  for  valuable  con- 
sideration without  notice.  *  *  *  I  am  of  opinion  that  the  defence 
of  a  purchase  for  valuable  consideration  without  notice  is  a  good  de- 
fence to  this  bill.  Though  the  earlier  authorities  are  certainly  contra- 
dictory, yet  the  later  decisions  are  very  strong  upon  this  point,  and 
support  such  a  defence ;  and  I  think,  upon  principle,  that  it  is  but  rea- 
sonable that  it  should  prevail.  This  defence  is  the  mere  creature  of  a 
Court  of  Equity,  and  does  not  exist  at  law.  There,  if  a  person  having 
a  legal  title  to  land  or  to  a  rent  charge  seeks  to  enforce  that  title,  it  is 
no  defence  to  say  I  purchased  that  land  or  that  rent  charge ;  and  though 
you  may  have  a  legal  title,  still,  as  against  me,  you  cannot  recover  at 
law.  His  legal  title  will  prevail  notwithstanding.  But  a  Court  of 
Equity  holds  that  it  is  not  equitable  for  a  person  who  has  bought  for 
valuable  consideration  without  notice  of  any  claim  to  be  deprived  of 
that  for  which  he  has  paid  his  money,  nor  will  it  (as  expressed  by  Lord 

i°  Parts  of  the  case  are  omitted. 


Sec.  9)       RIGHTS  OF  PURCHASER  FOR  VALUE  WITHOUT  NOTICE  657 

Eldon  in  Wallwyn  v.  Lee,  9  Yes.  24,  and  as  was  also  said  in  Joyce  v. 
De  Moleyns,  2  Jon.  &  Lat.  374)  give  any  assistance  against  a  purchaser 
for  valuable  consideration  without  notice  to  a  party  claiming  against 
him.  But  it  is  said  that  this  proposition,  expressed  in  that  general  and 
extended  sense,  cannot  be  maintained,  but  that  it  must  be  confined 
within  these  limits,  namely,  that  the  Court  will  afford  assistance  against 
a  purchaser  for  value,  when  the  claim  made  against  him  is  a  legal  and 
not  an  equitable  claim.  I  am,  however,  unable  to  see  why  the  rule 
should  be  limited  only  to  cases  where  the  right  is  merely  equitable,  and 
not  be  extended  to  the  cases  where  it  is  legal.  I  cannot  concur  in  the 
observations  made  in  the  argument  in  Collins  v.  Archer,  1  Russ.  & 
Myl.  284,  that  a  Defendant,  in  order  to  avail  himself  of  a  defence  of 
being  a  purchaser  for  value  without  notice,  must  either  have  a  legal 
right,  or  a  better  right  than  the  Plaintiff  to  call  for  the  outstanding 
legal  estate,  and  that  consequently  such  a  defence  can  never  be  made 
use  of  against  the  Plaintiff  who  relies  upon  the  legal  title.  The  case 
of  Penny  v.  Watts,  1  M.  &  G.  150,  1  H.  &  T.  266,  is  an  authority  against 
that  proposition,  because  there  was  in  either  no  legal  estate,  and  it  was 
not  determined  which  of  the  two  had  the  better  right  to  call  for  the 
legal  estate.  The  cases  of  Wallwyn  v.  Lee  and  Joyce  v.  De  Moleyns 
expressly  determine  that  the  defence  of  purchase  for  value  without 
notice  is  a  good  defence,  where  the  right  sought  to  be  enforced  is  a 
legal  right ;  and  I  have  in  vain  endeavored  to  discover  upon  what 
ground  it  can  be  held  that  it  is  not  a  defence  against  a  legal  claim  in 
this  Court.  This  Court  certainly  does  not  favour  legal  any  more  than 
equitable  rights,  but  rather  the  contrary ;  and  the  cases  which  involve 
the  consideration  of  legal  rights  are  few  as  compared  with  those  in- 
volving equitable  rights :  but  in  the  case  of  a  purchase  for  value  with- 
out notice,  the  principle  of  the  Court  is  neither  to  afford  assistance, 
nor  to  do  anything  to  prejudice  the  rights.  It  will  not  afford  assist- 
ance against  the  purchaser,  and  it  will  not,  at  his  instance,  restrain 
any  person  from  proceeding  against  him,  but  it  will  leave  all  parties  to 
their  remedies  at  law. 

There  are  many  cases,  amongst  which  are  Rogers  v.  Seale,  Freem. 
84,  Williams  v.  Lambe,  3  Bro.  C.  C.  264,  and  Collins  v.  Archer,  in  which 
it  has  been  held  that  a  defence  of  a  purchase  for  value  without  notice 
is  a  good  defence  against  a  person  seeking  to  enforce  a  legal  right. 

On  the  other  hand,  and  opposed  to  these,  are  the  cases  of  Parker  v. 
Blythmore,  2  Eq.  Ca.  Abr.  79,  pi.  1,  Terrard  v.  Saunders,  2  Yes.  Tun. 
454,  Gait  v.  Osbaldeston,  1  Russ.  158,  5  Mad.  428,  Wallwyn  v.  Lee. 
Joyce  v.  De  Moleyns  and  Penny  v.  Watts,  eight  or  nine  cases,  which 
more  or  less  determine  the  contrary. 

It  is  therefore  necessary  to  consider  the  principle  upon  which  the 
Court  proceeds. 

My  opinion  is  that  it  proceeds  on  this  :  that  when  you  once  establish 
that  a  person  is  a  purchaser  for  value  without  notice  this  Court  will 
Boke  Eq. — 4U 


65S  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

give  no  assistance  against  him,  but  the  right  must  be  enforced  at  law. 
It  is  true,  in  this  case,  that  the  Defendant  has  not  purchased  the  rent 
charge ;  but  he  bought  the  estate  believing  he  was  buying  it  without  any 
rent  charge  upon  it.  If,  therefore,  the  Plaintiffs  have  a  legal  right, 
they  must  enforce  it  at  law.  The  means  of  doing  so  exist  in  this  case. 
Under  the  late  statutes  trustees  might  have  been  appointed  of  this 
charity  and  the  legal  estate  vested  in  them,  and  they  might  then  have 
proceeded  effectually  to  enforce  their  rights  in  a  Court  of  law.  I  think 
this  information  fails,  and  it  must  therefore  be  dismissed,  but  without 
costs. 


MACKRETH  v.  SYMMONS. 
(Iu  Chancery,  1808.     15  Yes.  320.) 

The  Bill  stated,  that  in  the  years  1783  and  1784  the  Plaintiff  was 
indebted  to  John  Manners  in  several  sums,  amounting  in  the  whole 
to  £13,500;  for  which  sums  John  Martindale,  as  surety,  joined  the 
Plaintiff  in  bonds.  In  1790  Martindale,  having  upon  a  settlement  of 
accounts  with  the  Plaintiff  in  1785  taken  credit  for  payment  to  Man- 
ners of  £3,000  undertook  to  discharge  the  remaining  £10,500;  and  they 
settled  an  account  accordingly.  Other  accounts  were  afterwards  set-, 
tied  between  them:  the  last  in  February,  1792;  upon  which  a  balance 
of  £54,000  was  due  to  Martindale,  including  £10,393.  17s.  the  value  of 
annuities,  granted  by  the  Plaintiff;  against  which  Martindale  agreed 
to  indemnify  the  Plaintiff  in  consideration  of  the  Plaintiff's  agree- 
ing to  pay  him  the  amount.  A  bond  for  £20,000  was  given  according- 
ly:  and  a  mortgage  in  fee  was  executed  by  the  Plaintiff  to  Martindale 
for  the  balance  of  £54,000. 

By  indentures  of  lease  and  release,  dated  the  30th  and  31st  of  Octo- 
ber, 1793,  reciting  an  agreement  by  the  Plaintiff  to  sell  the  reversion 
of  the  mortgaged  estates  to  Martindale,  which  was  valued  at  £60,000 
composed  of  the  principal  and  interest,  due  upon  the  mortgage,  those 
estates  were  conveyed  to  Henry  Martindale  and  his  heirs,  to  the  use  of 
the  Plaintiff  for  life;  with  remainder  to  John  Martindale  in  fee. 

The  Bill  farther  stated,  that  John  Martindale  did  not,  according  to 
his  undertaking,  pay  the  sum  of  £13,500  to  Manners,  nor  the  value  of 
the  annuities ;  which  sums  constituted  part  of  the  consideration  for  his 
purchase  of  the  reversion  of  the  estate.  In  September,  1797,  a  Com- 
mission of  Bankruptcy  issued  against  him;  under  which  Manners'  rep- 
resentatives proved  the  debt  upon  the  bonds ;  and  received  dividends : 
the  Plaintiff  being  obliged  to  pay  remainder  of  the  debt  on  account  of 
those  bonds;  being  £14,128.  3s.  9d.  besides  costs,  and  several  sums  on 
account  of  the  annuities. 

lohn  Martindale  before  his  bankruptcy  had  contracted  to  execute 
a  mortgage  to  the  Defendant  of  the  reversion,  comprised  in  the  inden- 
tures of  1793;  and  the  Plaintiff  claiming  a  lien  upon  the  estate  for  the 


Sec.  9)       RIGHTS  OF  PURCHASER  FOR  VALUE  WITHOUT  NOTICE  G59 

payments  he  had  made  in  consequence  of  Martindale's  failure  to  ful- 
fil his  engagements,  gave  notice  to  the  assignees  under  the  Commis- 
sion. In  1798  Symmons  obtained  a  Decree,  that  the  assignees  should 
execute  a  mortgage  of  the  reversion  to  him,  expressly  without  prejudice 
to  the  Plaintiff's  claim ;  and  afterwards  filed  a  Bill  of  foreclosure 
against  the  assignees;  and  obtained  a  Decree;  Mackreth  not  being  a 
party  to  that  suit.  The  legal  estate  was  vested  in  Coutts,  as  a  trustee 
under  a  conveyance  by  Mackreth  and  Martindale  in  1793,  to  secure 
annuities  of  £2,000. 

The  Bill,  filed  by  Mackreth,  prayed  a  declaration,  that  the  Plaintiff 
has  a  lien  upon  the  reversion  of  the  estates,  sold  to  Martindale,  and 
mortgaged  to  Symmons,  for  the  payments  he  had  been  obliged  to  make, 
and  those  sums  which  he  may  hereafter  pay  in  respect  of  the  annui- 
ties, &c. 

The  Defendant  Symmons  by  his  answer  denied,  that  he  had  any  no- 
tice, prior  to  his  entering  into  the  agreement  with  Martindale,  that  the 
Plaintiff  had  not  received  full  consideration ;  and  submitted,  that  had 
no  lien. 

Sir  Samuel  Romilly  and  Mr.  Wriottesley,  for  the  Plaintiff.  The 
equitable  lien  of  a  vendor  upon  the  estate  sold  for  the  purc'hase-money, 
as  against  the  vendee,  and  even  though  a  bond  was  taken,  is  established 
by  a  great  number  of  cases,  from  Chapman  v.  Tanner,  1  Vern.  267,  to 
Nairn  v.  Prowse,  6  Ves.  752.  In  Austen  v.  Halsey,  6  Ves.  475  (see  483), 
your  Lordship  considered  it  as  clearly  settled  ;  except  where  Upon  the 
contract  evidently  the  lien  by  implication  was  not  intended ;  and  the 
case  of  Hughes  v.  Kearney,  1  Schoales  &  Le  Froy,  132,  is  another  di- 
rect authority :  Lord  Redesdale  laying  down  as  a  very  clear  rule,  that 
in  all  cases  the  vendor  has  the  lien ;  and  that  it  lies  upon  the  purchaser 
to  shew  a  special  agreement,  excluding  it :  that  case  being  decided  upon 
that  ground.  It  cannot  be  admitted  certainly  against  a  purchaser  for 
valuable  consideration  without  notice :  but  this  Defendant  has  not  that 
character;  having  merely  an  equitable  agreement  for  a  security,  not 
performed,  when  Martindale  became  a  bankrupt :  the  Plaintiff  giving 
notice  to  the  assignees :  and  the  Decree,  obtained  by  the  Defendant 
Symmons  for  a  mortgage  to  him,  expressing,  that  it  was  without  prej- 
udice to  the  claim  of  this  Plaintiff.     *     *     * 

Mr.  Richards,  Mr.  Alexander,  and  Mr.  William  Agar,  for  the  De- 
fendant. There  is  nothing  in  the  circumstances  of  this  case,  depriving 
this  Defendant  of  the  protection,  due  to  a  purchaser  for  valuable  con- 
sideration without  notice :  his  transaction  with  Martindale  being  per- 
fectly fair :  the  vendor  claiming  a  preference  by  way  of  lien  for  the 
purchase  money,  remaining  unpaid ;  as  an  equitable  charge,  prior  in 
time ;  though  he  took  the  security  of  Martindale  to  that  extent.  Under 
such  circumstances  the  lien  has  never  been  established :  nor  can  the  in- 
ference, necessary  to  maintain  it,  be  collected  either  upon  principle  or 
authority.  The  general  case  of  lien,  as  between  vendor  and  vendee,  is 
admitted  ;  where  there  is  no  special  agreement :  no  security  taken  in  re- 


660  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

spec't  of  the  purchase-money :  but  this  Equity  has  not  been  carried  be- 
yond that  simple  case  of  vendor  and  vendee.     *     *     * 

Sir  Samuel  Romilly,  in  Reply.     *     *     * 

As  to  this  Defendant,  if  from  the  passage,  appearing  in  the  report 
of  Pollexfen  v.  Moore  it  is  supposed,  that  the  lien  cannot  be  extended 
to  a  purchaser  from  the  original  vendee,  it  would  be  perfectly  ineffectu- 
al :  but  that  proposition  is  contradicted  by  many  authorities.  In 
Walker  v.  Preswick  (2  Ves.  sen.  622)  it  is  distinctly  laid  down,  that  the 
lien  prevails  against  a  purchaser  with  notice.  Upon  what  principle 
can  such  a  distinction  between  this  and  any  other  Equity  be  maintain- 
ed? The  point  is  expressly  decided  in  the  same  way  in  Gibbons  v. 
Baddall,  1  Eq.  Ca.  Ab.  682,  note,  viz. :  if  A.  sells  an  estate,  taking  a 
promissory  note  for  part  of  the  purchase-money,  and  then  the  pur- 
chaser sells  to  B.,  who  has  notice,  that  A.  had  not  received  all  the 
money,  the  land  is  in  Equity  chargeable  with  the  money,  due  on  the 
note.  The  Defendant  cannot  be  represented  as  a  purchaser  without 
notice,  merely  as  not  having  notice,  when  he  advanced  his  money.  It 
is  true,  not  then  having  this  estate  in  contemplation,  he  could  not  have 
notice  at  that  time :  but  to  sustain  a  purchase  as  for  valuable  considera- 
tion without  notice,  it  is  essential,  that  there  should  not  have  been  no- 
tice either  when  the  money  was  advanced,  or,  when  the  conveyance  was 
executed.  That  doctrine  has  been  always  held  from  the  earliest  period, 
in  More  v.  Mayhow,  1  Cas.  in  Ch.  34,  to  the  time  of  Lord  Hardwicke 
in  Wigg  v.  Wigg,  1  Atk.  382,  and  Tourville  v.  Nash,  3  P.  Will.  307, 
where  the  notice  was  before  payment  of  the  money ;  and  the  reason 
is,  that  some  suspicion  arises  from  not  taking  the  legal  estate,  when 
the  money  is  advanced.  The  Defendant,  having  the  means,  by  acquir- 
ing the  legal  estate,  of  placing  himself  in  a  situation,  in  which  the  want 
of  notice  would  avail,  merely  took  an  agreement ;  and,  having  only  an 
equitable  title,  cannot  maintain  the  plea  of  purchaser  for  valuable  con- 
sideration without  notice.  The  doctrine,  that  certainly  prevails  between 
mortgagees,  that,  the  equities  being  equal,  a  subsequent  mortgagee  hav- 
ing got  in  the  legal  estate,  may  exclude  a  prior  incumbrance,  applies 
only,  where  the  money  was  advanced  upon  the  credit  of  the  estate ;  not, 
where  the  estate  was  not  in  contemplation,  and  other  securities  were 
looked  to ;  which  is  the  case  of  this  Defendant,  when  he  advanced  his 
money;  and  upon  that  ground  a  judgment  creditor,  taking  in  a  prior 
mortgage,  cannot  tack.  Brace  v.  The  Duchess  of  Marlborough,  2  P. 
Will.  491.     *     *     * 

The  Lord  Chancellor  [Eldon].11  Upon  the  special  circum- 
stances of  this  case  I  shall  postpone  my  judgment:  but  I  should  be 
very  unwilling  to  leave  some  of  the  doctrine,  that  has  been  brought 
into  controversy,  with  so  much  doubt  upon  it,  as  would  be  the  conse- 
quence of  deferring  the  judgment  without  taking  some  notice  of  it. 
The  settled  doctrine,   notwithstanding  the  case  of  Fawell  v.   Heelis, 

ii  P.trts  of  the  opinion  are  omitted. 


Sec.  9)       RIGHTS  OF  PURCHASER  FOR  VALUE  WITHOUT  NOTICE  661 

Amb.  724,  1  Bro.  C.  C.  (3d  Ed.)  422,  note,  2  Dick.  425,  is,  that,  unless 
there  are  circumstances,  such  as  we  have  been  reasoning  upon,  where 
the  vendor  conveys,  without  more,  though  the  consideration  is  upon  the 
face  of  the  instrument  expressed  to  be  paid,  and  by  a  receipt,  indorsed 
upon  the  back,  if  it  is  the  simple  case  of  a  conveyance,  the  money,  or 
part  of  it,  not  being  paid,  as  between  the  vendor  and  the  vendee,  and 
persons,  claiming  as  volunteers,  upon  the  doctrine  of  this  Court,  which, 
when  it  is  settled,  has  the  effect  of  contract,  though  perhaps  no  actual 
contract  has  taken  place,  a  lien  shall  prevail ;  in  the  one  case  for  the 
whole  consideration ;  in  the  other  for  that  part  of  the  money,  which 
was  not  paid.  I  take  that  to  have  been  the  settled  doctrine  at  the  time 
of  the  decision  of  Blackburn  v.  Gregson,  1  Bro.  C.  C.  420;  which  case 
so  far  shook  the  authority  of  Fawell  v.  Heelis  as  to  relieve  me  from 
any  apprehension,  that  Lord  Bathurst's  doctrine  can  be  considered  as 
affording  the  rule,  to  be  applied  as  between  the  vendor  and  vendee 
themselves,  and  persons,  claiming  under  them.     *     *     * 

This  is  an  Equity,  that  in  ordinary  cases  will  affect  a  purchaser. 
Upon  principle,  without  authority,  I  cannot  doubt  that.  It  goes  upon 
this;  that  a  person,  having  got  the  estate  of  another,  shall  not,  as  be- 
tween them,  keep  it,  and  not  pay  the  consideration;  and  there  is  no 
doubt,  that  a  third  person,  having  full  knowledge,  that  the  other  got 
the  estate  without  payment,  cannot  maintain,  that  though  a  Court  of 
Equity  will  not  permit  him  to  keep  it,  he  may  give  it  to  another  person, 
without  payment.  It  is  not  however  necessary  to  discuss  that  upon 
general  principles ;  as  it  has  been  repeatedly  stated  by  authorities,  that 
ought  at  this  time  to  bind  upon  that  point. 

Another  principle,  as  matter  of  general  Law  is  involved  in  this  case: 
what  shall  be  sufficient  to  make  a  case,  in  which  the  lien  can  be  said 
not  to  exist.  It  has  always  struck  me,  considering  this  subject,  that  it 
would  have  been  better  at  once  to  have  held,  that  the  lien  should  exist 
in  no  case,  and  the  vendor  should  suffer  the  consequences  of  his  want 
of  caution ;  or  to  have  laid  down  the  rule  the  other  way  so  distinctly, 
that  a  purchaser  might  be  able  to  know,  without  the  judgment  of  a 
Court,  in  what  cases  it  would,  and  in  what  it  would  not,  exist.     *     *     * 

This  case  remains  to  be  considered  upon  its  own  circumstances,  with 
reference  to  the  points  I  have  stated.  The  questions  are,  first,  suppos- 
ing the  lien  would  have  existed  as  to  the  gross  sum,  the  debt  of  Man- 
ners, and  the  annuities,  or  their  value,  whether  the  circumstances  of 
silence  as  to  the  debt,  and  the  indemnity  taken  against  the  annuities, 
which  is  very  important,  amount  in  equity  to  evidence  of  a  manifest  in- 
tention to  abandon  the  lien  :  if  they  do,  another  very  considerable  point 
is,  whether,  the  lien  having  been  abandoned,  the  Plaintiff  can  set  him- 
self up,  as  a  mortgagee,  claiming  to  redeem  the  Defendant.  If  the  lien 
is  to  be  considered  as  not  abandoned,  the  question  will  be,  not  whether 
a  purchaser  with  notice  would  be  affected  by  the  lien ;  which,  as  general 
doctrine,  I  admit;  but  whether  under  the  circumstances,  attending  the 
contract  with,  and  conveyance  to,  this  Defendant,  it  shall  prevail  against 


602  specific  performance  of  contracts  (Ch.  2 

him.  Upon  the  particular  circumstances  the  case  must  stand  for  judg- 
ment. 

Nov.  26th.  The,  Lord  Chancellor  [Eldon],  having  stated  the 
case  very  particularly,  and  observing,  that  the  legal  estate  in  the  prem- 
ises was,  before  the  assignees  of  Martindale  executed  the  agreement  for 
a  mortgage  to  Symmons,  vested  under  a  former  conveyance  by  Alack- 
reth  in  a  trustee  to  secure  annuities,  granted  by  him,  pronounced  the 
following  judgment : 

This  case,  when  it  was  argued,  and  since,  has  appeared  to  me  to 
involve  a  question  of  very  great  importance;  with  regard  to  which  I 
am  not  able  to  find  any  rule,  which  is  satisfactory  to  my  mind.  If  I 
had  found,  laid  down  in  distinct  and  inflexible  terms,  that,  where  the 
vendor  of  an  estate  takes  a  security  for  the  consideration,  he'  has  no 
lien,  that  would  be  satisfactory;  as,  when  a  rule,  so  plain,  is  once  com- 
municated, the  vendor  not  taking  an  adequate  security,  loses  the  lien  by 
his  own  fault.  If,  on  the  other  hand,  a  rule  has  prevailed,  as  it  seems 
to  be,  that  it  is  to  depend,  not  upon  the  circumstance  of  taking  a  securi- 
ty, but  upon  the  nature  of  the  security,  as  amounting  to  evidence,  as  it 
is  sometimes  called,  or  to  declaration  plain,  or  manifest  intention,  the 
expressions  used  upon  other  occasions,  of  a  purpose  to  rely,  not  any 
longer  upon  the  estate,  but  upon  the  personal  credit  of  the  individual, 
it  is  obvious,  that  a  vendor,  taking  a  security,  unless  by  evidence,  mani- 
fest intention,  or  declaration  plain,  he  shews  his  purpose,  cannot  know 
the  situation,  in  which  he  stands,  without  the  judgment  of  a  Court, 
how  far  that  security  does  contain  the  evidence,  manifest  intention,  or 
declaration  plain,  upon  that  point.  That  observation  is  justified  by  a 
review  of  the  authorities ;  from  which  it  is  clear,  that  different  Judges 
would  have  determined  the  same  case  differently ;  and,  if  some  of  the 
cases,  that  have  been  determined,  had  come  before  me,  I  should  not 
have  been  satisfied,  that  the  conclusion  was  right. 

This  Bill  insists  upon  a  lien,  in  respect  of  these  annuities :  to  be  paid 
all,  that  the  Plaintiff  himself  has  paid;  and  either  as  to  the  original 
value,  or  the  present  value,  or  the  future  payments.  I  state  that  claim 
in  these  different  terms ;  as,  to  determine,  what  is  the  lien,  it  is  neces- 
sary to  point  out  the  amount  of  it ;  and  how  it  is  to  be  calculated.  Some 
doubt  was  thrown  in  the  argument  upon  the  question  of  lien  between 
the  vendor  and  vendee :  but  it  was  not  carried  far ;  and  it  is  too  late  to 
raise  a  doubt  upon  it :  but  it  is  insisted,  that  the  lien  does  not  prevail 
against  third  persons,  even  with  notice  of  the  situation  of  the  vendor 
and  vendee.     *     *     * 

[The  Lord  Chancellor,  after  examining  the  earlier  cases,  con- 
tinued:] 

From  all  these  authorities  the  inference  is,  first,  that,  generally  speak- 
ing, there  is  such  a  lien ;  secondly,  that  in  those  general  cases,  in  which 
there  would  be  the  lien,  as  between  vendor  and  vendee,  the  vendor  will 
have  the  lien  against  a  third  person ;  who  had  notice,  that  the  money 
was  not  paid.     Those  two  points  seem  to  be  clearly  settled.     I  do  not 


Sec.  9)       RIGHTS  OF  PURCHASER  FOR  VALUE  WITHOUT  NOTICE  663 

hesitate  to  say,  that,  if  I  had  found  no  authority,  that  the  lien  would 
attach  upon  a  third  person,  having  notice,  I  should  have  had  no  diffi- 
culty in  deciding  that  upon  principle;  as  I  cannot  perceive  the  differ- 
ence hetween  this  species  of  lien  and  other  Equities ;  by  which  third 
persons,  having  notice,  are  bound.  In  the  case  of  a  conveyance  to  B., 
the  money  being  paid  by  A.,  B.  is  a  trustee;  and  C.  taking  from  him, 
and  having  notice  of  the  payment  by  A.,  would  also  be  a  trustee ;  and 
many  other  instances  may  be  put.  The  more  modern  authorities  upon 
this  subject  have  brought  it  to  this  inconvenient  state ;  that  the  question 
is  not  a  dry  question  upon  the  fact,  whether  a  security  was  taken ;  but 
it  depends  upon  the  circumstances  of  each  case,  whether  the  Court  is 
to  infer,  that  the  lien  was  intended  to  be  reserved ;  or  that  credit  was 
given,  and  exclusively  given,  to  the  person,  from  whom  the  other  se- 
curity was  taken. 

In  this  case,  having,  as  other  Judges  have  had,  to  determine  this 
question  of  intention  upon  circumstances,  I  may  mistake  the  fair  re- 
sult of  the  circumstances,  which  I  have  endeavoured  to  collect.  I  must 
say,  I  have  felt  from  the  first,  that  there  is  upon  the  part  of  the  Plain- 
tiff that  natural  Justice  and  Equity,  which  excite  a  wish,  that  I  could 
enforce  the  lien  throughout :  but,  first,  as  to  the  annuities,  I  am  per- 
suaded, that,  with  reference  to  that  part  of  the  case,  involving  the 
question  of  lien  as  to  the  consideration,  or  any  part  of  it,  or  any  sum  of 
money,  the  quantum  of  which  is  to  be  estimated  with  reference  to  the 
present  value,  or  the  past,  or  future  payments,  this  is  a  case,  in  which 
the  Plaintiff  intended  to  rely  entirely  upon  the  personal  security :  the 
bond  for  £20,000;  and  that  was  the  conception  of  Martindale  also;  by 
whose  default  of  payment  therefore  the  estate  is  not  now  subject  to  the 
lien  in  respect  of  the  consideration  of  the  annuities,  or  any  allowance 
in  respect  of  it.  See,  how  it  stands.  In  1790  the  Plaintiff,  as  principal, 
and  Martindale,  as  surety,  being  engaged  in  an  obligation,  which  I  un- 
derstand to  be  a  personal  one,  for  these  annuities,  agree  to  change  situ- 
ations :  Martindale  to  be  the  principal,  and  the  Plaintiff  to  be  surety ; 
in  consideration  of  which  the  Plaintiff  agrees  to  give  £9,000,  secured 
by  a  mortgage.  It  rests  upon  that  till  1793 ;  when  the  transaction  takes 
this  course ;  that  Martindale  shall  be,  no  longer  a  mortgagee,  but  owner 
of  the  reversion  in  fee ;  and,  which  is  material,  of  the  reversion,  expect- 
ant upon  the  Plaintiff's  life-estate.  The  annuities  remain  upon  the  old 
footing :  that  is,  some  payments  were  made,  or  arrears  accrued,  between 
1792,  and  1793;  and  payments  were  to  arise  from  time  to  time.  The 
value,  given  to  Martindale  in  1792  by  the  mortgage  of  £9,000  for  taking 
the  liability  upon  himself,  was  a  value,  which  merely  by  the  lapse  of 
time  between  1792  and  1793,  must  have  varied.  If  the  annuities  had 
been  paid,  there  must  have  been  a  difference  in  the  estimation :  also'  de 
Anno  in  Annum  the  value  was  decreasing ;  not  only,  as  the  annuities 
were  wearing  out;  but  also  as  the  number  of  the  annuitants  was  de- 
creasing by  death.  It  is  impossible,  it  is  not  natural,  to  suppose,  that 
parties,  dealing  for  the  consideration  of  annuities,  and  the  purchase  of 


GG4  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

a  reversion,  which  might  not  take  effect  in  possession,  until  all  the  an- 
nuitants were  dead,  relied  on  that  reversion,  as  security  in  addition  to 
the  indemnity  by  the  bond  for  £20,000 :  in  the  original  transaction  the 
estate  being  pledged  for  the  sum  of  £9,000,  as  if  actually  paid. 

Then,  as  to  the  lien,  for  what  is  it?  Is  it  for  the  original  sum?  That 
it  cannot  in  justice  be.  Is  it  for  future  payments;  that,  one  sum  be- 
ing paid,  it  does  not  attach :  another  sum  not  being  paid,  it  does  attach : 
a  charge  upon  the  reversion  arising  from  time  to  time,  accordingly  as 
these  payments  are,  or  are  not,  made;  and  is  that  inference  to  be  drawn, 
where  a  conveyance  was  executed  without  the  least  notice  of  such  an 
intention ;  a  security  taken,  not  of  itself  sufficient  to  exclude  the  pur- 
pose of  such  a  lien;  but  the  nature  of  the  subject,  connected  with  the 
fact  of  that  security  taken,  is  decisive  proof  against  such  an  intention ; 
and  it  appears  accordingly  in  the  other  cause,  Symmons  v.  Rankin, 
that  Mackreth  and  Martindale  joined  in  the  conveyance  to  Coutts,  to 
secure  an  annuity  of  £2,000,  without  the  least  reference  to  such  an 
intention.     *     *     * 

As  to  the  other  part  of  the  case,  I  have  considered  long,  whether  the 
conclusion  is  just,  that,  not  meaning  to  have  a  lien,  as  I  think  this  party 
did  not,  with  regard  to  the  annuities,  he  should  mean  to  have  a  lien  as 
to  the  sum  of  money,  due  to  Manners.  My  individual  opinion  is,  that 
the  intention  was  the  same  as  to  both  :  but  with  regard  to  the  latter  the 
cases  authorize  the  lien;  unless  it  is  destroyed  by  particular  circum- 
stances ;  which  do  not  exist  here.  That  sum  is  precisely  in  the  condi- 
tion of  a  part  of  the  consideration,  not  paid ;  and  then  the  inference  in 
equity,  unless  there  are  strong  circumstances,  getting  over  it,  is,  that  a 
lien  was  intended.  This  comes  very  near  the  doctrine  of  Sir  Thomas 
Clarke  (1  Black.  150,  Burgess  v.  Y\  neate) ;  which  is  very  sensible;  that, 
where  the  conveyance,  or  the  payment,  has  been  made  by  surprise, 
there  shall  be  a  lien.  This  Plaintiff  understood  at  the  time  of  the  con- 
veyance, that  this  money  was  to  be  paid  on  his  account  to  Manners ; 
which  is  the  same,  as  if  it  was  to  have  been  paid  to  himself ;  and  was 
not  paid ;  and  then  the  only  question  is,  whether,  as  from  the  special 
circumstances  as  to  the  value  and  nature  of  the  annuities  I  am  to  infer, 
that  a  lien  was  not  intended  as  to  them,  I  must  make  the  same  infer- 
ence with  respect  to  this  gross  sum  ;  as  to  which,  if  the  annuities  were 
not  mixed  with  the  transaction,  the  doctrine  of  equity  is,  that  the  lien 
would  attach.  As  to  that  sum  my  judgment  is,  that  the  Plaintiff  has  a 
lien. 

It  is  contended,  that  there  are  other  circumstances  in  this  case;  that 
the  Defendant  Symmons  has  a  conveyance  of  the  estate  without  notice : 
or  rather,  a  contract ;  as  he  had  notice  at  the  time  of  the  conveyance. 
It  is  not  necessary  to  go  into  the  doctrine  as  to  the  effect  of  notice  at 
the  time  of  the  contract,  or  at  the  time  of  payment  of  the  money  ; 
though  there  is  no  doubt,  the  Defendant,  when  he  took  his  conveyance, 
had  notice  from  the  recitals  in  his  title-deed  of  Mackreth's  rights  ami 
Martindale's  obligations,  as  vendor  and  vendee.    Neither  is  it  necessary 


Sec.  9)       RIGHTS  OF  PURCHASER  FOR  VALUE  WITHOUT  NOTICE  665 

to  go-  into  the  consideration  of  another  argument ;  that  the  Defendant's 
money  was  not  originally  lent  upon  the  faith  of  the  land.  There  is  a 
great  difference  between  the  effect  of  a  judgment,  as  attaching  upon 
the  land,  and  a  special  agreement  by  a  creditor  for  a  security  upon  the 
land.  It  is  not  however  necessary  to  determine  such  questions ;  as 
neither  the  Plaintiff,  nor  the  Defendant  Symmons,  has  the  legal  estate ; 
which  appears  in  the  other  cause  Symmons  v.  Rankin,  to  be  in  Coutts, 
under  the  conveyance  of  1793 ;  in  which  Martindale  and  Mackreth 
joined ;  and  then  between  equities  the  rule  "Qui  prior  est  tempore  po- 
tior est  jure,"  applies. 

The  result  of  this  case  is,  that  the  Bill  must  be  dismissed  as  it  re- 
gards the  annuities  ;  and  is  right  as  to  the  other  part  of  the  claim ;  and, 
being  right  in  one  point,  and  wrong  in  the  other,  the  Decree  must  be 
without  costs.     *     *     * 


MORE  v.  MAYHOW. 

(In  Chancery  before  Lord  Chancellor  Clarendon,  1663.    1  Ch.  Cas.  :!4, 
22  E.  R.  6S0.) 

The  Plaintiff's  Bill  was  to  be  relieved  upon  a  Trust,  and  charged 
the  Defendant  with  Notice  of  that  Trust,  and  that  he  had  gotten  a 
Conveyance  of  the  Lands  upon  which  the  Trust  was  had ;  and  that  at 
or  before  his  taking  the  said  Conveyance,  he  had  Notice  of  the  said 
Trust  for  the  Plaintiff. 

The  Defendant,  by  way  of  Answer,  denied  that  he  had  any  Notice 
of  the  Trust  at  the  Time  of  his  Purchase  or  Contract,  and  pleaded  that 
he  was  a  Purchaser  for  a  valuable  Consideration.  It  was  insisted  the 
Plea  was  not  good,  because  he  did  not  say  what  the  valuable  Considera- 
tion was ;  for  5s.  was  a  valuable  Consideration ;  but  yet  no  equitable 
Consideration. 

The  Court  declared  that  the  Plea  in  this  Case  was  well  enough. 

It  was  further  insisted,  That  the  Plea  was  founded  upon  the  Answer, 
viz.  That  the  Defendant  had  no  Notice,  &c,  And  that  the  Point  of 
Notice  was  not  well  answered,  in  that  the  Defendant  denied  Notice  at 
the  Time  of  the  Purchase  only,  and  the  Word  Purchase  might  be  un- 
derstood when  the  Contract  for  the  Purchase  was  made ;  and  it  might 
be  he  had  no  Notice  then,  and  might  have  Notice  after,  before,  or  at 
sealing  of  the  Conveyance;  And  if  there  was  any  Notice  before  the 
Conveyance  to  him  executed,  that  should  charge  the  Defendant:  And 
that  it  was  so  lately  decreed  in  a  Cause  between  Sir  William  Wheeler 

and  ,  and  Yarraway   and    Nicholas,  by  the   Lord   Chancellor. 

And  so  the  Plea  was  over-ruled. 


GGG  SPECIFIC   PERFORMANCE   OF   CONTRA*  TS  (Ch.  2 

HARDINGHAM  v.  XICHOLLS. 
(Tn  Chancery  before  Lord  Hardwicke,  1745.     3  Atk.  304.) 

A  bill  was  brought  to  be  let  into  the  possession  of  an  estate,  the  de- 
fendant pleaded  a  purchase  for  a  valuable  consideration,  and  that  the 
money  was  paid,  or  is  bona  fide  secured  to  be  paid. 

The  fact  is,  that  the  consideration  money  was  never  paid,  but 
only  secured  to  be  paid. 

Lord  Chancellor.  The  defendant  has  not  paid  the  money  yet, 
and  therefore,  as  he  has  notice  now  of  the  plaintiff's  title,  the  money  he 
has  only  secured  to  be  paid,  may  never  be  paid,  and  consequently  the 
plea  must  be  over-ruled.  Vide  Fitzgerald  v.  Burk,  2  Atk.  397;  Story 
v.  Lord  Windsor,  2  Atk.  630.12 


HARRISON  v.  FORTH. 

(In  Chancery  before  Sir  John  Somers,  Lord  Keeper,  1695.    Prec.  Ch.  51, 

24  B.  R.  26.) 

The  Master  of  the  Rolls  was  of  opinion  in  this  case,  that  if  A. 
purchases  an  estate,  with  notice  of  an  incumbrance,  or  that  it  is  re- 
deemable, and  then  sells  it  to  B.  who  has  no  notice;  who  afterwards 
sells  it  to  C.  who  has  notice;  that  by  this,  the  first  notice  to  A.  the  first 
purchaser,  is  thereby  revived,  and  that  C.  the  last  purchaser  shall  be 
liable  to  the  incumbrance  or  redemption,  as  if  it  had  never  been  in  the 
hands  of  one  who  had  no  notice. 

Afterwards,  on  appeal  to  my  Lord  KEEPER,  it  being  urged,  that  in 
such  case  an  innocent  purchaser  without  notice  may  be  forced  to  keep 
his  estate,  and  cannot  sell  it,  and  shall  be  accountable  for  all  the  prof- 
its received  ab  initio,  his  Lordship  held,  that  though  A.  and  C.  had 
notice,  yet  if  B.  had  no  notice,  the  plaintiff  could  not  be  relieved  against 
the  defendant  C,  and  ordered  C.  to  be  examined  on  interrogatories, 
if  he  ever  saw  the  conveyance  from  the  plaintiff  to  her  sisters,  and  then 
to  be  tried  if  the  defendant  C.  paid  any,  and  what  consideration  for  the 
said  lands ;  and  if  B.  had  notice  at  the  time  of  his  purchase  that  it  was 
redeemable;  for  if  he  had  not,  the  plaintiff  could  not  be  relieved, 
though  A.  and  C.  had  notice.13 

12  See  Wigg  v.  Wigg  <17::'.>)  1  Atkyns,  384,  in  which  Lord  Chancellor  Hard- 
wicke held:  "As  to  the  third  question,  of  notice  to  the  purchaser,  it  appears 
he  had  notice,  for  though  he  had  no  notice  before  he  paid  his  money,  yet  he 
had  notice  before  the  execution  of  the  conveyance,  and  it  is  all  but  one  trans- 
action." 

In  Fitzgerald  v.  Burk  (1742)  2  Atkyns.  397,  Lord  Chancellor  Hardwicke 
said:  "The  plaintiff  claims  as  heir  at  law:  the  defendant's  manner  of  swear- 
ing he  had  no  notice  is  too  restrained,  for  he  does  not  swear  at  or  before  the 
execution  that  he  had  no  notice,  but  cautiously  at  the  time  of  the  execution,  or 
at  the  time  he  paid  the  consideration  money  he  swears  he  had  no  notice.  The 
plea  was  allowed." 

is  In   Brandlyn   v.   Ord   (1738)   1    Atkyns,  571,   Lord   Chancellor  Hardwicke 


Sec.  9)       RIGHTS  OF  PURCHASER  FOR  VALUE  WITHOUT  NOTICE  0G7 

TRINIDAD  ASPHALTE  CO.  v.  CORYAT. 
(Privy  Council,  [1896]  App.  Cas.  5S7.) 

Appeal  from  an  order  of  the  Supreme  Court  of  Trinidad  and  Tobago 
(March  12,  1895),  affirming  a  decree  of  Nathan,  J.  (June  1,  1894). 

The  facts  are  stated  in  the  judgment  of  their  Lordships. 

The  judgment  of  their  Lordships  was  delivered  by 

Lord  HobhousE.14  The  facts  material  for  the  decision  of  this  case 
may  be  stated  in  a  short  compass.  Nicola  Dernier  was  grantee  under 
the  Crown  of  the  land  in  dispute.  One  Alexis  built  a  house  on  it,  hav- 
ing acquired  from  Nicola  a  sufficient  interest  for  that  purpose.  In  the 
year  1881  Dulcinore  Victor  contracted  with  Alexis  and  Nicola  for  the 
purchase  of  the  land,  and  she  paid  for  it,  and  entered  into  possession, 
but  without  any  conveyance.  Nicola  died  in  1885.  In  1888  Dulcinore 
agreed  to  sell  the  land  to  McCarthy  for  thirty  dollars,  and  for  that 
purpose  executed  a  conveyance  which  was  registered.  Marie  Dernier, 
a  sister  of  Nicola,  who  had  lived  with  him,  joined  in  the  conveyance, 
presumably  with  the  object  of  passing  the  legal  estate.  She  however 
was  not  Nicola's  heir.  McCarthy  took  possession,  and  his  title  has 
passed  to  the  defendants,  the  Asphalte  Company.  During  these  trans- 
actions the  land  was  of  very  small  value ;  but  the  development  of  the 
Pitch  Lake  which  it  adjoins  has  increased  its  value  an  hundredfold  or 
so.  In  the  year  1892  the  plaintiff  obtained  a  conveyance  from  the  heir 
of  Nicola. 

The  plaintiff  now  sues  for  possession.  The  defendants  claim  to  be 
equitable  owners  in  fee,  and  demand  that  the  plaintiff  shall  convey  the 
legal  estate  to  them,  on  the  ground  that  he  had  notice  of  their  title 
when  he  bought  the  legal  estate.  Nathan,  J.,  at  the  trial  and  afterwards 
the  Court  of  Appeal  have  decided  in  favour  of  the  plaintiff.  The  de- 
fendants are  now  appealing  against  the  decree  of  the  Supreme  Court. 

The  plaintiff's  counsel  at  this  Bar  have  disputed  the  acquisition  of  an 
equitable  estate  in  the  property  by  Dulcinore.  It  seems  to  have  been 
hardly,  if  at  all,  discussed  in  the  court  below.  At  the  trial  Nathan, 
J.,  spoke  of  it  as  apparently  true,  and  did  not  hint  that  the  reality  dif- 
fered  from   the  appearance.     In  appeal  the  learned  judges,  without 

said:  "That  a  man  who  purchases  for  a  valuable  consideration,  with  notice 
of  a  voluntary  settlement  from  a  person  who  bought  without  notice  shall  shel- 
ter himself  under  the  first  purchaser,  yet  it  must  be  the  very  same  interest  in 
every  respect." 

In  Kettlewell  v.  Watson  (1882)  21  Ch.  Div.  6S5,  707,  the  view  of  the  court 
is  expressed  by  Fry,  J.,  as  follows:  "Lastly,  it  appears  to  me  plain  that  a 
bona  fide  purchaser  for  value  without  notice  may  deal  as  he  will  with  the  es- 
tate which  he  has  acquired,  that  he  has  a  right  to  have  the  whole  world  as 
purchasers  from  him,  and  that  he  has  a  right,  therefore,  to  convey,  even  to  a 
person  cognizant  of  the  infirmity  of  his  title,  any  legal  or  equitable  interest 
which  he  has  acquired,  and  that  any  person  who  has  acquired  any  legal  or 
equitable  interest  under  such  a  purchaser  is  able  to  resist  the  claim  of  the 
plaintiffs." 

i4  Part  of  the  opinion  is  omitted. 


6GS  SrECIFIC   PERFORMANCE    OF   CONTRACTS  (Ch.  2 

intimating  any  doubt,  simply  state  the  fact,  and  conduct  elaborate  legal 
discussions  on  that  basis.  Mr.  Crackanthorpe  has  argued  that  there 
was  no  evidence  on  which  the  court  could  found  such  a  conclusion ; 
but  it  appears  to  their  Lordships  that  the  evidence  is  quite  sufficient  for 
the  purpose. 

The  case  really  made  by  the  plaintiff  below  was  that  he  is  a  purchaser 
for  value  without  notice,  and  that  his  legal  title  overrides  the  equitable 
interest  acquired  by  the  defendants.  The  argument  of  his  counsel  at 
the  trial,  so  far  as  reported  in  the  judge's  notes,  and  the  judgments  in 
his  favour,  all  turn  on  the  absence  of  notice  to  him. 

The  registered  deed  of  conveyance  to  McCarthy  is  *  *  *  on 
the  face  of  it  a  very  careless  composition.  The  names  are  misstated. 
Marie  is  made  to  convey  as  "beneficial  owner,"  though  it  is  stated  that 
she  had  sold  to  Dulcinore  in  the  year  1881,  and  though  it  is  Dulcinore 
and  not  Marie  who  is  the  contracting  vendor  and  the  recipient  of  the 
purchase-money.  Another  mistake  is  made  which  is  not  apparent  from 
the  deed  itself,  namely,  that  Dulcinore  is  represented  as  having  pur- 
chased, not  from  Nicola  as  the  fact  was,  but  "from  Marie,  who  never 
had  any  interest. 

On  the  ground  of  this  mistake  the  learned  judges  below  came  to  the 
very  startling  conclusion  that  the  deed  was  a  nullity ;  that  because  Dul- 
cinore did  not  derive  title  from  Marie  therefore  she  conveyed  nothing 
at  all ;  and  that  McCarthy,  though  he  contracted  for  the  purchase,  not 
of  any  particular  interest  in  the  land  but  of  the  very  land,  and  not  with 
Marie  but  with  Dulcinore,  received  nothing  at  all.  At  best,  they  say, 
the  deed  took  effect  as  between  Dulcinore  and  McCarthy  by  way  of  es- 
toppel. Then  they  proceed  to  discuss  whether  the  plaintiff,  finding  the 
defendants  in  possession,  was  bound  to  inquire  into  the  nature  of  their 
interest,  and  come  to  the  conclusion  that  because  a  system  of  registra- 
tion exists  in  Trinidad  he  was  not  so  bound. 

The  plaintiff's  counsel  here  have  declined  to  attempt  the  hopeless 
task  of  supporting  this  construction  of  the  deed.  It  is  beyond  dispute 
that  it  transferred  to  McCarthy  whatever  interest  Dulcinore  had.  But 
then  they  argue,  if  their  Lordships  rightly  understand  them,  that  this 
transfer,  though  absolute  in  its  terms,  only  operated  between  grantor 
and  grantee,  and  that  as  between  the  grantee  and  all  other  persons, 
only  so  much  interest  passed  as  Dulcinore  derived  from  Marie,  which 
was  nothing  at  all.  This  is  extremely  like  a  reversion  to  the  repudiated 
theory  of  estoppel.  Why  the  deed  should  be  construed  differently  ac- 
cording to  the  person  who  comes  to  construe  it  has  not  been  explained, 
nor  can  their  Lordships  comprehend. 

The  Registration  Ordinance  has  been  referred  to ;  but  its  only  bear- 
ing on  the  case  is,  first,  that  it  gives  legal  priority  to  deeds  according 
to  the  date  of  their  registration  instead  of  the  date  of  their  execution ; 
and,  secondly,  that  it  provides  a  public  office  in  which  they  may  be  seen. 
Here  the  defendants'  deed  was  prior  in  every  respect.  Nothing  turns 
on  the  system  of  registration.     There  is  no  question  in  the  case  beyond 


Sec.  9)       RIGHTS  OF  PURCHASER  FOR  VALUE  WITHOUT  NOTICE  6G9 

the  familiar  one,  whether  the  plaintiff  had  notice,  express  or  other,  of 
the  defendants'  equity  before  he  bought  the  legal  estate. 

Their  Lordships  have  not  been  able  to  understand  how  there  can 
be  room  for  doubt  in  answering  that  question.  There  was  the  deed, 
plain  for  everybody  to  see.  Whatever  was  in  that  deed  the  plaintiff  saw 
and  knew.  And  the  deed  told  him  that  in  the  year  1881  Dulcinore  pur- 
chased the  land,  and  took  possession,  and  that  she  contracted  to  sell  it 
to  McCarthy,  and  actually  conveyed  it  to  him,  and  received  the  pur- 
chase-money. Knowing  all  this,  the  plaintiff  yet  asserts  that  he  had 
no  notice  of  the  grantee's  equity,  because  the  deed  contains  an  errone- 
ous recital  of  the  mode  in  which  that  equity  became  vested  in  the 
grantor. 

The  plaintiff  seems  to  have  imagined  that  he,  a  stranger  to  the  deed, 
was  entitled  to  treat  the  recitals  as  indisputable,  and  to  insist  that  the 
grantee  should  not  shew  the  truth  of  the  case  if  it  was  contrary  to  the 
recitals.  He  has  treated  the  matter  as  though  some  representation  had 
been  made  to  him  on  the  faith  of  which  he  had  acted.  He  did  not  ab- 
stain from  inquiry.  He  inquired  carefully  enough  to  ascertain  that  Ni- 
cola and  not  Marie  was  the  owner  of  the  land,  and  that  Marie  was  not 
Nicola's  heir,  and  to  trace  out  the  heir.  And  then  having  got  the  legal 
estate  he  thought  he  might  safely  proceed  to  eject  the  possessors.  But 
he  never  inquired  in  the  right  and  obvious  quarter.  He  must  have  dis- 
regarded the  fact  disclosed  by  the  deed  that  Dulcinore  purchased  and 
took  possession  in  1881,  when  Nicola  was  living,  as  the  plaintiff,  who 
had  searched  out  the  heir,  must  have  known.  If  he  had  made  inquiry 
with  reference  to  that  fact  and  to  the  inference  which  it  suggests,  he 
would  probably  have  avoided  the  error  which  leJ  him  to  bring  this  suit. 

Their  Lordships  make  this  remark  with  reference  to  the  tone  of  com- 
plaint which  is  taken  on  the  ground  that  the  plaintiff  has  been  deceived 
by  the  recitals  in  the  deed  ;  not  as  intimating  that  the  case  turns  on  the 
question  whether  the  plaintiff  ought  or  ought  not  to  have  made  further 
inquiry.  On  that  question  they  only  think  it  right  to  say  that  they  are 
not  prepared  to  agree  that  the  existence  of  a  register  relieves  one  who  is 
dealing  with  a  vendor  out  of  possession  from  ascertaining  the  interest 
of  one  in  possession  when  that  possession  is  in  accordance  with  a  regis- 
tered deed.  But  they  do  not  rest  their  judgment  on  that  ground.  They 
rest  it  on  the  plain  and  obvious  ground  that  the  plaintiff  had  express 
notice  that  the  defendants  were  transferees  of  Dulcinore's  interest 
whatever  it  might  be,  and  that  an  erroneous  recital  of  her  earlier  title 
does  not  preclude  her  grantee  from  shewing  what  interest  really  passed 
by  her  grant. 

The  consequence  is  that  the  plaintiff's  suit  entirely  fails ;  and  as  he 
has  got  the  legal  estate  with  notice  of  the  defendants'  title,  he  is  bound 
to  convey  it  to  them.  The  proper  course  will  be  to  discharge  the  de- 
crees below ;  to  dismiss  the  plaintiff's  claim  ;  to  give  the  defendants 
judgment  on  their  counter-claim,  and  to  order  the  plaintiff  to  pay  the 
whole  costs  of  the  suit  in  both  courts. 


G70  SPECIFIC   PERFORMANCE    OF   CONTRACTS  (Ch.  2 

Their  Lordships  will  humbly  advise  her  Majesty  in  accordance  with 
this  opinion. 

The  plaintiff  must  also  pay  the  costs  of  this  appeal. 


JARED  v.  CLEMENTS. 

(Court  of  Appeal.     [1903]  1  Ch.  428.) 

Appeal  from  the  decision  of  Byrne,  J.     [1902]  2  Ch.  399. 

The  question  was  whether  as  between  the  plaintiff,  an  equitable 
mortgagee  of  leasehold  property  by  memorandum  of  deposit,  and  the 
defendant,  the  purchaser  of  the  property,  both  of  whom  had  been  de- 
frauded by  one  Charles  Parr,  a  solicitor,  the  legal  estate  and  possession 
of  the  title-deeds  by  the  defendant,  the  purchaser,  gave  him  priority 
over  the  plaintiff,  the  equitable  mortgagee  and  so  enabled  him,  the  de- 
fendant, to  hold  the  property  free  from  the  mortgage.  The  existence 
of  the  equitable  mortgage  came  accidentally  to  the  knowledge  of  the  de- 
fendant before  completion  of  the  purchase,  but  he  accepted  the  assur- 
ance of  Parr,  who  was  the  vendor's  solicitor,  that  the  mortgage  had 
been  paid  off,  that  assurance  being  supported  by  the  production  by 
Parr  of  a  document  purporting  to  be  a  receipt  for  the  mortgage  money 
signed  by  the  plaintiff,  and  which  receipt  Parr,  on  the  completion  of 
the  purchase,  handed  to  the  defendant,  together  with  the  memorandum 
and  the  other  title-deeds.  The  receipt,  which  was  dated  August  10, 
1899,  the  date  of  completion,  instead  of  stating  in  the  usual  form  "This 
day  received,"  stated  "Received''  only.  The  receipt  turned  out  to  be 
forged,  and  this  led  to  the  present  action  being  brought  by  the  equi- 
table mortgagee  against  the  purchaser  to  establish  his  priority  The 
facts  are  fully  stated  in  detail  in  the  report  of  the  case  below. 

Byrne,  J.,  at  the  trial  oi  the  action,  held  that,  under  the  circumstances, 
the  plaintiff,  the  equitable  mortgagee,  had  priority.  The  defendant,  the 
purchaser,  appealed. 

Collins,  M.  R.15  In  my  opinion,  this  appeal  fails.  The  question 
is  between  the  owner  of  an  equitable  charge,  who  has  not  been  paid 
off,  and  the  purchaser  of  the  property,  who  has  got  the  legal  estate. 
Here  we  have  to  deal  with  a  case  of  actual  notice  to  the  purchaser's 
solicitor  of  the  existing  equitable  charge.  That  notice  he  received  prior 
to  August  10,  1899,  the  date  of  the  completion  of  the  purchase.  Hav- 
ing received  that  notice  under  circumstances  which  I  need  not  go  into, 
the  purchaser's  solicitor  entered  into  a  correspondence  with  the  ven- 
dor's solicitor  and  required  that  this  equitable  charge  of  which  he  had 
had  notice  should  be  paid  off.  [His  Lordship  read  the  correspondence, 
and  continued :] 

Then  came  the  date  for  completion,  and  there  is  produced  and  handed 
to  the  purchaser  what  purports  to  be  the  receipt  by  the  person  in  whose 

is  Tart  of  the  opinion  of  Collins,  M.  R.,  is  omitted. 


Sec.  9)       EIGHTS  OF  PURCHASER  FOR  VALUE  WITHOUT  NOTICE  G71 

favour  the  equitable  charge  had  been  given.  Prima  facie  that  appears 
to  be  a  receipt  dated  the  day  of  completion.  It  has  been  argued  on  be- 
half of  the  appellant,  the  purchaser,  that,  having  regard  to  the  form  of 
the  receipt,  his  solicitor,  although  he  had  had  notice  of  the  equitable 
charge,  must  be  treated  as  having  had  notice,  in  effect,  that  it  had  been 
paid  off,  and  was  therefore  justified  in  thinking  it  was  a  dead  charge, 
and  that  unless  he  was  unreasonably  negligent  in  the  way  he  conducted 
the  business  the  legal  title  of  the  purchaser  must  prevail.  That  argu- 
ment seems  to  me  to  involve  a  misconception  of  the  true  rights  of  the 
parties.  This  is  not  a  case  of  constructive  notice  raising  the  question 
whether  all  reasonable  diligence  was  exercised  to  find  out  what  might 
have  been,  but  was  not  in  fact,  discovered.  It  is  true  that  the  learned 
judge  has  held  that  all  due  diligence  was  used  by  the  purchaser's  solic- 
itor, and  that  there  was  no  fault  on  his  part ;  but,  on  the  other  hand, 
there  is  one  broad  fact  underlying  this  case — that  there  was,  in  the 
course  of  this  transaction,  actual  notice  of  an  existing  equitable  charge 
upon  the  property.  After  that,  it  seems  to  me  that  if  the  purchaser 
chooses  to  complete  without  ascertaining  for  himself  whether  the 
charge  has  been  paid  off,  he  does  so  at  his  own  risk.  Having  found  out 
that  the  charge  exists,  he  cannot  set  up  the  legal  estate  as  an  answer 
unless  he  gets  rid  of  the  incumbrance  which  he  knows  to  exist.  The 
result  is  that  he  takes  the  estate  with  the  entire  obligation  existing  under 
the  equitable  charge.  It  is  not  necessary  in  this  case  to  consider  wheth- 
er reasonable  diligence  was  in  fact  exercised  by  the  purchaser's  solici- 
tor, but,  speaking  for  myself  alone,  I  should  hesitate  to  say,  under  the 
peculiar  circumstances  of  this  case,  that  the  solicitor  had  taken  all  rea- 
sonable care  to  see  whether  this  equitable  charge  had  been  satisfied. 
We  start  with  the  fact  that,  until  the  discovery  by  the  purchaser's  solic- 
itor in  searching  the  proceedings  in  the  bankruptcy  of  the  mortgagor, 
no  disclosure  of  this  equitable  charge  was  made  by  the  person  whose 
duty  it  was  to  have  disclosed  it.  He,  on  being  taxed  with  the  existence 
of  the  charge,  at  once  admitted  it,  although  the  purchaser  and  his  solic- 
itor had  been  allowed  to  remain  in  ignorance  of  it ;  and  yet  that  was 
the  person  upon  whose  assurance  the  purchaser's  solicitor  subsequently, 
on  the  completion  of  the  purchase,  was  content  to  rely.  That  point, 
however,  does  not  arise  in  this  case. 

The  result  is  that  the  actual  notice  which,  it  turns  out,  was  not  a 
notice  of  a  dead  charge,  makes  the  risk  fall  upon  the  purchaser,  and 
therefore  the  appeal  fails.     *     *     * 

Romer,  L.  J.  I  am  of  the  same  opinion.  This  is  not  one  of  those 
cases  which  so  frequently  come  before  the  court,  in  which  the  question 
is  whether  a  legal  mortgagee  is  or  is  not  entitled  to  set  up  his  legal  mort- 
gage as  against  an  equitable  mortgage  on  the  ground  of  some  fraud 
or  negligence  on  the  part  of  the  legal  mortgagee.  Rightly  understood, 
the  question  here  is  simply  one  of  title  and  conveyance.  The  facts,  put 
shortly,  are  these.     A  person  contracts  to  purchase  certain  property. 


G72  SPECIFIC   PERFORMANCE   OF   CONTRACTS  (Ch.  2 

Before  completion  he  is  told  of  an  equitable  mortgage  created  some 
time  before  by  his  vendor.  What  is  the  position  of  the  completing  pur- 
chaser when  he  knows  of  this?  He  knows  he  can  not  get  a  title  from 
the  vendor  unless  that  outstanding  equitable  interest  is  got  in  or  de- 
stroyed ;  and  if  he  completes  without  that  equitable  interest  being  got 
in  or  destroyed,  he  can  only  take  the  property  subject  to  that  outstand- 
ing equitable  interest.  In  order  to  get  a  good  title,  it  is  for  him  to  see 
that  the  outstanding  interest  is  got  in  or  destroyed,  unless  indeed  the 
owner  of  the  interest  has  been  guilty  of  some  conduct  which  renders  it 
inequitable  or  improper  on  his  part  to  set  up  his  outstanding  interest 
against  the  purchaser.  But  that  is  not  the  case  here.  The  owner  of 
the  equitable  charge  has  done  nothing  of  that  sort.  The  purchaser 
might  have  asked  that  the  equitable  mortgagee  should  join  in  the  con- 
veyance. He  might  have  gone  himself  to  the  equitable  mortgagee  and 
asked  how  matters  stood ;  or  he  might  have  done  what  in  fact  he  did, 
and  asked  the  vendor  to  get  in  the  equitable  interest.  If  he  chooses  to 
leave  it  to  his  vendor  to  get  in  the  equitable  interest  or  see  that  it  is 
destroyed — however  reasonable  that  course  may  seem  to  be—and  the 
vendor  does  not  do  it,  all  I  can  say  is  that,  under  the  circumstances, 
the  purchaser,  having  left  it  to  the  vendor  to  do  that  which  the  vendor 
has  not  done,  must  suffer  for  it.  He  knew  of  the  existence  of  the  equi- 
table interest  and  has  not  got  it  in,  and  therefore  he  takes  the  property 
subject  to  that  interest,  unless  he  can  prove  that  he  has  got  it  in,  or 
that  the  owner  of  the  interest  has  lost  his  right.  In  my  opinion,  there- 
fore, the  learned  judge  was  right,  and  the  appeal  must  be  dismissed. 

CozEns-Hardy,  L.  J.  I  am  of  the  same  opinion.  The  case  seems 
to  me,  on  the  facts,  to  be  a  plain  one.  I  do  not  base  my  judgment  in 
the  least  upon  any  negligence  on  the  part  of  the  purchaser's  solicitor 
or  upon  any  fraud.  This  is  one  of  those  cases  in  which  one  of  two  in- 
nocent parties  has  to  suffer  for  the  fraud  of  a  third  person.  When  the 
facts  are  known,  the  case  raises  a  simple  question  of  conveyancing. 
There  was  clear  notice  to  the  purchaser  of  an  equitable  charge,  and 
there  was  at  that  time  no  ground  for  presuming  that  the  charge  had 
ceased  to  exist ;  on  the  contrary,  on  completion  two  documents  were 
handed  over  to  the  purchaser,  one  of  them  being  the  receipt  dated 
August  10,  1899,  the  date  of  completion,  and  purporting  to  be  signed 
by  Jared,  the  equitable  mortgagee,  and  the  other  being  the  memorandum 
of  deposit  that  had  been  signed  by  Taylor,  the  vendor.  It  seems  to  me 
to  be  plain  that  it  was  the  duty  of  the  purchaser  to  get  in  or  procure  the 
discharge  of  the  outstanding  interest.  The  transaction  does  not,  in  its 
essence,  differ  in  the  least  from  that  which  the  learned  judge  states, 
by  way  of  illustration,  in  his  judgment.  [1902]  2  Ch.  403.  If  the 
equitable  mortgage  to  Jared  had  been  recited  in  the  conveyance,  and 
Tared  had  been  made  a  party,  and  Parr  had,  at  completion,  brought  to 
the  purchaser  the  deed  actually  signed  by  TaylOr  and  also  purporting  to 
be  signed  by  Jared,  but  not  in  fact  signed  by  him,  and  the  purchaser 


Sec.  9)       RIGHTS  OF  PURCHASER  FOR  VALUE  WITHOUT    NOTICE  673 

had  accepted  the  deed  on  the  assurance  of  Parr  that  Jared's  signature 
was  genuine,  the  position  of  the  purchaser  would  have  been  clear.  The 
present  case  in  no  way  differs  from  that  in  principle.  A  purchaser 
who  knows  of  an  outstanding  equitable  interest  which  has  to  be  got  in 
to  perfect  his  title,  and  on  completion  neglects  to  get  in  that  interest, 
takes  his  conveyance  at  his  own  risk. 
Boke  Eq. — 43 


674  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 


CHAPTER  III 

REFORMATION.  RE-EXECUTION,  RESCISSION,  AND  CAN- 
CELLATION 


SECTION  1.— REFORMATION  AND  RE-EXECUTION 
Basis  and  Grounds  of  Equity  Jurisdiction 
A)  Mutual  Mistake  of  Fact,  Fraud  and  Mistake 


POLLARD  v.  GREENVIL. 

(In  Chancery  before  Lord  Clarendon,  1663.     Cas.  Ch.  10.) 

The  plaintiff  lent  the  Lady  Greenvil  ilOO  and  one  Culliford,  as  her 
chief  agent  and  friend,  became  bound  for  the  same ;  and  the  Lady  hav- 
ing power  to  make  a  lease  in  possession  for  one  and  twenty  years  of 
her  estate,  makes  a  lease  to  Culliford  for  one  and  twenty  years,  to  se- 
cure him  from  the  debt  aforesaid,  and  several  other  debts  he  was  en- 
gaged for  the  said  Lady;  but  the  lease  was  made  to  commence  from 
a  time  to  come,  which  was  void  in  law,  in  respect  her  power  was  but  as 
aforesaid ;  and  Culliford  had  the  possession  for  some  time,  but  was 
afterwards  ousted  by  force  by  the  Lady's  husband;  but  her  hus- 
band not  long  afterwards  dying,  she  enjoyed  it  for  the  remainder  of 
the  term ;  and  Culliford  being  dead,  and  leaving  no  assets,  the  plaintiff 
therefore  preferred  his  bill  here  for  the  debt  aforesaid.  But  for  that 
it  appeared  to  the  court  that  the  money  was  employed  for  his  use  who 
created  the  trust  for  payment  of  debts,  and  she  having  received  the 
profits  for  thirteen  years,  and  for  that  the  lease  was  not  good  in  strict- 
ness of  law,  yet  the  court  was  satisfied  that  the  same  did  amount  to 
a  good  declaration  of  her  power  in  equity  to  make  the  lease  for  one 
and  twenty  years  in  being,  and  that  the  receipts  of  profits  was  also  un- 
der that  power,  and  subject  to  the  trust:  And  although  the  defendant 
did  set  forth  by  answer  that  Culliford  at  the  time  of  his  death  was  in- 
debted to  her,  yet  the  defendant  was  decreed  to  pay  the  debt. 


Sec.  1)  REFORMATION  AND   RE-EXECUTION  675 

LADY  CLIFFORD  v.  EARL  OF  BURLINGTON  et  al. 

(In  Chancery,  1700.     2  Vern.  379,  23  E.  R.  841.) 

The  Lord  Clifford  by  marriage-settlement,  was  made  tenant  for 
life,  of  several  manors  and  lands  in  Ireland,  with  power  to  make  a 
jointure  not  exceeding  £1000  per  ann.  Upon  his  marriage  with  the 
Lord  Berkeley's  daughter,  he  covenanted  to  settle  a  jointure  on  her 
of  £1000  per  ann.,  and  pursuant  thereunto  a  settlement  was  made,  and 
a  particular  of  lands  mentioned,  and  set  out  for  the  jointure,  and  which 
in  the  particular  given  him,  were  computed  at  £1000  per  ann.,  but  in 
truth  fell  short,  and  were  not  above  £600  per  ann.,  the  bill  was  to  have 
the  jointure  made  up  £1000  per  ann. 

It  was  insisted  for  the  defendant,  that  he  claimed  under  the  marriage- 
settlement  as  a  purchaser,  and  the  late  Lord  Clifford  had  only  a  power 
to  have  charged  the  estate  with  £1000  per  ami.,  if  he  had  not  done  it  at 
all,  and  had  died  without  executing  of  his  power,  a  court  of  equity 
could  not  have  done  it  for  him,  and  have  raised  a  jointure  of  £1000 
per  ann.  upon  the  estate,  though  it  had  been  reasonable  and  just  for 
him  to  have  done  it  in  his  life-time.  So  if  he  had  executed  his  power 
but  in  part,  that  cannot  be  extended  or  carried  further  in  equity.  If 
tenant  in  tail  covenants  to  make  a  jointure,  although  he  might  have 
done  it  by  a  fine  or  common  recovery,  a  court  of  equity  cannot  relieve, 
or  decree  a  jointure. 

But  the  court  in  this  case  decreed  the  jointure  to  be  made  up  £1000 
per  ann.  against  the  issue  in  tail,  who  was  not  privy  to  the  marriage- 
treaty,  nor  guilty  of  any  fraud. 


MURPHY  v.  ROONEY. 
(Supreme  Court  of  California,  1872.    45  Cal.  R.  78.) 

By  the  Court.1  *  *  *  The  Court,  having  found  the  fact  that 
by  mistake  of  the  draftsman  some  of  the  terms  of  the  agreement  had 
been  omitted  in  drawing  it  up,  should  have  entered  a  decree  reforming 
the  instrument  in  those  particulars,  and  specifically  enforcing  it  as  re- 
formed. 

Judgment  reversed,  and  cause  remanded  for  further  proceeding,  not 
inconsistent  with  this  opinion. 

i  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


676  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 


TYLER  v.  BEVERSHAM. 

(In  Chancery  before  Sir  Heneage  Finch,  1673.    Rep.  Temp.  Finch,  SO, 

23  E.  R.  42.) 

This  Bill  was  to  be  relieved  against  a  Verdict  and  Judgment  in  Eject- 
ment for  a  Messuage  and  Lands  called  Jenner's  Farm,  held  of  the  Man- 
or of  Holbrook,  for  which  Manor  the  Defendant  agreed  to  give  £4000, 
and  for  which  Purpose  Articles  were  sealed  and  a  Particular  delivered 
by  the  Plaintiff  of  every  Parcel  of  the  Lands,  with  the  Abuttals  and 
Boundaries,  and  afterwards  a  Conveyance  was  executed  thereof,  and 
£4000  was  paid  and  the  said  Manors  and  Lands  were  quietly  enjoyed 
by  the  Defendant,  and  Jenner's  Farm  by  the  Plaintiff. 

But  the  Defendant,  complaining  by  a  former  Bill  in  this  Court,  that 
the  now  Plaintiff  had  infranchised  some  Part  of  the  Copyholds  held 
of  the  same  Manor,  of  which  he  was  seised  before  the  now  Defendant 
had  purchased  the  Manor,  and  the  now  Plaintiff,  by  his  Answer  to  that 
Bill,  said,  that  he,  in  the  Rental  given  by  him  to  the  now  Defendant, 
had  made  himself  Tenant  for  4s.  8d.  Quit-Rent,  and  that  he  bought 
Jenner's  Farm  two  Years  before  he  bought  the  Manor,  and  did  in- 
franchise  the  same,  but  he  was  ignorant  thereof  until  he  was  informed 
by  the  Defendant,  and  therefore  offered  to  become  Tenant  to  him  at 
the  same  Rent,  or  in  the  same  Quality,  or  to  make  him  any  other  Satis- 
faction for  the  same,  in  which  Cause  the  now  Defendant  did  not  think 
fit  to  proceed. 

But  taking  advantage  of  the  general  Words  in  the  Conveyance  made 
to  him  of  the  said  Manor,  viz.  with  all  its  Rights,  Members,  and  Ap- 
purtenances, would  thereupon  include  Jenner's  Farm,  or  at  least  so 
much  thereof  as  was  Copyhold  and  held  of  the  said  Manor,  tho'  the 
same  was  never  agreed  or  intended  to  be  sold  and  conveyed  with  the 
said  Manor,  nor  mentioned  in  the  Particular,  and  yet  the  Plaintiff  hath 
offered  to  make  any  reasonable  Satisfaction  for  the  said  Infranchise- 
ment,  with  Costs  and  Charges  at  Law  in  obtaining  that  Verdict  in 
Ejectment;  but  the  Defendant  pretends,  that  he  was  circumvented,  and 
that  the  Particulars  of  his  Purchase  were  not  true,  but  the  Plaintiff, 
by  his  Counsel  insisted,  that  tho'  there  might  be  a  Mistake,  and  the  De- 
fendant not  well  used  in  this  Purchase  by  relying  on  the  Particular 
given  in  by  the  Plaintiff,  and  by  trusting  too  much  to  him ;  yet  it  ap- 
peared by  the  Confession  of  the  Defendant  himself,  and  by  the  Particu- 
lar, and  by  the  Deed  of  Purchase  itself,  that  there  was  no  Contract 
made  for  Jenner's  Farm,  neither  was  it  valued,  or  intended  to  be  sold, 
or  mentioned  in  the  said  Particular  or  Purchase-Deed,  and  it  being 
fully  proved,  that  the  Plaintiff  enjoyed  the  said  Farm  (being  £24  per 
Annum)  above  6  Years  after  the  said  Purchase  of  the  Manor. 

The  Court  was  of  Opinion,  that  the  said  Farm  could  not,  in  Rea- 
son or  Justice,  be  accounted  Part  of  the  Manor,  and  thereof  declared, 
that  the  Plaintiff  was  intitled  to  Relief ;  and  decreed,  that  he  should  en- 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  677 

joy  Jenner's  Farm,  with  the  Appurtenances  and  that  the  Defendant  re- 
grant  the  same  to  the  Plaintiff  in  such  Manner,  as  such  Part  of  it 
which  is  Freehold,  may  be  held  by  the  Plaintiff  and  his  Heirs,  and 
such  Part  of  it,  which  is  Copyhold,  may  likewise  be  held  by  him  and 
his  Heirs,  but  subject  to  such  Rents,  Duties,  and  Services,  as  before 
the  Plaintiff  purchased  the  said  Manor,  and  that  the  Plaintiff  shall  pay 
to  the  Defendant  all  Arrears  of  Rent  for  the  said  Farm,  since  the 
Purchase  of  the  Manor  by  the  Defendant,  and  a  perpetual  Injunction 
to  stay  the  Defendant's  Proceedings  at  Law,  &c.2 


PAGET  v.  MARSHALL. 
(Chancery  Division,  1884.    28  Ch.  Div.  255.) 

After  negotiation,  and  shortly  before  the  date  of  the  next-mentioned 
letter,  an  agreement  was  made  between  Richard  William  Paget,  acting 
as  agent  for  the  Plaintiff,  Caroline  Matilda  Paget,  and  the  Defendant, 
Wesley  Marshall,  that,  the  Plaintiff  should  make,  and  the  Defendant 
should  accept,  a  lease  for  twenty-one  years  from  the  25th  of  Decem- 
ber, 1883,  at  the  yearly  rent  of  £500,  of  certain  portions  of  three  ware- 
houses, known  as  48,  49  and  50,  Aldersgate  Street,  in  the  city  of  Lon- 
don, namely,  as  the  Plaintiff  alleged,  the  second,  third  and  fourth  floors 
of  No.  48,  and  the  first,  second,  third  and  fourth  floors  of  Nos.  49  and 
50. 

On  the  13th  of  November,  1883,  the  following  letter  was  addressed 

by  R.  G.  Paget  &  Son,  a  firm  of  marquee  and  tent  manufacturers,  of 

which  the  Plaintiff  and  her  sons,  R.  W.  Paget  and  John  Paget,  were 

members,  to  the  Defendant,  Marshall : 

"We  will  let  you  on  lease  for  seven,  fourteen,  or  twenty-one  years,  the  upper 
part  of  Nos.  48,  49  and  50.  Aldersgate  Street,  consisting  of  first,  second,  third, 
and  fourth  floors  (reserving  for  our  own  use  one  of  the  closets  on  the  second 
floor  landing;  also  the  right  of  passage  to  roof)  for  the  sum  of  £500  per  an- 
num and  taxes.     We  await  your  acceptance  of  the  above  terms." 

On  the  following  day,  the  14th  of  November,  1883,  the  Defendant 

wrote  in  answer  to  R.  G.  Paget  &  Son,  as  follows : 

"In  reply  to  your  memorandum  of  Nov.  13th,  re  premises  Nos.  48,  49,  and 
50.  Aldersgate  Street,  I  accept  your  offer  contained  therein." 

The  Plaintiff  alleged  that  "by  inadvertence  and  contrary  to  the  inten- 
tion of  the  Plaintiff  and  her  agent,  and  contrary  to  the  true  intent  of 
the  agreement,"  the  first  floor  of  No.  48,  Aldersgate  Street  was  includ- 
ed in  the  letter  of  the  13th,  and  that  the  Defendant  knew  that  the  same 

2  Iii  Beauehamp  v.  Winn  (1873)  L.  R.  6  E.  &  I.  App.  223,  at  233,  Lord 
Chelmsford  said:  "The  cases  in  which  equity  interferes  to  set  aside  contracts 
are  those  in  which  either  there  has  been  mutual  mistake  or  ignorance  in  both 
parties  affecting  the  essence  of  the  contracts,  or  a  fact  is  known  to  one  party 
and  unknown  to  the  other,  and  there  is  some  fraud  or  surprise  upon  the  ig- 
norant party." 


GTS  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

had  been  included  by  inadvertence  when  he  wrote  the  answer  of  the 
14th. 

By  a  lease  dated  the  21st  of  December,  1883,  and  made  between  the 
Plaintiff  of  the  one  part  and  the  Defendant  of  the  other  part,  the  Plain- 
tiff demised  to  the  Defendant,  "all  those  the  first,  second,  third,  and 
fourth  floors  of  and  in  the  messuages  or  warehouses  and  premises  situ- 
ate on  the  east   side   of   Aldersgate   Street,   in   the   City   of   London 

*  *  *  and  known  as  Nos.  48,  49,  and  50,  Aldersgate  S'treet  afore- 
said," for  twenty-one  years  from  the  25th  of  December,  1883,  "except 
and  reserved  out  of  the  said  demise  the  lavatory  between  the  first  and 
second  floors  of  the  said  premises  and  the  sole  right  of  passage  to  the 
roof"  (which  said  lavatory  and  right  of  passage  it  was  thereby  declared 
were  for  the  exclusive  use  of  the  Plaintiff)  at  the  yearly  rent  of  £500. 

*  *     * 

The  claim  was  for  a  declaration  that  the  lease  ought  not  to  have 
comprised  more  than  the  second,  third,  and  fourth  floors  of  No.  48, 
and  the  first,  second,  third,  and  fourth  floors  of  Nos.  49  and  50,  Aiders- 
gate  Street,  and  that  the  Defendant  might  be  ordered  to  elect  between 
the  annulment  of  the  indenture  and  its  ratification  in  accordance  with 
the  declaration ;  and  that  if  he  should  refuse  to  consent  to  rectification, 
that  the  lease  might  be  ordered  to  be  cancelled.     *     *     * 

Bacon,  V.  C.3  In  all  these  cases  on  the  law  of  mistake  it  is  very 
difficult  to  apply  a  principle,  because  you  have  to  rely  upon  the  state- 
ments of  parties  interested,  and  upon  not  very  accurate  recollections 
of  what  took  place  between  them.  But  the  law  I  take  to  be  as  stated 
this  morning  by  Mr.  Hemming.  If  it  is  a  case  of  common  mistake — 
a  common  mistake  as  to  one  stipulation  out  of  many  provisions  con- 
tained in  a  settlement  or  any  other  deed,  that  upon  proper  evidence 
may  be  rectified — the  Court  has  the  power  to  rectify,  and  that  power 
is  very  often  exercised.  The  other  class  of  cases  is  one  of  what  is 
called  unilateral  mistake,  and  there,  if  the  Court  is  satisfied  that  the 
true  intention  of  one  of  the  parties  was  to  do  one  thing,  and  he  by 
mistake  has  signed  an  agreement  to  do  another,  that  agreement  will  not 
be  enforced  against  him,  but  the  parties  will  be  restored  to  their  orig- 
inal position,  and  the  agreement  will  be  treated  as  if  it  had  never  been 
entered  into.  That  I  take  to  be  the  clear  conclusion  to  be  drawn  from 
the  authorities.  The  old  law  is  very  much  as  was  stated  in  that  very 
excellent  treatise  by  Mr.  Kerr,  as  to  which  anybody  who  has  read  it 
must  be  well  satisfied  with  the  diligence  and  industry,  the  intelligence 
and  sagacity  with  which  he  has  acquitted  himself  of  his  task,  but  which 
of  course  one  cannot  suppose  is  an  authority  upon  which  I  can  rely, 
although  I  listen  to  it  with  interest  and  respect. 

The  case  before  me  is  in  a  very  narrow  compass.  The  Plaintiff  had 
taken  the  lease  of  a  site  from  the  Goldsmiths'  Company  upon  a  contract 
to  build  upon  it  a  very  valuable  and  commodious  structure.    He  did  so, 

s  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  1)  REFORMATION  AND   RE-EXECUTION  679 

and  his  plans  are  in  evidence ;  it  is  quite  clear  what  his  intention  was. 
He  built  two  separate  ground-floor  tenements,  Nos.  49  and  50,  to  be 
let  to  two  separate  tenants.  He  kept  a  third,  No.  48,  including  ground 
and  first  floors,  intending  to  occupy  it  himself,  and  the  fourth  part,  that 
coloured  blue  on  the  model,  he  had  to  let  when  the  negotiation  com- 
menced with  the  Defendant.  So  that  the  subject  in  dispute  is  beyond 
all  question.  The  two  shops,  Nos.  49  and  50,  were  separate  and  dis- 
tinct things — as  separate  as  if  they  had  been  in  some  other  street — and 
the  third,  No.  48,  was  equally  separate  and  distinct — built  by  the  Plain- 
tiff for  his  own  occupation,  and  for  carrying  on  his  own  business,  and 
constructed  so  that  those  objects  might  be  conveniently  performed  by 
him.     *     *     * 

Under  these  circumstances,  the  facts  being  as  I  have  stated,  am  I, 
because  the  lease  has  been  executed  under  seal,  demising  to  the  De- 
fendant that  which  the  Plaintiff  never  meant  to  let  him  have,  that  which 
the  Defendant  says  he  knew  at  one  time  the  Plaintiff  intended  to  keep 
for  himself,  that  which  he  has  never  claimed  at  any  period  prior  to  the 
letter — am  I  to  say  that  the  agreement  is  to  be  held  to  be  irrevocable  ? 
It  would  be  against  every  principle  that  regulates  the  law  relating  to 
mistakes,  and  it  would  be  directly  at  variance  with  the  proved  facts  in 
this  case.  On  the  evidence,  it  looks  very  like  a  common  mistake.  The 
Defendant,  it  is  true,  says  in  his  defence,  that  he  took  it  on  the  faith 
that  the  first  floor  of  No.  48  was  intentionally  included  in  the  letter  of 
the  13th  of  November,  1883.  Certainly  he  never  said  so  until  it  is  said 
in  the  defence,  which  I  am  looking  at  now ;  but  he  has  not  said  so  in 
his  evidence.    He  has  never  said  that  he  intended  to  take  that.     *     *     * 

But  without  being  certain,  as  I  cannot  be  certain  on  the  facts  before 
me,  whether  the  mistake  was  what  is  called  a  common  mistake — that  is, 
such  a  common  mistake  as  would  induce  the  Court  to  strike  out  of  a 
marriage  settlement  a  provision  or  limitation — that  there  was  to  some 
extent  a  common  mistake  I  must  in  charity  and  justice  to  the  Defend- 
ant believe,  because  I  cannot  impute  to  him  the  intention  of  taking  ad- 
vantage of  any  incorrect  expression  in  this  letter.  He  may  have  per- 
suaded himself  that  the  letter  was  right ;  but  if  there  was  not  a  common 
mistake  it  is  plain  and  palpable  that  the  Plaintiff  was  mistaken,  and  that 
he  had  no  intention  of  letting  his  own  shop,  which  he  had  built  and 
carefully  constructed  for  his  own  purposes. 

Upon  that  ground,  therefore,  I  must  say  that  the  contract  ought  to 
be  annulled.  I  think  it  would  be  right  and  just  and  perfectly  consist- 
ent with  other  decisions  that  the  Defendant  should  have  an  opportunity 
of  choosing  whether  he  will  submit,  as  the  Plaintiff  asks  that  he  should 
submit,  to  have  the  lease  rectified  by  excluding  from  it  the  first  floor 
of  No.  48,  whether  he  will  choose  to  take  his  lease  with  that  rectifica- 
tion, or  whether  he  will  choose  to  throw  up  the  thing  entirely,  because 
the  object  of  the  Court  is,  as  far  as  it  can,  to  put  the  parties  into  the 
position  in  which  they  would  have  been  if  the  mistake  had  not  hap- 


680  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Cll.  3 

pened.  Therefore  I  give  the  Defendant  an  opportunity  of  saying 
whether  he  will  or  will  not  submit  to  rectification.  If  he  does  not,  then 
I  shall  declare  that  the  agreement  is  annulled.  Then  we  shall  have  to 
settle  the  terms  on  which  it  should  be  annulled.     *     *     * 

Then  the  decree  will  be,  the  Defendant  electing  to  have  rectification 
instead  of  cancellation  of  the  lease,  let  the  lease  be  rectified  by  omitting 
from  it  all  mention  of  the  first  floor  of  No.  48.  Then  as  to  the  costs 
of  the  action,  the  Plaintiff  is  not  entitled  to  costs,  because  he  has  made 
a  mistake,  and  the  Defendant  ought  not  to  have  any  costs,  because  his 
opposition  to  the  Plaintiff's  demand  has  been  unreasonable,  unjust,  and 
unlawful. 


WARATAH  OIL  CO.  v.  REWARD  OIL  CO. 

(District  Court  of  Appeal  of  California,  First  District,  1914.    23  Cal.  App.  63S, 

139  Pac.  91.) 

Appeal  from  Superior  Court,  City  and  County  of  San  Francisco; 
James  M.  Troutt,  Judge. 

Action  by  the  Waratah  Oil  Company  against  the  Reward  Oil  Com- 
pany, with  cross-complaint  by  defendant.  Judgment  for  plaintiff,  and 
defendant  appeals.     Affirmed. 

Kerrigan,  J.4  This  is  an  appeal  from  a  judgment  in  favor  of  the 
plaintiff  for  the  sum  of  $43,200,  reforming  the  contract  upon  which 
the  recovery  was  had  as  prayed  for  by  the  plaintiff,  and  denying  the 
defendant  the  relief  asked  in  its  cross-complaint,  and  comes  here  upon 
a  bill  of  exceptions. 

The  action  is  based  upon  a  contract  that  was  made  by  the  parties  in 
November,  1909,  for  the  purchase  and  sale  of  certain  land  in  Coalinga, 
Fresno  county,  supposed  to  contain  oil.  It  was  agreed  that  the  defend- 
ant would  purchase  the  land  from  the  plaintiff  for  $1,800  per  acre ;  one- 
quarter  of  the  purchase  price  was  to  be  paid  down,  and  the  other  three- 
quarters  were,  by  the  terms  of  the  contract,  to  be  paid,  respectively,  6, 
10,  and  14  months  from  the  date  thereof.  Defendant  paid  the  first  and 
second  installments,  but  refused  to  pay  the  third  and  fourth,  amounting 
to  $43,200.  Demand  was  made  for  the  payment  of  these  installments, 
and  a  deed  to  the  property  was  duly  tendered  the  defendant,  but  defend- 
ant declined  to  accept  the  deed  or  to  pay  the  amount  demanded.  The 
contract  was  not  dated,  although  the  provisions  relating  to  the  deferred 
payments  therein  provided  for  assume  that  it  was.     *     *     * 

Defendant,  in  addition  to  answering,  filed  a  cross-complaint,  by  which 
it  sought  the  return  of  the  money  paid  by  it,  upon  the  ground  that  there 
was  a  total  lack  of  consideration  for  the  making  of  the  contract  upon 
its  part,  and  also  that  the  plaintiff  had  never  been  bound  by  the  contract 
for  the  reason  that  its  officers  who  signed  it  on  behalf  of  the  company 
were  not  authorized  so  to  do.     *     *     * 

*  Parts  of  the  opinion  are  omitted. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  681 

Through  an  oversight  the  parties  neglected  to  date  the  contract ;  and 
the  defendant  contends  that  the  court  committed  error  in  permitting 
the  contract  to  be  reformed  on  the  showing  made,  by  inserting  the  date 
on  which  it  was  executed.  The  contract  was  made  and  entered  into 
on  the  13th  day  of  November,  but  defendant,  if  we  follow  his  argu- 
ment, asserts  that  the  parties  merely  neglected  to  agree  upon  a  date, 
and  that  it  is  only  when  parties  have  actually  agreed  in  their  oral  negotia- 
tions upon  the  date  when  a  contract  shall  take  effect,  or  upon  other  es- 
sential features  thereof  which  have  been  omitted  from  the  written  con- 
tract, that  it  will  be  reformed ;  that  to  reform  a  contract  when  the  par- 
ties have  failed  to  address  their  minds  to  the  omitted  provision  would 
be  in  effect  to  make  a  contract  for  the  parties,  which  of  course  is  outside 
of  the  province  of  courts. 

The  evidence  abundantly  shows- — and  the  court  goes  no  further  than 
to  find- — that  the  contract  was  in  fact  made  on  the  13th  day  of  Novem- 
ber, 1909,  and  intended  to  bear  that  date.  It  is  clear  that  the  failure  to 
insert  the  date  in  the  contract  was  a  mutual  mistake,  the  result  of  in- 
advertence and  "unconscious  forgetfulness"  (Civ.  Code,  §  1577),  under 
which  circumstances  the  trial  court  was  not  only  warranted,  but  com- 
pelled, to  decree  reformation.  House  v.  McMullen,  9  Cal.  App.  664, 
100  Pac.  344;  Los  Angeles  v.  New  Liverpool,  150  Cal.  21,  27,  87  Pac. 
1029;  Owsley  v.  Matson,  156  Cal.  401,  104  Pac.  983;  24  Am.  &  Eng. 
Ency.  of  Law,  648.     *     *     * 

The  judgment  is  affirmed. 

We  concur :    Lexxox,  P.  J. ;  Richards,  J. 


DANIELSON  et  al.  v.  NEAL. 
(Supreme  Court  of  California,  1913.    164  Cal.  748,  130  Pac.  716.) 

Hexshaw,  J.5  Plaintiffs  seek  by  their  action  the  correction  of  two 
deeds  made  to  them  by  defendant,  the  one  for  three  acres  of  land,  the 
other  for  one  acre  of  land.  The  facts  touching  the  first  deed  sufficient- 
ly indicate  the  character  of  the  mutual  mistake  which  it  is  alleged  ex- 
isted in  the  making  of  both  deeds.  Those  facts  are  that  plaintiff  Hattie 
C.  Danielson  bought  of  defendant  three  acres  of  land.  *  *  *  By 
mutual  mistake,  ignorance,  and  oversight,  the  courses  and  distances  ac- 
tually given  in  the  deed  fell  short  of  containing  three  acres ;  the  alle- 
gation in  this  respect  being  the  following : 

"That  the  mistake  in  the  amount  of  acreage  as  aforesaid,  arose  from  the 
fact  that  the  distances  given  in  the  deed  and  the  length  of  the  boundary  lines 
would,  if  run  at  right  angles,  include  the  three  (3)  acres,  but  the  lines  and 
courses  were  not  run  at  right  angles  to  each  other,  and  not  being  so  run  at 
right  angles  to  each  other,  decreased  the  amount  of  acreage.     *     *     *  " 

In  support  of  the  judgment  respondent  contends  that  this  action  for 
reformation  will  not  lie  without  a  demand  previously  made,  which  de- 

5  Parts  of  the  opinion  are  omitted. 


682  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

mand  is  not  here  alleged.  There  is  authority  supporting  this  view,  but 
such  is  not  the  rule  of  decision  in  this  state,  nor  is  it  the  rule  of  gen- 
eral adoption.     *     *     * 

There  was  omitted  from  the  deeds  about  one  twenty-seventh  of  an 
acre.  The  value  of  the  omitted  land,  upon  the  basis  of  the  purchase 
price,  respondent  points  out  is  $83  ;  but  we  cannot  agree  with  respond- 
ent that,  because  these  are  the  facts,  equity  will  treat  the  omitted  land 
as  a  minute  discrepancy  of  no  material  importance.  The  price  or  value 
of  omitted  lands  is,  of  course,  an  element  in  determining  whether  or 
not  equity  will  take  cognizance  of  a  suit  to  recover  the  omitted  por- 
tion. Backus  v.  Jeffrey,  47  Mich.  127,  10  N.  W.  138.  But  in  a  suit  for 
land,  it  is  by  no  means  the  all-controlling  and  determinative  considera- 
tion. The  omitted  land  may  be  of  great  importance  to  the  value  of 
plaintiff's  remaining  land.  It  may  have  a  peculiar  value,  pretium  af- 
fectionis,  in  plaintiff's  eyes.  Many  other  considerations  may  enter  into 
the  matter,  making  it  of  importance  to  plaintiffs  to  recover  that  which 
is  rightfully  theirs.     *     *     * 

It  is  therefore  ordered  that  the  judgment  is  reversed,  and  the  cause 
remanded ;    defendant  to  be  permitted  to  answer  to  the  merits. 

We  concur:   MEivViN,  J. ;  Lorigan,  J. 


COURTRIGHT  v.  COURTRIGHT  et  al. 

(Supreme  Court  of  Iowa,  1SS4.     63  Iowa,  356,  19  N.  W.  255.) 

Appeal  from  Lee  district  court. 

This  is  an  action  in  equity  by  which  it  is  sought  to  correct  a  convey- 
ance of  certain  real  estate,  which,  it  is  alleged,  did  not  express  the  real 
contract  of  the  parties  thereto,  by  reason  of  fraud  or  mistake  in  reduc- 
ing the  contract  to  writing.  There  was  a  trial  by  the  court  and  a  de- 
cree for  the  plaintiff.    Defendants  appeal. 

Rothrock,  C.  J.  The  plaintiff  is  the  widow  of  Edward  Courtright, 
deceased.  Before  her  marriage  she  was  the  absolute  owner  of  certain 
land  in  Lee  county.  Margaret  J.  Barnes,  the  wife  of  Morgan  Barnes, 
was  the  absolute  owner  of  certain  other  lands.  It  was  agreed  between 
Margaret  Barnes  and  Emily  Courtright,  the  plaintiff,  that  they  would 
exchange  the  lands  so  held  by  them.  The  land  owned  by  one  was  the 
consideration  to  be  given  for  the  land  owned  by  the  other,  and  there 
was  no  money  to  be  paid  by  either.  They  procured  the  services  of  a 
justice  of  the  peace  to  draw  the  conveyances,  and  they  were  prepared 
and  executed  by  them  and  their  husbands,  and  acknowledged  and  re- 
corded. The  names  of  each  of  their  husbands  were  inserted  in  the  re- 
spective deeds  as  grantees,  so  that  each  husband  appeared  to  be  the 
owner  of  an  undivided  half  of  the  land  conveyed.  Some  years  after- 
wards, Mrs.  Barnes  and  her  husband  discovered  that,  by  the  record,  he 
was  a  tenant  in  common  with  his  wife,  and  he  conveyed  his  interest 


Sec.  1)  REFORMATION   AND  RE-EXECUTION  683 

back  to  her.  Edward  Courtright  died  in  1877,  and  this  action  was 
brought  by  his  widow  against  his  children  and  heirs,  to  reform  the  deed 
by  striking  out  the  name  of  Edward  Courtright  as  the  grantee,  upon 
the  ground  that  it  was  inserted  by  mistake  or  by  fraud.  This  consti- 
tutes the  only  controverted  question  in  the  case. 

We  think  the  evidence  very  satisfactorily  shows  that  the  contract  for 
the  exchange  of  lands  was  made  by  Mrs.  Courtright  and  Mrs.  Barnes. 
Morgan  Barnes  testified  that  the  "women  did  all  the  trading;"  and 
both  Barnes  and  his  wife  testify  that  they  intended  to  convey  the  whole 
title  to  Mrs.  Courtright,  and  that  they  had  no  intention  to  convey  to 
Mr.  Courtright;  and  although  the  testimony  of  the  justice  of  the 
peace,  and  of  Barnes  and  his  wife,  is  not  very  clear  in  some  particulars, 
yet  we  think  the  fact  that  there  was  no  intention  on  the  part  of  the 
grantors,  or  on  the  part  of  the  plaintiff,  to  convey  any  interest  in  the 
land  to  plaintiff's  husband,  is  so  clearly  proven  as  to  require  a  reforma- 
tion of  the  conveyance.  The  case  is  like  Nowlin  v.  Pyne,  47  Iowa,  293. 
The  parties  made  a  contract,  employed  a  scrivener,  and  the  scrivener 
by  mistake  failed  to  express  the  contract  in  apt  words  and  terms.  It 
appears  that  he  used  the  words  he  intended  to  use,  and  he  thought  he 
should  name  the  wife  first  as  a  grantee,  to  show  that  she  owned  the 
land.  In  such  cases  equity  will  reform  the  writing,  making  it  conform 
to  the  agreement  previously  entered  into  between  the  parties.  Nowlin 
v.  Pyne,  supra;  Stafford  v.  Fetters,  55  Iowa,  484;  S.  C.  8  N.  W.  322; 
Reed  v.  Root,  59  Iowa,  359;   S.  C.  13  N.  W.  323. 

We  need  not  set  out  or  discuss  the  evidence  in  detail.  It  is  enough 
to  say  that,  regard  being  had  to  the  well-established  rule  that  the  proof 
necessary  to  reform  a  written  instrument  must  be  clear,  satisfactory, 
and  conclusive,  we  think  the  decree  of  the  district  court  is  correct.  Af- 
firmed. 


AEBRO  v.  GOWLAND. 

(Supreme  Court  of  New  York,  Appellate  Division,  Fourth  Department,  1904. 
98  App.  Div.  474,  90  N.  Y.  Supp.  796.) 

Appeal  from  Special  Term,  Cayuga  County. 

Suit  by  Ellen  Amelia  Albro  against  Elizabeth  Gowland  for  the  ref- 
ormation of  a  contract  for  the  sale  of  real  estate,  and  to  compel  spe- 
cific performance  thereof.  From  a  judgment  in  favor  of  plaintiff,  de- 
fendant appeals. 

Argued  before  McLennan,  P.  J.,  and  Spring,  Williams,  His- 
cock,  and  Stover,  JJ. 

Hiscock,  J.  This  action  was  brought  to  procure  reformation  of  a 
contract  for  the  sale  of  a  lot  in  the  city  of  Auburn  from  plaintiff  to  de- 
fendant, and  to  compel  performance  by  said  defendant  of  the  contract 
when  so  reformed.  The  differences  between  the  parties  have  been  pre- 
cipitated by  an  alleged  shortage  in  the  depth  of  the  lot  contracted  to  be 


684  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

sold,  of  about  23  feet.  Plaintiff,  through  a  real  estate  agent,  having 
effected  a  sale  of  her  lot  to  the  defendant,  executed  a  written  contract 
of  sale,  whereby,  amongst  other  things,  in  consideration  of  a  purchase 
price  of  $10,500,  she  agreed,  "by  a  good  warranty  deed  with  search 
showing  clear  and  unincumbered  title,"  to  convey  "all  that  piece  or  par- 
cel of  land  situated  on  the  east  side  of  William  Street,  in  the  City  of 
Auburn,  N.  Y.,  known  as  No.  18  William  Street,  and  being  a  lot  about 
four  rods  front  by  two  hundred  feet  in  depth."  When  execution  of 
said  contract  was  attempted,  a  deed  was  offered  conveying  the  land 
with  a  depth  of  176  feet  and  a  fraction  of  a  foot,  which  defendant  re- 
fused to  accept;  making  proper  and  sufficient  objections  that  the  deed 
did  not  comply  with  the  contract. 

The  learned  trial  justice,  as  we  understand  it,  in  general  rather  than 
specific  language,  directed  that  the  contract  should  be  reformed  so  as 
to  comply  with  the  deed,  and  directed  judgment  compelling  defendant 
to  carry  out  her  purchase.  We  think  that  such  decision  involved  find- 
ings of  fact  which  were  against  the  weight  of  evidence,  and  that  the 
judgment  should  be  reversed. 

We  do  not  think  it  is  necessary,  under  the  circumstances  of  this  case, 
to  spend  time  in  discussing  the  proposition  that  a  shortage  of  23  feet 
and  over  upon  a  city  lot  like  the  one  in  question  was  a  substantial  de- 
fect, and  would  excuse  performance  of  a  contract  by  a  proposed  pur- 
chaser. If,  under  the  language  used  in  the  contract,  describing  the  lot 
as  being  "about  four  rods  front  by  two  hundred  feet  in  depth,"  we 
should  hold  that  the  word  "about"  qualified  the  dimension  of  200  feet 
as  well  as  that  of  the  4  rods,  we  should  still  find  no  difficulty,  upon 
well-established  principles  of  law,  in  holding  that  such  qualification 
would  not  excuse  such  a  deficiency  as  is  alleged  here.  The  plaintiff 
'doubtless  appreciated  the  force  of  the  rules  applicable  to  a  conveyance 
of  this  kind,  in  seeking  to  have  her  contract  reformed  so  as  to  state  the 
lesser  rather  than  the  greater  depth  of  lot,  and  her  success  upon  this 
appeal  must  be  measured  by  her  right  to  have  such  reformation  made. 

Plaintiff  introduced  what  we  may  characterize  as  three  lines  of  evi- 
dence for  the  purpose  of  sustaining  her  demand  for  relief  in  the  respect 
mentioned,  and  the  pertinency  of  which,  as  bearing  upon  the  contract 
of  sale,  will  be  apparent : 

In  the  first  place,  evidence  was  given  tending  to  show  that,  before  the 
contract  was  executed,  defendant  went  upon  and  viewed  the  lot  in 
question,  from  which  it  is  argued  that  she  knew  or  ought  to  have 
known  the  depth  of  the  lot,  and  that  the  dimensions  stated  in  the  con- 
tract were  not  correct,  but  a  mistake.  When  we  read  the  description 
of  the  back  of  the  lot,  and  of  the  trees  and  shrubbery  thereon,  and  of 
the  various  buildings  surrounding  it,  and  also  the  evidence  of  the'  sur- 
veyor, in  which  he  attempts  to  describe  the  boundaries  of  the  lot,  we 
are  not  inclined  to  the  opinion  that  defendant  ever  knew,  or  theoreti- 
cally was  to  be  charged  with  having  known,  the  approximate  depth  of 
the  lot. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  685 

Evidence  was  given  by  the  real  estate  agent  who  represented  plain- 
tiff, by  his  assistant,  and  by  the  plaintiff  and  her  husband,  tending  to 
show  that,  before  the  contract  was  executed,  plaintiff  was  informed,  in 
substance,  that  the  lot  was  not  200  feet,  but  about  10  rods,  in  depth. 
Opposed  to  this  evidence,  however,  is  the  fact  that  concededly  the  real 
estate  agent  who  was  active  in  this  transaction  carried  upon  his  regular 
register  this  lot  with  a  description  of  200  feet  as  its  depth,  and  that  this 
entry  was  shown  or  read  to  plaintiff  before  the  contract  was  executed ; 
also  that,  when  the  parties  came  to  embody  their  language  in  the  sol- 
emn form  of  a  contract,  the  agent  who  prepared  it,  by  and  with  the 
consent  of  the  plaintiff,  inserted  therein  the  greater  depth  of  200  feet. 
We  do  not  lose  sight  of  the  fact  that  an  attempted  explanation  is  given 
of  this,  to  which  we  shall  refer  later. 

Opposed  to  this  evidence,  all  of  which  is  by  interested  witnesses,  is 
sthat  of  the  defendant  and  her  husband  and  an  apparently  disinterested 
witness,  in  various  forms  contradicting  the  proposition  that  defendant 
knew  or  was  informed  that  the  lot  was  less  than  200  feet  in  depth ;  but 
this  testimony  is  to  the  effect,  upon  the  contrary,  that  she  was  told  re- 
peatedly in  various  ways  and  at  various  times  that  the  lot  did  have  the 
depth  stated  in  the  contract. 

This  is  the  issue,  briefly  stated,  raised  by  the  testimony  of  opposing 
witnesses,  and  we  pass  now  to  a  farther  consideration  of  some  of  the 
evidence  given  in  behalf  of  plaintiff  by  her  own  witnesses : 

As  already  stated,  the  agent  who  effected  the  sale  of  the  property 
prepared  the  contract  for  it.  There  were  present  at  the  time,  amongst 
others,  the  plaintiff  and  the  defendant.  The  agent  states  that,  as  he 
progressed  with  the  preparation  of  the  contract,  each  provision  was 
fully  discussed  and  considered ;  that,  when  it  came  to  a  description  of 
the  lot,  it  was  stated  and  agreed  that  the  lot  was  not  200  feet  in  depth, 
and  that  the  description  in  this  respect  was  erroneous,  and  that  the 
proper  description  would  be  made  when  the  deed  was  executed.  At 
this  time  the  plaintiff  and  her  agent  either  did  or  did  not  know  that  the 
lot  was  not  200  feet  in  depth,  but  only  about  10  rods.  If  they  did  not 
know  that  it  was  only  about  10  rods  in  depth,  then,  of  course,  their 
evidence  that  they  had  from  time  to  time  informed  defendant 'Of  this 
smaller  depth,  and  thereby  contradicted  the  entry  in  the  agent's  register 
showing  a  depth  of  200  feet,  of  which  she  knew,  was  false.  If,  upon 
the  other  hand,  the  agent  knew,  as  he  testifies  in  one  or  more  places 
when  seeking  to  charge  the  defendant  with  like  knowledge,  that  the 
lot  was  only  about  10  rods  in  depth,  then  voluntarily  he  and  the  plain- 
tiff have  made  a  contract  with  full  knowledge,  and  under  no  circum- 
stances, as  disclosed  by  the  evidence  upon  this  appeal,  at  least,  of  either 
mistake  or  fraud.  We  do  not  lose  sight  of  the  fact  that  the  agent  at- 
tempts to  sustain  the  proposition  that  there  was  some  uncertainty  about 
what  the  exact  depth  was,  and  that  for  this  reason  the  description  in 
question  was  used  in  the  contract.  The  only  question,  however,  which 
appears  ever  to  have  been  mooted,  was  whether  the  depth  was  200 


686  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

feet,  or  10  rods  and  a  fraction;  and  the  agent  insists  that  he  clearly 
and  distinctly  informed  the  defendant  during  the  negotiations,  and 
while  they  were  upon  the  lot,  that  the  depth  was  only  10  rods. 

In  order  to  secure  the  reformation  of  the  contract  in  question,  it  was 
necessary  for  the  plaintiff  to  establish  that  there  had  been  a  mutual 
mistake,  for  it  was  not  suggested  that  any  fraud  had  been  perpetrated 
by  the  defendant  upon  the  plaintiff.  In  order  to  secure  such  a  judg- 
ment, it  was  incumbent  upon  her  to  establish  her  right  thereto  by  evi- 
dence which  was  "clear,  strong,  and  satisfactory."  A  party  "must 
show  that  the  material  stipulation  which  he  claims  should  be  omitted 
or  inserted  in  the  instrument  was  omitted  or  inserted  contrary  to  the 
intention  of  both  parties,  and  under  a  mutual  mistake."  Nevius  v. 
Dunlap,  33  N.  Y.  676,  680. 

In  Curtis  v.  Alb'ee,  167  N.  Y.  360,  60  N.  E.  660,  it  is  stated : 

"Equity  will  not  make  a  new  agreement  for  the  parties,  nor,  under  color 
of  reforming  one  made  by  them,  add  a  provision  which,  they  never  agreed 
upon,  and  did  not  want  when  the  contract  was  written,  although  it  may  after- 
ward appear  very  expedient  or  proper  that  it  should  have  been  incorporated. 
When  the  writing  expresses  the  actual  agreement,  it  cannot  be  reformed,  and 
a  stipulation  not  assented  to  can  never  be  added." 

Plaintiff's  success  is  dependent  upon  her  establishing  the  proposition 
that  the  description  of  200  feet  was  a  mutual  mistake,  and  that  by  the 
contract  understood  and  agreed  to  by  each  party  the  lesser  depth  should 
have  been  inserted.  As  suggested,  it  seems  to  us  that  the  evidence  in 
behalf  of  plaintiff  herself  establishes  either  that  the  defendant  did  not 
understand  what  is  now  claimed  to  be  the  true  dimension,  or  else  that 
plaintiff  knew  that  the  description  used  was  erroneous,  but  still  inserted 
it  in  the  contract  with  some  sort  of  an  understanding  upon  her  part 
that  the  contract  should  not  amount  to  anything  or  be  binding.  Nei- 
ther upon  this  theory,  nor  upon  the  very  conflicting  evidence  in  the  case 
viewed  as  a  whole,  does  she  seem  to  us  to  have  established  her  right 
to  the  judgment  which  she  procured. 

Other  questions  have  been  presented  upon  this  appeal,  which,  in  view 
of  the  foregoing  conclusions,  we  do  not  deem  it  necessary  to  consider 
or  pass  upon.  The  judgment  should  be  reversed,  and  a  new  trial 
granted. 

Judgment  reversed,  and  new  trial  granted,  with  costs  to  appellant  to 
abide  event,  upon  the  law  and  the  facts. 

McLennan,  P.  J.,  and  Spring  and  Stover,  JJ.,  concur.  Williams, 
J.,  dissents.6 

e  The  dissenting  opinion  of  Williams,  J.,  is  omitted. 


Sec.  1)  REFORMATION  AND   RE-EXECUTION  G87 

WISE  et  al.  v.  BROOKS  et  al. 
(Supreme  Court  of  Mississippi,  1892.    69  Miss.  891,  13  South.  836.) 

*  *  *  This  bill  is  filed  by  Wise  Bros.,  who  allege  that  in  all  the 
conveyances  above  mentioned,  including  the  sheriff's  deed,  and  in  the 
partition  proceedings,  where  the  excepted  tract  of  land  is  described  as 
"one  hundred  acres  north  of  Piney,"  the  intention  of  the  parties  was 
to  convey  and  describe  the  same  tract  originally  conveyed  by  John 
Everett  to  Rowe,  trustee ;  in  other  words,  that  the  land  excepted  from 
the  conveyances,  instead  of  being  one  hundred  acres  lying  north  of 
Piney  creek,  was  intended  to  be  only  so  much  thereof  as  was  included 
in  the  metes  and  bounds  of  the  deed  to  Rowe,  which  embraced,  as 
stated,  only  about  seventy  acres.  Geo.  W.  and  James  E.  Everett,  and 
heirs  of  John  Everett,  and  of  Mrs.  Rowe,  and  also  Mrs.  Bedwell  and 
Henry  E.  Miller  are  made  parties  defendant  to  the  bill,  which  prays 
for  a  reformation  of  all  the  foregoing  deeds,  including  the  sheriff's 
deed,  and  the  partition  proceedings,  so  as  to  carry  out  the  alleged  true 
intention.7     *     *     * 

Campbell,  C.  J.  The  bill  makes  a  very  proper  case  for  the  remedial 
power  of  a  court  of  chancery,  which  may,  in  proper  cases,  rectify  mis- 
takes either  in  sheriffs'  deeds  or  court  proceedings ;  but,  unfortunately 
for  the  complainants,  they  have  failed  to  maintain  their  bill  by  suffi- 
cient evidence.  It  is  doubtless  true  that,  but  for  misapprehension  as 
to  the  extent  of  the  operation  of  the  deed  to  Rowe,  the  parties  would 
have  proceeded  differently ;  but  that  is  not  the  question  for  equity  to 
consider  in  a  proceeding  to  reform  contracts.  It  is  not  what  the  parties 
would  have  intended  if  they  had  known  better,  but  what  did  they  in- 
tend at  the  time,  informed  as  they  were.    Affirmed. 


BETTS  v.  GUNN. 
(Supreme  Court  of  Alabama,  1S57.    31  Ala.  219.) 

Appeal  from  the  Chancery  Court  of  Macon. 

Heard  before  the  Hon.  A.  J.  Walker. 

This  bill  was  filed  by  George  W.  Gunn,  against  Elisha  Betts.  Its 
primary  object  was  to  obtain  the  rescission  of  a  contract,  by  which 
Gunn,  in  consideration  of  a  conveyance  to  him  by  Betts  of  certain  real 
and  personal  property,  bound  himself  to  pay  the  outstanding  debts  of 
Betts,  and  also  to  allow  him  $200  per  annum  for  his  support.  The 
contract  was  made  in  1843,  and  the  bill  filed  in  October,  1850.  The 
written  instrument  signed  by  Gunn  only  bound  him  to  pay  the  annuity ; 
but  the  bill  alleged,  that  it  did  not  truly  express  the  contract  of  the 
parties.    .The  bill  alleged,  also,  in  substance,  that  Betts  represented  his 

7  The  statement  of  facts  is  abridged. 


688  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

debts  as  amounting  to  not  more  than  $1,000,  while  complainant  was 
compelled  to  pay  more  than  $2,000  on  account  of  them ;  that  he  also 
misrepresented  the  value  of  the  property  conveyed ;  that  complainant 
was  unable  to  reduce  some  of  the  property  to  possession,  because  of 
conflicting  and  superior  claims  of  title  to  it,  and  was  much  involved  in 
litigation  concerning  it;  that  he  supplied  Betts  with  money  for  travel- 
ing, and  furnished  him  with  board  and  other  necessaries.  The  prayer 
of  the  bill  was,  that  the  contract  might  be  rescinded,  and  the  plaintiff's 
obligation  canceled,  or  so  reformed  as  to  express  the  true  contract  of 
the  parties;  that  an  action  at  law,  instituted  by  Betts  on  the  obligation, 
might  be  perpetually  enjoined;  that  an  account  might  be  taken  of  all 
the  moneys  advanced  or  paid  out  by  the  plaintiff  for  Betts,  and  of  the 
value  of  the  services  rendered  by  plaintiff  in  lawsuits  concerning  the 
property  conveyed  to  him  by  defendant ;  and  for  other  and  further  re- 
lief. 

The  cause  was  heard  before  Chancellor  Clark,  on  motion  to  dismiss 
the  bill  for  want  of  equity,  and  to  dissolve  the  injunction  on  the  coming 
in  of  the  answer ;  and  before  Chancellor  Walker  on  pleadings  and 
proof.  Each  chancellor  held,  that  the  bill  presented  no  case  for  a  re- 
scission or  reformation  of  the  contract,  but  might  be  retained  to  estab- 
lish an  equitable  set-off  in  favor  of  the  plaintiff,  on  account  of  the  in- 
solvency of  the  defendant ;  and,  on  final  hearing,  a  reference  of  the  mat- 
ters of  account  was  ordered. 

Errors  are  here  assigned,  by  consent,  by  each  party.  The  assign- 
ments of  error  for  the  defendant  are,  the  overruling  of  the  demurrer 
to  the  bill  for  want  of  equity,  and  the  final  decree  in  favor  of  the  com- 
plainant; for  the  plaintiff,  the  refusal  of  the  chancellor  to  grant  a  re- 
scission or  reformation  of  the  contract,  and  to  allow  plaintiff's  claim 
for  damages  resulting  from  defendant's  fraud  as  a  part  of  his  equit- 
able set-off. 

Walker,  J.8  *  *  *  There  is  plainly  no  equity  in  the  bill,  as  an 
application  for  the  reformation  of  the  contract ;  because  the  bill  shows 
that  the  contract  was  drawn  precisely  as  both  parties  intended  it  should 
be  drawn.  The  complaint  is,  not  that  a  mistake  was  committed  in  the 
drawing  of  the  instrument,  but  that  the  defendant  has  not  performed 
a  part  of  the  antecedent  verbal  agreement,  which  was  designedly  left 
out  of  the  written  contract,  and  trusted  to  the  defendant's  honor.  It 
is  desired  to  add  to  the  contract  a  stipulation  which,  according  to  the 
complainant's  bill,  was  intentionally  left  out,  under  the  influence  of  a 
confidence  in  defendant,  which  subsequent  events  prove  to  have  been 
misplaced.  The  bill  says  that  the  subject  was  called  to  the  attention 
of  the  defendant,  and  he  avoided  giving  his  consent  to  the  insertion  of 
the  stipulation  in  question,  saying,  "the  complainant  certainly  had 
enough  confidence  in  him  to  trust  to  his  honor  in  that  particular."  It  is 
thus  manifest  from  the  bill  itself,  that  the  defendant  did  not  consent, 

*  Parts  of  the  opinion  are  omitted. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  689 

but  designedly  omitted  to  consent,  that  such  a  stipulation  should  be  in 
the  contract.  Before  we  can  grant  the  relief  asked,  it  is  necessary, 
therefore,  that  we  should  make  a  contract  for  the  parties,  instead  of 
reforming  one  actually  made.9     *     *     * 


LADD  et  al.  v.  PLEASANTS. 
(Supreme  Court  of  Texas,  1S73.     39  Tex.  415.) 

Appeal  from  De  Witt.    Tried  below  before  the  Hon.  Henry  Maney. 

This  suit  was  brought  by  H.  C.  Pleasants,  administrator  of  the  estate 
of  John  York,  deceased,  to  quiet  the  title  to  three  hundred  and  eighty 
acres  of  land.  Pleasants,  under  an  order  of  the  county  court  of  De 
Witt  county,  sold,  in  1869,  to  James  Ladd,  a  tract  of  land  as  the  proper- 
ty of  the  estate,  believed  at  the  time  of  sale  to  contain  about  two  hun- 
dred acres.  The  land  was  bid  for  at  public  auction  by  the  acre,  and  so 
paid  for.  Two  hundred  acres  only  were  paid  for.  It  was  discovered 
after  the  execution  of  the  deed  that  the  tract  really  contained  five  hun- 
dred and  eighty  acres.  It  was  described  in  the  order  of  sale,  in  the 
order  of  confirmation,  and  in  the  deed  to  Ladd,  as  "containing  two 
hundred  acres,  more  or  less."  It  appears  that  the  administrator,  at  the 
time  of  executing  the  deed,  believed  that  the  tract  contained  but  two 
hundred  acres.  Ladd  inquired  of  him  when  the  deed  was  made  wheth- 
er he  could  hold  the  land  under  his  deed  if  there  should  be  more  than 
two  hundred  acres,  and  was  told  that  if  the  excess  was  large  it  would 
not  be  conveyed,  but  would  remain  the  property  of  York's  estate.  New- 
som  was  interested  in  the  purchase  made  by  Ladd,  and  Andrews  paid 
for  that  portion  of  the  land  claimed  by  him  after  he  knew  that  the  ad- 
ministrator asserted  claim  to  the  excess  over  two  hundred  acres. 

Verdict  for  Pleasants,  administrator,  and  judgment  in  his  favor  for 
all  the  land  exceeding  two  hundred  acres  which  was  conveyed  by  the 
deed. 

Walker,  J.  The  mistake  which  is  shown  to  have  been  made  in  the 
sale — made  by  the  administrator  of  York's  estate — is  so  gross  that  no 
court  of  equity  could  uphold  it.  The  parties  supposed  the  tract  might 
contain  no  more  than  two  hundred  acres,  whereas  it  is  shown  to  have 
contained  five  hundred  and  eighty  acres.  The  vendee  purchased  at  a 
given  price  per  acre.  If  he  had  wanted  to  hold  this  land  equity  would 
require  him  to  have  tendered  the  money  at  the  price  paid,  or  at  least 
a  fair  value,  for  the  remainder  of  the  land. 

Equity  will  not  interfere  to  correct  slight  and  immaterial  mistakes  in 
the  quantity  of  land  sold,  where  the  parties,  both  vendor  and  vendee, 
are  ignorant  of  the  true  quantity  contained  in  the  tract. 

a  The  court  finally  granted  plaintiff  relief  by  way  of  equitable  set-off. 
Boke  Eq. — 44 


690  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Cll.  3 

Some  notice  may  be  taken  of  the  fact  that  the  vendor  in  this  case 
was  the  administrator  of  an  estate,  which  courts  of  equity  are  peculiarly 
bound  to  protect  from  mistakes  and  frauds. 

But  had  all  the  parties  been  acting  in  this  case  sui  juris,  equity  would 
correct  so  ruinous  a  mistake,  as  where  the  vendee  claims  almost  three 
times  as  much  land  as  he  actually  purchased.  Smith  v.  Fly,  24  Tex. 
349,  76  Am.  Dec.  109;  O'Connell  v.  Duke,  29  Tex.  309,  94  Am.  Dec. 
282;  Story,  Eq.  §§  144a,  149. 

The  judgment  in  this  case  is  affirmed. 

Affirmed. 


HOLT  v.  HOLT  et  al. 

(Supreme  Court  of  California,  1S9S.     120  Cal.  67,  52  Pac.  119.) 

Appeal  from  a  judgment  of  the  superior  court  of  Los  Angeles  coun- 
ty and  from  an  order  denying  a  new  trial ;  Waldo  M.  York,  Judge. 

McFarlaxd,  J.  This  action  was  brought  to  reform  a  deed  exe- 
cuted by  the  plaintiff  to  the  defendant  Frances  M.  Holt,  Tyler  being 
made  a  defendant  as  a  subsequent  mortgagee  with  notice.  The  court 
rendered  judgment  for  plaintiff,  and  the  defendants  appeal  from  the 
judgment  and  from  an  order  denying  their  motion  for  a  new  trial. 

The  findings  of  the  court  were  warranted  by  the  evidence.  The 
plaintiff  and  the  defendant  Frances  were  at  one  time  husband  and  wife, 
and  had  been  divorced  before  the  occurrences  out  of  which  this  litiga- 
tion arises.  The  land  involved  here,  designated  as  lot  7  of  a  certain 
tract,  was  separate  property  of  the  plaintiff,  though  defendant  Frances 
had  filed  a  homestead  thereon,  the  plaintiff  not  joining  therein.  By 
the  decree  of  divorce  the  lot  was  set  apart  to  the  defendant  Frances 
"for  a  limited  period,  to  wit,  the  term  of  fifteen  years,"  but  it  contained 
the  following  provision : 

"Provided,  that  if  the  plaintiff  will  convey  to  the  defendant  an  undivided 
and  unincumbered  one-half  interest  in  said  homestead,  then  said  term  will 
be  shortened  to  five  months." 

For  the  purpose  of  complying  with  this  provision  the  plaintiff  exe- 
cuted a  deed  to  the  defendant  Frances,  which  was  intended  to  be  of 
an  undivided  half  of  said  lot,  but  by  mistake  of  the  conveyancer  in 
following  a  printed  form  the  deed  was  made  to  convey  the  whole  of  said 
lot.  When  the  deed  was  delivered  to  the  defendant  Frances  by  the 
plaintiff  she  was  informed  that  it  conveyed  only  an  undivided  one-half 
of  the  lot,  in  accordance  with  the  provisions  of  the  decree.  The  defend- 
ant Frances  made  some  objection  at  first  to  receiving  the  deed;  but  a 
day  or  two  afterwards,  upon  learning  that  it  conveyed  the  whole  lot, 
she  accepted  it  and  put  it  upon  record.  She  knew  that  the  plaintiff 
supposed  that  the  deed  conveyed  only  the  undivided  one-half,  and  that 
the  language  in  the  deed  purporting  to  convey  the' whole  lot  was  a  mis- 
take.    Shortly  afterwards  the  defendant  Tyler  took  a  mortgage  from 


Sec.  1)  REFORMATION   AND    RE-EXECUTION  691 

the  defendant  Frances  upon  the  whole  of  said  lot,  the  mortgage  pur- 
porting to  be  security  for  $500 ;  but  the  court  found,  and  we  think  upon 
sufficient  evidence,  that  at  the  time  of  the  execution  of  the  mortgage 
Tyler  knew  all  the  facts  and  the  mistake. 

The  only  point  made  by  appellants  which  needs  special  notice  is  that 
there  is  a  variance  between  the  complaint  and  the  findings,  because,  as 
contended  by  appellants,  the  complaint  avers  a  "mutual"  mistake,  while 
the  findings  are  that  the  mistake  was  that  of  the  plaintiff,  and  that  the 
defendant  Frances  knew  of  such  mistake  at  the  time.  We  do  not  think 
that  this  position  is  tenable.  It  is  true  that  in  the  complaint  it  is  averred 
that  the  said  Frances,  at  the  time  she  accepted  the  deed,  supposed  that 
it  conveyed  only  the  undivided  one-half  of  the  property ;  but  it  is  also 
averred  that : 

"Said  defendant  Frances  M.  Holt  knew  at  the  time  of  such  acceptance  that 
the  plaintiff  also  supposed  that  said  deed  described  and  conveyed  only  the  un- 
divided one-half  of  said  homestead  property." 

This  averment  clearly  brought  the  case  within  section  3399  of  the 
Civil  Code  (Cleghorn  v.  Zumwalt,  83  Cal.  158,  23  Pac.  294);  and  under 
no  view  was  there  such  a  variance  as  "actually  misled  the  adverse  party 
to  his  prejudice"  (Code  Civ.  Proc.  §  469).  We  do  not  think  that  the 
pleadings  in  this  case  raise  any  issues  growing  out  of  the  decree  of  di- 
vorce, or  that  any  rights  growing  out  of  said  decree  are  herein  deter- 
mined. The  purpose  of  this  action  and  the  effect  of  this  judgment  are 
merely  to  reform  the  deed.  Whatever  rights  the  parties  have  under 
the  decree  of  divorce  after  the  reformation  of  the  deed  are  not  here  to 
be  determined.  That  part  of  the  judgment  in  the  case  at  bar  which 
decrees  that  the  plaintiff  is  the  owner  in  fee  of  an  undivided  one-half  of 
the  lot,  and  that  the  defendant  Frances  is  the  owner  in  fee  of  the  other 
undivided  one-half,  might  as  well  have  been  left  out ;  but,  as  the  de- 
fendant Frances  by  her  answer  claimed  the  ownership  of  the  whole 
lot,  we  do  not  see  that  she  is  injured  by  that  part  of  the  judgment  which 
gives  her  an  undivided  half  thereof.  No  other  questions  raised  in  the 
case  need  special  notice.  The  judgment  and  order  appealed  from  are 
affirmed.10 

We  concur  :   Henshaw,  J. ;  Temple,  J. 

Hearing  in  Bank  denied. 

io  In  Stockbridge  Iron  Co.  v.  Hudson  Iron  Co.  (1SG9),  102  Mass.  45,  at 
46,  the  court  said:  "By  the  common  law,  parties  who  execute  written  instru- 
ments are  abound  by  them,  and  parol  evidence  is  not  admissible  to  add  to 
or  diminish  or  vary  their  terms.  The  rule  is  of  great  practical  importance  for 
the  protection  of  the  interests  of  the  citizen,  and  it  is  the  more  so  since  par- 
ties and  interested  witnesses  are  permitted  to  testify.  The  writing  must  be 
regarded,  prima  facie,  as  a  solemn  and  deliberate  admission  of  both  parties 
as  to  what  the  terms  of  the  contracts  actually  were ;  and  in  Babcock  v.  Smith 
[(1839)  22  Pick.  61]  it  is  said  that  'the  power  of  rectifying  and  reforming 
solemn  written  contracts  is  one  which  by  courts  of  general  chancery  jurisdic- 
tion is  exercised  very  sparingly,  and  upon  the  clearest  and  most  satisfactory 
proof  of  the  intention  of  the  party.'  Yet  if  a  mistake  is  made  out  by  proofs 
that  are  enth'ely  satisfactory,  equity  will  reform  the  contract,  so  as  to  make  it 
conform  to  the  intent  of  the  parties.     1  Sugden  on  Vend.  (7th  Am.  Ed.)  212; 


692  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

TILLIS  v.  SMITH. 

(Supreme  Court  of  Alabama,  1S95.    108  Ala.  264,  10  South.  374.) 

Appeal  from  Geneva  Chancery  Court. 

Heard  before  the  Hon.  Jere  N.  Williams. 

The  facts  upon  which  the  opinion  is  based  are  sufficiently  stated 
therein. 

Head,  J.11  It  is  not  denied  that  the  instrument  whose  reformation 
is  sought  by  the  bill  misdescribes  the  lands  which  the  appellees  agreed 
to  convey  to  the  appellant,  and  for  the  purpose  of  conveying  which  they 
went  to  his  place  of  business,  in  the  town  of  Geneva.  It  is  admitted 
that  the  appellee  R.  T.  Smith  did  not  own  any  land  in  section  25,  but 
that  he  was  possessed  of  the  corresponding  subdivisions  in  section  28, 
constituting  his  homestead,  and  upon  which  the  appellant  had  a  first 
mortgage.  In  his  testimony,  Smith  says  that  he  had  previously  mort- 
gaged these  lands  to  appellant,  and  that  he  intended  to  deed  the  same 
lands  lying  in  section  28,  instead  of  section  25.  There  is  therefore  no 
room  for  doubt  or  controversy  that  a  mistake  was  made  by  the  scrivener 
in  respect  of  the  description  of  the  lands,  and  that,  in  its  present  form, 
the  instrument  does  not  express  the  true  intention  and  meaning  of  the 
parties.  The  jurisdiction  of  a  court  of  equity  to  correct  such  mistakes, 
when  admitted  or  established  by  the  necessary  measure  of  proof,  is  too 
well  settled,  and  has  been  too  often  successfully  invoked  in  this  state, 
to  require  a  citation  of  the  cases  to  be  found  in  our  Reports  upon  this 
subject;  and  at  this  time  it  is  no  longer  open  to  debate  that  reformation 
may  be  had  of  a  conveyance  designed  to  pass  the  husband's  exempt 
homestead,  but  which,  by  mistake,  fails  to  correctly  describe  it,  pro- 
vided the  deed  or  mortgage  is  executed  and  acknowledged  by  him  and 
wife,  in  conformity  with  the  statute  governing  such  cases.  Gardner 
v.  Moore,  75  Ala.  394,  51  Am.  Rep.  454;  Parker  v.  Parker,  88  Ala.  362, 
6  South.  740,  16  Am.  St.  Rep.  52.  The  opinion  in  the  case  first  cited 
states,  arguendo,  that  the  reformation  in  description  which  was  there 
prayed  for  in  the  bill  did  not  seek  to  locate  the  land  in  a  different  sec- 
tion, but  to  correct  an  admitted  imperfection  in  the  designation  of  it, 
by  erroneous  land  numbers,  belonging  to  the  same  section.  The  fact 
thus  noted  was  not  made  the  basis  of  the  decision,  which  lacks  much  of 
being  an  adjudication  that  reformation  will  be  denied  if  the  mistake  is 
made  in  respect  of  the  section  number.  On  principle,  there  is  no  logical 
foundation  for  such  a  distinction.  The  same  results  follow  a  mistake 
as  to  the  section  which  accompany  a  mistake  as  to  subdivisions  of  the 
same  section.    In  either  case  the  mistake  is  equally  harmful,  and  every 

Townsbend  v.  Stangroom  (1S01)  6  Ves.  328,  and  note.     But  the  mistake  must 
be  of  both  the  parties,  and  must  be  about  the  very  subject  of  the  contract. 
Fry,  Spec.  Perf .  225 ;    Sawyer  v.  Hovey  (1862)  3  Allen,  332,  81  Am.  Dec.  659." 
ii  Parts  of  the  opinion  are  omitted. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  693 

reason  which  exists  for  correcting  the  misdescription  in  the  one  in- 
stance applies  with  equal  force  to  the  other.     *     *     * 

The  third  plea  is  very  meager  in  its  statements.  It  does  no  more 
than  aver  that,  before  the  filing  of  the  bill,  the  appellant  conveyed  by 
deed  to  a  third  party,  not  named,  the  lands  described  in  Smith's  deed, — 
that  is,  the  lands  lying  in  section  25  ;  and  from  this  single  fact,  which 
the  appellant  admitted,  it  is  argued  by  counsel  for  appellees  that  the 
appellant  is  not  a  proper  party  complainant.  It  has  been  ruled,  and  we 
think  correctly,  that,  when  a  mistake  occurs  in  a  series  of  conveyances, 
the  last  vendee  may  have  the  deeds  corrected.  Blackburn  v.  Randolph, 
33  Ark.  1 19 ;  May  v.  Adams,  58  Vt.  74,  3  Atl.  187  ;  Greelev  v.  De  Cottes, 
24  Fla.  475,  5  South.  239;  Parker  v.  Starr,  21  Xeb.  680,  33  N.  W.  424. 
From  this  principle  it  is  argued  that  the  right  of  the  grantee  in  the  con- 
veyance wherein  a  mistake  occurs,  to  have  it  reformed,  is  destroyed  by 
his  deed  to  another,  containing  the  same  mistake.  Although  the  second 
conveyance  would  establish  a  privity  between  the  grantee  therein  and 
the  grantor  in  the  first  conveyance,  entitling  the  former  to  seek  a  cor- 
rection of  the  first  conveyance,  we  are  by  no  means  prepared  to  admit 
that  this  would,  of  necessity,  disable  the  first  grantee  from  procuring 
the  correction  to  be  made,  upon  a  bill  filed  by  him.  The  second  grantee 
might  not  desire  to  do  more  than  have  a  correction  of  the  immediate 
conveyance  to  himself,  leaving  to  the  first  vendee  the  task  of  protecting 
himself  by  procuring  a  correction  of  the  first  conveyance.  We  have 
found  no  case  holding  the  proposition  asserted  by  counsel.  *  *  * 
For  aught  that  appears  therein,  it  was  well  understood  between  appel- 
lant and  his  grantee  that  the  former  was  to  convey  to  the  latter  the  very 
lands,  lying  in  section  25,  which  were  conveyed,  and,  for  anything  to 
the  contrary  which  the  plea  shows,  appellant's  grantee  neither  has  nor 
claims  any  right  or  interest  whatever  in  the  lands  lying  in  section  28. 
Prima  facie,  at  least,  the  appellant,  as  a  party  to  the  conveyance  made 
by  Smith,  is  the  proper  person  to  seek  its  reformation  ;  and,  if  any- 
thing has  occurred  whereby  his  right  has  been  lost,  it  must  be  shown 
by  appropriate  pleading  and  proof.  It  is  perfectly  plain  to  us  that  the 
fact  averred  in  the  third  plea  furnishes  no  valid  objection  to  the  main- 
taining of  this  bill  by  appellant.     *     *     * 

The  decree  of  the  chancellor  must  be  reversed,  and  a  decree  here 
rendered  awarding  the  complainant  appropriate  relief.  Reversed  and 
rendered. 


G94  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

RUHLING  v.  HACKETT  et  al. 
(Supreme  Court  of  Nevada,  1865.    1  Nev.  360.) 

Appeal  from  the  Second  Judicial  District  of  the  State  of  Nevada, 
Ormsby  County;   Hon.  S.  H.  Wright  presiding. 

The  complaint  alleges  an  error  in  the  mortgage  by  mistake,  the  in- 
tention being,  as  alleged,  to  mortgage  lot  6,  instead  of  lot  9. 

Opinion  by  Lewis,  C.  J.,12  full  Bench  concurring. 

The  bill  in  this  case  is  brought  to  reform  a  mortgage,  foreclose  the 
same,  and  also  to  foreclose  a  vendor's  lien. 

The  plaintiffs  allege  that  on  the  30th  day  of  June,  A.  D.  1863,  the 
defendant  McKey  made  and  delivered  to  one  Zartman  his  promissory 
note  in  writing,  whereby  for  value  received  he  promised  to  pay  to 
Henry  Zartman,  or  order,  the  sum  of  $3,000,  in  United  States  gold 
coin,  with  interest  at  the  rate  of  5  per  cent.,  per  month ;  that,  to  secure 
the  payment  thereof,  McKey  made,  executed  and  delivered  to  Zartman 
his  indenture  of  mortgage,  whereby  he  granted,  bargained  and  sold  to 
Zartman  lot  number  9  in  block  number  17,  in  Carson  City,  which  con- 
veyance was  intended  as  a  mortgage.  It  is  further  alleged  that  on  the 
4th  day  of  August,  A.  D.  1863.  the  said  Zartman,  for  value  received, 
transferred  and  delivered  the  said  note,  and  assigned  and  delivered  the 
said  mortgage  to  the  said  plaintiffs.  It  is  also  alleged  that,  at  the  time 
of  the  execution  of  the  note  and  mortgage  above  referred  to,  McKey 
was  the  owner  of  lot  number  6  in  block  number  17,  in  Carson  City ; 
that  it  was  the  intention  of  McKey  and  Zartman,  and  was  understood 
and  agreed  by  and  between  them,  that  lot  6  instead  of  lot  9,  should  be 
embraced  in  and  covered  by  said  mortgage;  that  it  was  not  intended 
to  mortgage  lot  9  at  all,  but  only  lot  6,  that  both  parties  supposed  that 
lot  6  was  the  one  described  in  the  mortgage  at  the  time  of  its  execu- 
tion, but  that,  by  the  mistake  of  Zartman  or  the  draughtsman  of  the 
instrument,  lot  number  9  was  described  and  embraced  in  said  mort- 
gage, instead  of  lot  number  6;  that  at  the  time  of  the  making  and  de- 
livery of  the  note  and  mortgage,  the  defendant  McKey  had  no  interest 
whatever,  in  lot  number  9;  that  in  March,  A.  D.  1864,  Mrs.  William- 
son, who  owned  lot  number  9,  conveyed  the  same  to  the  defendant 
Clayton,  and  at  the  same  time  McKey,  by  Mrs.  Williamson,  acting  as 
his  attorney  in  fact,  also  conveyed  all  his  right,  title  and  interest  in  lot 
number  6  to  defendant  Clayton ;  that,  for  and  in  consideration  of  the 
sale  to  Clayton  of  the  lots  above  mentioned,  he  agreed  to  pay  to  the 
plaintiff  the  sum  of  $4,450 — the  amount  then  due  on  the  note  and  mort- 
gage held  by  them,  and  which  was  a  part  of  the  consideration  for  the 
conveyance  of  the  lots  to  him.  It  is  also  alleged  that  at  the  time,  and 
before  the  conveyance  of  the  lots  to  him,  Clayton  was  informed  of  and 
had  full  knowledge  of  the  mistake  in  the  mortgage,  and  of  the  inten- 

i2  Parts  of  the  opinion  are  omitted. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  695 

tion  of  the  plaintiffs  to  have  the  same  reformed,  so  as  to  make  it  em- 
brace and  cover  lot  6  instead  of  lot  9. 

Plaintiffs  allege  further  that  though  often  requested,  Clayton  refus- 
es to  pay  to  them  the  $4,450  which  he  agreed  and  promised  to  pay. 
For  the  purpose  of  securing  a  lien  upon  lot  9,  it  is  alleged  in  the  com- 
plaint that  the  $3,000  loaned  by  Zartman,  though  borrowed  by  McKey, 
was  in  fact  for  the  benefit  of  Mrs.  Williamson,  and  that  the  entire  sum 
so  loaned,  was  by  her  expended  in  placing  improvements  on  that  lot, 
and  that  such  improvements  now  constitute  its  chief  value.  Upon 
these  facts  the  plaintiffs  pray  that  the  mortgage  assigned  to  them  may 
be  reformed  so  as  to  make  it  embrace  lot  number  6;  that  that  lot  may 
be  sold  to  satisfy  their  claim,  and  that  they  have  a  lien  upon  lot  num- 
ber 9. 

To  this  complaint  the  defendant  Clayton  interposes  a  general  de- 
murrer. The  only  inquiry  which  can  be  presented  upon  this  demurrer 
is,  whether  the  complaint  states  facts  sufficient  to  constitute  a  cause  of 
action.  Misjoinder  of  actions  cannot  be  raised  upon  a  general  demur- 
rer, and,  therefore,  if  it  were  admitted  that  plaintiffs  have  united  as- 
sumpsit with  a  bill  in  equity  to  reform  a  mortgage  deed,  it  cannot  be 
taken  advantage  of  under  the  demurrer. 

It  is  claimed  by  respondents'  counsel  that  the  mortgage,  in  this  case, 
cannot  be  reformed  so  as  to  make  it  include  land  not  described  in  it  at 
the  time  of  its  execution,  though  it  be  admitted  that  it  was  written  by 
fraud  or  mistake ;  that  an  instrument  for  the  conveyance  of  land  may 
be  reformed  so  as  to  diminish  the  quantity  conveyed,  or  agreed  to  be 
conveyed,  but  not  to  extend  it  to  land  not  described  in  the  deed  or 
agreement,  because  it  is  said  to  order  the  conveyance  of  land  which, 
by  mistake  or  fraud,  is  omitted  from  the  deed,  is  in  violation  of  the 
statute  of  frauds  which  declares  that  no  estate  or  interest  in  land  shall 
be  created,  granted  or  assigned,  unless  by  deed  or  conveyance  in  writ- 
ing, signed  by  the  party  granting  the  same ;  but  that  ordering  a  recon- 
veyance of  land  which  is  conveyed  by  fraud  or  mistake,  is  not  in  viola- 
tion of  this  statute. 

For  this  distinction  we  find  no  authority  but  the  dictum  of  Weston, 
J.,  in  the  case  of  Elder  v.  Elder,  10  Me.  80,  25  Am.  Dec.  205,  who 
whilst  acknowledging  the  authority  of  the  case  of  Gillespie  v.  Moon,  2 
John.  Ch.  [N.  Y.]  585,  7  Am.  Dec.  559,  yet  endeavors  to  draw  the  dis- 
tinction above  stated  between  the  two  cases.  That  distinction  may  have 
been  clear  and  entirely  satisfactory  to  the  learned  Judge  who  delivered 
the  opinion  in  Elder  v.  Elder,  but  we  must  acknowledge  it  to  be  utterly 
beyond  our  comprehension.     *     *     * 

Can  it  be  seriously  claimed  that  if  it  be  the  intention  of  the  grantor 
to  convey,  and  the  grantee  to  purchase,  a  valuable  piece  of  land,  and 
the  consideration  is  paid,  but  by  mistake  a  piece  utterly  worthless  is 
described  in  the  instrument  of  conveyance,  that  a  Court  of  equity  may 
not  reform  such  instrument  so  as  to  make  it  conform  to  the  admitted 
intention  of  the  parties?    It  is  the  peculiar  province  of  equity  to  relieve 


696  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Cll.  3 

from  the  consequences  of  fraud,  surprise  and  mistake ;  but  it  would 
illy  merit  our  commendation  if  it  gave  no  adequate  remedy  in  cases  of 
such  manifest  injustice,  and  of  such  frequent  occurrence.     *     * 

In  Willis  v.  Henderson,  supra  [4  Scam.  (111.)  13,  38  Am.  Dec.  120], 
by  mistake  a  tract  of  land  described  in  a  mortgage  was  not  the  tract 
intended  by  the  parties  to  be  mortgaged ;  it  was  held,  however,  that  the 
purchasers  of  the  land  intended  to  be  mortgaged  having  notice  of  the 
mistake  took  it  subject  to  the  mortgage,  and  that  a  Court  of  equity  may 
correct  the  mistake  and  enforce  it  against  the  land  in  the  hands  of  such 
purchasers.  So  in  the  case  of  Blodgett  v.  Hobart.  where  it  appeared 
that  by  mistake  a  part  of  the  lands  agreed  to  be  mortgaged  were  not 
included  in  the  mortgage  deed,  it  was  held  that  on  a  bill  for  that  pur- 
pose a  Court  of  Chancery  would  correct  the  mistake  by  ordering  the 
mortgage  to  be  so  reformed  as  to  include  the  land  omitted. 

In  Alexander  v.  Newton  [2  Grat.  (Va.)  266]  it  was  said  that  a  mis- 
take of  a  scrivener  in  drawing  a  deed,  whether  in  law  or  in  fact,  will 
be  corrected  by  a  Court  of  equity  even  against  bona  fide  creditors. 

So  in  Klopton  v.  Martin  [11  Ala.  187]  the  Court  held  that  where  a 
written  instrument  expresses  more  or  less  than  the  parties  intended, 
the  Court  of  equity  will  reform  it.  And  Air.  Justice  Story,  in  Taylor 
v.  Luther,  2  Sumner,  228,  Fed.  Cas.  No.  13,796,  uses  the  following  lan- 
guage : 

'•Nothing  is  better  settled  than  that  the  true  construction  of  the  statute  of 
frauds  does  not  exclude  the  enforcement  of  parol  agreements  respecting  the 
sale  of  lands  in  cases  of  fraud ;  for,  as  it  has  been  emphatically  said,  that 
would  be  to  make  a  statute  purposely  made  to  prevent  fraud  the  veriest  in- 
strument of  fraud ;   and  the  same  rule  governs  in  case  of  mistake  as  of  fraud." 

Indeed,  we  are  unable  to  find  a  single  case  which  militates  against 
the  general  rule  that  a  Court  of  equity  will  reform  a  mistake  in  all  exe- 
cuted contracts. 

There  are  many  cases  in  which  it  is  held,  and  perhaps  the  weight  of 
authority  sustains  the  doctrine,  that  a  Court  of  equity  will  not  correct 
a  mistake  in  an  executory  contract  where  the  mistake  is  denied  by  an- 
swer, and  enforce  its  specific  performance  as  corrected. 

But  if  the  contract  be  executed,  money  paid  and  land  omitted  by  mis- 
take from  the  instrument  which  it  was  the  intention  of  the  parties  to 
include,  it  would  be  a  deplorable  defect  in  the  equity  powers  of  our 
Courts  if  relief  could  not  be  granted.  This  is  the  distinction  made  in 
all  the  cases,  and  we  think  not  a  solitary  case  can  be  found  where  a 
Court  of  equity  has  refused  to  reform  a  material  mistake  in  a  deed  or 
mortgage,  unless  there  were  some  defense  besides  the  statute  of  frauds, 
such,  for  instance,  as  unreasonable  delay  upon  the  part  of  plaintiff. 
All  the  authorities  relied  on  by  the  respondents'  counsel  where  the  ref- 
ormation was  refused  are  cases  of  executory  contracts. 

But  it  is  said  that  even  if  such  a  mistake  can  be  corrected  in  favor 
of  the  original  mortgagee,  that  it  is  a  mere  equitable  right  of  action 
which  is  not  assignable. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  697 

The  authorities,  however,  are  directly  opposed  to  this  position.  The 
assignment  of  the  mortgage  usually  carries  with  it  all  the  equitable 
rights  of  the  mortgagee  growing  out  of  it.  Indeed,  the  assignment  of  a 
mortgage  is  itself  but  a  transfer  of  an  equitable  right  of  action  to  the 
assignee.  With  respect  to  the  right  of  reforming  the  mortgage,  the  as- 
signee stands  in  the  same  position  as  the  mortgagee.  Washburn  v. 
Merrills,  1  Day  [Conn.]  139,  2  Am.  Dec.  59;  Gillespie  v.  Moon,  2 
Johns.  Ch.  [N.  Y.]  585. 

The  complaint  alleges  that  Clayton  had  notice  of  the  mistake,  and  of 
the  intention  of  the  plaintiffs  to  have  the  same  reformed,  at  and  before 
the  time  of  his  purchase  of  lot  number  6.  By  demurring  to  the  com- 
plaint, this  fact  is  admitted,  and  he  is  therefore  placed  in  the  same  posi- 
tion with  respect  to  the  reformation  of  the  mortgage  deed  as  his  gran- 
tors were.  Blodgett  v.  Hobart,  18  Vt.  414;  Willis  v.  Henderson,  4 
Scam.  (111.)  13,  38  Am.  Dec.  120.  Wre  are  also  of  opinion  that  the 
plaintiffs  may  maintain  an  action  against  the  defendant  Clayton  upon 
his  promise  to  Mrs.  Williamson  to  pay  a  certain  proportion  of  the  pur- 
chase money.  Such  a  promise  is  not  a  collateral  promise  in  the  nature 
of  a  guarantee  of  the  debt  of  a  third  party,  but  is  an  original  promise 
upon  which  the  beneficiary  may  maintain  his  action  direct.  1  Parsons 
on  Contracts,  390;  Hind  v.  Holdeship,  2  Watts  [Pa.]  104,  26  Am. 
Dec.  107;  Arnold  v.  Lyman,  17  Mass.  400,  9  Am.  Dec.  154;  Jackson 
v.  Mayo,  11  Mass.  152,  6  Am.  Dec.  167.  This  is  the  generally  recog- 
nized rule  in  the  American  cases ;  the  English  cases,  however,  do  not 
maintain  the  same  rule. 

The  judgment  of  the  Court  below  reversed  and  cause  remanded,  and 
leave  granted  defendant  to  answer.13 


MORGAN  et  al.  v.  DOD. 

(Supreme  Court  of  Colorado,  1877.    3  Colo.  551.) 

Suit  in  equity.  The  defendant  in  error,  Dod,  borrowed  from  Mor- 
gan, one  of  the  plaintiffs  in  error,  two  hundred  and  fifty  dollars,  giv- 
ing his  note  therefor,  payable  in  thirty  days,  Babcock,  the  other  plain- 
tiff in  error,  signing  the  note  as  surety.  To  indemnify  Babcock,  Dod 
gave  him  the  possession  of  a  mare  and  harness,  with  a  bill  of  sale  of 
the  property.    There  was  also  delivered  to  Babcock  by  one  Millspaugh, 

is  in  Christensen  v.  Holliugsworth  (1898)  6  Idaho,  87,  53  Pac.  211,  96  Am. 
St.  Rep.  256,  Sullivan,  C.  J.,  said:  "It  is  contended  that  a  mortgage  cannot  be 
reformed  and  foreclosed  in  the  same  action,  and  that  the  court  erred  in  per- 
mitting reformation  and  foreclosure  in  the  same  action.  There  is  nothing  in 
this  contention.  The  recognized  rule,  under  our  Code  of  Civil  Procedure,  is 
that  a  mortgage  may  be  reformed  and  foreclosed  in  the  same  action.  In 
Hutchinson  v.  Ainsworth  (1887)  73  Cal.  453,  15  Pac.  82,  2  Am.  St.  Rep.  823,  it 
is  held  that  a  complaint  which  seeks  to  reform  a  mortgage,  and  to  foreclose 
the  same  as  reformed,  states  but  one  cause  of  action." 


G98  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

who  also  signed  the  note  as  surety,  a  mare  and  colt,  with  a  bill  of  sale 
and  two  promissory  notes  payable  to  Millspaugh,  for  one  hundred  and 
one  hundred  and  fifty  dollars  respectively,  and  which  notes  were  duly 
assigned  to  Babcock.  This  property  of  both  Dod  and  Millspaugh  was 
all  conveyed  and  delivered  to  Babcock  to  induce  him  to  sign  the  note 
and  to  indemnify  him  against  loss  therefor,  since  Morgan  had  refused 
to  loan  the  money  on  this  property  itself  as  security,  but  had  accepted 
Babcock's  name.  The  note  fell  due  on  Thursday  of  the  week,  but  the 
three  days'  grace  allowed  made  it  payable  upon  Saturday,  since  the 
third  day  of  grace  fell  on  Sunday,  Morgan  insisted  upon  payment  of 
the  note  by  three  o'clock  p.  m.  on  Saturday,  and  the  note  not  being 
paid  at  that  time,  he  demanded  payment  of  Babcock,  who,  claiming 
that  the  property  was  then  forfeited  to  himself,  delivered  it  all  over  to 
Morgan,  who  accepted  it  in  satisfaction  of  the  debt  and  delivered  up 
the  note  to  Babcock.  This  occurred  about  four  o'clock.  After  Bab- 
cock had  turned  the  property  over  to  Morgan,  Millspaugh  complained 
to  Dod  of  his  own  loss  and  the  two  went  to  see  Babcock  to  learn  if 
there  was  any  way  to  get  back  Millspaugh's  property.  This  talk  was 
renewed  on  Sunday,  when  Dod  requested  Babcock  to  see  Morgan  and 
make  terms  for  getting  back  Millspaugh's  property,  stating  that  he 
wuold  lose  or  give  his  own  mare  and  harness  to  save  that  of  his  friend 
Millspaugh.  Babcock  accordingly  saw  Morgan,  who,  on  the  next  day, 
Monday,  agreed  to  give  up  Millspaugh's  mare  and  colt  and  the  two 
notes  upon  payment  of  the  two  hundred  and  fifty  dollars.  Babcock 
agreed  to  this  which  was  afterward  assented  to  by  Dod,  and  the  money 
was  paid  to  Morgan.  About  a  week  afterward  Dod  demanded  his  mare 
and  harness  of  Morgan  and  upon  refusal  to  deliver  brought  an  action 
at  law,  and  failing  in  this,  filed  his  bill  against  both  Morgan  and  Bab- 
cock, charging  collusion  to  defraud  the  complainant,  etc.  Pending  the 
suit,  the  mare,  while  still  in  the  possession  of  Morgan,  became  injured 
and  died.  At  the  final  hearing  upon  the  facts,  the  court  rendered  a  de- 
cree against  Morgan  for  two  hundred  and  fifty  dollars,  as  the  proved 
value  of  the  mare  and  harness,  and  awarded  costs  against  Morgan  and 
Babcock  jointly. 

Stone,  J.14  Upon  the  facts  in  this  case,  and  under  the  general  as- 
signment of  error,  that  the  complainant  was  not  entitled  to  any  relief 
whatever,  the  first  question  presented  is,  what  was  the  nature  of  the 
conveyance  of  the  goods  of  the  defendant  in  error  to  the  plaintiff  Bab- 
cock ?  The  conveyance  was  by  a  bill  of  sale,  absolute  in  terms,  and  ac- 
companied by  actual  delivery  of  the  property.  The  admitted  purpose 
of  the  conveyance  was  to  indemnify  Babcock,  as  security  upon  defend- 
ant's note  to  Morgan.  This  purpose  determined  the  character  of  the 
transaction  as  a  pledging ;  where  one  delivers  a  chattel  to  another  as 
security  for  a  debt  or  as  indemnity  for  suretyship  therein,  the  law  re- 
gards such  delivery  of  the  property  as  a  pledge  merely.     Story  on  Bail- 

14  Parts  of  the  opinion  are  omitted. 


SeC.  1)  REFORMATION   AND   RE-EXECUTION  699 

ments,  §§  286-300.  Nor  does  it  alter  the  case  in  a  court  of  equity  that 
the  property  or  chose  in  action  is  transferred  to  the  creditor  or  surety 
by  an  unconditional  bill  of  sale  or  assignment,  nor  even  if  the  contract 
had  stipulated  that  the  pledge  should  be  irredeemable.  Id.,  §  345.  As 
limited  to  cases  in  equity,  this  doctrine  is  well  settled.  Newton  et  al. 
v.  Fay,  10  Allen  (Mass.)  510. 

The  defendant  then  had  a  right  to  redeem  the  property  pledged  upon 
payment  of  the  debt,  either  upon  maturity  of  the  note  or  even  after 
default.     Story  on  Bailments,  §§  318,  345,  346  and  348.     *     *     * 

This  brings  us  to  the  question  whether  a  mistake  of  the  law  will 
avail  to  discharge  an  obligation  assumed  thereunder. 

The  maxim  "ignorantia  legis  neminem  excusat,"  when  applied  to 
civil  contracts,  has  undergone  much  discussion,  and  many  exceptions 
have  been  made  by  the  courts.  And  while  no  rule  of  exception  of  gen- 
eral applicability  has  been  formulated,  there  is,  nevertheless,  ample  au- 
thority, based  upon  sound  reasons,  to  support  such  exceptions  in  given 
cases.  This  whole  subject  is  fully  discussed  by  Mr.  Story  in  his  work 
upon  Equity  Jurisprudence,  and  in  section  121  he  says: 

"It  has  been  laid  clown  as  unquestionable  doctrine,  tbat  if  a  party,  acting  in 
ignorance  of  a  plain  and  settled  principle  of  law,  is  induced  to  give  up  a  por- 
tion of  bis  indisputable  property  to  another,  a  court  of  equity  will  relieve 
him  from  the  effect  of  his  mistake." 

And  in  the  next  section  he  adds  : 

"Indeed,  where  a  party  acts  upon  the  misapprehension  that  he  has  no  title 
at  all  in  the  property,  it  seems  to  involve,  in  some  measure,  a  mistake  of  fact 
that  is,  of  the  fact  of  ownership,  arising  from  a  mistake  of  law.  A  party  can 
hardly  be  said  to  intend  to  part  with  a  right  or  title  of  whose  existence  he  is 
wholly  ignorant;  and  if  he  does  not  so  intend,  a  court  of  equity  will,  in  ordi- 
nary cases,  relieve  him  from  the  legal  effect  of  instruments  which  surrender 
such  unsuspected  right  or  title." 

In  section  138c,  the  same  learned  author  says: 

"And  where  the  result  of  denying  relief  will  be  to  give  the  other  party  an 
unconscionable  advantage,  and  the  fact  of  such  misapprehension  is  admitted 
or  proved  to  the  entire  satisfaction  of  the  court,  it  would  be  strange  if  it  were 
not  a  sufficient  ground  for  equitable  interference.  The  denial  of  relief  in  such 
cases  would  seem  to  be  at  variance  with  the  long-established  doctrines  of 
courts  of  equity,  and  a  reproach  to  the  law  itself." 

The  same  doctrine  is  recognized  in  Bispham's  Principles  of  Equity, 
§  187,  and  in  Kerr  on  Fraud  and  Mistake  (Bump's  Ed.)  page  398.  Nor 
is  the  application  of  this  doctrine  confined  altogether  to  equity,  it  being 
distinctly  recognized  under  the  head  of  inadequacy  of  consideration  by 
the  general  law  writers.  1  Parsons  on  Contracts,  437 ;  Chitty  on  Con- 
tracts, 46;  Addison  on  Contracts,  §  315. 

The  relinquishment  by  Dod  of  his  property  to  Morgan  was  clearly 
without  consideration.  And  other  elements  of  the  bargain  render  it 
unconscionable.  Dod,  when  he  made  the  note  for  two  hundred  and 
fifty  dollars,  received  but  two  hundred  and  twenty-five,  Morgan  retain- 
ing twenty-five  dollars  as  interest  for  thirty  days,  which  was  at  the  rate 
of  about  eleven  per  cent  per  month.    Upon  payment  of  the  full  amount 


700  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

of  the  note,  the  rights  of  no  third  party  had  intervened  to  prevent  the 
parties  being  placed  in  statu  quo  by  the  decree,  yet  while  Morgan  had 
received  all  he  was  entitled  to  by  the  original  contract,  he  still  held  of 
the  pledged  property  a  portion  equal  in  value  to  the  amount  of  the 
debt. 

We  are  satisfied  that  the  facts  warranted  the  decree,  and  since  Bab- 
cock  was  not  without  fault  in  transferring  the  property  to  Morgan  at 
the  time  he  did,  we  think  the  equity  discretion  of  the  court  in  decreeing 
costs  against  him  jointly  with  Morgan  was  not  erroneously  exei 
*     *     *     Affirmed. 


TUTHILL  v.  KATZ  et  al. 
(Supreme  Court  of  Michigan,  1913.     174  Mich.  217,  140  N.  W.  519.) 

Kuhn,  J.15  This  case  has  been  here  before,  and  is  reported  in  163 
Mich.  618,  128  N.  W.  757,  where  the  facts  are  fully  and  clearly  set 
forth.  *  *  *  The  bill  in  that  case  was  filed  to  correct  the  descrip- 
tion of  the  17^4  acres  in  the  deed  from  William  V.  Rowley  and  wife  to 
Alonzo  J.  Rowley.  This  plaintiff  and  one  of  the  defendants  therein 
answered,  but  asked  for  no  affirmative  relief.  The  court  found  that 
the  deed  was  without  consideration. 

It  is  a  well-established  rule  that  a  court  of  equity  will  refuse  its  aid 
to  rectify  a  mistake  in  a  conveyance  that  is  voluntary  and  without  con- 
sideration unless  all  of  the  parties  consent.  Redding  v.  Rozell,  59 
Mich.  476,  26  N.  W.  677;  Shears  v.  Westover,  110  Mich.  505,  68  N. 
W.  266 ;   34  Cyc.  928. 

The  court,  undoubtedly  basing  its  finding  upon  this  rule  refused  to 
give  complainant  relief  and  dismissed  the  bill.  In  so  far  as  the  title 
of  the  property  was  concerned,  this  left  the  parties  in  statu  quo.  De- 
fendants having  asked  for  no  affirmative  relief,  a  decree  could  not  be 
made  determining  the  title  to  the  land  in  question ;  and  the  language 
used  by  the  judge,  which  it  is  claimed  should  be  construed  as  determin- 
ing this  question,  is  of  no  effect  and  no  part  of  the  decree.  Vary  v. 
Shea,  36  Mich.  388;  Vroman  v.  Thompson,  51  Mich.  453,  16  N.  W. 
808. 

Judgment  is  affirmed,  with  costs. 

15  Part  of  the  opinion  is- omitted. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  701 

BERRY,  DEMOVILLE  &  CO.  v.  SOWELL. 

(Supreme  Court  of  Alabama,  18S2.    72  Ala.  14.) 

SomervillE,  J.1C  It  is  a  settled  principle  of  equity  jurisprudence, 
that  where,  by  mistake,  or  fraud,  a  deed  or  other  written  contract  fails 
to  express  any  material  term  of  the  real  agreement  which  the  parties 
mutually  intended  to  make,  a  court  of  equity  will,  on  clear  and  satis- 
factory proof  of  such  mistake  or  fraud,  reform  the  instrument,  so  as 
to  make  it  conform  to  the  intention  of  the  parties,  and  embody  the 
actual  or  true  agreement.  Alexander  v.  Caldwell,  55  Ala.  517;  Camp- 
bell v.  Hatchett,  55  Ala.  548.  The  aim  of  the  court,  in  such  cases,  is 
to  place  the  parties,  as  nearly  as  possible,  in  the  situation  they  would 
have  occupied  but  for  the  mistake.  Waterman  on  Specific  Perform- 
ance, §§  368,  369. 

And  this  jurisdiction  to  reform  or  rectify  written  instruments  may 
be  exercised  as  well  against  creditors,  and  purchasers  having  actual  or 
constructive  notice  of  the  mistake,  as  between  the  immediate  parties 
themselves.  Dozier  v.  Mitchell,  65  Ala.  511;  Baskins  v.  Calhoun,  45 
Ala.  582 ;  Williams  v.  Hatch,  38  Ala.  338 ;  1  Story's  Eq.  Jur.  §§  165, 
166.  If,  however,  the  parties  can  not  be  placed  in  statu  quo,  or  if  the 
mistake  can  not  be  rectified  without  impairing  the  vested  rights  of  in- 
nocent third  parties,  having  no  notice  of  the  mistake,  the  aid  of  equity 
will  be  withheld.     Waterman  on  Spec.  Perf.  §  384. 

The  present  bill  is  filed  to  reform  a  deed  to  certain  real  estate,  exe- 
cuted by  the  defendant,  Capshaw,  to  the  complainant,  Mrs.  Sowell,  and 
dated  December  19,  1873.  Ancillary  to  this,  an  injunction  is  prayed 
against  a  writ  of  attachment  levied  upon  the  land  by  the  appellants, 
Berry,  Demoville  &  Co.  No  difficulty  is  presented  as  between  the  im- 
mediate parties  to  the  deed.  The  bill  alleges  an  agreement  between 
Benjamin  Sowell,  complainant's  husband,  who  is  made  one  of  the  de- 
fendants to  the  bill,  and  his  wife,  the  complainant,  on  the  one  part,  and 
the  defendant,  Capshaw,  on  the  other,  that  the  husband  should  convey 
the  property  in  controversy  to  Capshaw,  in  order  that  he  might  recon- 
vey  to  the  wife,  in  such  manner,  and  with  such  apt  words,  as  to  con- 
stitute the  property  her  separate  estate  by  contract.  Capshaw,  who 
thus  constituted  himself  a  mere  trustee,  made  this  re-conveyance;  but, 
by  omission,  ignorance,  or  mistake  of  the  draughtsman,  the  considera- 
tion of  the  deed  was  recited  to  be  mere  love  and  affection,  instead  of 
a  valuable  one  moving  from  the  grantee  and  her  husband,  and  the  apt 
words  necessary  to  describe  or  create  the  separate  equitable  estate  were 
omitted.  The  parties  are  thus  alleged  to  have  executed  an  instrument, 
by  common  mistake,  different  from  the  one  agreed  on,  and  prejudicial 
to  the  rights  of  the  complainant.  These  facts  are  admitted  in  the  an- 
swers of  both  Capshaw,  the  grantor  in  the  deed,  and  of  Benjamin  Sow- 
is  The  statement  of  facts  is  omitted. 


702  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ctl.  3 

ell,  the  husband,  who  acted  for  his  wife ;  and  are,  in  our  opinion,  sus- 
tained by  the  evidence.  The  case  is  clearly  one  in  which  the  equity  of 
rectification,  which  is  strictly  in  the  nature  of  specific  performance,  can 
be  invoked,  unless  there  be  some  other  ground  of  valid  objection. 

The  remedy  of  Mrs.  Sowell,  in  a  court  of  law,  was  totally  inadequate. 
The  deed  on  its  face  purported  to  be  a  mere  voluntary  conveyance, 
which  would  be  void  as  to  the  attaching  creditors,  whose  debts  existed 
at  the  time  of  its  execution.  It  was  incapable  of  being  established  by 
parol  proof  of  a  valuable  consideration  in  a  court  of  law,  such  evidence 
being  inadmissible  as  tending  to  vary  the  legal  effect  of  the  instrument. 
The  only  remedy,  in  such  cases,  is  a  bill  in  equity  filed  with  the  view 
of  its  reformation.  Kerr  on  Fraud  &  Mis.  191,  192;  Hubbard  v.  Allen, 
59  Ala.  283. 

The  levy  of  the  attachment  was  no  obstacle  to  the  reformation  of  the 
deed  conveying  the  attached  property  to  the  complainant.  The  equity 
of  Mrs.  Sowell,  arising  from  the  purchase  of  the  house  and  lot  in  ques- 
tion with  her  money,  was  superior  to  the  lien  acquired  by  the  levy  of 
the  attachment,  whether  the  attaching  creditors  had  notice  of  such 
equity  or  not.  The  attachment  could  only  reach  the  actual  interest  of 
the  defendant  in  attachment,  whatever  that  might  be,  and  is  no  impedi- 
ment to  the  assertion  of  all  equities  previously  existing  as  incumbrances 
on  the  property.  Drake  on  Attachments,  §  223 ;  Freeman  on  Judg.  §§ 
356,  357.  Nor  can  an  attaching  creditor  claim  protection  as  a  bona 
fide  purchaser,  as  he  seeks  to  recover  an  old  debt,  and  parts  with  no 
present  consideration.  Depeyster  v.  Gould  [3  N.  J.  Eq.  474],  29  Am. 
Dec.  723  ;  Rogers  v.  Adams,  66  Ala.  600.  The  same  rule  was  applicable, 
in  this  State,  to  the  liens  of  judgment  creditors,  until  it  was  expressly 
abrogated  by  statute.  Coster's  Ex'rs  v.  Bank  of  Georgia,  24  Ala.  37; 
Preston  &  Stetson  v.  McMillan,  58  Ala.  84;  Code  of  1876,  §§  2199, 
2200;  Freeman  on  Judg.  §§  356,  357. 

The  evidence  shows  that  the  complainant  was  in  possession  of  the 
premises,  and  that  the  deed  from  Capshaw  to  her,  here  sought  to  be 
reformed,  was  executed  and  recorded  before  the  levy  of  the  attachment 
sued  out  by  appellants.  The  original  vendors,  Townsend  and  wife, 
conveyed  to  Benjamin  Sowell,  in  March,  1870,  for  a  .consideration  of 
two  thousand  dollars.  Of  this  sum,  one  thousand  dollars  was  paid  in 
cash;  and  the  note  of  Sowell  was  given  for  the  balance,  upon  which 
Capshaw  became  one  of  the  sureties.  Capshaw  afterwards  became  in- 
debted to  Sowell,  in  the  sum  of  about  six  hundred  dollars,  for  a  lot  of 
land  in  the  town  of  Athens,  which  he  paid  upon  the  debt  to  Townsend ; 
and  he  also  paid,  out  of  his  own  funds  the  balance  of  the  purchase- 
money,  amounting  to  about  four  hundred  dollars.  It  is  insisted  that 
this  was  a  donation  to  the  complainant,  his  daughter,  to  whom  he  con- 
veyed the  house  and  lot,  as  above  stated,  in  December,  1873,  and  that 
the  conveyance  was,  therefore,  fraudulent.  If  the  premise  be  true,  the 
conclusion  would  follow,  at  least  so  far  as  to  render  the  deed  construc- 
tively fraudulent,  and  the  grantee  would  be  constituted  a  trustee  in  in- 


Sec.  1)  REFORMATION  AND   RE-EXECUTION  703 

vitum  to  the  extent  of  the  gift;  such  being  the  principle  governing 
voluntary  conveyances.  Bump  on  Fr.  Con  v.  303.  But  we  are  not  at 
liberty  to  regard  the  transaction  in  this  light.  The  four  hundred  dollars 
in  question  was  paid  by  Capshaw,  pursuant  to  a  previous  obligation 
entered  into  as  surety  for  Benjamin  So  well.  It  was  not,  therefore,  a 
gift  to  the  complainant,  but  money  paid  by  request  for  the  use  of  the 
principal,  Sowell,  against  whom  an  action  of  assumpsit  would  lie  at 
the  instance  of  Capshaw.  So,  a  garnishment  might  lie  against  him,  as 
the  debtor  of  Capshaw,  in  favor  of  the  appellants.  These  conclusions 
are  utterly  in  conflict  with  the  theory  of  a  gift  to  complainant. 

The  fact  that  the  money,  paid  by  the  surety  for  the  principal,  was 
invested  by  the  latter  in  the  lands  purchased  for  complainant,  confers 
no  right  upon  the  appellants,  as  creditors,  to  pursue  the  fund  into  the 
investment.  Such  investment,  standing  alone,  raises  no  equity  in  favor 
of  the  creditors  of  the  surety,  either  by  subrogation  or  otherwise.  Such, 
at  least,  is  the  doctrine  of  this  court  as  established  by  its  past  decisions. 
Foster  v.  Trustees  of  Athenaeum,  3  Ala.  302 ;  Knighton  v.  Curry,  62 
Ala.  404. 

The  decree  of  the  chancellor  must,  under  these  principles,  be  af- 
firmed. 


MILLER  v.  BEARDSLKE  et  al. 

(Supreme  Court  of  Michigan,  1913.    175  Mich.  414,  141  N.  W.  566.) 

OstraxdER,  J.17  *  *  *  The  case  for  complainant,  so  far  as  it 
is  now  presented,  is  this :  Complainant  is  heir  at  law  of  Alice  Smith. 
Alice  Smith  died  owner  of  certain  land  unless  she  had  con-  eyed  it  in 
her  lifetime.  She  had  not  conveyed  it  because  her  voluntary  effort  in 
that  direction  was  imperfect.  The  instrument. she  executed  requires 
correction  to  make  it  effective. 

The  grantor  being  dead,  a  court  of  equity  will  not  correct  it.  Red- 
ding v.  Rozell,  59  Mich.  476,  26  N.  YV.  677;  Shears  v.  Westover,  110 
Mich.  505,  68  N.  W.  266.  See,  also,  Tuthill  v.  Katz,  174  Mich.  217, 
140  N.  W.  519.  The  conveyance  therefore  remains  ineffective,  and 
insufficient  evidence  of  a  transfer  of  the  land  by  the  owner  thereof  in 
her  lifetime.  As  the  instrument  and  the  record  of  the  amended  instru- 
ment are  relied  upon  by  defendants  John  Beardslee  and  Elizabeth  Ax- 
ford  (the  bill  was  taken  as  confessed  by  the  defendant  Mattie  Sykes,  an 
heir,  and  by  Matthew  Knight,  who  was  in  possession  of  the  property) 
as  evidence  of  their  title  to  the  land,  the  instrument  should  be  canceled 
and  the  record  declared  to  be  of  no  effect.     *     *     * 

it  Parts  of  the  opinion  are  omitted. 


70-1  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

WELTON  v.  TIZZARD  et  al. 
(Supreme  Court  of  Iowa,  1SG4.    15  Iowa,  495.) 

Diu.on,  J.18  The  question  here  presented  may  be  concisely  stated 
thus  :  Is  the  lien  of  a  subsequent  judgment  creditor,  in  this  State,  para- 
mount to  the  lien  or  equity  of  a  prior  mortgagee,  as  to  lands  intended 
to  be  mortgaged,  but  which,  by  accident  or  mistake,  were  misdescribed  ? 

The  general  equitable  jurisdiction  to  correct  and  relieve  against  er- 
rors and  mistakes  in  deeds  and  other  conveyances  is  not  questioned,  and 
is,  indeed,  recognized  by  statute.  Rev.  §  2257.  The  former  decisions 
of  this  Court  establish  principles  which,  though  arising  in  cases  some- 
what different  from  the  present  one,  are,  nevertheless,  decisive  of  it. 
In  Norton  v.  Williams,  9  Iowa,  529,  it  was  adjudged,  under  our  pres- 
ent laws,  that  an  attachment  or  judgment  lien  would  not  have  prefer- 
ence over  a  prior  unrecorded  deed.  The  statute  makes  "judgments 
a  lien  upon  the  real  estate  owned  by  the  defendant."  Construing  this 
provision,  Wright,  C.  J.,  in  the  case  just  cited,  remarks : 

"It  is  the  property  of  the  debtor  that  is  bound.  The  judgment  is  a  lien  on 
the  real  estate  owned  by  the  debtor,  not  upon  that  owned  by  another,  *  *  * 
and  the  lien  only  extends  to  the  interest  owned  by  the  defendant.  *  *  * 
The  consequence  is,  that  a  judgment  creditor  is  entitled  to  the  same  rights 
as  the  debtor  had,  and  no  more." 

The  doctrine  of  this  case  was  adhered  to  and  applied  in  the  subse- 
quent cases  of  Bell  v.  Evans  et  al.,  10  Iowa,  353 ;  Seevers  v.  Delash- 
mutt,  11  Iowa,  174,  77  Am.  Dec.  139;  and  see  Jones  v.  Jones,  13  Iowa, 
276;  Blaney  v.  Hanks,  14  Iowa,  401;  Patterson  v.  Tinder  et  al.,  14 
Iowa,  41 4. 

In  these  cases,  the  unrecorded  deed  was  for  the  right  land ;  in  the 
case  at  bar  the  conveyance  was  intended  to  be  for  the  right  land,  but 
by  accident  or  mistake  there  was  a  misdescription,  and  the  inquiry  is, 
ought  this  to  lead  to  a  different  result?     *     *     * 

The  debtor  was  bound  in  conscience  to  correct  the  mistake.  His  obli- 
gation to  correct  it  was  such  an  equity  as  would  bind  his  heirs,  volun- 
tary grantees,  or  purchasers  with  notice.  Such  are  the  plaintiff's  rights. 
Now,  the  defendant  is  subsequent  in  point  of  time.  He  has  no  specific 
lien.  He  takes  just  what  the  statute  gives  him,  for  judgment  liens  are 
wholly  created,  and  regulated  by  statute.  Unlike  the  plaintiff,  he  had 
with  the  debtor  no  agreement  for  a  lien  on  this  property.  Unlike  the 
plaintiff,  also,  he  has  no  special  tie  which  binds,  no  equity  which 
specially  fastens  itself  upon,  and  clasps  this  specific  property.  He 
has  a  lien  at  large,  a  mere  right  to  acquire  a  right  to  this  property, 
by  a  levy  and  sale.  His  rights,  before  a  sale  without  notice,  are, 
as  stated  by  Judge  Wright  in  the  opinion  before  quoted,  co-exten- 
sive only  with  those  of  his  debtor.  He  comes  in  under  the  debtor,  that 
is,  under  one  who  in  conscience  is  bound,  and  who  in  equity  would  be 

is  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  705 

compelled  to  rectify  the  error  in  the  antecedent  conveyance.  The  equi- 
ties of  the  parties  are  not  equal,  either  in  point  of  time,  or  point  of  right. 
Such  would  be  our  conclusion  on  the  general  principles  of  the  law  as 
applied  to  the  case  in  hand.     *     *     * 

Chancellor  Kent,  in  Gillespie  v.  Moon,  2  John.  Ch.  (N.  Y.)  585-600  (7 
Am.  Dec.  559),  in  argu.,  says : 

"Defects  in  mortgages,  contrary  to  the  intention  of  the  parties,  have  also 
been  made  good  against  subsequent  judgment  creditors,  coming  in  under  the 
party  who  was  bound  in  conscience  to  correct  the  mistake" — citing,  among 
other  authorities,   the  above. 

The  New  York  cases  are  numerous  and  uniform,  to  the  effect  that  the 
general  lien  of  a  judgment  upon  the  real  estate  of  the  debtor  is  subject 
to  the  equities  of  third  persons  existing  against  such  real  estate,  at  the 
date  of  the  rendition  of  the  judgment,  and  chancery  will  restrain  and 
control  the  lien  accordingly.  Buchan  v.  Sumner,  2  Barb.  Ch.  (X.  Y.) 
165.  47  Am.  Dec.  305;  Matter  of  Howe,  1  Paige  (X.  Y.)  125,  19  Am. 
Dec.  395.     *     *     * 

White  v.  Wilson,  6  Blackf .  (Ind.)  448,  39  Am.  Dec.  437,  is  in  all  re- 
spects like  the  case  at  bar.  A  tract  of  land  intended  by  the  parties  to 
be  included  in  the  mortgage  was  by  mistake  omitted,  and  afterwards 
judgment  was  rendered  against  the  mortgagor.  The  mortgage  was 
corrected,  and  its  priority  over  the  judgment  established. 

Because  the  demurrer  in  the  present  case  was  sustained,  when,  in 
the  opinion  of  this  Court  it  should  have  been  overruled,  the  judgment 
below  is  reversed,  and  this  cause  will  be  remitted  to  the  District  Court, 
with  leave  to  the  defendant  to  answer  to  the  petition,  if  he  is  so  ad- 
vised. 

Reversed. 


DAMERON  et  ux.  v.  ROWLAND  LUMBER  CO. 

(Supreme  Court  of  North  Carolina,  1913.     161  N.  C.  495,  77  S.  E.  694.) 

Brown,  J.19     This  action  is  brought  to  correct  the  description  in  a 

deed  for  timber  executed  in  1892  by  plaintiffs  to  H.  L.  Pope,  which 

is  as  follows : 

"Bounded  by  the  lands  of  James  Warwick,  Redet  Carr,  Dr.  Benton,  and 
Calvin  Bowden,  being  the  same  property  deeded  to  me  from  J.  D.  Packer  and 
wife,  registered  in  Book  43,  page  513,  etc.,  containing  75  acres,  more  or  less. 
Timber  to  be  cut  12  inches  and  upwards  across  the  stump." 

The  defendant  acquired  title  by  mesne  conveyances,  and  on  Decem- 
ber 21,  1906,  the  timber  being  uncut,  purchased  from  plaintiff  an  ex- 
tension of  time,  evidenced  by  extension  deed  duly  executed,  and  under 
that  contract  defendant  has  proceeded  to  cut  the  timber,  not  only  on  the 
75  acres,  but  on  the  entire  land  described  in  the  Packer  deed. 

is  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 
Boke  Eq. — 45 


706  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

The  allegation  of  the  complaint  upon  which  the  Pope  deed  is  sought 

to  be  reformed  is  as  follows : 

"That  said  deed  calls  for  only  75  acres  of  timber  on  a  tract  of  216  acres, 
said  75  acres  lying  on  the  south  end  of  said  tract,  and  at  the  time  of  the  exe- 
cution of  said  deed  to  said  Pope  cutting  off  from  said  216-acre  tract  the  75 
acres  of  land  upon  which  the  timber  was  sold.  That  in  drawing  the  deed  for 
said  timber,  through  the  inadvertence  of  the  draftsman,  the  boundaries  of 
said  75-acre  tract  were  left  out ;  and,  while  said  deed  calls  for  only  75  acres, 
yet  the  description  therein  covers  all  of  the  lands  of  the  plaintiffs.  Said  error 
was  not  known  to  the  plaintiffs  until  a  few  days  prior  to  the  commencement 
of  this  action,  and  was  due  to  the  mutual  mistake  of  the  parties  thereto." 

It  is  admitted  that  the  deed  as  v/ritten  covers  the  timber  on  all  the 
land  described  in  the  Packer  deed  ;  that  being  the  controlling  description. 

The  defendant  claims  to  be  a  bona  fide  purchaser  for  value  and  with- 
out notice  of  the  alleged  claim  of  plaintiff,  and  tendered  this  issue : 

"Did  the  defendant,  Rowland  Lumber  Company,  at  the  time  it  purchased 
the  timber  in  question  from  the  North  State  Lumber  Company  (Pope's  grantee), 
have  notice  of  any  mistake  on  the  part  of  the  plaintiff  and  Pope  in  the  execu- 
tion of  the  original  timber  deed?     Answer:  ." 

His  honor  erred  in  not  submitting  such  issue  in  the  present  state  of 
the  pleadings. 

It  is  not  material  that  defendant  had  notice  at  the  date  of  the  exten- 
sion deed.  It  had  then  bought  and  paid  for  the  timber  conveyed  by 
the  deed  from  plaintiffs  to  Pope.  The  defendant's  rights  as  to  the 
quantity  of  timber  acquired  is  to  be  determined  by  the  date  of  the  pur- 
chase from  the  North  State  Company,  Pope's  grantee,  except  as  here- 
inafter stated.  If  at  that  time  the  defendant  had  no  actual  or  construc- 
tive notice  of  the  plaintiff's  equity,  and  was  a  bona  fide  purchaser  for 
value,  it  acquired  title  to  the  timber  in  controversy,  and  the  extension 
of  the  time  of  cutting  by  plaintiffs  did  not  affect  it. 

The  action  is  not  brought  to  reform  and  correct  the  extension  deed, 
as  we  understand  the  complaint.  That  deed  refers  to  the  deed  to  Pope, 
Book  80,  p.  447,  for  a  description  of  the  land,  and  the  extension  by  its 
very  terms  applies  to  all  the  timber  covered  by  the  Pope  deed. 

By  proper  amendment  to  the  complaint  the  plaintiffs  will  be  permit- 
ted to  set  out  another  cause  of  action  and  to  prove,  if  they  can,  that  the 
descriptive  words  of  the  extension  deed  were  inserted  by  mutual  mis- 
take of  the  plaintiffs  and  the  defendant,  the  Rowland  Lumber  Company, 
and  that  the  extension  deed  was  intended  to  apply  only  to  the  cutting 
of  timber  on  the  75  acres  alleged  to  have  been  marked  out  at  the  time. 
If  the  plaintiff  shall  succeed  in  properly  establishing  that  allegation,  the 
issue  tendered  by  defendant,  supra,  would  be  immaterial.  The  rights 
of  the  defendant  would  then  be  determined  by  the  extension  deed. 

As  this  case  is  to  be  tried  again,  we  will  repeat,  what  has  been  often 
decided,  that  a  deed  cannot  be  corrected  or  reformed  because  of  the 
mistake  of  one  of  the  parties  to  it,  but  only  when  the  mistake  is  mutual 
— that  is,  the  mistake  of  both  parties — or  else  upon  the  mistake  of  one 
party  brought  about  by  the  fraud  of  the  other.     *     *     * 

New  trial. 


SeC.  1)  REFORMATION   AND   RE-EXECUTION  707 

BROWN  v.  FAGAN. 
(Supreme  Court  of  Missouri,  1880.    71  Mo.  5G3.) 

Norton,  J.20  *  *  *  It  is  not  claimed  that  this  evidence  shows 
that  any  fraud  was  practiced  by  plaintiff  in  the  procurement  of  the 
execution  of  the  note  sued  on ;  but  it  is  insisted  that  it  does  show  that 
the  note  was  given  under  a  mistake  of  facts  which  constituted  the  in- 
ducement for  the  execution  of  it,  and  in  such  cases  equity  will  afford 
relief.  It  may  be  conceded  to  be  established  law  that  equity  will  re- 
lieve against  a  contract  which  is  founded  on  a  mutual  mistake  of  the 
facts  which  constitute  the  essence  and  basis  of  the  contract ;  but  it  is 
equally  well  settled  that  equity  will  not  afford  relief  in  cases  of  mistake 
of  facts,  when  the  party  entering  into  it  had  the  means  of  knowing  the 
true  state  of  facts,  and  by  gross  negligence  failed  to  use  such  means. 
Though  a  court  of  equity  will  relieve  against  mistake,  it  will  not  assist 
a  man  whose  condition  is  attributable  to  that  want  of  due  diligence 
which  may  be  fairly  expected  from  a  reasonable  person ;  and  gross  neg- 
ligence is  presumed  when  a  man  is  ignorant  of  the  general  laws  of  his 
country  or  of  his  own  affairs.     *     *     * 

Applying  this  principle  to  the  facts  of  the  case  before  us,  we  can  see 
no  ground  for  interfering  with  the  judgment  and  extending  to  defend- 
ant the  relief  he  seeks.  It  appears  from  his  own  evidence  that  he  was 
well  acquainted  with  the  marble  business,  for  the  carrying  on  of  which 
the  partnerships  were  formed,  he  having  been  engaged  in  it  for  thirty 
years.  It  also  appears  that  plaintiff,  who  had  just  passed  from  his  min- 
ority to  full  age  when  he  entered  the  partnership,  was  a  farmer,  wholly 
without  experience  or  knowledge  of  the  business  upon  which  he  was  en- 
tering, and  conveyed  to  defendant  his  farm,  valued  at  $2,800,  for  an 
equal  interest  in  the  stock  and  business.  It  also  appears  that,  at  the 
end  of  fourteen  months,  a  dissolution  of  said  partnership  was  proposed 
by  defendant,  who  agreed  to  pay  plaintiff  for  his  interest  therein  the 
amount  he  had  put  in,  with  ten  per  cent  interest  and  commission  on 
the  sales  made  by  plaintiff,  less  the  amount  which  plaintiff  had  drawn 
out,  leaving  the  true  amount  to  be  paid  about  $2,600,  and  that  the  note 
in  suit  for  $1,600  was  given  in  part  payment  of  said  sum.  The  evidence 
also  tended  to  show  that  defendant  over-estimated  the  value  of  plain- 
tiff's interest,  and  that,  in  consequence  of  the  firm  having  lost  money, 
said  interest  was  worth  less  than  the  amount  he  agreed  to  pay.  Conced- 
ing that  the  evidence  shows  that  defendant  was  mistaken  in  putting  the 
value  of  plaintiff's  interest  at  a  greater  sum  than  it  was  worth,  when 
the  facts  are  considered,  that  his  thirty  years'  experience  in  the  business 
must  necessarily  have  familiarized  him  with  the  affairs  of  the  partner- 
ship ;  that  he  had  free  and  undenied  access  to  the  books,  and  had  within 
his  reach  all  the  means  of  knowing  to  the  fullest  extent  the  real  value 

20  Parts  of  the  opinion  are  omitted. 


708  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

of  plaintiff's  interest,  and  failed  to  use  them  ;  that  he  only  had  to  look  to 
learn,  and  closed  his  eyes,  he  cannot  now  be  heard  to  set  up  his  mis- 
take to  avoid  the  settlement  or  allege  his  ignorance  of  the  true  condition 
of  his  own  affairs  in  order  to  escape  liability.  Especially  is  this  so  in 
the  absence  of  any  evidence  tending  to  show  that  plaintiff  in  any  manner 
induced  defendant  to  omit  making  any  inquiry  as  to  the  actual  value  of 
his  interest,  or  using  the  means  within  his  reach,  which,  had  they  been 
resorted  to,  would  have  disclosed  the  true  state  of  facts.  Judgment  af- 
firmed, in  which  all  concur. 


PALMER  et  al.  v.  HARTFORD  FIRE  INS.  CO. 

(Supreme  Court  of  Errors  of  Connecticut,  18S7.    54  Conn.  488,  9  Atl.  24S.) 

Suit  for  the  reformation  of  a  policy  of  fire  insurance,  and  for  the 
recovery  of  the  amount  due  on  the  policy  when  reformed,  brought  to 
the  Superior  Court  in  New  London  county.     *     *     * 

Pardee,  J.21  The  complaint  in  this  case  is  in  effect  as  follows: 
Prior  to  May  15,  1884,  the  defendant  had  issued  to  the  plaintiffs  a 
policy  of  insurance  against  loss  by  fire  upon  merchandise.  On  that  day 
it  expired.  On  that  day  the  defendant  proposed  to  them  to  renew  the 
insurance  upon  the  terms  and  conditions  of  the  expiring  policy.  The 
plaintiffs  accepted  the  proposition.  The  defendant  wrote  a  policy,  de- 
livered it  to,  and  received  the  premium  from,  the  plaintiffs.  They,  rely- 
ing upon  the  fidelity  of  the  defendant  to  its  promise,  and  supposing  the 
last  written  policy  to  contain  the  same  stipulations  and  conditions  as 
were  in  the  first,  omitted  to  read  it.  The  merchandise  was  damaged  by 
fire  on  August  17,  1884.  Subsequently  the  plaintiffs  for  the  first  .time 
discovered  that  the  last  policy  contained  this  condition,  which  was  no* 
in  the  first : 

"Co-Insurance  Clause.  If  the  value  of  the  property  at  the  time  of  any  fire 
shall  be  greater  than  the  amount  of  the  insurance  thereon,  the  insurer  shall 
be  considered  as  co-insurer  for  such  excess,  and  all  losses  shall  be  adjusted 
accordingly." 

In  this  respect  the  last  policy  materially  differs  from  the  first.  The 
plaintiffs  would  not  have  accepted  the  policy  and  paid  the  premium  if 
they  had  known  that  it  contained  this  clause ;  and,  if  the  defendant  had 
notified  them  of  its  refusal  to  perform  its  agreement,  they  could  and 
would  have  obtained  elsewhere,  at  the  same  price,  the  desired  insur- 
ance upon  the  stipulated  terms.  The  defendant  refuses  either  to  cor- 
rect the  policy  or  perform  the  agreement.  The  plaintiffs  ask  that  the 
policy  may  be  reformed  so  as  to  express  the  agreement,  and  that  the 
defendant  be  compelled  to  perform  the  agreement,  and  pay  the  indem- 

2i  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  709 

nity  promised  by  it.     The  defendant  answers  by  demurrer,  assigning 

therefor  the  following  reasons : 

"That  up  the  facts  stated  the  plaintiffs  are  not  entitled  to  the  relief 
sought ;  that  the  complaint  does  not  aver  that  there  was  a  mutual  mistake 
between  the  parties  as  to  the  terms  of  the  policy,  or  as  to  the  agreement  for 
one ;  and  that  the  plaintiffs  were  guilty  of  gross  laches  in  not  reading  the 
policy,  and  in  not  notifying  the  defendant  of  their  claim,  so  that  it  might 
have  exercised  its  right  of  rescission  before  loss." 

The  superior  court  held  the  complaint  to  be  insufficient.     *     *     * 

It  is  a  matter  of  common  knowledge  that  a  policy  of  insurance 
against  fire,  at  the  present  day,  is  a  lengthy  contract,  which,  after  speci- 
fying the  main  things, — namely,  the  subject,  its  location,  the  owner,  the 
amount,  the  time,  and  the  price, — embodies  very  many  stipulations  and 
conditions  for  the  protection  of  the  underwriter.  If  a  person  desiring 
indemnity  against  loss  applies  to  the  underwriter,  and  states  the  main 
things  above  enumerated,  and  says  no  more,  he  has  knowledge  that  he 
has  asked  for  and  will  receive  a  contract  which,  in  addition  to  those, 
will  contain  many  limiting  conditions  in  behalf  of  the  party  executing 
it ;  and,  when  he  receives  the  policy,  he  cannot  avoid  seeing  and  know- 
ing that  there  are  many  more  stipulations  in  it  than  were  covered  by 
his  verbal  request.  It  may  well  be  that  a  due  regard  for  the  rights  of 
others  requires  him  to  examine  those  stipulations,  and  express  a  timely 
dissent,  or  be  held  to  an  acceptance  thereof.  Nothing  which  has  pre- 
viously transpired  between  him  and  the  underwriter  furnishes  justifi- 
cation for  omission  to  read  them.  The  underwriter  has  not  invited  his 
confidence  by  any  promise  as  to  what  the  writing  shall  contain  or  omit, 

But  if  the  underwriter  solicits  a  person  to  purchase  of  him  indemnity 
against  loss  by  fire,  and  if  they  unite  in  making  a  written  draft  of  all 
the  terms,  conditions,  and  stipulations  which  are  to  become  a  part  of 
or  in  any  way  affect  the  contract,  and  if  the  underwriter  promises  to 
make  and  sign  a  copy  thereof,  and  deliver  it  as  the  evidence  of  the 
terms  of  his  undertaking,  and  if  a  material  and  variant  condition  is  by 
mistake  inserted,  and  the  variant  contract  is  delivered,  and  the  stipu- 
lated premium  is  received  and  retained,  the  court  will  not  hear  the 
claim  that  he  is  entitled  to  the  benefit  of  the  variant  condition,  where 
the  other  party  had  neither  actual  nor  imputed  knowledge  of  the 
change.  In  his  promise  to  make  and  deliver  an  accurate  copy,  there  is 
justification  before  the  law  for  the  omission  of  the  other  party  to  ex- 
amine the  paper  delivered,  and  for  his  assumption  that  there  is  no  de- 
signed variance.  A  man  is  not,  for  his  pecuniary  advantage,  to  impute 
it  to  another  as  gross  negligence  that  the  other  trusted  to  his  fidelity  to 
a  promise  of  that  character. 

The  rule  of  law  that  no  person  shall  be  permitted  to  deliver  himself 
from  contract  obligations  by  saying  that  he  did  not  read  what  he  signed 
or  accepted,  is  subject  to  this  limitation,  namely;  that  it  is  not  to  be 
applied  in  behalf  of  any  person  who  by  word  or  act  has  induced  the 
omission  to  read.  The  defendant  has  brought  to  our  notice  a  few  of 
the  many  cases  in  which  the  rule  has  been  plainly  declared ;    but  we 


710  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

think  that  in  few  or  none  of  these  did  the  party  seeking  to  enforce  it 
subject  himself  to  this  limitation. 

There  was  in  the  first  written  draft  agreed  upon  by  the  plaintiffs  and 
defendant  the  contract  between  them.  In  all  its  terms  and  conditions 
it  became,  and  has  hitherto  continued  to  be,  operative.  The  draft  of 
another  and  variant  one  has  not  annulled  or  affected  it,  because  the  last 
has  not  in  the  eye  of  the  law  been  accepted  by  or  become  obligatory 
upon  the  plaintiffs.  That  contract  the  defendant  had  the  right  to  re- 
scind,— a  right  which  it  has  possessed  in  its  fullest  measure,  because 
it  was  not  affected  by  the  delivery  of  the  variant  one,  not  accepted  by 
the  plaintiffs ;  and  if,  because  of  its  own  negligence  in  omitting  to  exe- 
cute and  deliver  a  true  copy  of  the  original  agreement,  it  resulted  that 
it  was  induced  to  refrain  from  exercising  its  right  of  rescission,  it  must 
accept  the  consequences,  rather  than  cast  the  burden  upon  the  plain- 
tiffs. 

There  is  error  in  the  judgment  complained  of,  and  it  is  reversed.  In 
this  opinion  the  other  Judges  concurred. 


WALLACE  v.  CHICAGO,  ST.  P.,  M.  &  O.  RY.  CO. 

(Supreme  Court  of  Iowa,  1SS5.    67  Iowa,  547,  25  N.  W.  772.) 

Rothrock,  J.  The  plaintiff  was  the  conductor  of  a  transfer  train 
engaged  in  moving  cars  across  the  Missouri  river  between  Sioux  City, 
Iowa,  and  Covington,  Nebraska,  by  means  of  boats,  and  in  making  up 
trains  and  switching  cars  upon  transfer  tracks  and  side  tracks.  These 
transfer  tracks  were  not  permanent  structures.  By  reason  of  the 
changing  of  the  channel  and  banks  of  the  river  the  landing  of  the  boats 
and  the  transfer  tracks  were  required  to  be  frequently  moved.  The 
tracks  were  laid  down  in  a  temporary  manner,  and  the  spaces  between 
the  ties  were  not  filled  up,  and  the  ties  were  not  placed  at  uniform  dis- 
tances from  each  other.  The  plaintiff  claims  that  in  attempting  to  make 
a  coupling  on  one  of  these  tracks  at  Covington,  and  while  the  cars  to 
be  coupled  were  in  motion,  his  foot  caught  between  two  ties,  and  in 
attempting  to  extricate  it  he  involuntarily  threw  up  his  hand  in  such  a 
position  that  it  came  between  the  draw-heads  of  said  cars,  and  he  was 
severely  injured.  He  was  in  full  command  of  the  train,  and  the  cars 
were  moving  by  his  direction,  and  he  makes  no  complaint  of  any  neg- 
ligence of  the  engineer  or  other  train-men ;  and  he  admits  that  he  was 
aware  of  the  condition  of  the  track.  But  he  alleges  that  the  defendant 
was  negligent  in  the  construction  of  the  track,  and  that  he  made  com- 
plaint of  the  track  to  the  proper  officers  of  the  company,  and  that  they 
promised  to  repair  and  properly  construct  it,  and  that  the  injury  was 
received  by  reason  of  the  negligence  of  the  defendant  to  keep  its  prom- 
ise to  make  the  proper  repairs.  The  injury  was  such  that  it  became 
necessary  to  amputate  the  third  and  fourth  fingers  of  the  left  hand. 


Sec.  1)  REFORMATION  AND   RE-EXECUTION  711 

Soon  after  the  injury  the  plaintiff  resumed  work  for  the  company,  and 
continued  in  said  employment  for  several  months. 

It  is  urged  by  counsel  for  appellant  that  the  evidence  does  not  show 
"that  the  plaintiff  made  any  complaint  of  the  condition  of  the  track  in 
question  to  any  officer  of  the  defendant  who  had  any  authority  over 
repairs  upon  the  road,  and  that  the  evidence  shows,  without  conflict, 
that  the  injury  was  properly  attributable  to  the  plaintiff's  own  careless- 
ness and  negligence.  We  do  not  deem  it  necessary  to  determine  these 
questions,  because,  in  our  opinion,  the  judgment  must  be  reversed 
upon  another  ground,  which  we  will  now  proceed  to  consider. 

2.  The  defendant,  as  a  full  defense  to  the  action,  pleaded  that  in 
February,  1883,  several  months  after  the  injury  was  received,  the  plain- 
tiff and  the  defendant  made  a  full  and  fair  settlement  of  all  claims  for 
damages  by  reason  of  said  injury,  and  the  defendant,  in  pursuance  of 
said  settlement,  paid  the  sum  agreed  upon,  to  the  full  satisfaction  of 
the  plaintiff.  Said  settlement  and  the  release  were  in  writing,  signed 
by  the  plaintiff.  These  instruments  were  introduced  in  evidence.  It  is 
unnecessary  to  set  them  out  here.  It  is  sufficient  to  say  that  they  are 
a  full  acquittance  and  discharge  of  the  defendant  for  all  damages  for 
the  injury  complained  of.  The  injury  is  so  fully  described  therein  that 
no  one  could  read  the  writings  without  knowing  that  they  were  a  settle- 
ment of  all  claims  for  damages  on  account  of  the  cause  of  action  upon 
which  the  suit  was  brought.  The  defendant  showed,  by  the  testimony 
of  its  station  agent  at  Covington,  that  he  read  the  release  to  the  plain- 
tiff, and  that  he  affixed  his  signature  thereto  with  full  knowledge  of  its 
contents,  and  that  the  witness  had  several  conversations  with  the  plain- 
tiff before  the  settlement  was  made,  and  that  the  amount  was  agreed 
upon  and  fully  understood  by  plaintiff. 

The  plaintiff  claimed  that  the  release  was  obtained  from  him  by 
fraud,  and  was  not  binding  upon  him  for  that  reason.  To  establish  the 
charge  of  fraud  he  testified,  in  substance,  that  when  he  signed  the  writ- 
ings they  were  not  read  over  to  him,  but  that  the  agent  who  procured 
his  signature  thereto  stated  to  him  that  they  were  vouchers  for  his 
back  pay,  and  that  he  had  no  knowledge  of  the  contents  of  the  writings 
which  he  signed.  The  plaintiff  was  a  man  of  sufficient  intelligence  to 
be  a  railroad  conductor.  He  had  been  deputy  sheriff  of  Woodbury 
county,  and  could  read  writing  and  make  out  papers  and  transact  any 
kind  of  ordinary  business.  He  stated  in  his  testimony  that  there  was 
nothing  to  hinder  him  from  reading  the  papers  before  signing  them, 
and  nothing  was  done  to  keep  him  from  reading  them.  An  examina- 
tion of  all  the  facts  and  circumstances  disclosed  in  the  evidence  leads 
the  unprejudiced  mind  to  the  conclusion  that  the  plaintiff  was  fully 
aware  of  the  contents  of  the  writings  when  he  signed  them.  But  that 
was  a  question  for  the  jury.  The  question  for  us  to  determine  is,  did 
the  plaintiff  show  that  his  signature  was  procured  by  fraud,  conceding 
his  own  testimony  to  be  true?     Or,  rather,  did  he  show  such  a  state 


712  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

of  facts  as  that  a  jury  might  properly  find  that  the  contract  which  he 
signed  was  procured  by  fraud  ?  We  think  it  is  very  clear  that  his  tes- 
timony did  not  authorize  the  finding  of  the  jury.  He  was  laboring 
under  no  infirmity  which  prevented  him  from  reading  the  writings,  as 
by  reason  of  defective  sight  or  the  like.  He  does  not  claim  that  he  re- 
quested the  instruments  to  be  read  to  him,  and  that  the  contents  were 
purposely  misrepresented  in  the  reading,  or  that  he  was  deceived  by 
any  sleight  of  hand,  legerdemain,  or  artifice.  On  the  contrary,  he  ad- 
mits that  he  could  have  read  the  papers,  and  that  he  had  full  oppor- 
tunity to  do  so,  and  the  words  "release  of  damages,"  in  bold  faced 
printed  letters,  were  at  the  head  of  the  release,  and  could  have  been 
seen  at  a  mere  glance. 

The  defendant  requested  the  court  to  charge  the  jury  as  follows: 
"(3)  That  if  you  find  that  the  plaintiff  had  the  capacity  to  read  the  re- 
lease signed  by  him,  and  had  an  opportunity  to  do  so,  and  no  fraud 
was  practiced  upon  him  to  prevent  him  from  reading  it,  but  that,  having 
full  opportunity  to  read  it  before  signing,  and  chose  to  rely  upon  what 
Mr.  Flint  said  about  it,  he  is  estopped  by  his  own  negligence  from 
claiming  that  the  same  are  not  legal  and  binding  upon  him,  according 
to  its  terms."  This  request  to  charge  was  refused.  It  should  have 
been  given.  It  is  in  exact  accord  with  the  cases  of  Bell  v.  Ryerson,  11 
Iowa,  233,  77  Am.  Dec.  142 ;  McCormack  v.  Molburg,  43  Iowa,  561 ; 
and  McKinney  v.  Herrick,  66  Iowa,  414,  23  N.  W.  767.  See,  also, 
Pars.  Cont.  772;  Kerr,  Fraud  &  M.  77. 

Reversed. 


WARD  v.  SPELTS  &  KLOSTERMAN. 

(Supreme  Court  of  Nebraska,  1894.    39  Neb.  S09,  58  N.  W.  426.) 

Ragan,  C.22  Spelts  &  Klosterman  sued  Mike  Ward  in  the  district 
court  of  Seward  county  for  damages  for  his  failure  to  deliver  to  them 
3,000  bushels  of  corn,  in  pursuance  of  a  contract  in  words  and  figures 
as  follows : 

"In  consideration  of  $50.00,  this  day  to  me  in  band  paid  by  Spelts  and 
Klosterman,  and  interest  thereon  at  ten  per  cent,  per  annum  until  fulfillment 
of  tbis  contract,  I  hereby  sell  and  convey  unto  the  said  Spelts  and  Klosterman 
3,000  bushels  of  good,  sound,  dry,  shelled  corn,  at  23^  cents. a  bushel,  the  same 
being  now  on  [a  certain  quarter  section  of  land],  and  agree  to  deliver  tbe  same 
in  good  order  at  Ulysses,  Nebraska,  at  buyer's  option,  in  tbe  months  of  July 
and  August,  A.  D.  1890.  his 

"Dated  this  31  day  of  June,  1890.  "Mike     X     Ward." 

mark 

Spelts  &  Klosterman  pleaded  that  they  had  on  the  date  of  the  exe- 
cution of  said  writing  paid  Ward  the  $50;  that  Ward  had  delivered 
them  only  250  bushels  of  corn ;  that  they  had  demanded  of  Ward  a 
delivery  of  the  corn  pursuant  to  said  contract ;  that  he  had  failed  and 

22  Parts  of  the  opinion  are  omitted. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  713 

refused  to  deliver ;  and  that  the  corn,  at  the  time  and  place  it  should 
have  been  delivered,  was  worth  40  cents  a  bushel,  and,  by  reason  of 
Ward's  failure  to  comply  with  the  agreement,  they  had  been  damaged. 
Ward's  defense,  so  far  as  material  here,  was  that  on  the  1st  day  of 
July,  1890,  he  received  from  Spelts  &  Klosterman  $52.50  in  money,  and 
at  that  time  he  agreed  to  sell  and  deliver  to  them,  at  23x/2  cents  per 
bushel,  sufficient  corn  to  repay  said  money,  and  that  he  further  agreed 
that,  if  he  had  any  other  grain  to  spare,  he  would  sell  the  same  to 
Spelts  &  Klosterman  at  the  same  price ;  that  the  agent  of  Spelts  & 
Klosterman  made  a  memorandum  in  writing,  which  he  (Ward)  sup- 
posed embraced  the  contract  between  him  and  Spelts  &  Klosterman, 
and  was  his  receipt  for  the  money  he  had  received  of  them ;  that  said 
agent  presented  the  memorandum  to  him  (Ward),  and  informed  him 
that  it  embraced  the  agreement  to  deliver  sufficient  grain  to  pay  the 
$52.50,  and  any  other  grain  that  Ward  might  be  able  to  spare ;  that 
he  (Ward)  could  neither  read  nor  write,  and  was  induced  to  and  did 
sign  said  memorandum  believing  the  contract  embraced  the  agreement 
actually  made  between  him  and  Spelts  &  Klosterman.  The  case  was 
tried  to  a  jury,  and  a  verdict  returned  against  Ward;  and  he  brings 
the  judgment  rendered  on  such  verdict  here  for  review.     *     *     * 

2.  The  second  error  alleged  is  the  giving  by  the  court  to  the  jury  of 
an  instruction  as  follows : 

"The  defendant  having  admitted  signing  the  contract  under  which  the  plain- 
tiff claims,  before  he  can  avoid  said  written  contract,  on  the  ground  of  fraud 
practiced  upon  him  because  he  could  not  read  it,  he  must  satisfy  you  that 
he  was  not  negligent  or  careless  in  affixing  his  signature,  by  mark,  to  said 
writing ;  and  that  if  he  made  his  mark  thereto  without  asking  to  have  the 
contents  read  to  him  or  to  be  told  what  the  contents  of  the  writing  were,  but 
so  affixed  his  signature  thereto  on  request  of  plaintiff's  agent,  without  any- 
thing further  being  said  or  done  to  induce  him  to  sign  it,  then,  in  that  case, 
he  should  be  held  to  have  duly  made  said  contract,  and  should  be  bound  by 
the  terms  thereof." 

The  principal  question  litigated  in  the  case  was  whether  the  contract 
sued  on  was  the  contract  made  between  Ward  and  Spelts  &  Klosterman 
through  their  agent.  *  *  *  The  instruction  complained  of  told  the 
jury  in  effect  that,  if  the  agent  of  Spelts  &  Klosterman  practiced  a 
fraud  on  Ward  by  putting  into  writing  a  different  contract  from  the 
one  actually  made,  then,  if  Ward  signed  such  contract  at  the  request 
of  the  agent,  without  asking  to  have  the  contract  read  to  him,  he  was 
bound  by  it.  This  instruction  was  erroneous.  The  suit  on  this  contract 
is  between  the  original  parties  thereto,  and  Ward  is  liable  for  damages 
for  his  failure  to  perform  the  contract  he  made,  not  for  his  failure  to 
perform  the  contract  he  did  not  make;  but,  by  the  instruction  given, 
the  jury  are  told  that,  if  he  neglected  to  have  this  contract  read  over 
to  him,  he  is  bound  by  it,  simply  because  he  signed  it.     *     *     * 

The  doctrine  that  the  carelessness  or  negligence  of  a  party  in  signing 
writing  estops  him  from  afterwards  disputing  the  contents  of  such 
writing  is  not  applicable  in  a  suit  thereon  between  the  original  parties 
thereto,  when  the  defense  is  that  such  writing,  by  reason  of  fraud,  does 


714  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

not  embrace  the  contract  actually  made.  In  the  case  at  bar,  counsel 
for  defendants  in  error  insist  that,  even  if  the  instruction  complained 
of  was  erroneous,  still  the  case  should  not  be  reversed,  because  they 
say  that,  under  the  evidence,  the  jury  could  have  reached  no  other  con- 
clusion than  that  the  contract  is  and  was  the  contract  made  between 
Ward  and  Spelts  &  Klosterman.  In  other  words,  counsel  contend  that, 
had  the  jury  found  verdict  in  Ward's  favor,  the  trial  court  would  have 
been  compelled  to  set  it  aside  as  unsupported  by  the  evidence.  We  do 
not  desire  to  express  any  opinion  on  the  weight  of  the  evidence  or  the 
credibility  of  the  witnesses,  or  any  of  them ;  but  the  trouble  with  the 
contention  of  counsel  is  that,  by  the  instruction  complained  of,  the 
jury,  if  it  obeyed  such  instruction,  was  compelled  to  find  a  verdict 
against  Ward. 

The  judgment  of  the  district  court  must  be  reversed,  and  the  cause 
remanded  for  a  new  trial ;   and  it  is  so  ordered.    Judgment  accordingly. 


HAWKINS  v.  PEARSON  et  al. 
(Supreme  Court  of  Alabama,  1S92.    96  Ala.  3G9,  11  South.  304.) ' 

The  complainant,  having  shown  by  his  bill  that  there  was  usury  in 
the  mortgage  contract,  and  not  having  offered  to  do  equity  in  releasing 
his  claim  to  all  interest,  and  accept  only  the  principal  of  his  debt,  can- 
not obtain  a  revision  of  the  mortgage  as  is  prayed  for  in  his  amended 
bill.     The  chancellor  sustained  each  of  these  grounds  of  demurrer. 

McClellan,  J.23  A  contract  which  stipulates  for  the  payment  of  a 
greater  rate  of  interest  than  8  per  cent,  is  tainted  with  an  evil  and  un- 
lawful intent  in  such  sort  that  while  the  payor,  if  he  invokes  equitable 
interposition  upon  it  in  his  behalf,  must  do  equity  by  offering  to  pay 
the  legal  rate  of  interest,  the  payee,  when  be  becomes  the  actor  in  a 
court  of  equity,  must  always  remove  the  taint  by  an  offer  to  abate  the 
whole  of  the  interest,  since  the  principal  is  all  that  he  is  entitled  to  re- 
cover, and  without  such  abatement  he  cannot  be  said  to  come  into  the 
court  with  clean  hands.  And  it  is  immaterial  what  the  relief  presently 
sought  may  be,  whether  an  immediate  enforcement  of  the  debt  or  some 
collateral  advantage, — as,  for  instance,  in  the  case  at  bar,  the  refor- 
mation of  the  contract  in  matter  of  description.  Whether  direct  and 
ultimate,  or  mediate  and  collateral,  a  court  of  conscience  will  not  re- 
spond to  the  prayer  of.  one  who  stands  before  it  in  the  attitude  of  in- 
sisting upon  any  relief  on  a  claim  thus  infected  with  this  settlement  of 
quasi  criminality.  The  bill  in  this  case  showing  that  the  mortgage 
sought  to  be  reformed  was  tainted  with  usury,  and  containing  no  offer' 
to  abate  the  whole  interest,  complainant  was  not  entitled  to  any  relief 
upon  it,  and  the  demurrers  which  were  addressed  to  this  point  were 
properly  sustained.     *     *     * 

23  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


SeC.  1)  REFORMATION   AND   RE-EXECUTION  715 


(B)  Mutual  Mistake  of  Law 
PUSEY  v.  DESBOUVRIE. 

(In  Chancery  before  Lord  Talbot,  1734.    3  P.  Wms.  315.) 

Sir  Edward  Desbouvrie  was  a  freeman  of  London,  and  possessed  of 
a  very  great  personal  estate.  He  had  a  wife,  with  whom  he  had  com- 
pounded as  to  her  customary  part,  and  had  a  son  (the  defendant),  to 
to  whom  he  had  given  very  considerable  sums  of  money,  in  order  to 
enable  him  to  trade.     He  had  also  one  daughter. 

The  father  made  his  will,  giving  (inter  al')  to  his  daughter  £10,000 
upon  condition,  that  she  should  release  her  orphanage  part,  together 
with  all  her  claim  or  right  to  his  personal  estate  by  virtue  of  the  custom 
of  the  City  of  London,  or  otherwise,  and  made  his  son  executor,  his 
daughter  being  about  the  age  of  twenty-three  years. 

After  the  father's  death  it  was  agreed  between  the  daughter  and  the 
brother,  that  she  should  accept  of  her  legacy  of  £10,000  and  upon 
the  terms  whereon  it  was  given  her  by  her  father's  will,  that  is,  she 
to  release  all  her  right  by  virtue  of  the  custom,  &c.  which  release  was 
accordingly  prepared,  and  before  she  executed  it,  her  brother  informed 
her,  that  she  had  it  in  her  election  to  have  an  account  of  her  father's 
personal  estate,  and  to  claim  her  orphanage  part,  and  her  uncle  was  then 
present.  But  the  daughter  at  that  time  declared,  she  would  accept  of  the 
legacy  left  her  by  her  father,  that  being  a  sufficient  provision  for  any 
young  woman ;  and  thereupon  she  executed  the  release,  being  then  about 
twenty-four  years  old,  and  the  brother  paid  to  her  the  £10,000 
and  interest.  The  daughter  afterwards  married  one  Mr.  Pusey,  an  at- 
torney at  law,  who  brought  a  bill  to  set  aside  this  release,  charging  that 
the  personal  estate  of  which  the  father  died  possessed,  was  much  above 
£100,000  the  daughter's  share  of  which  by  the  custom  would  amount 
to  upwards  of  £40,000  that  the  mother  having  been  compounded  with 
for  her  customary  part,  the  freeman's  personal  estate  was  to  be  distrib- 
uted as  if  there  was  no  wife,  consequently  the  dead  man's  part  was 
one  moiety,  and  the  children's  part  the  other ;  and  that  the  brother,  the 
defendant,  Sir  Edward  Desbouvrie,  had  been  advanced  in  his  father's 
lifetime  by  his  father  at  different  times,  with  several  great  sums  of 
money,  the  whole  whereof  would  amount  to  a  full  advancement  of  the 
son :  so  that  the  plaintiff  Pusey,  in  right  of  the  daughter  his  wife,  was 
entitled  to  a  moiety  of  her  father  the  freeman's  personal  estate. 

The  defendant  the  brother  pleaded  this  release.     *     *     * 

Lord  Chancellor.24  I  do  not  see  that  any  manner  of  fraud  has 
been  made  use  of  in  this  case,  but  still  it  seems  hard  a  young  woman 
should  suffer  for  her  ignorance  of  the  law,  or  of  the  custom  of  the  City 

24  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


71G  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

of  London;   or  that  the  other  side  should  take  advantage  of  such  igno- 


rance. 


It  is  true,  it  appears,  the  son  the  defendant  did  inform  the  daughter, 
that  she  was  bound,  either  to  waive  the  legacy  given  by  the  father,  or 
to  release  her  right  by  the  custom ;  and  so  far  she  might  know,  that 
it  was  in  her  power  to  accept  either  the  legacy,  or  orphanage  part ;  but  I 
hardly  think  she  knew  she  was  entitled  to  have  an  account  taken  of  the 
personal  estate  of  her  father,  and  first  to  know  what  her  orphanage 
part  did  amount  to ;  and  that,  when  she  should  be  fully  apprised  of 
this,  then,  and  not  till  then,  she  was  to  make  her  election,  which  very 
much  alters  the  case ;  for  probably  she  would  not  have  elected  to  accept 
her  legacy,  had  she  known,  or  been  informed,  what  her  orphanage 
part  amounted  unto,  before  she  waived  it,  and  accepted  the  legacy. 

It  would  give  light  into  this  cause,  to  know  what  might  be  the  value 
of  the  father's  personal  estate  at  his  death,  and  (if  the  parties  think 
fit)  what  was  the  value  thereof,  when  the  will  was  made ;  because  it  has 
been  said  to  have  been  increased  by  the  father  between  the  time  of 
making  his  will  and  his  death;  and  also  to  know,  what  the  son  has  re- 
ceived in  his  father's  lifetime  from  his  father,  for  or  towards  his  ad- 
vancement. 

Therefore  let  the  plea  stand  for  an  answer,  saving  the  benefit  thereof 
until  the  hearing ;  and  let  the  defendant  the  son  answer,  not  as  to  parti- 
culars (for  that  I  do  not  expect),  but  by  way  of  computation  in  gross,  as 
to  these  points. 

It  appears  from  the  Register's  book,  that  on  the  8th  of  May,  1735, 
upon  the  defendant's  motion  it  was  alleged;  that  the  suit  was  agreed 
between  the  parties ;  it  was  therefore  prayed,  that  the  plaintiff's  bill 
might  be  dismissed  without  costs ;  which  on  consent  of  the  plaintiff's 
counsel,  was  ordered  accordingly. 


BINGHAM  v.  BINGHAM. 

(In  Chancery  before  Lord  Hardwicke,  Chancellor,  1748.    3  Ves.  Sr.  Supp.  79, 

28  E.  R.  462.) 

The  material  facts  were  as  follows :  One  John  Bingham  (inter  alia) 
devised  an  estate  tail,  in  certain  lands,  to  Daniel  his  eldest  son  and 
heir,  limiting  the  reversion  in  fee  to  his  own  heirs.  Daniel  left  no 
issue,  but  devised  this  estate  to  the  Plaintiff  in  fee.  The  bill  stated,  that 
the  latter,  being  ignorant  of  the  law,  and  persuaded  by  the  Defendant, 
and  his  scrivener  and  conveyancer,  that  Daniel  had  no  power  to  make 
such  devise,  and  being  also  subjected  to  an  action  of  ejectment,  pur- 
chased the  estate  of  the  Defendant  for  £80;  and  that  it  was  conveyed 
to  him  by  lease  and  release.  The  Bill  was  to  have  this  money  repaid 
with  interest.  The  Defendant,  by  his  answer,  first  of  all  insisted,  that 
Daniel  had  no  power  to  make  such  devise ;  but  if  he  had,  he  urged,  that 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  717 

the  Plaintiff  should  have  "been  better  advised  before  he  parted  with  his 
money,  for  that  all  purchases  were  to  be  at  the  peril  of  the  purchaser." 
The  Decree  was  for  the  money,  with  interest  and  costs. 


DUPRE  et  al.  v.  THOMPSON  et  al. 

(Supreme  Court  of  New  York,  1848.     4  Barb.  279.) 

Edmonds,  J.25  There  are  two  reasons  why  I  cannot  grant  to  these 
plaintiffs  the  decree  they  seek,  to  set  aside  the  whole  of  this  trust  deed. 
First.  It  was  a  voluntary  conveyance  on  their  part,  and  they  seek  to 
vacate  it,  not  on  the  ground  of  a  mistake  as  to  matter  of  fact,  but  be- 
cause they  were  ignorant  what  would  be  its  legal  effect,  and  operation 
and  had  made  a  mistake  in  a  point  of  law.  Now  courts  do  not  under- 
take to  relieve  parties  from  their  acts  and  deeds  fairly  done  on  a 
full  knowledge  of  the  facts,  though  under  a  mistake  of  the  law.  Lyon 
v.  Richmond,  2  Johns.  Ch.  51 ;  Clarke  v.  Dutcher,  9  Cow.  674;  Hunt  v. 
Rousmanier,  8  Wheat.  174,  5  L.  Ed.  589;  Hunt  v.  Rhodes,  1  Pet.  1,  7 
L.  Ed.  27.  This  is  the  general  rule,  that  a  mistake  of  this  character  is 
not  a  ground  for  reforming  a  deed  founded  on  such  mistake.  But  I  do 
not  mean  to  assert  that  there  are  no  exceptions  to  the  rule,  or  that  there 
may  not  be  cases  in  which  a  court  of  equity  will  relieve  against  a  plain 
mistake  arising  from  ignorance  of  the  law.  The  rule  prevails  in  all 
cases  of  compromises  of  doubtful  and  perhaps  in  all  cases  of  doubted 
rights ;  and  especially  in  all  cases  of  family  arrangements ;  and  is  re- 
laxed where  there  is  a  total  ignorance  of  title,  founded  in  the  mistake 
of  a  plain  and  settled  principle  of  law,  and  in  cases  of  imposition,  mis- 
representation, undue  influence,  misplaced  confidence,  or  surprise.  And 
it  may  safely  be  affirmed,  on  the  highest  authority,  as  a  well  established 
doctrine,  that  a  mere  naked  mistake  of  law,  unattended  with  any  such 
special  circumstances  as  have  been  suggested,  furnished  no  ground  for 
relief.  1  Story's  Eq.  Juris.  §§  137,  138.  The  case  under  consideration 
appears  to  me  clearly  to  come  within  the  general  rule,  and  not  within 
the  exception.  There  is  no  pretence  of  imposition,  misrepresentation, 
undue  influence,  misplaced  confidence,  or  surprise.  These  daughters, 
with  the  consent  of  their  husbands,  being  seised  of  an  absolute  owner- 
ship of  this  property  in  severalty,  saw  fit  to  settle  it  upon  themselves 
for  life,  and  upon  their  children  in  fee  after  their  death,  so  that  it 
might  be  exempt  from  any  control  of,  or  responsibility  for,  any  hus- 
bands which  they  then  had  or  might  afterwards  have.  So  far  they  un- 
derstood their  rights,  and  seem  to  have  had  a  due  comprehension  of 
what  they  desired ;  and  so  far  no  mistake  of  either  law  or  fact  is  sug- 
gested. But  in  attempting  to  provide  for  the  contingency  of  the  daugh- 
ters dying  without  children,  it  is  alleged  that  they  have  made  some 

25  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


718  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

limitations  over  which  are  void,  which  it  is  supposed  they  would  not 
have  made  if  they  had  well  understood  the  law. 

Allowing  all  this  to  be  so,  (and  it  is  the  strength  of  the  case  as  made 
out  for  the  plaintiffs,)  I  see  in  it  nothing  to  bring  it  within  the  excep- 
tions of  the  rule,  but  on  the  other  hand,  so  far  as  two  of  the  plaintiffs 
are  concerned,  a  desire  to  take  that  which  belonged  originally  to  the 
wives,  from  a  very  proper  settlement  of  it  upon  those  wives  and  their 
children,  and  subject  it  to  their  own  control  and  a  liability  to  their 
debts.  The  claim  does  not  commend  itself  to  the  favor  of  the  court, 
and  I  cannot  allow  it,  unless  compelled  to  do  so  by  some  stern  rule  of 
law,  which  I  have  not  yet  found,  nor  been  referred  to.     *     *     * 

The  bill  must  be  dismissed  with  costs. 


ALLEN  v.  ELDER  &  SON. 

(Supreme  Court  of  Georgia,  1S86.    76  Ga.  674,  2  Am.  St.  Rep.  63.) 

Hall,  J.2g  The  complainant  exhibited  her  bill  on  the  equity  side  of 
the  court,  praying  the  reformation  of  a  mortgage,  which  she  alleged 
was  defectively  executed,  in  that  it  had  no  scroll  attached  to  the  sig- 
nature of  the  mortgagors,  although  it  was  stated  on  its  face  that  it 
was  "sealed,"  as  well  as  "signed  and  delivered ;"  that  it  was  her  inten- 
tion, as  well  as  that  of  the  mortgagors,  to  make  the  instrument  a  good, 
valid  and  legal  mortgage,  and  that  they  failed  in  so  doing  in  conse- 
quence of  a  mutual  mistake  of  the  law  upon  the  subject;  she  further 
prayed  that,  when  so  reformed  and  made  to  speak  the  intention  of  the 
parties,  the  paper  might  be  foreclosed  as  a  mortgage.  Discovery  was 
prayed  as  to  these  matters  from  the  defendants,  artd  for  the  purpose 
of  making  it  full,  specific  interrogatories,  which  they  were  required  to 
answer,  were  propounded.  They  filed  an  answer,  but  it  was  not  full, 
and  the  response  to  the  statements  in  the  bill  and  to  the  interrogatories 
was  evasive  and  insufficient.  They  also  filed  a  demurrer  setting  up  the 
statute  of  limitations  to  the  paper,  which  the  bill  sought  to  have  cor- 
rected, in  which  they  insisted  that  in  its  present  form  it  was  a  simple 
contract,  and  not  a  specialty;  and  that  the  suit  on  it  was  not  brought 
within  six  years  from  the  time  it  was  due.  They  denied  that  its  insuf- 
ficiency was  the  result  of  a  mutual  mistake  of  the  law,  but  answered 
that  it  was  the  result  of  mutual  ignorance  of  the  law.  There  was  no 
denial,  however,  of  the  intention  charged  in  the  bill  to  make  this  a  good, 
valid  and  sufficient  deed  of  mortgage.  This  disingenuous  and  insuffi- 
cient answer,  with  what  appeared  on  the  face  of  the  instrument,  ad- 
mitted enough,  under  the  rules  of  equity,  to  have  entitled  the  complain- 
ant to  the  decree  she  prayed ;  and  these  issues  on  this  evidence  should 
have  been  submitted  to  the  jury.  When  the  complainant  had  closed  her 
case,  the  court  sustained  the  demurrer,  holding  that  the  instrument  was 

-r-  Parts  of  the  opinion  are  omitted. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  719 

not  a  deed  under  seal,  but  a  simple  contract,  and  the  suit  thereon  was 
barred  by  the  statute  of  limitations. 

Whether,  abstractly  considered,  this  was  a  correct  decision  under  the 
law,  it  is  needless  to  inquire ;  it  is  enough  that  no  such  question  was 
made  by  the  pleadings  and  the  proof.  The  bill  admitted  that  this  was 
not  a  contract  under  seal,  but  prayed  that,  inasmuch  as  it  was  the  in- 
tention of  the  parties  so  to  make  it,  and  that  such  intention  failed  to  be 
carried  into  effect  on  account  of  their  mutual  mistake  as  to  the  law,  it 
might  be  made  to  speak  their  real  intention,  and  decreed  to  be  an  in- 
strument under  seal  and  be  foreclosed  as  a  mortgage. 

The  bill  made  no  such  point  as  that  decided  by  the  court ;  it  did  not 
seek  the  enforcement  of  the  contract  in  its  present  form ;  it  conceded 
that  this  could  not  be  done  under  the  law,  but  it  insisted  that  it  should 
be  put  into  the  form  originally  intended,  and  that  then  it  should  be  en- 
forced in  accordance  with  its  real  purport  and  effect. 

1.  Our  Code,  §  3117,  defines  a  mistake  relievable  in  equity  as  some 
unintentional  act,  or  omission,  or  error,  arising  from  ignorance,  sur- 
prise, imposition  or  misplaced  confidence.  It  adds  that  the  power  is 
exercised  with  caution,  and  to  justify  it,  the  evidence  must  be  clear, 
unequivocal  and  decisive  as  to  the  mistake.  The  relief  will  be  granted, 
as  between  the  original  parties,  and  their  privies  in  law,  in  fact  or  es- 
tate, except  bona  fide  purchasers  for  value  without  notice.  Id.  §  3119. 
It  is  further  declared  that  mistakes  may  be  either  of  law  or  fact.  Id.  § 
3120. 

2.  And  while  it  is  true  that  for  mere  ignorance  of  law  on  the  part 
of  the  party  herself,  where  the  facts  were  all  known,  and  there  was  no 
misplaced  confidence,  and  no  artifice  or  deception,  or  fraudulent  prac- 
tice used  by  the  other  party  to  induce  the  mistake  of  law,  or  to  prevent 
its  correction,  equity  will  not  intervene  and  grant  the  relief  prayed.  Id. 
§  3121.  Yet  if  there  be  an  honest  mistake  of  the  law  as  to  the  effect 
of  an  instrument  on  the  part  of  both  contracting  parties,  especially 
where  it  operates  as  a  gross  injustice  to  one,  and  gives  an  unconscien- 
tious advantage  to  the  other,  such  mistake  may  be  relieved  in  equity. 
Id.  §  3122. 

A  careful  examination  of  this  record  might,  we  think,  authorize 
a  jury  to  conclude  that  the  defendants,  in  acting  as  they  have  been 
shown  to  have  done,  were  guilty  of  fraudulent  practices  in  order  to 
prevent  the  correction  of  the  mistake  of  law,  which  they  admit  resulted, 
not  only  from  their  own  ignorance  of  law,  but  likewise  that  of  the  com- 
plainant ;  or  else  that  they  were  both  honestly  mistaken  as  to  the  legal 
effect  of  the  instrument,  and  being  so  mistaken,  gross  injustice  would 
be  done  the  complainant,  and  they  would  be  enabled  to  retain  an  uncon- 
scientious advantage,  unless  the  relief  prayed  was  decreed.     *     *     * 

Justice  seems  to  require  that  there  should  be  a  fuller  investigation 
of  the  case.     *     *     *     Judgment  reversed.27 

27  in  the  case  of  Beauchamp  v.  Winn,  (1S73)  L.  R.  6  E.  &  I.  App.  223,  Lord 
Chelmsford  said:    "With  regard  to  the  objection,  that  the  mistake  (if  any)  was 


720  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Cll.  3 

WELCH'S  ADM'R  v.  WELCH. 

(Superior  Court  of  Bourbon  County,  Kentucky,  1S92.     13  Ky.  Law  Rep.  639.) 

Appeal  from  Bourbon  Circuit  Court.  Opinion  of  the  court  by  Judge 
Barbour. 

1.  Reformation  of  Contract  for  Mistake  of  Law. — The  chancellor 
has  power  to  reform  a  written  contract  where  there  has  been  a  mutual 
mistake  of  law  as  to  the  effect  of  the  terms  used,  as  well  as  where  there 
has  been  a  mistake  of  fact. 

2.  Reformation  of  Insurance  Policy. — Where  a  policy  of  insurance, 
by  reason  of  a  mutual  mistake  of  law  as  to  the  effect  of  the  language 
used,  fails  to  express  the  intention  of  the  parties,  the  chancellor  may, 
either  upon  the  application  of  the  insured  during  his  life,  or  upon  the 
application  of  the  beneficiary  after  his  death,  correct  the  mistake. 

An  applicant  for  insurance  told  the  insurance  agent  that  he  wished 
to  insure  his  life  for  the  benefit  of  his  wife,  and  the  application  was  so 
filled  out,  but  the  agent,  conceiving  that  the  application  made  out  in 
that  way  in  the  absence  of  the  wife  would  be  irregular,  induced  the  in- 
sured to  consent  that  the  application  might  be  rewritten  and  the  policy 
made  payable  to  himself,  which  was  done,  the  agent  assuring  him  that 
his  wife  would  get  the  money  under  the  second  form  of  application 
as  well  as  under  the  first.  The  insured  having  died,  in  this  action  his 
creditors  insist  that  the  insurance  money  should  be  applied  to  the  pay- 
ment of  their  debts,  while  the  widow  insists  that  the  insurance  was 
taken  out  for  her  benefit,  but  by  mistake  the  policy  was  made  payable 
to  the  insured.  Held — That  the  chancellor  has  power  to  correct  the 
mistake  and  to  give  the  fund  to  the  widow. 


LARKINS  et  al.  v.  BIDDLE  et  al. 

(Supreme  Court  of  Alabama,  1S52.    21  Ala.  252.) 

Error  to  the  Chancery  Court  of  Lowndes. 
Tried  before  the  Hon.  J.  W.  Lesesne. 

The  complainant,  Eliza  Larkins,  filed  her  original  bill  to  reform  a 
deed  of  gift,  which  was  executed  and  drawn  by  her  father,  James 

one  of  law,  and  that  the  rule,  'Ignorantia  juris  neminem  excusat'  applies, 
I  would  observe  upon  the  peculiarity  of  this  case,  that  the  ignorance  imputable 
to  the  party  was  of  a  matter  of  law  arising  upon  the  doubtful  construction  of 
a  grant.  This  is  very  different  from  the  ignorance  of  a  well-known  rule  of 
law.  And  there  are  many  cases  to  be  found  in  which  equity,  upon  a  mere  mis- 
take of  the  law,  without  the  admixture  of  other  circumstances,  has  given  re- 
lief to  a  party  who  has  dealt  with  his  property  under  the  influence  of  such 
mistake.  Therefore,  although  when  a  certain  construction  has  been  put  by  a 
court  of  law  upon  a  deed,  it  must  be  taken  that  the  legal  construction  was 
clear,  yet  the  ignorance,  before  the  decision,  of  what  was  the  true  construc- 
tion, cannot,  in  my  opinion,  be  pressed  to  the  extent  of  depriving  a  person  of 
relief  ou  the  ground  that  he  was  bound  himself  to  have  known  beforehand  how 
the  grant  must  be  construed." 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  721 

Maul,  on  the  ground  that  it  was  his  intention  to  settle  certain  slaves, 
specified  in  said  deed,  to  her  sole  and  separate  use,  free  from  the  debts 
of  her  husband,  which  intention  was  not  expressed  in  the  deed,  in  con- 
sequence of  the  ignorance  and  want  of  skill  in  the  draftsman.  Certain 
judgment  creditors  of  the  husband  of  the  complainant,  who  were  about 
to  levy  their  executions  on  said  slaves,  and  the  administrator  of  the 
husband,  who  was  about  to  commence  suit  for  them,  were  made  de- 
fendants; and  the  prayer  of  the  bill  was,  for  an  injunction  as  to  such 
creditors  and  the  administrator,  and  the  reformation  of  the  deed  ac- 
cording to  the  intention  of  the  grantor.  A  demurrer  was  filed  to  the 
original  bill,  for  want  of  equity  and  multifariousness.  An  amended 
bill  was  subsequently  filed,  which  charges  that,  in  making  the  deed,  it 
was  the  intention  of  the  grantor  to  have  secured  the  slaves  to  the  sep- 
arate use  of  the  said  Eliza  Larkins  during  her  life,  and  at  her  death  to 
her  children,  to  which  amended  bill  a  demurrer  was  also  filed.  On  the 
hearing,  a  decree  was  rendered  dismissing  the  bill,  from  which  the 
complainants  prosecuted  a  writ  of  error. 

Goldthwaite,  J.2S  The  objections  to  the  original  bill,  for  want  of 
equity  and  multifariousness,  cannot  prevail.  The  object  of  the  bill  is, 
the  reformation  of  a  deed  of  gift,  drawn  by  the  grantor  himself,  but 
which,  from  his  ignorance  of  the  law,  was  so  unskillfully  drawn  as  not 
to  express  his  intention.  The  general  rule  is,  that  mistakes  of  law  can- 
not be  relieved  in  equity,  and  while  the  policy  and  correctness  of  the 
rule  are  conceded,  there  is  frequently  found  some  difficulty  in  its  ap- 
plication. There  can,  we  apprehend,  be  no  doubt,  that  where  the  in- 
strument speaks  the  true  agreement  between  the  parties,  equity  cannot 
reform  it,  because  one  or  both  of  them  may  have  mistaken  its  legal 
consequences.  There  is  in  such  a  case  nothing  for  equity  to  lay  hold 
of.  The  parties  have  made  their  own  contract,  and  a  court  of  equity 
cannot  change  it.  Hunt  v.  Rousmanier,  1  Pet.  1  [7  L.  Ed.  27].  Thus, 
if,  in  an  agreement  for  the  purchase  of  land,  it  was  stipulated  that  the 
vendor  should  make  certain  warranties,  a  mistake  as  to  the  legal  conse- 
quences of  such  warranties  would  not  authorize  an  application  to  a 
court  of  chancery  for  relief,  however  clearly  the  mistake  was  made 
out.  But  where  the  instrument  does  not  express  the  agreement  of  the 
parties,  from  ignorance  or  want  of  skill  on  the  part  of  the  draftsman, 
or  any  other  cause,  it  is  competent  for  equity  to  correct  the  mistake. 
Hunt  v.  Rousmanier,  supra.  Thus,  if,  in  the  case  of  the  warranties  as 
before  stated,  the  deed  was  drawn  by  the  one  party,  and  accepted  by 
the  other,  under  the  impression  that  the  language  of  the  instrument 
was  sufficient  to  create  the  warranties  stipulated  for,  when  the  terms 
used  were  not  in  law  sufficient  for  that  purpose,  equity  would  in  that 
case  reform  the  deed  so  as  to  express  the  true  agreement.  Although 
the  error  occurred  through  a  mistake  or  ignorance  of  the  law,  the  er- 
as Part  of  the  opinion  is  omitted. 
Boke  Eq. — 46 


722  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

ror  itself  might  be  more  properly  considered  as  a  mistake  of  fact.  This 
principle  applies  in  its  full  force  to  the  case  under  consideration,  and  is 
sustained  by  the  decisions  of  this  court.     *     *     * 

To  the  amended  bill,  however,  there  was  good  ground  of  demurrer. 
The  bill,  as  originally  filed,  charged  that  it  was  the  intention  of  James 
Maul,  in  making  the  conveyance  which  it  is  the  object  of  the  bill  to 
reform,  to  settle  the  slaves  specified  therein,  to  the  sole  and  separate 
use  of  the  complainant,  without  being  subject  to  any  debts  of  her  hus- 
band ;  and  the  prayer  is,  to  reform  it  so  as  to  give  effect  to  the  inten- 
tion of  the  grantor.  The  amended  bill  charges  that,  at  the  time  of  the 
execution  of  the  conveyance,  it  was  the  intention  of  James  Maul,  to 
secure  the  slaves  mentioned  therein  to  the  sole  and  separate  use  of  the 
complainant  during  her  life,  and  at  her  death  to  her  children.  It  is 
clear,  that  the  amendment  is  inconsistent  with,  and  makes  a  new  case 
from  the  original  bill ;  and  the  rule  is,  that  amendments  can  only  be 
granted,  when  the  bill  is  found  deficient  in  the  proper  parties,  in  the 
prayer  for  relief,  or  in  the  omission  or  mistake  of  some  fact  connected 
with  the  substance  of  the  case.  Lyon  v.  Tallmadge,  1  Johns.  Ch.  (N. 
Y.)  184;  Verplanck  v.  Mercantile  Ins.  Co.,  1  Edw.  Ch.  (N.  Y.)  46. 
The  amendment  here  makes  a  new  case,  because  it  sets  up  a  different 
agreement  from  that  charged  in  the  original  bill.  McKinley  v.  Irvine, 
13  Ala.  681. 

The  decree  of  the  Chancellor  dismissing  the  bill,  must  be  reversed 
with  costs,  and  a  decree  rendered  dismissing  the  bill  without  prejudice. 


GROSS  CONST.  CO.  v.  HALES  et  al. 
(Supreme  Court  of  Oklahoma,  1912.     37  Okl.  131,  129  Pae.  28.) 

Commissioners'  Opinion,  Division  No.  2.  Error  from  District 
Court,  Oklahoma  County ;    R.  H.  Loofbourrow,  Judge. 

Action  by  the  Gross  Construction  Company  against  George  H.  Hales 
and  others.    Judgment  for  defendants,  and  plaintiff  brings  error. 

RosSER,   C.29     *     *     *     The  building  contract  was   upon  a   form 

used  by  the  National  Association  of  Architects  and  Builders,  and  into 

the  form  was  written  the  following: 

"This  contract  will  include  all  walls  and  party  walls,  which  are  to  be  paid 
for  by  the  contractor." 

The  plans  and  specification,  according  to  which  the  building  was  con- 
structed, were  not  produced  at  the  trial.  The  defendant,  after  persist- 
ent effort  to  show  by  parol  testimony  what  was  meant  by  the  provi- 
sions in  the  contract,  that'it  was  to  "include  all  walls  and  party  walls, 
which  were  to  be  paid  for  by  the  contractor,"  offered  to  amend  his 
cross-petition  by  alleging  that  he  was  induced  to  sign  the  contract 
through  fraudulent  representations  made  to  him  by  plaintiff  with  ref- 

20  Parts  of  the  opinion  are  omitted. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  723 

erence  to  the  construction  that  would  be  placed  upon  the  contract 
which  he  signed,  and  that  he  relied  upon  the  statements  made  by  the 
plaintiff,  and  he  believed  them  to  be  true,  and  signed  the  contract,  rely- 
ing upon  such  representations.  The  court  refused  to  permit  the  amend- 
ment. The  defendant  then  undertook  to  prove  that  the  contract  to  pay 
for  the  party  walls  was  made  by  the  plaintiff  separate  and  distinct 
from  the  written  contract,  and  that  there  was  a  valid  and  binding  agree- 
ment made  between  the  plaintiff  and  defendant  by  which  the  plaintiff 
agreed  to  pay  defendant's  portion  of  the  price  of  the  construction  of 
the  wall  on  the  east  side  of  lot  16.  When  this  evidence  was  excluded 
by  the  court,  the  defendant  asked  leave  to  amend  his  answer  to  the 
effect  that  the  contract  sued  on  did  not  express  the  real  agreement  be- 
tween the  parties,  and  that  the  failure  to  so  express  said  agreement  be- 
tween the  parties  was  a  mutual  mistake  upon  the  part  of  the  plaintiff 
and  defendant  Hales,  and  that  it  was  the  agreement  of  the  parties  that 
plaintiff  should  pay  for  that  portion  of  the  wall  on  the  east  side  of  lot 
16,  block  7,  of  Oklahoma  City,  or  the  price  of  the  construction  of  that 
wall  that  defendant,  by  former  agreement  entered  into  with  one  S.  M. 
Gloyd,  had  agreed  to  pay,  and  also  that  the  same  agreement  was  en- 
tered into  with  reference  to  the  plaintiff  paying  for  that  portion  of  the 
party  wall  on  the  west  side  of  lot  10  that  defendant  was  bound  to  pay, 
and  asked  that  the  agreement  be  reformed  to  state  what  the  actual  un- 
derstanding and  agreement  of  the  parties  was.  The  court  permitted 
this  amendment,  and  the  trial  then  proceeded,  and  there  was  a  verdict 
and  judgment  reducing  the  plaintiff's  claim  to  the  extent  of  the  amount 
claimed  by  the  defendant  for  the  party  wall. 

The  defendant  testified  that  before  the  contract  was  signed  the  plain- 
tiff agreed  to  pay  for  half  of  "Sipes"  wall,"  and  "Will  Hales'  wall,  and 
also  the  partnership  walls  on  all  the  rest  of  the  building."  He  said  that 
after  he  had  this  conversation  with  the  plaintiff  that  the  clause,  "This 
contract  will  include  all  walls  and  party  walls,  which  are  to  be  paid  for 
by  the  contractor,"  was  written  into  the  contract.  And  then  stated  that 
he  had  a  talk  with  the  plaintiff's  manager  as  to  what  this  meant,  and 
said: 

"He  (meaning  plaintiff)  told  me  would  pay  for  the  east  wall,  Mr.  Gloyd's, 
and  all  the  party  walls.  That  is  the  reason  that  I  had  it  put  in  that  way. 
I  had  signed  a  contract  with  Mr.  Gloyd,  and  Mr.  Gross  knew  all  about  it. 
When  we  talked  this  over,  Mr.  Gross  agreed  to  pay  for  all  the  walls  for  this 
contract,  in  this  contract." 

Then  the  examination  proceeds  as  follows : 

"Q.  Did  you  tell  him  that  the  clause  intended  he  should  pay  for  all  these 
walls  in  this  contract?  A.  I  told  him  that  he  would  have  to  agree,  before  I 
would  sign  this  contract,  he  would  pay  for  all  the  walls,  Jasper  Sipes',  W.  T. 
Hales',  Gloyd's  wall,  and  Heinrich's  wall,  and  his  own  wall,  and  he  agreed 
to  and  did.    That  was  the  conversation." 

Defendant  was  corroborated  to  a  certain  extent  by  the  witness  Hein- 
rich.     It  also  appears  that  plaintiff  paid  for  some  of  the  party  walls 


724  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

and  gave  defendant  credit  on  his  account  for  $550.50  that  defendant 
had  paid  on  the  Sipes'  wall. 

The  grounds  urged  by  plaintiff  for  a  reversal  of  this  case  are  reduci- 
ble to  two  heads :  First,  that  the  court  erred  in  permitting  the  defend- 
ant to  amend  his  answer  so  as  to  allege  that  through  mistakes  the  con- 
tract failed  to  express  the  real  intention  of  the  parties.  Second,  that 
the  evidence  was  not  sufficient  to  support  the  allegations  of  the  answer 
as  amended. 

Plaintiff's  position  is  that  the  amendment  permitted  was  inconsistent 
with  the  allegations  of  the  original  cross-petition,  and  that  because  of 
its  inconsistency  the  amendment  should  not  have  been  allowed,  and 
that  proof  of  the  allegations  of  the  amendment  should  not  have  been 
allowed.     *     *     * 

In  this  case  the  theory  of  the  defendant  was  that  both  parties  under- 
stood the  contract,  and  that,  by  mistake  as  to  the  effect  of  the  language 
used,  the  writing  did  not  truly  express  the  contract.  In  such  cases  eq- 
uity will  relieve.     *     *     * 

But  plaintiff  contends  that,  though  defendant  may  have  been  mis- 
taken as  to  the  terms,  he  cannot  have  relief  because  plaintiff  under- 
stood the  effect  of  the  language  used,  and  cautioned  the  witness  Hein- 
rich  not  to  explain  to  defendant  its  true  effect.  But  if  they  made  the 
contract  as  claimed  in  the  amended  answer,  then,  for  the  purpose  of 
preparing  it  in  written  form,  defendant  was  a  mere  draughtsman. 

"Parties  to  an  agreement  may  be  mistaken  as  to  some  material  fact  con- 
nected therewith  which  formed  the  consideration  thereof  or  inducement 
thereto,  on  the  one  side  or  the  other,  or  they  may  simply  make  a  mistake  in 
reducing  their  agreement  to  writing.  In  the  former  case,  before  the  agree- 
ment can  be  reformed,  it  must  be  shown  that  the  mistake  is  one  of  fact,  and 
mutual ;  in  the  latter  case  it  may  be  a  mistake  of  the  draftsman,  or  one  party 
only,  and  it  may  be  a  mistake  of  law  or  of  fact.  Equity  interferes  in  such  a 
case,  to  compel  the  parties  to  execute  the  agreement  which  they  have  actually 
made."     Pitcher  v.  Hennessey,  48  N.  Y.  415. 

If  the  contract  actually  made  was  that  the  plaintiff  was  to  pay  for 
the  walls,  and  it  was  the  intention  of  the  parties  it  should  be  drawn 
that  way,  it  should  be  reformed,  although  plaintiff  may  have  under- 
stood its  legal  effect  when  it  was  presented.  For  the  plaintiff  to  per- 
mit defendant  to  sign  it  believing  it  expressed  the  true  contract,  know- 
ing that  it  did  not,  was  a  species  of  fraud,  of  which  plaintiff  cannot  take 
advantage.  In  the  case  of  Gillespie  v.  Moon,  2  Johns.  Ch.  (N.  Y.)  585, 
7  Am.  Dec.  559,  the  first  paragraph  of  the  syllabus  is  as  follows : 

"Equity  will  relieve  against  a  mistake  in  a  deed  or  contract  in  writing,  upon 
satisfactory  parol  proof  of  such  mistake,  whether  the  relief  is  sought  affirma- 
tively by  a  suit  to  reform  the  contract,  or  by  way  of  defense  to  a  bill  for  spe- 
cific performance,  and  this  notwithstanding  the  fact  that  the  mistake  is  de- 
nied by  the  opposite  party." 

In  the  course  of  the  opinion,  Chancellor  Kent  said : 

"It  is  unnecessary  to  enter  more  minutely  into  the  parol  proof  of  the  fact 
of  the  mistake.  On  that  point  there  is  no  room  for  doubt.  The  only  doubt 
with  me  is  whether  the  defendant  was  not  conscious  of  the  error  in  the  deed 
at  the  time  he  received  it  and  executed  the  mortgage,  and  whether  the  deed 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  725 

was  not  accepted  by  him  in  fraud,-  or  with  a  voluntary  suppression  of  the 
truth.  That  fraudulent  views  very  early  arose  in  his  mind  is  abundantly 
proved.  He  asked  Corbet,  a  witness,  if  he  could  not  so  run  the  line  as  to  save 
the  lower  mill  seat  to  himself;  and  he  told  David  Brown  that  he  meant  to 
take  counsel,  and,  if  he  found  he  could  hold  the  whole  lot,  he  intended  to  do 
so,  as  it  was  not  his  fault  that  the  deed  was  made  as  it  was.  It  would  be  a 
great  defect  in  what  Lord  Eldon  terms  the  moral  jurisdiction  of  the  court, 
if  there  was  no  relief  for  such  a  case.  Suppose  Mrs.  Mann  had  applied  for 
relief,  instantly,  on  discovery  of  the  mistake,  and  immediately  after  delivery 
of  the  deed,  was  no  power  in  the  whole  administration  of  justice  competent  to 
help  her?  It  has  been  the  constant  language  of  the  courts  of  equity  that  par- 
ties can  have  relief  in  a  contract  founded  in  mistake  as  well  as  fraud.  The 
rule  in  the  courts  of  law  is  that  the  written  instrument  does,  in  contemplation 
of  law,  contain  the  true  agreement  of  the  parties,  and  that  the  writing  fur- 
nishes better  evidence  of  the  sense  of  the  parties  than  any  that  can  be  sup- 
plied by  parol.  But  equity  has  a  broader  jurisdiction,  and  will  open  the  writ- 
ten contract  to  let  in  an  equity  arising  from  facts  perfectly  distinct  from  the 
sense  and  construction  of  the  instrument  itself." 

There  is  no  substantial  error  in  the  record,  and  the  case  should  be 
affirmed. 

Per  Curiam.     Adopted  in  whole.30 


HARRISON  v.  JAMESON. 

(Court  of  Appeals  of  Kentucky,  1830.     3  J.  J.  Marsh.  [26  Ky.]  232.) 

Chief  Justice  Robertson  delivered  the  opinion  of  the  Court. 

This  is  a  suit  in  chancery,  for  injoining  a  judgment  at  law,  obtained 
by  Jameson  against  Harrison. 

The  bill  alleges  that,  after  Harrison's  marriage,  Jameson  presented  to 
him  an  account  for  $104,  money  loaned  at  different  times,  to  his  wife, 
whilst  unmarried;  that  not  knowing  any  thing  about  the  justice  of  the 
account,  and  being  indisposed  to  dispute  it,  he  executed  his  note  for  the 
amount  charged  to  be  due;  and  on  which  note  Jameson  had  obtained 
judgment  against  him;  that  he  had  discovered,  since  the  execution  of 
the  note,  that  the  account  was  false,  and  that  his  wife  owed  only  a 
small  portion  of  it,  the  items  of  which  part,  so  admitted  to  have  been 
just,  are  stated.  He,  therefore,  calls  on  Jameson  to  set  out  his  account 
and  prove  its  justice. 

The  injunction  was  granted,  and  Jameson  answered.  The  answer 
does  not  deny  the  allegations  of  the  bill,  as  to  the  consideration  of  the 
note,  and  the  manner  of  its  execution.  Nor  does  it  state  the  items  of 
the  account,  but  it  insists  that  Bledsoe's  heirs,  of  whom  Harrison's  wife 
was  one,  owed  Jameson  for  various  sums  loaned  to  them,  but  chiefly 

30  "it  is  conceded  that  to  justify  the  reformation  of  a  written  contract  upon 
the  ground  of  mistake  the  alleged  mistake  must  be  one  of  substance  and  of 
fact,  and  not  of  law  ;  that  such  mistake  must  be  proved  by  clear  and  entirely 
satisfactory  evidence,  and  that  a  mere  preponderance  of  evidence  is  not  suffi- 
cient ;  that  the  mistake  must  be  mutual  and  common  to  both  parties  to  the  in- 
strument. Parol  testimony  may,  however,  be  given  to  show  that  the  written 
instrument  does  not  express  the  real  intent  of  the  parties."  Burns  v.  Caskey 
(1894)  100  Mich.  94,  at  100,  58  N.  W.  642. 


726  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

to  Mrs.  Harrison,  and  that  John  Jameson,  the  executor  of  Bledsoe,  had 
settled  the  account  and  admitted  that  it  was  just. 

John  Jameson  proves  that  he  settled  with  James  Jameson,  an  account 
which  he  had  against  Bledsoe's  heirs,  and  admitted  $110  to  be  due  to 
him,  $30  of  which  he  paid  him,  leaving  a  balance  still  due,  of  about  $80. 

This  was  all  the  testimony.  The  circuit  court  dissolved  the  injunc- 
tion, with  ten  per  cent,  damages  and  dismissed  the  bill.  This  decree  is 
erroneous. 

As  Jameson  virtually  admits  the  mistake  in  the  execution  of  the 
note,  and  the  ignorance  of  Harrison ;  and  as  he  admits  also,  that  the 
account,  for  money  loaned,  was  the  only  consideration  of  the  note,  the 
onus  devolved  on  him.  He  has  failed  to  prove  his  account  or  even  to 
exhibit  its  items. 

John  Jameson  had  no  authority  to  bind  Mrs.  Harrison ;  nor  could 
an  account  against  the  heirs,  for  sums  loaned  to  them  individually,  be 
binding  on  her  beyond  the  amount  which  she  received.  This  amount 
is  not  ascertained,  except  so  far  as  Harrison  has  admitted  particular 
items  in  his  bill. 

It  results,  therefore,  that,  except  for  the  $25,  and  other  small  items 
admitted  by  Harrison,  his  injunction  should  have  been  perpetuated. 

Wherefore,  the  decree  of  the  circuit  court  is  reversed,  and  the  cause 
remanded  for  a  decree  consistent  with  this  opinion. 


LUMBERT  v.  HILL  et  al. 

(Supreme  Judicial  Court  of  Maine,  185(3.     41  Me.  47.". 1 

Bill  in  Equity.  The  cause  was  heard  upon  Bill,  Answers  and 
Proof.31     *     *     * 

Hathaway,  J.  The  defendant,  Joseph  R.  Lumbert,  owned  a  lot  of 
land  in  Bangor,  on  Exchange  street ;  he  was  indebted  to  the  Mer- 
chants' Bank,  in  Boston,  and  also  to  the  defendant,  Thomas  A.  Hill. 

In  June,  1840,  the  bank  recovered  judgment  against  Lumbert  for 
their  debt,  and  caused  their  execution  thereon  to  be  levied  on  land  as 
his  property,  and  the  levy  was  duly  returned  and  recorded.  Subse- 
quently, April  17,  1843,  Hill  commenced  an  action  against  Lumbert,  to 
recover  the  debt  due  him,  and  attached  Lumbert's  real  estate,  and  in 
due  process  of  law,  recovered  judgment,  upon  which  execution  was 
duly  issued  and  levied  upon  land  as  Lumbert's  property,  which  levy 
was  also  duly  returned  and  recorded.  The  land  described  in  the  levy 
of  the  bank,  includes  the  northerly  half  of  Lumbert's  lot  on  Exchange 
street,  and  Hill's  levy  covers  the  southerly  half  of  the  same  lot. 

The  plaintiff  has  title  through  sundry  mesne  conveyances  from  the 
Merchants'  Bank,  and,  in  his  bill,  alleges  that  the  levy  of  the  bank,  in 

si  The  statement  of  facts  is  abridged. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  727 

fact,  covered  the  whole  lot,  including  the  part  subsequently  levied  upon 
by  Hill,  and  that  in  the  appraisers'  certificate,  and  the  officer's  return 
of  his  doings  on  the  execution,  there  was  an  error  in  describing  the 
easterly  boundary  line,  as  running  south,  seventy  degrees  east,  instead 
of  south,  seven  degrees  east,  by  reason  of  which  mistake,  as  he  alleges, 
the  levy  as  returned  and  recorded,  does  not  describe  the  land  upon 
which  the  execution  was  actually  extended,  but  omits  that  part  of  the 
lot  upon  which  Hill's  execution  was  subsequently  levied,  and  includes 
another  piece  of  land,  to  which  Lumbert  had  no  title.  And  the  plaintiff 
prays  that  the  error  may  be  corrected,  and  that  the  levy  and  the  deeds 
following  it,  through  which  he  derives  title,  may  be  reformed,  &c. 

The  extent  of  an  execution  on  lands,  accepted  by  the  creditor,  is  a 
statute  purchase  of  the  debtor's  estate. 

By  R.  S.  c.  94,  §  19,  it  is  made  the  officer's  duty  to  return  the  execu- 
tion with  a  certificate  of  his  doings  thereon,  into  the  clerk's  office  to 
which  it  is  returnable,  and  within  three  months  after  the  completion 
of  the  levy,  to  cause  the  execution  and  the  return  thereon  to  be  re- 
corded in  the  registry  of  deeds,  and  by  section  20,  if  the  execution  and 
levy  are  not  recorded,  as  provided  in  section  19,  it  shall  be  void  against 
subsequent  attaching  creditors  without  notice ;  "but  if  the  levy  is  re- 
corded, though  after  the  expiration  of  three  months,  it  shall  be  valid 
and  effectual  against  any  conveyance,  attachment,  or  levy  made  after 
such  recording."  The  return  of  the  officer  is  the  only  evidence  of  title 
by  the  levy. 

A  statute  title  must  always  be  perfect ;  that  is,  every  thing  made 
necessary  by  the  statute,  to  pass  the  property,  must  appear  by  the  re- 
turn of  the  officer ;  and,  when  recorded,  it  must,  of  course  appear  by 
the, record,  to  have  been  done.  Williams  v.  Amory,  14  Mass.  20,  and 
Rand's  notes.  And  when  the  execution  and  levy  thereof  have  been 
returned  and  recorded,  as  was  done  in  this  case,  there  can  be  no  other 
notice  of  the  previous  proceedings  than  the  record,  by  which  subse- 
quent attaching  creditors  or  purchasers  can  be  affected. 

"To  reform  an  instrument  in  equity,  is  to  make  a  decree,  that  a  deed  or 
other  agreement  shall  he  made  or  construed,  as  it  was  originally  intended  by 
the  parties,  when  an  error,  as  to  a  fact,  has  been  committed."  Bouvier,  L.  D. 
tit.  Reform. 

The  levy  of  an  execution  on  land  conveys  title  by  operation  of  law, 
not  in  pursuance  of  any  agreement  by  which  the  intention  of  the  par- 
ties was  manifested,  or  can  be  ascertained.  The  question,  however,  of 
reforming  a  levy,  after  the  execution  and  the  officer's  doings  thereon, 
have  been  duly  returned  and  recorded,  and  where  the  rights  of  third 
parties  would  not  be  affected  thereby,  need  not  be  considered  in  this 
case;  for  if  the  judgment  creditor,  by  mistake,  do  not  make  his  title  to 
the  land  seized  on  the  execution,  perfect  by  his  levy,  surely  there  can 
be  no  reason  why  a  subsequent  attaching  creditor  or  purchaser  should 
be  prejudiced  by  such  mistake,  for  the  record  is  the  statute  evidence  of 
what  was  done  in  extending  his  execution.     Every  person  has  a  right 


728  REFORMATION,  RE-EXECTTION,  RESCISSION,  ETC.  (Ch.  3 

to  rely  upon  the  record  as  the  evidence  of  title,  unless  he  have  legal 
notice  of  a  subsequent  conveyance. 

The  plaintiff  cannot  have  the  relief  which  he  seeks,  unless  the  officer 
can  have  leave  to  amend  his  return  on  the  execution.  To  reform  the 
levy  and  deeds  as  prayed  for,  and  thereby  change  the  existing  legal  ti- 
tles of  the  parties,  if  it  could  be  done,  would  render  the  registry  of 
deeds  of  little  value,  as  furnishing  any  certain  evidence  of  title  to  real 
estate. 

It  is  familiar  law,  that  the  Court  will  not  allow  an  amendment  of  an 
officer's  return,  after  a  long  time  has  elapsed,  unless  from  some  min- 
utes made  at  the  time,  and  also,  that  an  officer  will  not  be  permitted  to 
amend  a  defective  return  of  an  extent,  if  a  third  person  have  subse- 
quently acquired  title  to  the  land. 

But  if  the  Court  could  grant  the  relief  sought,  in  all  cases  of  relief, 
by  correcting  mistakes  in  the  execution  of  instruments,  the  party  ask- 
ing relief  must  stand  upon  some  equity  superior  to  that  of  the  party 
against  whom  he  asks  it.  If  the  equities  are  equal,  a  court  of  equity 
is  silent  and  passive.     1  Story's  Eq.  c.  5,  §  176,  and  notes. 

In  this  case,  neither  party  appears  to  have  any  equity  superior  to  the 
other.  The  plaintiff  has  the  title  of  the  Merchants'  Bank,  and  nothing- 
more.  The  bank  and  Hill  were  both  creditors  of  Joseph  R.  Lumbert, 
and,  of  course,  they  both  desired  to  collect  their  debts,  and  they  had 
equal  rights  to  do  so.  The  bank  levied  their  execution,  and  left  a  part 
of  Lumbert's  land  open  to  attachment  by  his  creditors,  as  appeared  by 
the  record.  If  Hill  had  not  attached  the  land,  Lumbert  might  have 
conveyed  it,  or  any  other  of  his  creditors  might  have  attached  it.  Hill 
ascertained  to  his  satisfaction,  that  the  levy  of  the  bank  did  not  include 
it,  and  he  was  neither  legally  or  morally  guilty  of  wrong  in  attaching 
it  to  secure  his  debt.  There  was  no  contract  or  privity  between  him 
and  the  bank.  He  was  not  the  guardian  of  their  interests,  and  if  the 
bank  neglected  to  take  and  perfect  their  title  to  the  land,  which  they 
might  have  taken  on  their  execution,  it  was  not  his  fault,  and  he  had 
a  perfect  legal  right  to  attach  what  the  bank  left  of  Lumbert's  land, 
and  seize  it  on  execution,  in  payment  of  his  debt.  It  would  have  been 
requiring  too  much,  to  have  asked  him  to  be  quiescent,  and  lose  his 
debt,  rather  than  disturb  the  plaintiff  in  the  temporary  enjoyment  of 
property,  to  which  he  had  no  legal  title,  and  which  might,  at  any  time, 
have  been  conveyed  by  Hill's  debtor,  Joseph  R.  Lumbert,  or  attached 
or  seized  on  execution  by  any  of  his  creditors. 

The  result  is,  that  if  the,  levy  of  the  bank  as  recorded,  includes  the 
land  upon  which  Hill  subsequently  extended  his  execution,  then  the 
plaintiff  holds  it  by  legal  title ;  but  if  that  levy  does  not  include  it,  a 
court  of  equity  can  grant  him  no  relief. 

The  bill  is  dismissed  with  costs  for  the  defendants. 

Tf.xxev,  C.  J.,  and  Appleton,  Goodexow,  and  May,  JJ.,  con- 
curred. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  729 

ATHERTON  v.  ROCHE  et  al. 

(Supreme  Court  of  Illinois,  1001.     192  111.  252,  61  N.  E.  357,  55  L.  R.  A.  591.) 

Appeal  from  circuit  court,  Alexander  county;  Joseph  P.  Robarts, 
Judge. 

Mr.  Justice  Hand  32  delivered  the  opinion  of  the  court: 

This  is  a  bill  in  chancery,  filed  by  Francis  D.,  Leslie,  and  Leon 
Roche,  minors,  by  their  next  friend,  James  S.  Roche,  in  the  circuit 
court  of  Alexander  county,  against  Homer  Atherton  and  Fannie  E. 
Jones,  to  reform  a  certain  deed  bearing  date  March  21,  1882,  executed 
by  Francis  D.  Atherton  and  Martha  E.,  his  wife,  conveying  99  acres 
of  land  off  of  the  south  side  of  lot  3,  claim  529,  survey  527,  in  Alex- 
ander county,  111.,  to  Margaret  E.  and  Byron  J.  Atherton,  "to  them 
and  their  bodily  heirs,  forever,"  so  that  it  would  operate  to  vest  the 
remainder  in  fee  in  said  lands  in  all  the  heirs  of  said  Margaret  E.,  de- 
ceased, and  that  partition  of  the  land  described  therein  be  made  accord- 
ing to  the  rights  and  interests  of  the  parties  after  such  reformation  of 
the  deed  should  have  been  made.     *     *     * 

The  master  in  chancery  found  that  Francis  D.  Atherton,  the  grand- 
father of  the  complainants  and  defendants  (now  deceased),  was,  on  the 
21st  day  of  March,.  1882,  the  owner  in  fee  simple  of  said  land ;  that  on 
said  day,  for  the  expressed  consideration  of  $10,  he,  together  with  his 
wife,  Martha  E.  Atherton,  conveyed  said  land  to  his  daughter,  Mar- 
garet E.  Atherton,  and  Byron  J.  Atherton,  her  husband,  and  their  bod- 
ily heirs;  that  said  Byron  J.  Atherton,  the  husband  of  Margaret  E. 
Atherton,  was  not  of  kin  or  otherwise  related  to  said  Francis  D.  Ather- 
ton ;  that  in  said  deed  the  party  of  the  second  part  is  described  as 
"Margaret  E.  and  Byron  J.  Atherton,"  and  the  granting- clause  therein 
is  "to  them  and  their  bodily  heirs,  forever."     *     *     * 

It  is  averred  in  the  bill  that  said  Fannie  E.  Peeler  (now  Fannie  E. 
Jones)  was  highly  esteemed  and  regarded  and  greatly  loved  by  her 
grandfather,  the  said  Francis  D.  Atherton,  and  that  it  was  his  intention 
and  purpose,  when  he  made  said  deed,  to  make  provision  thereby  for 
said  Fannie  E.  and  any  other  child  or  children  his  daughter,  Margaret 
E.,  might  have,  either  by  said  Byron  J.  or  any  other  husband  whom  she 
might  have ;  and  that  when  he  executed  said  deed  he  supposed  that 
the  words  "and  their  bodily  heirs,"  as  used  in  said  deed,  did  or  would 
include  the  said  Fannie  E.  and  any  other  child  or  children  whomsoever 
that  might  thereafter  be  born  unto  his  said  daughter ;  and  that  the  con- 
sideration named  in  the  deed  was  but  nominal,  and  that  the  actual  con- 
sideration was  the  desire  of  the  said  Francis  D.  Atherton  to  make  pro- 
vision for  his  daughter,  said  Margaret,  and  for  her  children ;  and  that 
the  word  "their"  in  the  phrase  "their  bodily  heirs,   forever,"  in  the 

32  Parts  of  the  opinion  of  Hand,  J.,  and  all  of  the  dissenting  opinion  of 
Boggs.  J.  (in  which  dissent  Wilkin,  C.  J.,  and  Carter,  J.,  concurred),  are 
omitted. 


730  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

granting  and  habendum  clauses  of  the  deed,  was  employed  with  the 
understanding  and  intention  on  the  part  of  said  grantor  in  said 
deed  that  it  meant  and  included  all  bodily  heirs  of  his  said  daugh- 
ter.    *     *     * 

The  deed  to  Margaret  E.  and  Byron  J.  Atherton,  "to  them  and  their 
bodily  heirs,  forever,"  conveyed  what  would  have  been  at  common  law 
an  estate  tail  special.  *  *  *  Under  the  operation  of  section  6  of 
an  act  entitled  "Conveyances"  (Hurd's  Rev.  St.  1899,  c.  30,  p.  401), 
however,  instead  of  an  estate  tail  special  a  life  estate  was  vested  in 
Margaret  E.  and  Byron  J.  Atherton,  the  remainder  in  fee  going  to  their 
bodily  heirs  according  to  the  course  of  the  common  law.  Frazer  v. 
Peoria  Co.,  74  111.  282;  Lewis  v.  Pleasants,  143  111.  271,  30  N.  E.  323, 
32  N.  E.  384;  Dinwiddie  v.  Self,  145  111.  290,  33  N.  E.  892;  Kyner 
v.  Boll,  182  111.  171,  54  N.  E.  925.  The  bodily  heirs  referred  to  are  not 
Margaret's  bodily  heirs,  nor  Byron's  bodily  heirs,  but  "their"  bodily 
heirs, — that  is,  the  bodily  heirs  of  both  Margaret  and  Byron, — which 
language  excludes  Fannie  E.  Jones  and  Francis  D.,  Leslie  and  Leon 
Roche,  and  applies  only  to  Homer  Atherton,  who  is  the  only  person 
who  comes  within  the  description  of  "their"  bodily  heir ;  that  is,  the 
bodily  heir  of  both  of  them.  The  remainder  in  fee  was  contingent,  but 
vested  in  Homer  Atherton  upon  his  birth.  Dinwiddie  v.  Self,  supra; 
Kellett  v.  Shepard,  139  111.  433,  28  N.  E.  751,  34  N.  E.  254.  The  ef- 
fect, therefore,  of  said  deed  was  to  vest  in  Margaret  E.  and  Byron  J. 
Atherton  a  life  estate,  and  the  remainder  in  fee  in  Homer  Atherton, 
as  their  only  bodily  heir,  who  is  now  the  sole  legal  owner  in  fee  of  said 
lands. 

The  legal  title  to  said  land  being  in  Homer  Atherton,  was  the  court 
below  warranted,  upon  the  case  made,  in  reforming  the  deed,  and,  after 
such  reformation,  in  decreeing  four-fifths  of  said  lands  to  be  the  prop- 
erty of  the  other  children  of  Margaret  E.  Roche?  We  think  not.  The 
mistake  insisted  upon  and  sought  to  be  corrected  consists  in  the  use 
of  the  word  "their"  instead  of  "her,"  in  the  clause  "to  them  and  their 
bodily  heirs,  forever,"  found  in  said  deed,  and  under  which  Homer 
Atherton  takes  title.  There  is  no  claim  that  said  grantor,  at  the  time 
he  executed  said  deed,  was  not  fully  aware  of  its  terms  and  language, 
or  that  he  was,  in  any  way  deceived,  misled,  or  otherwise  imposed 
upon,  or  subjected  to  any  undue  or  improper  influence.  The  evidence, 
on  the  other  hand,  clearly  shows  that  the  deed  was  read  to  him  prior 
to  the  execution  thereof,  and  that  he  knew  the  word  "their"  was  used, 
and  that  the  word  "her"  was  not  used  in  said  clause ;  that  he  discussed 
the  meaning  of  the  terms  employed  at  the  time  he  signed  and  acknowl- 
edged the  deed,  and  insisted  he  knew  the  legal  effect  thereof,  and  that 
it  expressed  his  meaning.  It  is  therefore  apparent  that  the  mistake 
complained  of  is  not  a  mistake  as  to  what  words  were  contained  in  the 
deed,  but  simply  as  to  the  meaning  and  legal  effect  of  the  word  "their" 
when  used  in  the  clause  "to  them  and  their  bodily  heirs,  forever." 
This,  manifestly,  is  not  a  mistake  as  to  any  fact.     It  is  purely  a  mis- 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  731 

take  of  law,  and  the  rule  in  this  state,  subject  to  certain  exceptions, — 
among  which  this  case  does  not  fall, — is  firmly  established  that  courts 
of  equity  will  not  lend  their  aid  to  relieve  against  mere  mistakes  of 
law.     *     *     * 

Reversed  and  remanded. 


DINWIDDIE  v.  SELF. 

(Supreme  Court  of  Illinois,  1S93.     145  111.  290,  33  N.  E.  S92.) 

Bailey,  C.  J.,33  (after  stating  the  facts).  While  the  evidence  of  the 
negotiations  which  resulted  in  the  purchase  from  the  defendant  by  the 
complainant  of  the  land  subsequently  conveyed  is  not  very  full  or  cir- 
cumstantial, yet  we  think  it  shows  with  sufficient  clearness  that  the  con- 
tract which  the  parties  intended  to  make,  and  which  they  in  fact  made, 
was  for  the  purchase  and  sale  of  the  fee.  Indeed,  upon  this  question 
there  seems  to  be  no  substantial  disagreement  in  the  testimony  of  the 
witnesses.  The  complainant  testifies,  in  substance,  that,  shortly  prior 
to  the  execution  of  the  deed,  she,  with  her  brother,  visited  the  defend- 
ant's farm  to  look  at  it  with  a  view  of  purchasing  it ;  that,  after  she 
had  been  over  it,  the  defendant  offered  it  to  her  for  $9,000;  that  noth- 
ing was  said  about  the  reservation  by  the  defendant  of  any  portion  of 
the  title  or  of  any  interest  in  the  land,  her  understanding  being  that 
the  defendant  offered  to  convey  to  her  the  land  in  fee  for  the  price 
named ;  that  she  did  not  accept  the  defendant's  offer  at  that  view,  but 
subsequently,  on  the  same  day,  having  concluded  to  accept  it,  she  sent 
her  brother  to  the  defendant  to  notify  him  of  such  acceptance.  Her 
testimony  is  substantially  corroborated  by  that  of  her  brother,  who 
went  with  her  to  see  the  farm,  and  he  further  testifies  that  $9,000  was 
the  fair  cash  value  of  the  land  at  that  time,  and  in  this  he  is  not  dis- 
puted by  any  other  witnesses.     *     *     * 

It  is  also  clear  that  the  deed  which  the  defendant  afterwards  exe- 
cuted in  performance  of  the  contract  of  sale  thus  made  was  not  a  con- 
veyance to  the  complainant  of  the  fee.  The  conveyance  was  limited  to 
the  complainant  "and  her  bodily  heirs," — a  limitation  which,  at  com- 
mon law,  would  have  created  an  estate  in  fee  tail.  But  by  section  6  of 
chapter  24  of  the  Revised  Statutes  of  1845,  which  was  in  force  at  the 
time  the  conveyance  was  made,  and  which  has  since  been  re-enacted 
as  section  6  of  chapter  30  of  the  Revised  Statutes  of  1874,  estates  in 
tail  are  abolished,  and  it  provides  that  in  cases  where,  by  the  common 
law,  any  person  might  become  seised  in  fee  tail  of  any  lands  by  virtue 
of  any  conveyance,  such  person,  instead  of  becoming  seised  in  fee  tail, 
shall  be  deemed  and  adjudged  to  be  and  become  seised  thereof  for  his 
or  her  natural  life  only,  and  the  remainder  shall  pass  in  fee  simple  ab- 
solute to  the  person  or  persons  to  whom  the  estate  tail  would,  on  the 

33  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


732  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

death  of  the  grantee,  first  pass,  according  to  the  course  of  the  common 
law,  by  virtue  of  such  conveyance.  The  complainant,  at  the  time  of 
the  execution  of  the  deed  to  her,  was  a  widow,  and  without  children  or 
descendants.  No  person,  therefore,  was  then  in  being  who,  upon  her 
death,  could  have  taken  as  heirs  of  her  body.  It  is  true,  she  was  then 
contemplating  marriage,  and  shortly  after  the  execution  of  the  deed 
was  married  to  her  present  husband.  The  deed,  then,  by  force  of  the 
statute,  conveyed  to  her  only  a  life  estate,  with  a  contingent  remainder 
in  fee  to  her  children,  if  any  such  should  afterwards  be  born,  and,  in 
default  of  heirs  of  her  body,  the  estate  in  remainder  necessarily  lapses, 
and  at  her  death  the  land  reverts  to  the  defendant  in  fee.  In  point  of 
fact  she  has  had  no  children,  and  as  she  claims,  and  as  her  evidence 
tends  to  show,  she  is  now  past  the  period  of  childbearing,  and  the  prob- 
able, if  not  the  necessary,  result,  if  the  deed  is  allowed  to  stand  as  it 
was  executed,  is  that  the  estate  thereby  conveyed  is  only  for  the  life 
of  the  complainant,  with  reversion  in  fee  to  the  defendant  and  his 
heirs.  That  such  is  not  the  estate  for  which  the  complainant  contracted 
when  she  purchased  the  land  is,  to  our  minds,  too  clear  for  contro- 
versy. 

Upon  these  facts  two  questions  arise:  First,  whether  the  limitation 
to  the  complainant  ''and  her  bodily  heirs"  was  inserted  in  the  deed  by 
mistake;  and,  second,  whether  it  is  a  mistake  which  the  court  of  equity 
will  correct.     *     *     * 

In  view  of  all  the  evidence,  then,  we  are  of  the  opinion  that  the  court 
was  justified  in  finding  that  neither  the  complainant's  father  nor  her 
brother  had  any  authority  from  her  to  procure  the  insertion,  in  the 
deed  conveying  the  land  to  her,  of  a  limitation  of  the  estate  conveyed, 
to  her  and  the  heirs  of  her  body,  and  that  such  limitation  was  inserted 
in  the  deed  wholly  without  her  knowledge,  authority,  or  consent.  Nei- 
ther her  father  nor  her  brother  is  shown  to  have  been  in  any  proper 
sense  her  general  agent.  The  contract  of  purchase  was  made  by  herself 
in  person,  except  merely  that  she  employed  her  brother  to  communicate 
to  the  defendant  her  acceptance  of  the  offer  which  he  had  previously 
made  to  her.  What  her  father  and  brother  subsequently  did  by  way 
of  consummating  the  purchase  and  obtaining  the  conveyance  seems  to 
have  been  done,  not  by  virtue  of  any  specific  employment  by  her,  but 
by  way  of  rendering  such  voluntary  assistance  as  a  father  and  brother, 
having  a  proper  interest  in  her  welfare,  would  naturally  render  under 
such  circumstances.  Their  authority  to  act  as  her  agents,  so  far  as 
the  evidence  shows,  was  merely  voluntary  on  their  part,  and  permissive 
on  hers,  and  extended  merely  to  closing  up  the  purchase  as  she  had 
made  it,  and  not  to  the  imposition  of  new  terms,  or  the  insertion  of  lim- 
itations, to  which  she  had  not  assented,  and  of  which  she  knew  noth 
ing.  *  *  *  If,  then,  the  limitation  was  inserted  for  such  purpose, 
without  the  complainant's  knowledge  or  consent,  it  was  in  the  nature 
of  a  fraud  upon  her,  of  which  the  defendant  had  notice,  if  he  did  not 
actively  participate  in  it.     She  bought  the  land  for  herself,  and  paid 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  733 

for  it  with  her  own  money,  and  any  attempt  by  her  father  and  brother, 
for  purposes  of  their  own,  to  place  limitations  upon  the  title  without 
her  knowledge  or  authority,  were  unauthorized  acts,  for  which  she 
should  not  be  held  responsible.     *     *     * 

If,  under  the  circumstances  supposed,  she  had  personally  requested 
the  insertion  of  this  limitation,  or  had  accepted  the  deed  with  full 
knowledge  of  its  terms,  she  would  have  been  bound  by  the  instrument 
as  executed,  however  much  she  may  have  been  mistaken  as  to  the  legal 
effect  of  the  language  thus  employed.  An  illustration  of  this  rule  may 
be  found  in  the  case  of  Fowler  v.  Black,  136  111.  363,  26  N.  E.  596,  11 
L.  R.  A.  670.  The  same  effect  would  doubtless  be  given  to  the  act  of 
her  agent,  if  his  authority  had  extended  to  the  adoption  and  accept- 
ance on  her  behalf  of  the  same  clause.  But,  as  we  have  seen,  the  evi- 
dence fails  to  show  the  existence  of  such  authority.  The  general  rule 
is  that  a  mistake  of  law,  pure  and  simple,  is  not  adequate  ground  of 
relief.  Where  a  party,  with  knowledge  of  all  the  material  facts,  and 
without  any  other  special  circumstances  giving  rise  to  an  equity  in  his 
behalf,  enters  into  a  transaction  affecting  his  interests,  rights,  and  lia- 
bilities, under  ignorance  or  error  with  respect  to  the  rules  of  law  con- 
trolling the  case,  courts  will  not,  in  general,  relieve  him  from  the  con- 
sequences of  his  mistake.  2  Pom.  Eq.  Jur.  §  842.  Accordingly,  if  an 
agreement,  or  written  instrument,  or  other  transaction,  expresses  the 
thought  and  intention  which  the  parties  had  at  the  time  and  in  the  act 
concluding  it,  no  relief,  affirmative  or  defensive,  will  be  granted  with 
respect  to  it,  upon  the  assumption  that  their  thought  and  intention 
would  have  been  different  if  they  had  not  been  mistaken  as  to  the  legal 
meaning  and  effect  of  the  terms  and  provisions  by  which  such  inten- 
tion is  embodied  and  expressed,  even  though  it  should  be  incontestably 
proved  that  their  intention  would  have  been  different  if  they  had  been 
correctly  informed  as  to  the  law.  Id.  §  843.  But,  firmly  settled  as  are 
the  foregoing  rules,  it  is  equally  settled  that  there  are  particular  in- 
stances in  which  equity  will  grant  defensive  and  affirmative  relief  from 
mistakes  of  law,  pure  and  simple,  as  well  as  from  those  accompanied 
by  other  equitable  incidents.     *     *     * 

The  present  case  clearly  falls  within  the  exception  to  the  general 
rule  thus  pointed  out  and  discussed  by  Mr.  Pomeroy.  The  defendant's 
offer  was  to  sell  to  the  complainant  the  land, — an  offer  which,  made, 
as  it  was,  without  limitation  or  qualification,  and  for  a  consideration 
equal  to  the  fair  cash  value  of  the  land,  must  be  understood  as  a  prop- 
osition to  sell  the  fee, — and  the  offer  was  accepted  by  the  complainant 
precisely  as  it  was  made.  A  contract  was  thereby  consummated  for 
the  sale  and  conveyance  by  the  defendant  to  the  complainant,  for  the 
consideration  named,  of  an  absolute  fee-simple  title  to  the  land.  Both 
parties  understood  that  the  conveyance  was  to  be  in  fee,  and  both  in- 
tended that  the  contract  should  be  so  executed ;  but  by  the  unauthor- 
ized act  of  the  complainant's  agent,  or  by  the  mistake  of  the  scrivener, 
it  matters  little  which,  technical  words  were  inserted,  the  legal  effect 


734  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Cll.  3 

of  which  was  to  limit  the  estate  conveyed  to  the  complainant  to  a  ten- 
ancy for  her  life  only.  Thus,  through  a  mistake  of  law,  the  convey- 
ance failed  to  express  the  contract  into  which  the  parties  had  actually 
entered.  It  follows  that  the  case  is  one  in  respect  to  which  a  court  of 
equity,  upon  principles  above  set  forth,  will  grant  relief.     *     *     * 

We  are  of  the  opinion  that  the  decree  is  warranted  by  the  evidence, 
and  it  will  therefore  be  affirmed. 


SPARKS  v.  PITTMAN  et  al. 

(Supreme  Court  of  Mississippi,  1875.    51  Miss.  197.) 

Tarbell,  J.34  *  *  *  In  the  case  at  bar,  if  Pittman  knew  the 
existence  of  the  act  of  the  legislature  of  April  18,  1873,  and  withheld 
this  knowledge  from  Sparks  who  was  ignorant  of  it,  then  a  positive 
fraud  was  committed  by  the  former  upon  the  latter.  Moreland  v.  Atchi- 
son, 19  Tex.  303.  If  both  were  ignorant  of  that  act,  there  was  a  mutual 
mistake  of  law  against  which  equity  will  relieve.  Champlin  v.  Laytin, 
1  Edw.  Ch.  [N.  Y.]  467;  Green  v.  Morris  &  E.  R.  R.  Co.,  1  Beaslev 
Ch.  [12  N.  J.  Eq.]  165. 

"Equity  in  rescinding  contracts,  does  not  confine  itself  to  cases  of  fraud. 
Cases  likewise  of  plain  mistake,  or  misapprehension,  though  not  the  effect  of 
fraud  or  contrivance,  are  entitled  to  the  interference  of  this  court."  Skillman 
v.  Teeple,  1  Saxt.  Ch.  [1  N.  J.  Eq.],  232. 

Discussing  the  question  how  far  equity  will  relieve  against  mistakes 

of  law  and  fact,  the  court,  in  Northrop  v.  Graves,  19  Conn.  548  [50 

Am.  Dec.  264] ,  say : 

"We  shall  have  occasion  to  advert  to  some  of  the  cases  on  this  subject,  and 
to  some  of  the  maxims  which  are  supposed  to  apply  to  it,  such  as  'Volenti 
non  fit  injuria'  (if  a  person  consent  to  a  wrong  he  cannot  complain),  'Ignorantia 
legis  non  excusat,'  and  to  the  maxim  often  in  requisition  and  generally  false 
in  reality,  that  every  man  is  bound  by,  and  therefore  'presumed  to  know  the 
law.'  These  and  all  other  general  doctrines  and  aphorisms,  when  properly  ap- 
plied to  facts  and  in  furtherance  of  justice,  should  be  carefully  regarded ;  but 
the  danger  is  that  they  are  often  pressed  into  the  service  of  injustice  by  a  mis- 
application of  their  true  meaning.  It  is  better  to  yield  to  the  force  of  truth 
and  conscience  than  to  a  reverence  for  maxims." 

Referring  to  these  maxims,  in  Cumberland  Coal  and  Iron  Co.  v. 
Sherman,  20  Md.  117,  and  to  the  case  of  Lammot  v.  Bowly,  6  Har.  & 
J.   [Md.]   500,  this  very  emphatic  language  is  employed: 

"The  result  of  the  review  of  the  authorities  was  that  some  of  the  most 
enlightened  and  celebrated  men  whose  characters  are  recorded  in  judicial  his- 
tory have  given  their  sanction  to  the  doctrine  "that  no  man  acting  under  a 
plain  and  acknowledged  mistake  of  his  legal  rights  shall  forfeit  those  rights  in 
consequence  of  such  misapprehension." 

"That  a  party  may  not  urge  his  ignorance  of  the  law  as  an  excuse  or  pal- 
liation of  a  crime,  or  even  of  a  fault,  we  may  admit ;  that  he  may  not  by 
reason  of  such  ignorance  or  mistake,  obtain  any  right  or  advantage  over  an- 
other, we  may  admit;    but  we  do  not  admit  that  such  other  may  obtain  or 

34  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  735 

secure  an  unjust  advantage  over  him  by  reason  of  his  ignorance  or  mistake 
even  of  the  law."     Northrop  v.  Graves,  supra. 

The  subject  of  relief  in  equity  against  mistakes  of  law  is  very  fully 
discussed  in  1  Story's  Eq.  Jur.  ch.  5,  §  110  et  seq.,  and  see  authorities 
cited  in  notes.  It  is  also'  quite  elaborately  considered  in  Trigg  v.  -Read, 
5  Humph.  [Tenn.]  529  [42  Am.  Dec.  447]  ;  Freeman  v.  Curtis,  51  Me. 
140  [81  Am.  Dec.  564],  etc. 

"A  mistake  of  law  is  not  ordinarily  a  ground  of  relief  in  equity."  Mellish 
v.  Robertson,  25  Vt.  603. 

But  it  has  never  been  decided  "that  a  plain  and  acknowledged  mis- 
take in  law  is  beyond  the  reach  of  equity."  Marshall,  C.  J.,  in  Hunt 
v.  Rousmanier,  8  Wheat.  174  [5  L.  Ed.  589].  Each  case,  however, 
must  depend  upon  its  own  particular  circumstances.     *     *     * 

The  decree  must,  however,  be  reversed,  and  the  cause  remanded,  with 
leave  to  respondents  to  answer  in  forty  days  from  this  date. 

Ordered  accordingly. 


(C)  Admissibility  of  Parol  Evidence 

LESLIE  et  al.  v.  O'NEIL. 

(Supreme  Court  of  Arkansas,  1913.    10S  Ark.  G07,  156  S.  W.  1017.) 

This  was  an  action  by  T.  J.  O'Neil  against  S.  W.  Leslie,  John  J.  Mc- 
Manus,  and  J.  C.  Minor  to  recover  upon  a  promissory  note.    The  note 
is  as  follows : 
"$350.00.  Hot  Springs,  Ark.,  Jan.  8th,  1908. 

"Sixty  days  after  date  we  promise  to  pay  to  the  order  of  T.  J.  O'Neil,  three 
hundred  and  fifty  dollars,  for  value  received,  negotiable  and  payable  without 
defalcation  and  discount  and  with  interest  from  date  at  the  rate  of  eight 
per  cent,  per  annum  from  date  until  paid,  and  if  interest  be  not  paid  when 
due,  to  become  a  principal  and  bear  the  same  rate  of  interest. 

"Arkansas  Acetylene  Gas  Co., 
"By     J.  C.  Minor,  President. 
"S.  W.  Leslie,  Secretary." 

The  note  was  signed  on  the  back:  "S.  W.  Leslie.  John  J.  Mc- 
Manus." 

The  defendants  Leslie  and  McManus  in  their  answer  admitted  the 
execution  of  the  note,  but  allege :  That  they  were  not  indebted  to  the 
plaintiff,  and  that  the  note  sued  on  was  executed  under  the  following 
circumstances  :  That  in  January,  1906,  a  corporation  was  formed  under 
the  name  of  the  Arkansas  Acetylene  Gas  Company.  That  the  plaintiff 
T.  J.  O'Neil,  and  the  defendants,  S.  W.  Leslie  and  John  J.  McManus 
and  J.  C.  Minor,  are  all  members  of  the  board  of  directors.  That  they 
had  all  paid  in  the  full  amount  of  the  capital  stock  by  them  subscribed. 
That  thereafter  the  corporation  became  indebted  and  needed  money 
with  which  to  continue  its  business.     That  it  was  agreed  between  the 


736  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

parties  to  this  suit  to  raise  the  sum  of  $350  for  the  corporation.  That 
to  raise  this  money  they  would  cause  to  be  executed  a  note  of  the 
corporation  for  that  amount.  That  it  was  understood  and  agreed  be- 
tween the  parties  to  this  suit  that  they  would  indorse  said  note  as  in- 
dividuals and  raise  the  money  on  it.  The  defendant  Minor  filed  an 
answer  in  which  he  denies  that  he  signed  the  note  as  an  individual. 
The  defendants  Leslie  and  McManus  filed  a  motion  to  transfer  the  case 
to  equity,  which  was  done. 

J.  C.  Minor  testified  that  he  signed  the  note  as  president  of  the  cor- 
poration for  the  purpose  of  raising  money  to  carry  on  its  business,  and 
said  that  it  was  not  understood  or  agreed  that  he  was  to  sign  the  note 
as  an  individual. 

The  defendants  McManus  and  Leslie  testified  to  the  matters  set  out 
in  their  answer,  as  stated  above,  and  in  addition  said :  That  the  plain- 
tiff, O'Neil,  agreed  to  indorse  the  note  with  them.  That  it  was  under- 
stood and  agreed  between  the  parties  to  this  suit  that  they  should  all 
indorse  the  note  and  that  O'Neil  would  take  the  note  so  indorsed  to 
his  brother  or  to  the  bank  and  procure  the  money  on  it.  That  the  cor- 
poration subsequently  became  insolvent  and  its  affairs  were  wound  up. 
That  after  the  dissolution  of  the  corporation,  and  about  four  years 
after  the  note  was  executed,  the  plaintiff  for  the  first  time  claimed  he 
was  not  liable  on  the  note  and  that  they  were  liable  to  him  for  the  full 
amount  of  the  note. 

The  plaintiff,  O'Neil,  testified  that  he  never  took  any  active  part  in 
the  management  and  conduct  of  the  business  of  the  corporation,  and 
that  the  defendant  Leslie  had  almost  exclusive  charge  of  its  affairs. 
He  admitted  that  he  was  nominally  treasurer  of  the  corporation,  but 
said  that  the  money  which  was  procured  by  the  execution  of  the  note 
was  turned  over  to  Leslie  and  by  him  used  for  the  corporation.  He 
denied  that  he  agreed  to  indorse  the  note  with  the  defendants  Leslie 
and  McManus,  and  said  that,  on  the  contrary,  he  expressly  refused  to 
indorse  it.  He  said  that  he  knew  the  corporation  was  in  debt  and  only 
agreed  to  lend  the  money  on  condition  that  McManus  and  Leslie,  whom 
he  regarded  as  solvent,  would  indorse  the  note.  He  testified  that  he 
furnished  the  money  himself  and  did  not  procure  it  from  his  brother 
or  the  bank. 

The  chancellor  found  that  the  plaintiff,  O'Neil,  did  not  agree  to  be- 
come jointly  liable  with  the  defendants  McManus  and  Leslie  on  the 
note,  and  that  he  would  not  have  loaned  the  money  to  the  corporation 
except  on  the  credit  of  the  defendants  Leslie  and  McManus.  The 
chancellor  found  further  that  the  defendant  Minor  was  not  liable  on 
the  note,  and  no  judgment  was  rendered  against  him. 

A  decree  was  entered  in  favor  of  the  plaintiff  wherein  it  was  adjudg- 
ed that  he  should  recover  from  the  defendants  Leslie  and  McManus 
the  amount  of  the  note  sued  on.    These  defendants  have  appealed. 

Hart,  J.  (after  stating  the  facts  as  above).  The  cause  was  trans- 
ferred from  the  circuit  to  the  chancerv  court  on  the  motion  of  the  de- 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  737 

fendants  Leslie  and  McManus.  This  was  presumably  done  in  order 
that  the  chancery  court  might  reform  the  note  by  placing  thereon  the 
name  of  the  plaintiff  as  an  indorser  and  thus  make  him  jointly  liable 
with  the  defendants  Leslie  and  McManus,  for  the  amount  of  the  note. 
In  the  case  of  Wilson-Ward  &  Co.  v.  Farmers'  Union  Gin  Co.,  94  Ark. 
200.  126  S.  W.  847,  the  court  held  that,  in  order  to  reform  a  written  in- 
strument on  the  ground  of  fraud  or  mistake,  the  evidence  of  such  fraud 
or  mistake  must  be  clear,  unequivocal,  and  decisive.  The  court  quoted 
with  approval  from  Bishop  on  Contracts  as  follows : 

s1n  no  case  will  a  court  decree  an  alteration  in  the  terms  of  a  duly  executed 
written  contract,  unless  the  proofs  are  full,  clear,  and  decisive.  Mere  pre- 
ponderance of  evidence  is  not  enough ;  the  mistake  must  appear  beyond  rea- 
sonable controversy." 

When  tested  by  this  rule,  we  do  not  think  that  the  chancellor  erred 
in  finding  for  the  plaintiff.  It  is  true  that  the  defendants  Leslie  and 
McManus  both  testified  that  the  plaintiff,  O'Neil,  agreed  to  indorse  the 
note  with  them,  and  that  he  never  made  any  claim  against  them  on  the 
note  until  after  the  corporation  was  dissolved  and  until  about  four 
years  after  the  execution  of  the  note.  On  the  contrary,  the  note  itself, 
which  is  the  best  evidence  of  the  contract  between  the  parties,  was  in- 
troduced in  evidence  and  shows  that  the  name  of  the  plaintiff  does  not 
appear  thereon  as  an  indorser.  In  addition  to  this,  the  note  was  made 
payable  to  the  plaintiff,  and  he  testified  that  he  did  not  agree  to  in- 
dorse it. 

The  plaintiff,  O'Neil,  and  the  defendants  Leslie  and  McManus  were 
all  present  when  the  note  was  executed  and  when  it  was  indorsed  by 
the  defendants.  It  would  have  been  natural  for  the  plaintiff,  if  he  had 
agreed  to  indorse  it,  to  have  done  so  at  the  time  the  defendants  indors- 
ed it.  When  all  the  circumstances  in  connection  with  the  execution 
and  its  indorsement  of  the  note  are  considered,  we  do  not  think  it  can 
be  said  that  the  chancellor  erred  in  finding  for  the  plaintiff. 

The  decree  will  be  affirmed.35 

3  5  Tn  Jamaica  Sav.  Bank  v.  Tayler  et  al.  (1902)  72  App.  Div.  567,  76  N.  Y. 
Supp.  790.  at  791,  the  court  held  that  in  a  suit  to  reform  a  contract  for  mis- 
take, in  that  it  does  not  properly  describe  the  land  to  be  conveyed,  it  is  not 
necessary  that  the  evidence  show  the  mistake  beyond  a  reasonable  doubt. 
Jenks,  J.,  said:  "The  court,  having  found  that  the  scrivener,  in  reducing  the 
contract  to  writing,  wrote  a  description  which  embraced  land  not  within  the 
contract,  and  that  the  contract  as  written  was  thereupon  executed  by  the  par- 
ties in  ignorance,  adjudged  reformation  for  mutual  mistake.  The  learned 
counsel  for  the  appellant  seems  to  insist  that  the  evidence  which  justifies  such 
relief  must  be  beyond  a  reasonable  doubt,  inasmuch  as  he  quotes  from  the 
opinion  in  Coast  v.  MeCaffery  (1899)  46  App.  Div.  436,  61  N.  Y.  Supp.  881: 
'Courts  are  chary  in  reforming  written  contracts.  The  doctrine  is  thus  stated 
in  2  Pom.  Eq.  Jur.  (2d  Ed.)  §  859:  "The  authorities  all  require  that  the  parol 
evidence  of  the  mistake  and  of  the  alleged  modification  must  be  most  clear 
and  convincing, — in  the  language  of  some  judges,  the  strongest  possible, — or 
else  the  mistake  must  be  admitted  by  the  opposite  party ;  the  resulting  proof 
must  be  established  beyond  a  reasonable  doubt."  '  As  the  paragraph  is  a 
quotation  by  the  learned  justice  from  Pomeroy's  Equity  Jurisprudence,  which 

Boke  Eq. — 47 


738  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

SILBON  et  ux.  v.  PACIFIC  BREWING  &  MALTING  CO. 
(Supreme  Court  of  Washington,  1913.    72  Wash.  13,  129  Pac.  5S1.) 

FullErTon,  J.3G  The  appellants,  who  were  plaintiffs  below,  brought 
this  action  against  the  respondent  to  recover  the  sum  of  $420,  alleged 
to  be  due  under  a  certain  written  lease  theretofore  entered  into  be- 
tween the  parties.  In  the  complaint  it  was  alleged  that  the  lease  in 
question  was  entered  into  on  March  15,  1911,  and  by  its  terms  the  ap- 
pellants leased  to  the  respondent  certain  premises  owned  by  them,  sit- 
uated in  the  city  of  Tacoma,  for  a  term  of  two  years  from  and  after 
April  1,  1911,  at  a  monthly  rental  of  $160  per  month  payable  in  ad- 
vance on  the  1st  day  of  each  and  every  month  during  the  term  of  the 
lease ;  the  lease  beiil!g  further  conditioned  for  the  payment  of  $100  as 
attorney's  fees  should  the  lessors  or  their  agents  institute  proceedings 
in  court  to  recover  rents  due  thereunder.  It  was  further  alleged  that 
the  respondent  entered  into  the  possession  of  the  property  on  April  1, 
1911,  and  continued  in  possession  thereafter  under  the  lease,  but  failed 
and  refused  to  pay  rental  for  the  first  two  months  of  the  tenancy.  The 
respondent  in  its  answer  admitted  the  execution  of  the  lease,  but  plead- 

is  immediately  followed  by  a  quotation  from  Christopher  &  T.  St.  R.  Co.  v. 
Twenty-Third  St.  Ry.  Co.  (1S96)  149  N.  Y.  51,  58,  43  N.  E.  53S,  that  the  proof 
must  be  of  the  most  substantial  and  convincing  character,  I  take  it  that  the 
learned  justice  did  not  intend  to  state  a  rule  in  the  language  of  Pomeroy 
thus  italicized  by  the  learned  counsel,  but  meant  to  adhere  to  that  indicated 
by  Martin,  J.,  in  Christopher  &  T.  St.  R.  Co.'s  Case,  supra,  inasmuch  as  the 
authorities  in  this  state  do  not  require  that  the  proof  should  be  beyond  a  rea- 
sonable doubt.  For  Parker,  J.,  in  Southard  v.  Curley  (1S92)  134  N.  Y.  148,  31 
N.  E.  330,  16  L.  R.  A.  561,  30  Am.  St.  Rep.  642,  considers  this  precise  ques- 
tion, and,  after  an  exhaustive  review  of  more  than  a  score  of  cases,  concludes 
that:  'They  do  not  require  us  to  declare  that  this  strong  rule  of  criminal  pro- 
cedure has  become  a  part  of  the  practice  in  civil  actions.  Certainly,  this  need 
not  be  done  in  view  of  the  many  authorities  which,  before  and  since  Judge 
Story  penned  the  rule  that  "relief  will  be  granted  in  cases  of  written  instru- 
ments only  when  there  is  a  plain  mistake  clearly  made  out  by  satisfactory 
proofs,''  have  asserted  the  same  doctrine  in  terms  or  in  substance.'  Southard 
v.  Curley,  supra,  is  cited  among  the  multitude  of  cases  referred  to  by  Martin, 
J.,  in  Christopher  &  T.  St.  R.  Co.'s  Case,  supra,  who  concludes,  ut  supra,  that 
the  proof  'must  be  of  the  most  substantial  and  convincing  character.'  It  is 
true  that  this  court,  in  Weed  v.  Whitehead  (1S96)  1  App.  Div.  192,  37  N.  Y. 
Supp.  178,  said  that  there  must  be  'certainty  of  error,'  but  the  entire  sentence 
reads,  'Courts  of  equity  do  not  grant  the  remedy  of  reformation  upon  a  proba- 
bility, nor  even  upon  a  mere  preponderance  of  evidence,  but  only  upon  a  cer- 
taintv  of  error,'  and  Southard  v.  Curley,  supra,  is  cited  as  authority." 

In 'West  Jersey  R.  Co.  v.  Thomas  et  al.  (1S73)  23  N.  J.  Eq.  431,  at  433,  the 
Chancellor  said:  "An  award  cannot  be  reviewed  and  corrected  or  set  aside, 
either  at  law  or  in  equity,  because  it  is  erroneous,  or  because  it  is  plainly 
excessive,  unless  the  excess  is  clearly  demonstrated,  and  is  so  great  that  it  is 
not  possible  to  account  for  it  except  by  corruption  or  dishonesty  in  the  arbi- 
trators. It  will  not  be  set  aside,  as  a  verdict  at  law  or  a  master's  report  in 
equity  will  be,  because  clearly  erroneous  and  against  the  weight  of  evidence. 
*  *  *  Although  this  award  thus  appears  to  me  to  be  clearly  excessive,  and 
to  a  very  large  amount,  I  cannot  set  it  aside  on  that  account,  unless  under 
circumstances  such  that  it  must  be  a  necessary  conclusion  that  the  arbitrators 
could  not  have  made  it  in  good  faith  and  believing  it  to  be  correct." 

36  Part  of  the  opinion  is  omitted. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  739 

ed  affirmatively  that  the  same,  by  reason  of  a  mutual  mistake  of  the 
parties,  did  not  express  the  actual  agreement  entered  into  between  them, 
and  asked  that  the  lease  be  reformed  so  as  to  conform  to  such  agree- 
ment, setting  forth  wherein  the  written  lease  did  not  conform  to  the 
lease  actually  entered  into,  and  showing  that  under  the  lease  as  actu- 
ally entered  into  there  was  nothing  due  to  the  appellants  for  the  two 
months  for  which  the  appellants  sought  to  recover.  A  reply  to  the 
answer  was  filed  and  a  trial  entered  upon,  wherein  the  respondent,  over 
the  objection  of  the  appellants,  was  allowed  to  introduce  evidence  sub- 
stantiating the  allegations  of  its  answer.  At  the  conclusion  of  the  trial, 
the  court  made  findings  in  favor  of  the  respondent  and  entered  judg- 
ment reforming  the  lease,  and  denying  to  the  appellants  the  right  to  re- 
cover. 

The  appellants  first  assign  that  the  court  erred  in  permitting  the 
introduction  of  evidence  tending  to  show  a  mutual  mistake  in  the  exe- 
cution of  the  lease,  contending  that  to  do  so  was  to  permit  the  terms 
of  a  written  instrument  to  be  varied  by  a  contemporaneous  parol  agree- 
ment. But  it  is  among  the  acknowledged  powers  of  the  courts  to  re- 
form written  instruments  under  circumstances  such  as  were  shown 
here.  Where  there  has  been  an  agreement  actually  entered  into  which 
the  parties  have  attempted  to  put  in  writing,  but  have  failed  because 
of  a  mistake  either  of  themseles  or  of  the  scrivener,  the  courts  having 
jurisdiction  in  matters  of  equitable  cognizance  have  power  to  reform 
the  instrument  in  such  manner  as  to  make  it  express  the  true  agree- 
ment; and  this  in  any  action  or  proceeding  where  a  party  to  the  agree- 
ment seeks  to  take  advantage  of  the  mistake.  True,  the  evidence  that 
there  was  such  a  mistake  must  be  clear  and  convincing  before  the  juris- 
diction will  be  exercised,  a  mere  preponderance  of  the  evidence  not  be- 
ing sufficient,  but  there  is  no  question,  in  this  jurisdiction  at  least,  that 
the  power  to  reform  the  instrument  exists.     *     *     * 

The  judgment  is  affirmed. 


ELDER  v.  ELDER. 

(Supreme  Judicial  Court  of  Maiue,  1833.    10  Me.  80,  25  Am.  Dec.  205.) 

This  was  a  bill  in  equity,  in  which  the  plaintiff  alleged:  That  on  the 
17th  of  October,  1830,  he  contracted  with  Reuben  Elder,  now  deceased, 
for  the  purchase  of  a  certain  lot  of  land  lying  in  the  towns  of  Windham 
and  Westbrook,  being  one  parcel,  and  not  several,  though  accidentally 
intersected  by  the  boundary  line  of  those  towns,  said  lot  being  the  en- 
tire share  of  Reuben  Elder  in  the  real  estate  of  John  Elder,  deceased, 
which  had  been  set  off  according  to  the  will  of  the  latter.  That  he 
agreed  to  pay  therefor  the  sum  of  $300  by  instalments  as  follows: 
$100  in  three  months,  $100  in  one  year,  $50  in  two  years,  and  $50  in 
three  years.  That  it  was  agreed  the  deed  should  be  given  on  the  pay- 
ment of  the  first  instalment.    That  $25  was  paid  to  Reuben  Elder  be- 


740  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

fore  his  decease  in  part  of  the  first  instalment,  and  after  his  decease, 
to  Elizabeth  Elder,  his  widow  and  administrator  $75  more,  being  the 
balance  of  the  first  instalment.  He  further  alleged  that  a  memoran- 
dum intended  to  express  the  foregoing  agreement  was  signed  by  Reu- 
ben Elder,  in  which  the  land  intended  to  be  conveyed  was  described 
as  "a  lot  of  land  situated  in  the  town  of  Windham,  formerly  owned 
by  John  Elder."  That  there  was  a  mistake  in  writing  the  memoran- 
dum of  agreement,  inasmuch  as  part  of  the  lot  intended  to  be  embrac- 
ed in  the  description  was  in  the  town  of  Westbrook.  That  at  the  time 
of  making  the  contract  he  was  ignorant  of  this  fact.  That  he  believed 
if  Reuben  Elder  was  living,  he  would  not  hesitate  to  correct  this  mis- 
take, and  to  fulfil  his  agreement  by  conveying  the  whole  lot.  But  that 
the  administrator  and  heirs  at  law  had  refused.  These  he  prayed 
might  be  summoned  in  to  answer  the  foregoing  allegations,  and  certain 
inquiries  put  to  them,  with  regard  to  conversations  had  with  Reuben 
Elder,  and  admissions  made  by  him. 

The  bill  closed  with  a  prayer  that  the  mistake  in  the  contract  before 
named  might  be  corrected,  and  that  the  administrator  and  heirs  might 
be  required  to  convey  to  him  by  deed  the  whole  lot  claimed — and  also 
for  such  general  relief  as  the  Court  might  grant. 

Elizabeth  Elder,  the  widow  and  administrator  of  Rueben  Elder,  in 
her  answer  set  out  the  written  contract  between  her  deceased  husband 
and  the  plaintiff,  in  the  words  following : — 

"Gorham,  Aug.  17,  1830. 

"I,  Reuben  Elder,  do  agree  to  sell  to  Josiah  Elder  a  lot  of  land  situated  in 
Windham  formerly  owned  by  John  Elder  for  three  hundred  dollars.  One  hun- 
dred dollars  in  three  months — the  first  year  one  hundred  dollars — the  second 
year  fifty  dollars — the  third  year  fifty  dollars — the  deed  to  be  given  when  the 
first  hundred  dollars  is  paid.  Reuben  Elder." 

She  denied  all  knowledge  of  any  other  agreement  than  the  above  and 
averred  her  disbelief  of  the  existence  of  any  mistake  in  the  contract, 
as  alleged  by  the  plaintiff. 

The  answers  of  the  other  defendants  were  substantially  the  same  as 
the  foregoing — all  averring  a  willingness  to  convey  the  land  lying  in 
Windham  according  to  the  terms  of  the  contract,  and  no  more. 

Several  depositions  were  taken  by  the  plaintiff  tending  to  prove,  by 
the  admissions  of  Reuben  Elder,  and  otherwise,  that  there  was  in  fact 
a  mistake  in  the  contract  as  alleged  in  the  bill — and  the  principal  ques- 
tion in  the  case  was  upon  the  admissibility  of  this  testimony. 

Longfellow,  for  the  defendants,  argued  that  the  granting  the  prayer 
of  this  bill  would  virtually  be  repealing  the  statute  of  frauds.  This 
statute  requires  all  contracts  for  the  sale  of  lands  to  be  in  writing.  The 
real  contract  between  the  parties  in  this  case  is  in  writing.  It  is  plain 
and  susceptible  of  a  reasonable  construction.  But  the  plaintiff  by  this 
bill  proposes  to  alter,  vary  and  destroy  it,  by  superadding  to  it  matter 
gathered  from  the  loose  and  uncertain  recollections  of  witnesses.  This, 
the  law  will  not  permit.  It  excludes  all  parol  testimony  offered  to  ex- 
plain, alter  or  vary  written  contracts.     The  bill  proposes  to  the  Court 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  741 

to  make  a  contract,  between  the  parties,  and  then  to  enforce  it.  But 
the  statute  of  frauds  is  as  binding  upon  this  Court  sitting  as  a  court  of 
chancery  as  if  sitting  as  a  court  of  law. 

The  rules  of  evidence,  he  contended,  were  the  same  at  law  as  in  eq- 
uity, and  upon  no  principles  could  this  testimony  be  admitted.      *      *      * 

Weston,  J.,37  delivered  the  opinion  of  the  Court. 

The  plaintiff  claims  relief  upon  the  ground  of  mistake  in  the  terms 
of  a  contract,  entered  into  between  himself  and  Reuben  Elder,  deceas- 
ed ;  and  he  prays  for  an  amendment  and  enforcement  of  the  contract, 
according  to  the  true  intent  and  meaning  of  the  parties,  and  for  such 
general  relief  as  the  Court  may  grant.  All  knowledge  of  the  existence 
of  a  mistake  being  denied  in  the  answers,  the  plaintiff  has  proceeded 
to  adduce  parol  proof  of  the  allegations  in  his  bill. 

This  kind  of  proof  is  objected  to  by  the  counsel  for  the  defendants, 
as  incompetent  to  alter,  vary,  or  contradict  a  written  instrument,  plain 
and  intelligible  in  its  terms.  That  this  is  inadmissible  at  law,  is  a  prin- 
ciple well  settled.  And  it  is  insisted  that  it  is  a  rule  of  evidence  equal- 
ly binding  upon  courts  of  equity.  If  the  inquiry  was,  what  contract 
have  the  parties  made,  this  is  to  be  ascertained  by  the  best  evidence  the 
nature  of  the  case  admits.  It  is  the  rule  at  law,  because  calculated  to 
elicit  and  establish  truth.  And  what  is  best  adapted  to  produce  this  ef- 
fect, does  not  depend  upon  the  character  or  jurisdiction  of  the  tribunal 
before  whom  the  question  may  arise.  It  would  tend  to  pervert,  rather 
to  establish,  justice,  if  the  rules  of  evidence  were  so  varied  in  different 
courts,  that  in  the  one,  facts  were  to  be  proved  by  the  best  evidence, 
while  in  the  other,  that  of  an  inferior  character  might  be  received  and 
substituted.  We  do  not  so  understand  the  law.  What  contract  the  par- 
ties have  actually  made,  must  depend  upon  the  same  evidence,  both  at 
law  and  in  equity.  And  if  made  in  writing,  what  is  written  is  the  best 
evidence  of  this  fact,  which  cannot  be  varied,  altered  or  changed  by 
parol  testimony.  But  in  both  courts,  it  may  be  shown  by  parol  evidence 
to  have  been  tainted  by  fraud,  and  therefore  not  binding  or  operative 
upon  the  party  attempted  to  be  charged.  But  in  a  court  of  equity,  other 
circumstances  may  in  certain  cases  become  the  subject  of  inquiry,  not 
to  show  what  contract  was  made ;  but  whether  it  was  made  or  entered 
into  by  mistake  or  accident.  Whether  these  inquiries  have  promoted 
the  cause  of  justice,  or  whether  they  have  not  promoted  the  cause 
of  justice,  or  whether  they  have  not  more  frequently  defeated  it,  by 
opening  a  door  to  fraud  and  perjury,  or  whether  they  may  not  occasion 
more  mistakes  than  they  correct,  are  questions,  which  it  does  not  be- 
long to  us  to  decide.  This  branch  of  equity  jurisdiction  is  of  recent 
origin  in  our  State ;  but  having  been  conferred  upon  this  Court,  it  is  to 
be,  exercised  according  to  the  rules  and  practice  of  courts  of  equity  in 
that  country  from  which  we  have  derived  our  jurisprudence,  except 
so  far  as  they  may  have  been  changed  or  modified  by  our  laws.     We 

37  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


742  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

have  jurisdiction  expressly  given  in  eases  of  mistake.  How  are  they  to 
be  proved  ?  They  must  depend  upon  extraneous  testimony.  They  are 
rarely  apparent  upon  the  face  of  the  instrument  to  be  affected.  Al- 
though its  terms  may  often  lead  to  a  conjecture  that  there  may  have 
been  some  mistake,  the  fact  must  almost  uniformly  be  proved  aliunde. 
It  may  often  be  made  out,  or  rendered  highly  probable,  by  a  recurrence 
to  other  written  evidence ;  as  where  the  instrument  executed  is  found 
not  to  conform  to  a  previous  written  agreement,  in  relation  to  the  sub- 
ject matter.  And  yet  this  is  not  conclusive ;  for  it  might  very  fairly  be 
urged  in  comparing  both,  that  the  variance  was  designed  and  occasion- 
ed by  the  consent  of  the  parties.  Parol  testimony  is  so  generally  ad- 
mitted in  chancery  to  prove  a  mistake,  that  in  Baker  v.  Paine,  1  Vesey, 
456,  Lord  Hardwicke  inquired,  "How  can  a  mistake  in  an  agreement  be 
proved  but  by  parol  ?" 

It  is  well  settled  that  it  is  admissible  on  the  part  of  the  defendant, 
upon  a  bill  for  the  specific  performance  of  a  contract.  The  reason 
assigned  is,  that  this  is  a  class  of  cases  in  which  a  court  of  equity  will 
exercise  or  withhold  its  power  at  its  discretion,  and  that  it  will  not  in- 
terfere in  favour  of  the  plaintiff  to  enforce  performance,  where  a  mis- 
take essentially  affecting  the  contract  is  made  to  appear.  Joynes  v. 
Stratham,  3  Atk.  388;  Rich  v.  Jackson,  4  Bro.  C.  C.  514;  Ramsbottom 
v.  Gosden,  1  Vesey  &  Beames,  165 ;  Townsend  v.  Stangroom,  6  Vesey, 
328,  and  the  cases  there  cited. 

In  Gillespie  v.  Moon,  2  Johns.  Ch.  (N.  Y.)  585,  7  Am.  Dec.  559,  the 
learned  Chancellor  maintains  that  relief  may  be  had  in  chancery  against 
any  deed  or  contract  in  writing,  founded  in  mistake  or  fraud.  That 
the  mistake  may  be  shown  by  parol  proof,  and  relief  granted  to  the  in- 
jured party,  whether  he  sets  up  the  mistake  affirmatively  by  bill;  or  as 
a  defence.  We  have  looked  into  the  cases  cited  by  him,  but  are  not 
satisfied  that  they  sustain  the  doctrine  to  the  extent  which  his  language 
would  seem  to  imply.  In  some  of  them  parol  evidence  of  mistake  was 
admitted  on  the  part  of  the  defendant,  to  rebut  an  equity.  In  others, 
contracts  not  relating  to  real  estate,  but  of  personal  character,  were 
reformed  or  amended  upon  parol  proof  of  mistake.  These  cases  show- 
that  this  has  sometimes  been  done  in  courts  of  equity ;  but  under  what 
circumstances,  it  is  unnecessary  to  state,  as  the  contract  before  us  is 
one  relating  to  real  estate.     *     *     * 

We  do  not  regard  the  precedents  in  relation  to  personal  contracts  as 
authorities  in  this  case,  which  having  relation  to  real  estate,  is  under 
the  protection  of  the  statute  of  frauds.  That  statute  is  not  formally 
pleaded ;  but  the  contract  actually  executed  in  writing  is  set  forth  in 
the  answer,  and  it  is  relied  upon  by  the  counsel  for  the  defendants,  to 
repel  the  parol  proof,  set  up  by  the  plaintiff  to  vary  its  terms. 

Marriage  settlements  are  little  known  or  used  in  this  State;  and 
though  sometimes  rectified  or  reformed  in  England,  where  mistakes 
have  intervened,  yet  we  have  not  found  any  case  of  the  kind,  where 
this  has  been  done  upon  parol  testimony,  without  written  evidence  to 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  743 

amend  by ;  nor  are  we  aware  that  it  could  be  done,  without  violating 
the  statute  of  frauds. 

In  respect  to  mortgages,  we  have  a  system  of  our  own,  depending 
on  statute,  which  varies  in  many  respects  from  the  law,  as  administered 
in  the  English  courts  of  equity,  and  in  the  State  of  New  York. 

But  the  case  of  Gillespie  v.  Moon,  itself,  is  relied  upon  as  an  au- 
thority in  favour  of  the  plaintiff.  The  defendant  there  had  agreed  to 
purchase  two  hundred  acres  of  land,  the  location  and  bounds  of  which 
were  well  understood.  But  by  mistake,  clearly  proved  by  parol,  the 
deed  embraced  fifty  acres  more.  The  defendant  perceiving  his  ad- 
vantage, although  he  acknowledged  the  mistake  to  several  persons,  in- 
sisted upon  holding  all  the  land  covered  by  his  deed.  This  claim,  so 
clearly  against  equity  and  good  conscience,  was  strongly  tinctured  with 
fraud ;  for  there  is  little  difference  in  moral  torpitude,  between  fraudu- 
lently making  a  deed  conveying  more  than  is  intended  by  the  parties, 
and  attempting  to  hold  the  same  advantage,  where  it  arises  from  mis- 
take or  accident.  Indeed  fraudulent  conduct  is  distinctly  imputed  to 
him  in  the  opinion  of  the  Court.    The  Chancellor  says : 

"The  only  doubt  with  me  is,  whether  the  defendant  was  not  conscious  of  the 
error  in  the  deed,  at  the  time  he  received  it  and  executed  the  mortgage,  and 
whether  the  deed  was  not  accepted  by  him  in  fraud,  or  with  a  voluntary  sup- 
pression of  the  truth.  That  fraudulent  views  very  early  arose  in  his  mind, 
is  abundantly  proved." 

If  it  was  a  case  of  fraud,  as  well  as  of  mistake,  there  could  be  no 
question  either  of  the  admissibility  of  parol  testimony,  or  that  the 
plaintiff  was  entitled  to  relief.  Indeed  he  would  have  been  so  entitled 
at  law.  But  the  measure  of  relief  would  have  varied.  At  law,  a  fraud- 
ulent deed  is  entirely  void.  In  equity,  its  effect  may  be  defeated  only 
so  far  as  it  is  intended  to  have  a  fraudulent  operation.  But  aside  from 
the  fraudulent  views,  which  may  always  be  imputed  to  a  party,  who 
would  take  advantage  of  a  jnistake,  that  alone  may  be  regarded  in 
equity  as  an  infirmity  calling  for  relief,  where  it  goes  to  the  whole  sub- 
ject matter  of  a  conveyance,  or  where  it  affects  only  a  part  of  it.  It 
is  not  charging  a  party  upon  an  executory  contract  in  relation  to  real 
estate,  which  cannot  be  enforced  unless  in  writing;  but  it  shows  defects 
to  defeat  the  operation  of  a  written  contract.  It  is  in  the  nature  of  an 
injunction  upon  a  party,  not  to  avail  himself  of  an  advantage  against 
good  conscience.  It  does  not  make  a  new  contract,  but  examines  the 
quality,  extent  and  operation  of  one  formally  executed  by  the  parties. 
It  is  one  thing  to  limit  the  effect  of  an  instrument,  and  another  to  ex- 
tend it  beyond  what  its  terms  import.  A  deed  by  mistake  conveys  two 
farms,  instead  of  one.  If  the  suffering  party  is  relieved  in  such  a 
case  by  a  court  of  chancery,  full  effect  is  not  given  to  the  terms  of 
a  written  instrument.  But  the  statute  of  frauds  does  not  prescribe 
what  effect  shall  be  given  to  contracts  in  writing;  it  leaves  that  to  be 
determined  in  the  courts  of  law  and  equity.  A  deed  conveys  one  farm, 
when  it  may  be  proved  by  parol  that  it  should  have  conveyed  two. 


744  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  P> 

Here  equity  cannot  relieve,  without  violating  the  statute.  To  do  so, 
would  be  to  enforce  a  contract  in  relation  to  the  farm  omitted,  without 
a  memorandum  in  writing,  signed  by  the  party  to  be  charged,  or  by  his 
authorised  agent.  These  are  distinctions,  which  may  be  fairly  taken, 
between  the  case  cited  from  New  York,  where  the  plaintiff  sought  to 
be  relieved  from  the  undue  operation  of  a  deed,  which  conveyed  too 
much,  and  the  case  before  us,  where  the  prayer  of  the  plaintiff  is,  that 
a  contract  in  writing  may  be  so  extended  by  parol  testimony,  as  to  em- 
brace more  land  than  that  contract  covers.  But  whether  this  Court, 
sitting  as  a  court  of  equity,  would  receive  parol  evidence  of  a  mistake 
in  a  deed,  to  restrain  its  operation,  it  is  not  necessary  to  decide.  There 
may  be  great  appearance  of  equity  in  such  a  proceeding;  but  it  may 
admit  of  question,  whether  more  perfect  justice  would  not  be  admin- 
istered, by  holding  parties  to  abide  by  their  written  contracts,  deliberate- 
ly made,  and  free  from  fraud.  As  far  as  this  rule  has  been  relaxed 
by  the  clear,  unequivocal,  and  settled  practice  of  chancery,  we  are 
doubtless  bound  by  it,  in  administering  that  part  of  our  system,  but  we 
are  not  disposed  to  adopt  any  new  or  doubtful  exception  to  so  salutary 
a  rule. 

In  Jordan  v.  Sawkins,  3  Bro.  C.  C.  388,  1  Vesey,  402 ;  Rich  v.  Jack- 
son, 4  Bro.  C.  C.  514;  Clinan  v.  Cooke,  1  Shoales  &  Lefroy,  22;  Wool- 
lam  v.  Hearn,  7  Vesey,  211,  and  in  Higginson  v.  Clowes,  15  Vesey,  516, 
the  doctrine  maintained  is,  that  a  party  seeking  the  specific  performance 
of  an  agreement,  and  proposing  to  introduce  new  conditions,  or  to  vary 
those  which  appear  in  a  written  instrument,  will  not  be  permitted  to  do 
so  by  parol  testimony.  And  in  Dwight  v.  Pomeroy  et  al.,  17  Mass.  303, 
9  Am.  Dec.  148,  Parker,  C.  J.,  regards  this  principle  as  fully  settled  by 
the  more  recent  chancery  decisions  in  England,  and  that  a  few  cases 
bearing  a  different  aspect,  have  been  explained  away  or  overruled  by 
subsequent  decisions. 

Upon  full  consideration  of  the  authorities,  we  are  of  opinion,  that  the 
plaintiff  has  not  made  out  his  case  by  competent  proof.  The  bill  is 
accordingly  dismissed ;  but  without  costs,  as  there  is  reason  to  doubt 
whether  the  written  instrument  truly  expresses  what  had  been  agreed 
between  the  parties.38 

as  But  see  Tilton  v.  Tilton  (183S)  9  N.  H.  3S5,  where  Wilcox,  J.,  states  the 
rule  as  follows:  "The  question  has  heen  somewhat  discussed  at  the  bar, 
whether  a  court  of  equity  will  reform  a  written  contract  by  parol  testimony, 
and  then  decree  the  specific  performance  of  the  contract  as  reformed.  Upon 
this  subject  the  authorities  are  conflicting;.  And  the  present  case  does  not  re- 
quire of  us  a  decision  of  the  question.  There  is  nothing  in  this  contract  to 
be  reformed ;  the  contract  was  well  enough ;  the  only  ground  of  complaint  is, 
that  a  portion  of  it  was  not  performed.  In  Elder  v.  Elder  (1833)  10  Me.  80,  25 
Am.  Dec.  205,  it  is  said  'a  deed  conveys  one  farm,  when  it  may  be  proved  by 
parol  that  it  should  have  conveyed  two.  Here  equity  cannot  relieve  without 
violating  the  statute.'  And  it  is  thus  attempted  to  distinguish  that  case  from 
Gillespie  v.  Moon  (1817)  2  Johns.  Ch.  (N.  Y.)  585,  7  Am.  Dec.  559,  where  the 
deed  conveyed  too  much  land.  If  this  position  rests  upon  the  provisions  of 
the  Maine  statute,  it  may  be  well  enough.  But  we  cannot  accede  to  it  as  the 
true  rule  of  chancery  jurisprudence,  to  be  derived  from  the  adjudged  cases  in 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  745 

II.  Relation  of  Reformation  to  Statutory  Requirements 

(A)  Statute  of  Frauds 

JOYNES  v.  STATHAM. 

(In  Chancery  before  Lord  Hardwicke,  1746.    3  Atk.  388.) 

The  bill  was  brought  to  carry  an  agreement  into  execution  for  a 
lease  of  a  house  during  the  life  of  the  defendant's  wife,  which  was 
signed  by  the  defendant  the  lessor  only :  upon  the  face  of  the  agree- 
ment the  plaintiff  was  to  pay  a  rent  of  nine  pounds  a  year. 

The  defendant  insists  by  his  answer,  that  it  ought  to  have  been  in- 
serted in  the  agreement  that  the  tenant  should  pay  the  rent  clear  of 
taxes,  but  the  plaintiff  having  written  the  agreement  himself,  and 
omitted  to  make  it  clear  of  taxes,  and  that  the  defendant,  unless  this 
had  been  the  agreement,  would  not  have  sunk  the  rent  from  fourteen 
pounds  to  nine  pounds,  and  offered  to  read  evidence  to  shew  this 
was  part  of  the  agreement. 

The  plaintiff's  counsel  insisted,  that  the  defendant  ought  not  to  be 
admitted  to  parol  proof,  to  add  to  the  written  agreement,  which  is 
expressly  guarded  against  by  the  statute  of  frauds  and  perjuries. 

The  cases  cited  for  the  plaintiff  were  Cheney's  Case,  5  Co.  68,  1,  and 
Selwin  versus  Brown,  Cas.  in  Lord  Talbot's  time,  248. 

England  and  America.  In  our  opinion,  a  court  of  equity  is  competent  to  cor- 
rect and  reform  any  material  mistake  in  a  deed  or  other  written  agreement, 
whether  that  mistake  be  the  omission  or  insertion  of  a  material  stipulation ; 
and  whether  it  be  made  out  by  parol  testimony,  or  be  confirmed  by  other  more 
cogent  proofs.  And  the  same  rule  applies  to  contracts  within  the  operation  of 
the  statute  of  frauds.  Langdon  v.  Keith  (1837)  9  Vt.  299 ;  Fonbl.  Eq.  58,  b.  1, 
c.  1,  §  7,  and  b.  1,  c.  3,  §  11 ;  Desell's  Ex'rs  v.  Casey  (1810)  3  Desaus.  (S.  C.) 
85;  Bickham  v.  Gough  (1797)  4  Har.  &  McH.  (Md.)  17;  1  Story's  Eq.  165; 
Jobnson  v.  Boyfield  (1791)  1  Yes.  314;  Gillespie  v.  Moon  (1817)  2  Johns.  Ch. 
(N.  Y.)  596,  7  Am.  Dec.  559,  and  cases  there  cited ;  De  Riemer  v.  Cantillon 
(1S19)  4  Johns.  Ch.  (N.  Y.)  85.  This  principle  is  apparently  at  variance  with 
a  well  established  rule  of  evidence,  observed  equally  in  courts  of  law  and  of 
equity,  and  resting  upon  the" most  satisfactory  reasons;  that  when  the  parties 
have  reduced  their  agreement  to  writing,  the  written  instrument  is  the  only 
admissible  evidence  of  the  terms  of  tbe  contract,  and  is  not  to  be  controlled, 
added  to,  altered,  or  varied  by  parol.  Fraud  is,  however,  an  exception  to  the 
rule ;  and  so,  in  our  judgment,  is  a  case  of  mistake  clearly  made  out.  For  it 
would  be  a  reproach  to  the  jurisprudence  of  the  country,  if  it  were  not  in  its 
power  to  relieve  from  the  consequences  of  a  mistake  unequivocally  established. 
But  the  mistake  must  be  made  out  in  the  most  clear  and  decided  manner,  and 
to  the  entire  satisfaction  of  the  court ;  and  especially  must  the  proofs  be  clear 
and  convincing,  when  the  mistake  is  denied  in  the  answer.  Lyman  v.  United 
Ins.  Co.  (1817)  2  Johns.  Ch.  (N.  Y.)  631;  Gillespie  v.  Moon  (1817)  2  Johns. 
Ch.  (N.  Y.)  599,  600,  7  Am.  Dec.  559 ;  Johnson  v.  Boyfield  (1791)  1  Vesey,  317 ; 
Irnham  v.  Child  (1781)  1  Bro.  94;  Marquis  Townsend  v.  Stangroom  (1801) 
6  Vesey,  328;  Cleavland  v.  Burton  (1839)  11  Vt.  138;  Griswold  v.  Smith 
(1838)  10  Vt.  452 ;    Sug.  Law  of  Ven.  120." 


74G  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Cll.  3 

For  the  defendant  was  cited  Walker  versus  Walker,  December,  the 
10th  and  11th,  1740,  before  Lord  Hardwicke.  (Vide  ante  2  Tr.  Atk. 
Case,  92,  pa.  98.) 

Lord  Chancellor.  I  permitted  this  point  to  be  debated  at  large, 
because  it  is  decisive  in  the  cause,  for  I  am  very  clear  this  evidence 
ought  to  be  read. 

This  has  been  taken  up  by  way  of  objection  to  the  plaintiff's  bill. 

The  constant  doctrine  of  this  court  is,  that  it  is  in  their  discretion, 
whether  in  such  a  bill  they  will  decree  a  specific  performance,  or  leave 
the  plaintiff  to  his  remedy  at  law. 

Xow,  has  not  the  defendant  a  right  to  insist,  either  on  account  of 
an  omission,  mistake,  or  fraud,  that  the  plaintiff  shall  not  have  a  spe- 
cific performance  ? 

It  is  a  very  common  defence  in  this  court,  and  there  is  no  doubt 
but  it  ought  to  be  received,  and  quite  equal  whether  it  is  insisted  on  as 
a  mistake,  or  a  fraud. 

It  appears  the  agreement  was  drawn  and  written  by  the  plaintiff 
himself ;  the  defendant  too  cannot  write,  but  is  a  marksman  only ; 
if  there  has  been  an  omission,  should  not  the  defendant  have  the  ben- 
efit of  it  by  way  of  objection  to  a  specific  performance? 

There  have  been  many  cases  in  this  court,  where  such  evidence  has 
been  admitted. 

Suppose  an  agreement  for  a  mortgage  drawn  by  the  mortgagee, 
the  mortgagor  being  a  marksman,  and  the  mortgagee  omits  to  insert 
a  covenant  for  redemption,  and  then  brings  a  bill  to  foreclose,  shall 
not  the  mortgagor  be  at  liberty  to  insist  in  this  court  upon  reading 
evidence  to  shew  the  omission? 

So  in  a  case  which  has  happened,  of  the  mortgage  being  drawn  in 
two  deeds,  one  an  absolute  conveyance,  the  other  a  defeasance,  and 
the  mortgagee  omits  to  execute  the  defeasance,  the  mortgagor  shall  be 
admitted  to  shew  the  mistake. 

Suppose  the  defendant  had  been  the  plaintiff,  and  had  brought  the 
bill  for  a  specific  performance  of  the  agreement,  I  do  not  see  but  he 
might  have  been  allowed  the  benefit  of  disclosing  this  to  the  court. 

Because  it  was  an  agreement  executory  only,  and  as  in  leases  there 
are  always  covenants  relating  to  taxes,  the  Master  will  inquire  what 
the  agreement  was  as  to  taxes,  and  therefore  the  proof  offered  here  is 
not  a  variation  of  the  agreement,  but  is  explanatory  only  what  those 
taxes  were :  I  am  of  opinion  to  allow  the  evidence  of  the  omission  in 
the  lease  to  be  read. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  747 

CONAWAY  et  nx.  v.  GORE. 
(Supreme  Court  of  Kansas,  1S80.    24  Kan.  3S9.) 

Error  from  Rice  district  court. 

Action  brought  by  Gore  against  Conaway  and  wife,  for  the  ref- 
ormation of  a  certain  deed.     *     *     * 

Brewer,  J.39  This  case  has  been  to  this  court  once  before,  and  the 
decision  therein  is  reported  in  21  Kan.  *725.  At  that  time  a  judgment 
upon  the  pleadings  in  favor  of  Gore  was  reversed,  and  the  case  re- 
manded for  trial  upon  the  facts.  Subsequently  a  trial  was  had  by  the 
district  court,  without  a  jury,  special  findings,  of  fact  made,  and  judg- 
ment entered  upon  them  in  favor  of  Gore.  To  reverse  such  judgment 
this  proceeding  in  error  has  been  brought.  It  may  be  stated  generally 
that  the  court  found  against  the  facts  alleged  in  the  answer,  so  that  the 
decision  in  the  prior  case  has  little,  if  any,  bearing  upon  the  questions 
now  presented. 

The  first  proposition  of  counsel  for  plaintiffs  in  error  is  that  the 
petition  is  fatally  defective.  It  alleges  substantially  the  execution  of  a 
deed,  that  there  was  by  mutual  mistake  a  misdescription  of  the  land, 
and  prays  a  reformation.  It  does  not  allege  a  previous  contract  for 
the  purchase  of  the  land,  the  payment  of  any  money,  or  any  matter 
extrinsic  to  the  deed  by  which  it  appears  that  the  plaintiff  has  parted 
with  anything  or  will  suffer  loss  if  reformation  is  not  awarded.  For 
all  the  petition  shows,  the  deed  may  have  been  purely  voluntary  on 
the  part  of  the  defendants, — a  mere  gift,— and  equity  will  not  inter- 
fere to  correct  a  gift.  Now,  it  may  be,  as  counsel  claim,  that  a  de- 
murrer, if  it  had  been  filed,  ought  to  have  been  sustained.  But  none 
was  filed.  No  challenge  was  made  of  the  petition.  Answer  and  re- 
ply were  filed,  trial  had,  evidence  received,  and  findings  made  before 
the  sufficiency  of  the  petition  was  questioned.  And  upon  the  question 
of  the  sufficiency  of  the  pleadings,  we  need  not  look  alone  to  the  peti- 
tion. We  may  properly  examine  all  the  pleadings,  and  if  by  them  all 
there  are  sufficient  allegations  presented  to  make  an  issue  of  fact  for 
trial,  any  defect  in  the  petition  will  be  cured.  Now,  the  answer  which 
was  considered  when  the  case  was  here  before,  alleged  that  plaintiff 
had  contracted  to  purchase  the  land  at  and  for  the  price  of  $800,  and 
that,  relying  upon  his  promise  to  pay  that  amount,  the  defendants  had 
executed  the  deed,  and  that  he  had  since  failed  and  refused  to  pay. 
Upon  the  maxim  that  he  who  seeks  equity  must  do  equity,  we  held 
that  this  answer  stated  a  defense.  Thereafter  a  reply  was  filed,  in 
which  the  plaintiff  alleged  that  he  bought  the  land  for  $395,  and  had 
paid  that  sum.  This  reply  was  found  by  the  court  to  be  true.  Now, 
taking  the  petition  and  reply  together,  a  plain  case  for  equitable  re- 
lief is  disclosed.     Purchase,  payment,  and  mistake  in  description,  all 

3»  The  statement  of  facts  is  abridged. 


748  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

appear.  Clearly,  the  plaintiff  would  suffer  great  prejudice  if  denied 
a  recovery;  and  no  objection  to  the  mere  manner  in  which  these  facts 
are  alleged  is  of  any  avail,  if  not  presented  until  after  the  close  of  the 
trial. 

Another  claim  of  counsel  is  that  the  statute  of  frauds  presents  an 
insuperable  obstacle  to  the  plaintiff's  recovery.  The  argument  is 
that  the  contract  for  the  sale  of  the  land  was  in  parol ;  that  there  is 
no  allegation  or  proof  of  the  delivery  of  possession,  the  making  of 
improvements  or  any  other  matters  which  take  a  parol  contract  out  of 
the  statute  of  frauds;  that  the  deed  which  was  executed  was  a  con- 
veyance of  other  land,  and  therefore  neither  a  conveyance  nor  a  con- 
tract for  the  land  in  question.  The  argument  is  elaborated  by  coun- 
sel, and  many  authorities  are  cited.  But  these  authorities  run  along 
the  line  of  the  doctrine  of  specific  performance;  while  the  case  at  bar 
comes  under  the  head  of  the  reformation  of  contracts.  The  differ- 
ence between  the  two  is  marked  and  substantial.  One  aims  to  en- 
force a  parol  contract  as.  though  it  were  in  writing ;  the  other  seeks 
simply  to  conform  the  written  to  the  real  contract.  One  would  avoid 
the  necessity  of  any  writing ;  the  other  would  simply  correct  the  writ- 
ing. The  principles  which  control  the  one  are  essentially  different 
from  those  which  control  the  other.  If  a  parol  contract  were  sought 
to  be  enforced,  the  arguments  and  authorities  of  counsel  would  be  in 
point.  But  the  reformation  of  a  deed  already  made, — the  correction 
of  a  contract  already  in  writing, — involve  very  different  considera- 
tions. The  question  is,  not  whether  there  has  been  such  a  performance 
as  renders  inequitable  the  non-enforcement  of  the  parol  contract,  but 
whether  the  written  is  the  actual  contract.  It  is  not  the  substituting 
of  acts  in  pais  for  the  written  contract ;  but  it  is  making  the  written 
the  expression  of  the  real  contract.  We  think,  therefore,  that  the 
argument  and  authorities  of  counsel  based  upon  the  statute  of  frauds 
are  not  apt,  and  the  objection  urged  not  well  taken.  It  would  under- 
value the  whole  doctrine  of  the  reformation  of  contracts  and  deeds, 
if  the  case  were  to  be  treated  as  though  no  written  contract  had  ever 
been  made.  The  reformation  implies  the  existence  of  a  written  con- 
tract. It  corrects  that  which  exists,  and  does  not  seek  to  avoid  the 
necessity  of  that  which  is  not.  A  mutual  mistake  must  be  shown,  and 
that  the  party  would  be  wronged  by  a  failure  to  correct.  These  facts 
appearing,  the  power  and  duty  of  a  court  of  chancery  to  reform  is 
clear. 

Many  objections  are  urged  in  reference  to  the  admission,  exclusion, 
and  effect  of  the  testimony.  We  see  nothing  in  reference  to  the  ad- 
mission or  exclusion  of  testimony  which  calls,  for  notice ;  nothing  in 
which  a  different  ruling  would  have  changed  the  result.  As  to  the 
effect  of  the  testimony,  it  is  urged  that  the  findings  of  the  court  cannot 
be  sustained,  because  one  party  swears  that  the  consideration  was 
$800,  while  the  other  as  positively  swears  that  it  was  but  $395.    Hence, 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  749 

it  is  argued  that  the  plaintiff  has  failed  to  make  his  case  clearly  appar- 
ent. We  cannot  agree  with  counsel ;  for  the  fact  of  a  mutual  mistake 
in  the  description  is  conceded,  and  the  matter  of  consideration,  per- 
formance, and  prejudice  must,  we  think,  rest  upon  the  ordinary  rule 
as  to  the  preponderance  of  evidence,  and,  as  to  that  question  of  fact, 
the  finding  of  the  trial  court  is  conclusive. 

Upon  the  whole  record  we  see  no  error  prejudicial  to  the  material 
rights  of  the  plaintiffs  in  error,  and  therefore  the  judgment  must  be 
affirmed.     All  the  Justices  concurring. 


JOHNSON  v.  BRAGGE. 
(Chancery  Division.     [1901]  1  Ch.  28.) 

The  defence  was  raised  to  this  action  for  rectification  of  a  mar- 
riage settlement  that  under  section  4  of  "the  Statute  of  Frauds  parol 
evidence  was  not  admissible  to  rectify  the  alleged  mistake. 

In  July,  1865,  one  John  Walter  Hawkesworth,  in  contemplation  of 
an  intended  marriage  with  the  plaintiff,  then  Miss  Eliza  Madeline 
Florence  Dowler,  wrote  to  his  solicitor,  Mr.  William  Rowcliffe,  ask- 
ing for  information  as  to  his  present  and  future  means  and  prospects 
to  lay  before  the  lady's  father,  and  for  advice  and  guidance  as  to  the 
nature  of  the  settlement  he  ought  to  execute. 

In  reply,  Mr.  William  Rowcliffe  wrote  to  John  Walter  Hawkes- 
worth a  letter,  dated  July  21,  1865,  which,  so  far  as  is  material,  was 
as  follows : 

"I  have  now  carefully  looked  into  the  documents,  and  am  enabled  to  answer 
jour  letter  of  the  16th. 

"(1)  Under  your  grandfather's  will,  you  will  be  absolutely  entitled,  on  the 
death  of  your  mother,  to  one-fourth  of  his  estate,  after  deducting  £5000,  which 
was  given  as  a  portion  by  your  grandfather  on  his  marriage. 

"This  sum  may  be  estimated  in  round  hgures  at  £4000. 

"Under  the  same  will,  you  will  also  probably  become  entitled  to  considera- 
ble parts  of  the  shares  of  your  three  aunts;  this,  however,  depends  upon  the 
periods  of  deaths  of  several  parties,  so  that  no  estimate  can  be  made. 

"(2)  Under  the  settlement  which  was  executed  the  other  day,  you  will  be  en- 
titled for  your  life,  on  the  death  of  your  father  and  mother,  to  funds  araouni- 
ing  together  to  about  £7000,  and  this  deed  gives  you  a  power  to  settle  the  in- 
come on  your  wife  after  your  death  for  her  life,  and  to  give  the  capital  among 
your  children  as  you  may  think  fit.  Failing  your  children,  you  may  give  it  as 
you  please. 

"Supposing  you  marry,  I  think  you  may  fairly  give  the  lady  a  life  interest 
in  the  latter  fund,  and  I  think  you  should  settle  all  the  personal  property 
which  you  may  derive  under  your  grandfather's  will  in  the  same  way,  namely: 

"On  yourself  for  life. 

"After  your  death  on  your  wife  for  life. 

"After  the  death  of  the  survivor,  on  your  children.  And  failing  these,  you 
may  give  it  to  whom  you  may  think  fit. 

"I  have,  of  course,  only  stated  the  property  to  which  you  are  absolutely  en- 
titled ;  but  the  lady's  father  should  distinctly  understand  that  your  expecta- 
tions under  your  grandfather's  will  are  very  considerable,  but  as  they  are 
subject  to  contingencies  they  cannot  of  course  be  treated  as  certain. 

"I  shall  be  very  glad  to  see  you  and  explain  the  matter  more  fully  to  you, 


750  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

which  can  be  done  more  satisfactorily  at  an  interview  than  by  letter,  and,  if 
this  explanation  is  not  quite  intelligible  and  satisfactory  to  you,  I  hope  you 
will  talk  it  over  with  me  before  you  shew  it  to  the  lady's  father." 

"The  settlement  which  was  executed  the  other  day"  was  a  post- 
nuptial settlement,  dated  December  9,  1864,  under  which  J.  \Y. 
Hawkesworth,  subject  to  the  life  interest  therein  of  his  father  and 
mother,  was  entitled  to  the  income  of  the  trust  funds,  thereby  settled 
for  his  life,  with  power  by  deed  or  will  to  appoint  a  life  interest  to  any 
wife  who  might  survive  him,  and  subject  thereto  the  trust  funds  were 
settled  upon  J.  W.  Hawkesworth's  children  as  he  should  by  deed  or 
will  appoint,  and  in  default  for  his  children  at  twenty-one  or  mar- 
riage. 

The  evidence  as  to  the  negotiations  for  the  settlement,  as  given  by 
the  plaintiff,  the  only  survivor  of  the  parties  to  the  transactions,  and 
as  accepted  by  the  court,  was  that  the  plaintiff  and  her  father  and 
mother,  and  J.  W.  Hawkesworth,  had  several  conversations  at  the 
Vicarage,  Aldeburgh,  where  the  lady's  parents  resided,  in  the  course 
of  which  the  father  asked  whether  J.  W.  Hawkesworth  could  settle 
anything  on  marriage.  He  said  he  did  not  know,  but  he  would  write 
to  his  family  solicitor,  Mr.  Rowcliffe.  At  a  subsequent  meeting  J.  W. 
Hawkesworth  produced  Mr.  Rowcliffe's  letter  of  July  21,  with  which 
the  lady's  father  seemed  very  pleased.  J.  W.  Hawkesworth  said  he 
would  settle  about  £11,000,  coming  as  to  £ 7,000  from  his  parents' 
marriage  settlement,  and  as  to  £4,000  from  his  grandfather's  will. 
There  was  a  long  talk  with  the  lady's  father  and  mother  about  it.  A 
solicitor,  a  friend  of  the  family  who  was  now  dead,  was  then  stay- 
ing at  Aldeburgh,  and  the  plaintiff's  father  brought  him  up  to  the 
Vicarage  and  read  him  over  Mr.  Rowcliffe's  letter  in  the  presence  of 
J.  W.  Hawkesworth,  the  plaintiff,  her  mother,  and  her  brother.  He 
was  asked  as  a  friend  to  prepare  the  necessary  document.  The  plain- 
tiff's father  and  mother  said  they  would  settle,  so  far  as  they  could, 
certain  property  as  to  which  no  question  was  raised  in  this  action. 
The  plaintiff  was  to  have  the  income  of  all  during  her  widowhood. 
The  solicitor  friend  took  Mr.  Rowcliffe's  letter  away,  prepared  a  docu- 
ment, brought  it  up  to  the  Vicarage  next  day,  and  left  it  for  the  pur- 
pose of  being  read.  He  came  again  another  day  with  a  second  wit- 
ness. It  was  signed  by  all  parties  at  the  same  time.  The  solicitor 
friend  said  it  was  a  settlement  of  J.  W.  Hawkesworth's  £11,000  on 
the  plaintiff.  It  was  read  over  and  explained.  The  solicitor  friend 
stated  that  the  settlement  was  made  on  the  instructions  in  Mr.  Row- 
cliffe's letter. 

The  settlement,  which  was  entirely  in  the  handwriting  of  the  solic- 
itor friend  and  was  under  seal,  was  in  the  form  of  articles  of  agree- 
ment.    *     *     * 

The  marriage  took  place  on  August  7,  1865.  No  further  settlement 
was  ever  executed  pursuant  to  the  articles;  but  in  1891  J.  W.  Hawkes- 
worth and  the  plaintiff,  on  the  occasion  of  the  marriage  of  one  of  their 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  751 

daughters,  appointed  one  eighth  of  the  trust  property  in  her  favour 
after  the  decease  of  the  survivor  of  J.  W.  Ha\\*kesworth  and  the  plain- 
tiff; and  in  1898  J.  W.  Hawkesworth  and  the  plaintiff  appointed 
trustees  of  the  settlement,  and  appointed  that  the  remaining  seven 
eighth  parts  of  the  property  subject  to  the  settlement  should,  from 
and  after  the  death  of  the  survivor  of  J.  W.  Hawkesworth  and  the 
plaintiff,  be  held  for  the  remaining  seven  children  in  equal  shares.  J. 
W.  Hawkesworth  died  in  1898,  leaving  eight  children  who  attained 
twenty-one.  His  father  and  mother  predeceased  him.  Shortly  after 
the  death  of  J.  W.  Hawkesworth  doubts  were  raised  as  to  the  proper 
construction  of  the  settlement,  and  in  particular  whether  the  plaintiff 
was  entitled  to  a  life  interest  in  the  £7,000  coming  from  the  settlement 
of  D'ecember  9,  1864.  The  contingent  interests  referred  to  in  Mr. 
Rowcliffe's  letter  did  not  prove  as  valuable  as  was  then  expected,  and 
there  was  not  £7,000  under  the  grandfather's  will  in  addition  to  the 
£4,000.  By  an  order  made  by  North,  J.,  on  April  26,  1899,  on  an 
originating  summons  (In  re  Walmesley,  Medlicott  v.  Bragge.  [1898] 
W.  3835),  the  court  declared  that  the  whole  of  the  share  of  the  said 
J.  W.  Hawkesworth  under  the  will  of  John  Walmesley  not  exceed- 
ing £11,000  was  bound  by  the  settlement  of  August  5,  1865,  and  the 
court  declared  that  the  settlement  of  August  5,  1865,  did  not  operate 
as  an  exercise  of  the  power  of  appointment  contained  in  the  settle- 
ment of  December  9,  1864,  in  favour  of  the  widow.  Under  these  cir- 
cumstances the  plaintiff  (who  had  married  a  second  time)  commenced 
this  action,  seeking  to  rectify  the  settlement  so  as  to  give  her  a  life 
interest  in  the  £7,000  comprised  in  the  settlement  of  December  9, 
1864.  The  defendants  were  the  trustees,  and  the  children  of  the  mar- 
riage, or  persons  claiming  under  them.  Some  of  the  defendants  dis- 
puted the  plaintiff's  claim ;   others  did  not  contest  it. 

One  of  the  defendants  expressly  pleaded  the  statute  of  frauds,  sec- 
tion 4,  as  a  defence.40 

Nov.  16.  Coz£ns-Hardy,  J.  This  is  an  action  seeking  rectification 
of  a  marriage  settlement  under  somewhat  peculiar  circumstances. 
[His  Lordship  having  stated  the  facts  and  the  result  of  the  evidence 
as  above,  observing  that  the  plaintiff  gave  her  evidence  in  a  manner 
which  satisfied  him  that  she  was  a  witness  of  truth,  and  that  he  ac- 
cepted her  statements  as  to  what  took  place,  continued:] 

Now,  I  am  satisfied  by  the  evidence  that  it  was  intended  by  all  par- 
ties that  the  settlement  should  operate  in  favour  of  the  plaintiff  upon 
the  two  sums  of  £4,000  and  £7,000  mentioned  in  Mr.  Rowcliffe's  let- 
ter, and  that  the  power  of  appointment  which  Mr.  Hawkesworth  pos- 
sessed over  the  £7,000  should  be  exercised  by  the  settlement,  and  that 
all  parties  thought  it  had  been  exercised  thereby,  and  that  Mr.  Hawkes- 
worth died  in  this  belief,  but  that  a  mistake  was  made  by  the  solicitor 
friend  who  treated  the  £7,000  as  coming  from  the  same  source  as  the 

40  The  statement  of  facts  is  abridged. 


752  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

f  4,000.  This  being  so,  I  think  I  ought  to  rectify  the  settlement,  unless 
I  am  prevented  by  reason  of  two  objections  which  were  strenuously 
urged  before  me.  In  the  first  place  the  statute  of  frauds  is  pleaded, 
and  it  is  contended  that  a  marriage  settlement  cannot  be  rectified  on 
parol  evidence.  In  the  second  place  it  is  contended  that,  as  North,  J., 
has  decided  that  the  power  of  appointment  was  not  exercised,  the 
Court,  according  to  well-settled  rules,  cannot  give  relief  against  a  non- 
execution,  as  distinct  from  an  imperfect  execution,  of  the  power. 

Now  the  plea  of  the  statute  of  frauds  somewhat  surprises  me,  for 
the  books  are  full  of  cases  in  which  marriage  settlements  and  con- 
veyances of  land  have  been  rectified  on  parol  evidence.  But  I  was 
told  that  the  statute  of  frauds  had  not  been  pleaded  in  those  cases, 
although  it  might  have  been.  The  reason  why  the  statute  of  frauds 
was  not  pleaded  in  modern  cases  is  because  it  was  settled  at  least  a 
century  and  a  half  ago  that  parol  evidence  is  admissible  in  an  action 
to  rectify  a  mistake  in  a  marriage  settlement,  notwithstanding  the  stat- 
ute of  frauds:  an  action  of  that  kind  not  being  one  seeking  "to  charge 
any  person  upon  any  agreement  made  upon  consideration  of  mar- 
riage"' within  the  meaning  of  section  4.  In  Thomas  v.  Davis  (1757) 
1  Dick.  301,  303,  decided  in  1757,  the  bill  was  to  rectify  a  mistake  in 
a  conveyance.  The  evidence  of  the  attorney  who  received  the  instruc- 
tions to  prepare  the  deed,  and  did  prepare  the  deed,  was  held  admissi- 
ble, though  in  that  case  not  sufficient.     Sir  Thomas  Clarke  says : 

"The  objection  is,  that  it  is  a  direct  contradiction  to  the  statute  of  frauds, 
but  I  am  clear  it  may  be  read.  Parol  evidence  is.  admitted  for  several  pur- 
poses. It  is  allowed  to  rebut  an  equity.  It  is  often  admitted  to  prove  an 
original  fraud  or  mistake." 

See,  also,  Rogers  v.  Earl  (1757)  1  Dick.  294;  Sugden's  Vendors 
and  Purchasers  (14th  Ed.)  p.  172. 

In  Alexander  v.  Crosbie  (1835)  L.  &  G.  t.  Sugden,  145,  46  R.  R. 

183,  which  was  a  suit  to  rectify  a  settlement,  Sir  E.  Sugden  says  (L. 

&  G.  t.  Sugden,  150: 

"In  all  the  cases,  perhaps,  in  which  the  court  has  reformed  a  settlement, 
there  has  been  something  beyond  the  parol  evidence,  such,  for  instance,  as  the 
instructions  for  preparing  the  conveyance  or  a  note  by  the  attorney,  and  the 
mistake  properly  accounted  for ;  but  the  court  would,  I  think,  act  where  the 
mistake  is  clearly  established  by  parol  evidence,  even  though  there  is  nothing 
in  writing  to  which  the  parol  evidence  may  attach." 

See,  also,  McCormack  v.  McCormack  (1877)  1  L.  R.  Ir.  119. 

In  Story's  Equity  Jurisprudence  (13th  Ed.)  §  158,  it  is  laid  down 

that : 

"The  exceptions  to  the  rule"  (rejecting  parol  evidence  to  contradict  written 
documents)  "originating  in  accident  and  mistake  have  been  equally  applied 
to  written  instruments  within  and  without  the  statute  of  frauds." 

In  my  opinion  the  statute  of  frauds  is  not  a  valid  defence. 

As  to  the  second  objection,  I  am  unable  to  appreciate  its  force.  The 
instrument  of  August  5,  1865,  is  under  seal.  No  further  deed  will 
be  required.     The  deed,  when   rectified  by  inserting  the  few  words 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  753 

needed  to  correct  the  blunder  made  by  the  solicitor  friend,  will  be  a 
perfectly  valid  appointment.  The  jurisdiction  I  am  asked  to  exercise 
does  not  depend  upon  any  doctrine  peculiar  to  powers.  When  once 
the  deed  is  made  to  accord  with  what  I  find  to  have  been  the  real  bar- 
gain and  intention  of  all  parties  to  it,  no  further  relief  will  be  needed. 

The  result  is  that  I  must  grant  the  relief  asked  by  the  plaintiff.  I 
shall  declare  that  the  deed  of  August  5,  1865,  was,  in  the  particulars 
hereinafter  specified,  executed  under  mistake,  and  that  the  deed  ought 
to  be  rectified  by  reading  the  same  as  if  in  the  recital,  after  the  words 
"under  the  will  of  his  maternal  grandfather  John  YYalmesley,"  there 
had  been  added  the  words  "and  of  the  settlement  made  by  his  parents 
dated  the  9th  of  December,  1864,  respectively"  ;  and  I  shall  order  a 
copy  of  this  declaration  to  be  indorsed  on  the  settlement. 

The  costs  of  all  parties  of  this  action  must  be  taxed  and  paid  out  of 
the  trust  estate.41 


OIXEY  v.  FISHER. 

(Chancery  Division,  1886.    34  Ch.  Div.  367.) 

Action  for  the  rectification  of  a  written  agreement,  and  for  dam- 
ages for  the  breach  of  the  agreement  as  rectified. 

On  the  31st  of  January,  1884,  an  agreement  in  writing  was  entered 
into  between  the  plaintiff  and  the  defendant,  by  which  the  plaintiff 
agreed,  within  nine  months  from  the  date  of  the  agreement,  to  erect 
and  finish,  fit  for  habitation,  on  a  piece  of  ground  at  Lewisham,  in  the 
county  of  Kent,  belonging  to  the  defendant,  six  houses,  according  to 
certain  specifications  and  plans,  to  the  reasonable  satisfaction  of  the 
defendant's  surveyor,  and  the  defendant  agreed  (inter  alia)  within  three 

4i  In  Simmons  Creek  Coal  Co.  v.  Doran  (1891)  142  U.  S.  417,  at  435,  12  Sup. 
Ct.  239,  35  L.  Ed.  1063,  Chief  Justice  Fuller  said:  "The  jurisdiction  of  equity 
to  reform  written  instruments,  where  there  is  a  mutual  mistake,  or  mistake 
on  one  side  and  fraud  or  inequitable  conduct  on  the  other,  is  undoubted ;  but 
to  justify  such  reformation  the  evidence  must  be  sufficiently  cogent  to  thor- 
oughly satisfy  the  mind  of  the  court.  Fishaek  v.  Ball  (1891)  34  W.  Va.  644,  12 
S.  E.  856 ;  Railroad  Co.  v.  Dunlop  (1SS9)  86  Va.  346,  10  S.  E.  239.  The  gen- 
eral doctrine  is  not  denied,  but  it  is  contended  that  the  effect  of  the  correc- 
tion of  the  deeds  (if  the  lost  conveyance  contained  an  identical  description) 
is  to  enlarge  them  so  as  to  include  more  land  than  they  originally  embraced, 
and  that  this  renders  the  action  of  the  court  obnoxious  to  the  statute  of  frauds. 
Glass  v.  Hulbert,  102  Mass.  24,  is  cited  to  the  proposition  that,  although  the 
principle  maintained  by  Chancellor  Kent  in  Gillespie  v.  Moon  (1817)  2  Johns. 
Ch.  (N.  Y.)  585,  7  Am.  Dec.  559,  that  relief  in  equity  against  the  operation  of 
a  written  instrument,  on  the  ground  that  by  fraud  or  mistake  it  did  not  ex- 
press the  true  contract  of  the  parties,  might  be  afforded  to  a  plaintiff  seeking 
a  modification  of  the  contract  as  well  as  to  a  defendant  resisting  its  enforce- 
ment, is  well  settled,  it  cannot  be  extended  to  enlarge  the  subject-matter  of  a 
contract,  or  to  add  a  new  term  to  a  writing,  by  parol.  We  need  not  enter 
upon  a  discussion  in  this  regard  here,  as  the  deeds  themselves  furnished  the 
means  of  making  the  correction,  and  the  statute  of  frauds  was  not  pleaded." 

Boke  Eq. — 48 


754  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  ?> 

months  from  the  completion  of  the  houses,  to  erect  a  bridge  over  the 
river  Ravensbourne,  as  shewn  in  a  plan  annexed  to  the  agreement.  The 
defendant  also  agreed  to  grant  the  plaintiff  leases  of  the  ground  and 
houses,  at  a  specified  aggregate  ground  rent. 

The  plaintiff  within  the  nine  months  erected  and  finished  four  hous.es 
on  the  land,  to  the  satisfaction  of  the  defendant's  surveyor.  The  plain- 
tiff alleged  that  he  executed  the  agreement  under  a  mistake,  induced 
by  the  negligence  of  the  defendant,  and  believing  that  it  provided  that  he 
should  erect  on  the  land  (not  six  houses)  but  four,  which  was  the 
number  actually  agreed  upon  between  the  plaintiff  and  the  defendant, 
and  the  plaintiff  alleged  that  the  defendant  was  attempting  wrongfully 
and  fraudulently  to  take  advantage  of  this  mistake.  The  defendant 
had  not,  within  three  months  from  the  completion  of  the  four  houses, 
erected  the  bridge  over  the  river. 

The  plaintiff  claimed  rectification  of  the  agreement,  by  striking  out 
the  number  "six"  and  inserting  in  lieu  thereof  the  number  "four,"  as  the 
number  of  houses  thereby  agreed  to  be  erected  and  finished  by  the 
plaintiff;  and  damages  for  the  breach  of  the  agreement  by  the  defend- 
ant. 

By  his  statement  of  defence  the  defendant  insisted  that  the  written 
agreement  correctly  expressed  the  terms  of  the  real  agreement  between 
himself  and  the  plaintiff,  and  denied  that  he  had  made  any  default  in 
the  performance  of  his  part  of  the  agreement,  but  he  did  not  plead  the 
statute  of  frauds.     *     *     * 

North,  J.  I  am  quite  clear  that  the  evidence  is  admissible,  not  for 
the  purpose  of  interpreting  the  written  contract  as  it  stands,  but  to 
shew  that  the  written  contract  ought  to  be  different  from  that  which  it 
actually  is.     *     *     * 

North,  J.  I  desire  to  add  that  I  did  not  feel  the  slightest  difficulty 
in  admitting  parol  evidence  for  the  purpose  of  rectifying  the  written 
contract,  and  shewing  that  the  word  "six"  in  it  ought  to  have  been 
written  "four;"  nor  should  I,  if  the  evidence  had  shewn  that  the  con- 
tract ought  to  be  so  rectified,  have  felt  any  difficulty,  the  statute  of 
frauds  not  having  been  pleaded  (as  indeed,  by  reason  of  the  part  per- 
formance, it  could  not  be),  in  going  on  to  give  consequential  relief  in 
the  nature  of  specific  performance  on  the  footing  of  the  contract  as 
rectified,  upon  the  principle  pointed  out  by  Lord  Justice  Fry,  in  his 
book  on  Specific  Performance,  2d  Ed.  pi.  799,  viz.,  that  under  section 
24,  subsec.  7,  of  the  Judicature  Act,  1873,  the  court  can  now  have  no 
difficulty  in  entertaining  an  action  for  the  reformation  of  a  contract 
and  for  the  specific  performance  of  the  reformed  contract  in  every 
case  in  which  the  statute  of  frauds  does  not  create  a  bar. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  755 

WOOLLAM  v.  HEARN. 

(In  Chancery  before  Sir  William  Grant,  1S02.     7  Ves.  211.) 

William  Hearn,  being  possessed  of  a  house  in  Ely  Place,  under  an 
agreement  for  a  lease  for  seven,  fourteen,  or  twenty-one  years,  from 
the  25th  of  December,  1794,  agreed  to  let  the  house  to  Penelope  Wool- 
lam  for  seventeen  years;  and  a  memorandum,  dated  the  11th  of  De- 
cember, 1798,  was  executed  by  them ;  stating  an  agreement  for  a  lease 
to  the  plaintiff  from  the  defendant  for  seventeen  years,  to  commence 
at  Christmas  next,  at  the  yearly  rent  of  £73.  10s. ;  the  tenant  paying- 
all  taxes  except  the  land-tax,  which  Hearn  agreed  to  pay :  the  lease  to 
contain  all  usual  covenants ;  and  also  covenants,  that  no  public  trade 
should  be  carried  on  in  the  premises  ;  and  that  no  alteration  should 
be  made  in  the  front ;  that  the  lessee  should  leave  the  premises  in  ten- 
antable  repair,  with  other  covenants  relative  to  the  situation  of  Ely 
Place,  as  being  extra-parochial. 

The  bill  was  filed  by  Mrs.  Woollam  against  Hearn ;  stating,  that  the 
rent  of  £73.  10s.  was  inserted  by  mistake,  or  with  some  unfair  view : 
the  real  agreement  being,  that  the  plaintiff  was  to  have  the  lease  upon 
the  same  rent  as  the  defendant  paid  to  his  lessor;  and  that  he  did  not 
pay  more  than  £60 ;  and,  in  confidence,  that  a  lease  would  be  executed 
to  her,  she  paid  £60  to  the  defendant  at  the  time  of  executing  the  agree- 
ment, being  the  moiety  of  the  sum,  which  the  defendant  alleged  he  had 
laid  out  in  repairs.    She  also  paid  £33.  15s.  6d.  for  fixtures. 

The  bill  prayed  a  specific  performance ;  and  that  the  defendant  may 
be  decreed  to  execute  a  lease  according  to  the  agreement,  at  the  rent 
of  £60  or  such  other  rent  as  the  defendant  paid  his  lessor. 

The  defendant  by  his  answer  denied,  that  £73.  10s.  was  inserted  by 
mistake,  or  with  any  unfair  view ;  or  that  the  agreement  was,  that  the 
plaintiff  should  pay  the  same  rent  as  the  defendant  paid ;  which  he 
admitted  to  be  £63.  He  stated,  that  he  believed  he  might  say  in  the 
course  of  the  treaty,  that  she  would  have  the  premises  upon  the  same 
terms  as  the  defendant  had ;  not  meaning,  that  she  was  to  have  them 
at  the  same  rent :  but  that  she  would  on  the  whole  have  them  upon 
terms  of  equal  advantage  with  the  defendant;  considering  the  money 
he  had  expended  upon  them.  He  admitted  the  payment  of  £60;  stat- 
ing, that  it  was  not  a  moiety  of  the  money  laid  out  by  him;  though 
at  the  time  of  payment  it  might  have  been  so  called. 

On  the  part  of  the  plaintiff,  her  son  stated  by  his  depositions,  that 
when  he  treated  with  the  defendant  for  a  lease  of  the  house,  he  said, 
he  had  got  a  lease  of  it ;  but  could  not  at  that  moment  lay  his  hands 
upon  it;  that  he  did  not  exactly  know  what  the  rent  was,  but  it  was 
somewhere  about  £70  a  year ;  that  he  did  not  want  to  get  any  thing  by 
her ;  and  she  should  have  the  house  upon  the  same  terms  he  had  it 
himself,  which  he  repeated  several  times  afterwards.  The  plaintiff's 
solicitor  stated,  that  the  defendant  repeatedly  said,  upon  being  pressed 


756  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

to  execute  a  lease,  that  the  plaintiff  held  the  house  upon  the  same 
terms  upon  which  he  held:  but,  when  the  deponent  proposed  to  him 
to  execute  an  assignment  of  the  original  lease,  he  objected,  that  it  was 
always  his  maxim  not  to  part  with  the  original  lease,  but  to  hold  it  in 
his  own  possession  for  his  security. 

Mr.  Romilly,  and  Mr.  Wetherell,  for  the  Plaintiff. 

To  the  objection,  that  the  plaintiff  cannot  vary  the  written  agree- 
ment, the  answer  is,  that  this  is  a  case  of  fraud ;  upon  which  you  must 
have  recourse  to  parol  evidence ;  otherwise  it  cannot  be  made  out ;  and 
that  takes  it  out  of  the  statute :  St.  29  Car.  II,  c.  3  ;  Shirley  v.  Stratton, 
1  Bro.  C.  C.  440;  Young  v.  Clark,  Pre.  Ch.  538.  *  *  *  If  the  bill  had 
been  filed  against  this  plaintiff,  upon  all  the  authorities  she  might  have 
insisted  upon  this  variation ;  for  the  Court  would  not  assist  a  plaintiff 
coming  to  enforce  an  agreement,  by  his  own  fraud  not  according  to  the 
true  contract.  There  can  be  no  principle,  why  a  man  may  set  up  a  fraud 
defensively,  which  he  cannot  offensively.  The  defendant  must  go  the 
length  of  saying,  that  no  proof  of  fraud,  however  clearly  it  may  be 
made  out,  that  the  written  agreement  was  not  the  actual  agreement, 
will  be  adequate.  Certainly  a  plaintiff  must  make  out  a  stronger  case. 
The  consequence  of  refusing  this  relief  would  be,  that  the  person  who 
contrived  the  fraud,  and  who,  if  he  filed  a  bill,  would  not  be  permitted 
to  set  it  up.  may  secure  the  advantage  by  refusing  to  perform  the  agree- 
ment ;  driving  the  other  to  be  the  actor,  and  to  file  a  bill.  In  many  of 
these  cases  the  fraud  has  not  been  clear.  This  is  beyond  a  doubt  mis- 
representation from  first  to  last ;  not  only  snppressio  veri,  but  also 
suggestio  falsi.  How  is  it  to  be  distinguished  from  a  purchase  of  an 
estate,  represented  by  the  vendor  at  a  certain  number  of  acres,  and 
turning  out  to  be  less?  There  is  a  similar  reference  here  to  the  rent. 
The  defendant's  construction  of  his  words  is  impossible. 

Mr.  Leach,  for  the  Defendant. 

The  cases  cited  proceed  upon  a  principle  wide  of  the  Statute  of 
Frauds.  The  plaintiff  signed  this  agreement  under  the  notion,  that  the 
rent  specified  was  paid  by  the  plaintiff  to  his  landlord.  Assume  that 
fact.  She  undertook  it  with  full  knowledge.  This  is  not  within  the 
principle  upon  which  the  Court  permits  a  written  agreement  to  be 
varied  by  parol.  The  meaning  of  that  rule  is,  that  the  writing  must 
differ  from  the  intention  of  the  party,  when  signing  it.  This  plaintiff 
intended,  and  knowing  it  bound  herself,  to  pay  £73.  10s.  per  annum. 
She  does  not  insist,  that  she  signed  the  agreement  by  mistake :  but  she 
contends,  upon  the  suppression  of  the  fact,  not  merely,  that  she  is  to  be 
discharged  from  the  written  agreement,  which  might  be  done,  if  the 
case  was  made  out,  but  beyond  that  to  set  up  another  agreement,  exist- 
ing only  in  parol.  That  is  the  distinction.  If  she  meant  only  to  pay 
a  rent  of  £63  and  the  other  by  fraud  inserted  £73  the  Court  would  cor- 
rect it :  but  this  is  an  attempt  to  repeal  the  Statute  of  Frauds.  The 
danger  of  admitting  such  evidence  must  be  attended  to ;  persons  sup- 
porting their  own  case,  and  affecting  to  state  the  very  words  that  pass- 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  757 

ed.  By  the  alteration  of  a  word  the  witness  alters  the  whole  conver- 
sation. But,  admitting  the  evidence,  it  by  no  means  supports  their 
case.  If  the  understanding  was,  that  the  plaintiff  was  to  stand  in  the 
same  relation  to  the  original  landlord  as  the  defendant,  how  was  it, 
that  she  was  to  pay  £60  as  a  consideration  for  the  lease?  He  meant 
nothing  more  than  what  he  states  in  his  answer ;  that  she  should  have 
it  upon  terms  of  equal  advantage.  The  supposed  fraud  consists  in  this  ; 
that  having  expended  money  he  must  therefore  have  an  increased 
rent.     *     *     * 

The  Master  of  the  Rolls.42  The  doubt  I  have  felt  during  the 
argument  of  this  case,  whether  there  is  any  instance  of  executing  a 
written  agreement  with  a  variation  introduced  by  parol,  still  remains ; 
and  as  it  is  an  important  question,  I  wish  to  consider  it. 

The  Master  of  the  Rolls.  This  bill  calls  upon  the  Court  for  a 
specific  execution  of  an  agreement  for  a  lease,  at  a  rent  of  £60  a-year. 
There  is  no  agreement  in  writing  for  a  lease  at  that  rent ;  the  agree- 
ment expressing  a  rent  of  £73.  10s.  The  plaintiff  contends,  however, 
that  she  signed  that  agreement  under  a  belief,  that  such  was  the  rent 
payable  by  the  defendant :  the  real  agreement  being  for  a  lease  at  the 
same  rent  he  paid  to  his  landlord.  The  defendant  in  his  answer  ad- 
mits, he  might  have  said,  she  should  have  it  upon  the  same  terms,  not 
meaning  the  same  rent,  but  upon  terms  upon  the  whole  equally  advan- 
tageous ;  insisting,  that,  as  he  had  laid  out  a  great  deal  of  money,  she 
would  upon  the  whole  have  as  good  a  bargain.  She  offers  parol  evi- 
dence to  prove  an  express  agreement,  that  she  was  to  have  it  upon  the 
same  terms  as  he  had  it ;  and  to  show,  that  nothing  could  be  meant  by 
that  expression,  but  the  same  rent :  nothing  being  in  discussion  between 
them,  but  the  amount  of  the  rent.  He  alleges  a  particular  reason  for 
not  stating  it ;  that  he  had  not  his  own  lease  at  hand.  The  question  is, 
whether  the  evidence  is  admissible ;  for,  though  read,  it  has  been  read 
without  prejudice.  The  defendant  controverts  the  effect  of  the  evi- 
dence, supposing  it  can  be  received ;  but  I  own,  my  opinion  is,  that,  if 
received,  it  will  make  out  the  plaintiff's  case;  for,  taking  the  whole  to- 
gether, there  is  hardly  a  doubt,  that  the  impression  meant  to  be  con- 
veyed was,  that  the  rent  should  be  the  same ;  and,  whatever  he  meant, 
that  is  the  impression  any  person  would  have  received  from  his  lan- 
guage. 

By  the  rule  of  law,  independent  of  the  Statute,  parol  evidence  can- 
not be  received  to  contradict  a  written  agreement.  To  admit  it  for  the 
purpose  of  proving  that  the  written  instrument  does  not  contain  the 
real  agreement,  would  be  the  same  as  receiving  it  for  every  purpose. 
It  was  for  the  purpose  of  shutting  out  that  inquiry,  that  the  rule  of 
law  was  adopted.  Though  the  written  instrument  does  not  contain  the 
terms,  it  must  in  contemplation  of  law  be  taken  to  contain  the  agree- 
ment ;  as  furnishing  better  evidence  than  any  parol  can  supply. 

«  Part  of  the  opinion  is  omitted. 


758  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

Thus  stands  the  rule  of  law.  But  when  equity  is  called  upon  to 
exercise  its  peculiar  jurisdiction  by  decreeing  a  specific  performance, 
the  party  to  be  charged  is  let  in  to  show,  that  under  the  circumstances 
the  plaintiff  is  not  entitled  to  have  the  agreement  specifically  performed  ; 
and  there  are  many  cases,  in  which  parol  evidence  of  such  circum- 
stances has  been  admitted;  as- in  Buxton  v.  Lister  [3  Atk.  383]  ;  which 
is  very  like  this  case.  There,  upon  the  face  of  the  instrument,  a  specif- 
ic sum  was  to  be  given  for  the  timber :  but  it  was  shown  by  parol,  that 
the  defendants  were  induced  to  give  that  upon  the  representation  that 
it  was  valued  by  two  timber  merchants,  which  was  not  true.  So  here 
by  the  agreement,  upon  the  face  of  it,  she  is  to  pay  this  rent :  but  by  the 
evidence  she  was  induced  to  do  so,  because  she  thought,  from  his  repre- 
sentation, that  it  was  the  rent  he  paid.  If  this  had  been  a  bill  brought 
by  this  defendant  for  a  specific  performance,  I  should  have  been  bound 
by  the  decisions  to  admit  the  parol  evidence,  and  to  refuse  a  specific 
performance.  But  this  evidence  is  offered,  not  for  the  purpose  of  re- 
sisting, but  of  obtaining  a  decree :  first,  to  falsify  the  written  agree- 
ment ;  and  then  to  substitute  in  its  place  a  parol  agreement,  to  be  exe- 
cuted by  the  Court.  Thinking,  as  I  do,  that  the  statute  has  been  al- 
ready too  much  broken  in  upon  by  supposed  equitable  exceptions,  I 
shall  not  go  further  in  receiving  and  giving  effect  to  parol  evidence, 
than  I  am  forced  by  precedent.  There  is  no  case,  in  which  the  Court 
has  gone  the  length  now  desired.     *     *     * 

But  this  is  evidence  to  vary  an  agreement  in  a  material  part;  and, 
having  varied  it,  to  procure  it  to  be  executed  in  another  form.  There 
is  nothing  to  show  that  ought  to  be  done ;  and  my  opinion  being  that  it 
ought  not,  I  must  dismiss  the  bill,  but  without  costs. 

The  plaintiff  then  applied  for  a  decree  according  to  the  written  agree- 
ment; with  a  covenant  for  quiet  enjoyment;  as  he  had  not  power  to 
grant  such  a  lease. 

The  Master  of  the;  Rolls  said,  the  bill  was  not  for  that  purpose ; 
expressly  objecting  to  a  lease  at  the  rent  of  £73.  10s. 

The  bill  was  dismissed  without  costs,  and  without  prejudice  to  an- 
other bill  for  a  lease,  at  the  rent  of  £73.  10s.43 

±3  in  Rich  v.  Jackson  (1794)  G  Yes.  334,  note,  Ex>rd  Loughborough  states  his 
understanding  of  the  extent  of  the  introduction  of  parol  evidence  in  equity 
thus:  "I  have  looked  into  all  the  eases;  and  I  cannot  find,  that  this  Court  has 
ever  takeu  upon  itself,  in  executing  a  written  agree  merit  by  a  specific  per- 
formance, to  add  to  it  by  any  circumstance  that  parol  evidence  could  intro- 
duce; but  it  has  often,  with  great  propriety,  where  an  attempt  has  been  made 
to  obtain  by  a  decree  of  this  Court  a  fartber  security,  or  more  ample  interest, 
than  the  party  was  in  possession  of  by  the  paper  itself,  refused,  if  it  appeared 
the  demand  was  fraudulent  or  unfair.  The  case  of  Joynes  v.  Statham  [(1740) 
3  Atk.  388]  was  relied  on.  That  was  a  case  where  parol  evidence  was  ad- 
mitted on  behalf  of  the  defendant;  who  by  that  evidence  shewed,  that  the 
plaintiff  had  taken  an  unfair  advantage  of  the  evident  ignorance  of  the  de- 
fendant, and  drawn  an  agreement  for  him  in  terms  similar  to  that  in  this 
case,  in  which  the  same  circumstances  occurred.  *  *  *  None  go  fartber 
than  this  in  the  decisions  and  rules  laid  down  ;  that  parol  evidence  of  the  con- 
duct of  the  parties,  the  manner  of  conducting  the  transaction,  the  unfairness 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  759 

and  hardship,  may  afford  a  good  ground  to  leave  the  party  in  the  condition,  in 
which  he  put  himself  at  law,  to  make  what  he  chooses  to  make  of  it;  but 
ought  not  to  make  this  Court  give  him  any  aid.  If  the  defendant  had  not  got 
by  this  paper  what  would  be  a  security  at  law,  and  had  applied  to  me,  and 
the  case  was  reversed  as  to  the  situation  of  the  parties,  I  would  not  put  the 
defendant  in  a  better  condition  than  that  paper  had  put  her  in.  It  is  impos- 
sible to  admit  any  deviation  from  the  rule  at  law.  That  confines  the  whole  to 
the  written  agreement;  and  does  not  admit  that  to  be  varied  by  any  evidence 
of  the  conversation  or  conduct  of  the  parties.  That  rule  will  not  affect  the 
case  of  a  subsequent,  distinct,  collateral,  agreement;  but  the  evidence,  which 
I  have  heard,  and  ought  not  to  have  heard,  in  this  case,  is  evidence  of  what 
passed  at  the  time  of,  and  prior  to,  the  written  agreement.  The  lease  must 
be  according  to  the  written  agreement.  I  suppose  the  plaintiff  would  not  wish 
for  a  lease  according  to  that.  (The  plaintiff  declined  to  execute  such  a  lease.) 
I  must  therefore  dismiss  the  bill:   but  I  will  not  dismiss  it  with  costs." 

In  Quinn  v.  Roath  (1870)  37  Conn.  16,  at  29,  the  court,  speaking  through 
Phelps,  J.,  said:  "The  ordinary  ground  on  which  a  court  of  equity  allows  the 
introduction  of  parol  proof  to  add  to  or  affect  a  written  instrument,  is  to  pro- 
vide relief  in  cases  of  fraud,  mistake  and  surprise,  and  prevent  a  party  who 
has  obtained  an  instrument  under  such  circumstances  from  deriving  to  him- 
self an  unfair  and  inequitable  advantage  from  it,  to  the  injury  of  the  person 
from  whom  it  was  so  obtained.  This  doctrine  finds  its  sanction  in  the  truest 
promptings  of  conscience,  and  while  it  is  not  of  so  general  applicability  in 
other  cases  it  is  not  confined  to  those  mentioned ;  and  it  is  claimed  by  the  re- 
spondent that,  though  operating  within  more  circumscribed  limits,  it  is  recog- 
nized with  similar  certainty  and  clearness  in  the  case  we  are  considering,  and 
that  such  evidence  is  equally  admissible  for  the  purpose  for  which  it  was  here 
offered  as  it  would  have  beeu  to  prove  either  fraud  or  mistake.  Taking  this 
case  as  we  find  it  on  the  record,  the  evidence  was  offered,  not  for  the  purpose 
of  proving  a  fraud  in  the  petitioner  in  withholding  the  verbal  stipulation  from 
the  writing,  nor  any  accident,  mistake  or  fraud  in  not  embodying  it  in  the  writ- 
ten instrument.  We  understand  the  verbal  provision  not  to  have  been  de- 
signed to  be  incorporated  into  the  writing,  but  to  stand  as  an  independent 
variation  of  it,  and  that  the  respondent  claims  it  was  intended,  if  not  strictly 
performed  by  the  petitioner,  to  render  void  the  entire  agreement ;  and  that 
such  performance  by  the  petitioner  was  in  effect  to  operate  as  a  precedent  con- 
dition to  his  right  to  a  conveyance  of  the  land.  So  considering  it,  we  are  to 
decide  whether  by  way  of  defence  against  the  petitioner's  bill  the  evidence 
ought  to  have  been  excluded.  The  admissibility  of  the  particular  species  of 
evidence  here  offered  is  restricted  to  the  defence  of  bills  brought  for  a  specific 
performance,  and  the  courts,  in  admitting  it  to  repel  the  attempt  of  a  pur- 
chaser or  seller  of  land  to  oblige  the  other  party  to  a  contract  to  perform  his 
part  specifically,  have  proceeded  upon  the  just  ground  of  inequitableness  in 
the  petitioner  in  striving  to  enforce  the  execution  of  a  written  contract  with 
parol  variations  by  regarding  only  the  written  provisions  and  entirely  disre- 
garding the  verbal  variations.  This  is  in  strict  accordance  with  the  spirit  of 
equity,  which  requires  of  a  party  seeking  the  aid  of  a  court  of  chancery  to 
come  with  clean  hands  and  a  willingness  to  do  equity ;  and  the  most  flagrant 
fraud,  though  grosser  in  degree,  is  not  a  more  certain  violation  of  this  spirit, 
than  a  deliberate  attempt  to  enforce  only  the  written  portion  of  a  contract 
which  contains  verbal  variations  essentially  changing  its  character  and  ren- 
dering it  less  favorable  to  the  petitioner.  The  law  seems  well  settled  that  if 
a  party  to  a  contract  for  the  conveyance  of  land  desires  the  enforcement  of 
the  performance  of  it,  such  enforcement  must  be  of  the  precise  contract  in 
terms  which  the  parties  in  fact  made,  and  it  is  generally  true  that  he  will  not 
be  permitted  to  enforce  one  resting  partly  in  writing  and  in  part  in  parol,  and 
if  he  attempts  to  compel  the  performance  of  a  written  conrtact  which  contains 
collateral  verbal  alterations  he  cannot  be  allowed  the  benefit  of  the  written 
portion  without  also  accepting  such  parol  modifications  of  it  as  exist.  It  is 
equally  wTell  established  that  a  petitioner  who  brings  his  bill  for  a  specific  per- 
formance, is  not  entitled  to  the  same  indulgence  in  the  introduction  of  parol 
proof  as  the  respondent  may  be,  who  defends  against  it  and  offers  to  prove  the 
existence  of  verbal  stipulations  inconsistent  with,  and  varying,  and  operating 
as  conditions  of  or  limitations  to,  the  writing." 


760  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

BEARDSLEY  v.  DUNTLEY. 

(Court  of  Appeals  of  New  York,  1S77.    69  N.  Y.  577.) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  third  judicial  department,  affirming  a  judgment  in  favor  of  plain- 
tiff, entered  upon  a  decision  of  the  court  at  special  term. 

This  action  was  brought  to  obtain  specific  performance  of  an  alleg- 
ed oral  agreement  for  the  sale  by  plaintiff  to  defendant  of  a  piece  of 
land,  the  complaint  alleging  in  substance  that  the  land  in  question  was 
contracted  to  be  sold  with  various  other  parcels,  and  that  plaintiff  was 
induced  to  accept  a  deed  of  the  other  parcels,  under  and  by  means  of 
fraudulent  representations  of  defendant  that  it  included  the  parcel  in 
question. 

The  plaintiff,  through  her  husband,  negotiated  with  the  defendant 
for  the  purchase  of  a  farm.  The  negotiations  were  oral,  and  the  plain- 
tiff was  present.  A  piece  of  land  of  about  three  acres,  lying  on  the 
opposite  side  of  the  road  from  the  remainder  of  the  farm,  was  claimed 
by  plaintiff  to  have  been  included  in  the  negotiation.  Subsequently 
defendant  executed  a  contract  under  seal  to  plaintiff's  husband,  and 
the  next  day  executed  a  deed  of  the  farm  to  the  plaintiff,  which  did  not 
include  the  three-acre  piece.  Plaintiff  paid  or  secured  the  considera- 
tion, went  into  possession  of  the  farm,  including  the  three-acre  piece, 
cultivated  it  with  defendant's  knowledge,  and  is  still  in  possession. 
Subsequently,  learning  that  defendant  claimed  he  had  not  sold  the 
three  acres,  she  demanded  a  deed  thereof.  On  refusal  she  brought 
this  action.  On  the  trial  of  the  action  several  questions  were  submitted 
to  the  jury,  and  they  found  in  substance  that  it  was  understood  by 
the  plaintiff  and  her  husband  during  the  negotiations,  and  when  the 
deed  was  delivered,  that  the  sale  and  conveyance  was  to  embrace  the 
three  acres ;  that  the  defendant  knew  at  the  time  that  they  so  under- 
stood ;  that  he  induced  them  to  accept  the  deed  with  the  fraudulent  pur- 
pose and  intent  to  have  the  three-acre  lot  excluded  therefrom.  The 
court  adjudged  that  the  plaintiff  was  entitled  to  hold  the  three  acres 
and  was  entitled  to  a  deed  therefor. 

Miliar,  J.44  *  *  *  The  defendant  further  claims  that  the  ver- 
bal negotiations  being  within  the  statute  of  frauds,  and  the  plaintiff  hav- 
ing made  no  improvement  on  the  premises,  the  plaintiff  cannot  claim 
the  land,  but  is  confined  to  relief  in  damages.  The  case  of  Glass  v. 
Hulbert,  102  Mass.  24,  3  Am.  Rep.  418,  is  relied  upon  by  the  defendant 
to  sustain  this  theory.  That  case  was  a  bill  in  equity  filed  by  the  pur- 
chaser of  a  lot  of  land,  after  taking  the  deed  and  paying  the  price, 
seeking  relief  on  several  grounds,  and  among  others  because  during  the 
negotiations  for  the  sale  of  the  lot,  the  defendant  represented  that  it 
included  land  which  it  did  not  include,  and  under  that  misrepresenta- 

14  Parts  of  the  opinion  are  omitted. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  761 

tion,  the  plaintiff  agreed  to  make  the  purchase ;  and  it  was  held,  in 
reference  to  the  additional  land,  that  no  decree  could  be  made  for  its 
conveyance  in  the  absence  of  any  evidence  to  estop  the  defendant  from 
pleading  the  statute  of  frauds,  and  that  the  only  relief  was  by  an  action 
for  damages.  In  the  case  cited,  no  possession  was  taken  under  the  deed 
of  the  land  excluded,  so  that  in  one  of  its  most  material  and  import- 
ant characteristics,  it  differs  entirely  from  the  case  at  bar.  Nor  does  it 
appear  that  in  Massachusetts  the  statute  of  frauds  contains  a  provision 
to  the  effect  that  nothing  contained  therein  shall  be  construed  to  abridge 
the  powers  of  a  court  of  equity  to  compel  the  specific  performance  of 
agreements  in  cases  of  part  performance  of  the  same,  as  is  the  case 
here.    See  2  R.  S.  135,  §  10.     *     *     * 

At  a  very  early  period  in  the  history  of  equity  jurisprudence  of  this 
State,  it  was  held  that  equity  relieves  against  a  mistake  as  well  as  fraud, 
and  in  Gillespie  v.  Moon,  2  Johns.  Ch.  (N.  Y.)  585,  7  Am.  Dec.  559, 
where  the  verbal  agreement  was  to  sell  two  hundred  acres,  and  two 
hundred  and  fifty  was  erroneously  included  in  the  conveyance.  The 
grantee  took  possession,  and  a  decree  was  granted  directing  a  reconvey- 
ance of  the  excess.    The  learned  Chancellor  Kent  remarks : 

"It  would  be  a  great  defect  in  what  Lord  Eldon  terms  'the  moral  jurisdiction 
of  the  court'  if  there  was  no  relief  for  such  a  case." 

In  Glass  v.  Hulbert,  supra,  it  is  conceded  that  the  principle  maintain- 
ed by  Chancellor  Kent  was  fully  established,  but  an  attempted  distinc- 
tion was  said  to  exist  because  the  relief  sought  and  granted  was  by 
way  of  restricting,  and  not  by  enlarging  the  operation  of  the  deed. 
The  principle  is  the  same  and  equally  applicable  to  both  cases,  as  is  ap- 
parent from  the  discussion  of  the  cases  by  the  chancellor  in  Gillespie 
v.  Moon,  supra.  Besides  the  subsequent  decisions  in  this  State  distinctly 
hold  that  the  same  principle  was  applicable  where  the  conveyance  or 
agreement  did  not  include  all  the  land  which  was  intended.  *  *  *  In 
the  case  at  bar,  the  plaintiff  took  possession  under  the  deed,  with  the 
knowledge  of  the  defendant,  and  has  ever  since  held  possession  of  the 
same,  and  within  the  cases  last  cited,  was  entitled  to  the  relief  de- 
manded. The  case  clearly  was  not  within  the  statute,  as  there  was  suf- 
ficient performance  to  bring  it  within  the  well-settled  rule  that  partial 
performance  takes  a  parol  agreement  out  of  the   statute  of  frauds. 

The  judgment  was  right  and  must  be  affirmed.     All  concur. 
Judgment  affirmed. 


7G2  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 


NEININGER  et  al.  v.  STATE. 

(Supreme  Court  of  Ohio,  1893.     50  Ohio  St.  394,  34  N.  E.  633, 
40  Am.  St.  Rep.  674.) 

Williams,  J.45  The  principal  question  presented  is  whether  a  writ- 
ten instrument,  which  by  mistake  fails  to  express  the  agreement  of  the 
parties,  may  be  reformed,  and  then  enforced  against  a  surety.  The 
plaintiffs  in  error  contend  that  it  cannot,  and  for  that  reason  they  claim 
the  court  of  common  pleas  erred  in  overruling  their  demurrer  to  the 
amended  petition,  and  awarding  the  relief  it  demanded  against  them. 
This  court  in  a  number  of  decisions  has  strictly  adhered  to  the  rule  that 
the  liability  of  a  surety  cannot  be  extended  by  implication  beyond  the 
terms  of  his  contract.  In  State  v.  Medary,  17  Ohio,  554,  it  was  held 
that  the  sureties  on  a  bond  conditioned  for  the  faithful  performance 
by  the  principal  of  his  duties  as  a  member  of  the  board  of  public  Works 
were  not  liable  for  his  defalcation  as  an  acting  commissioner  under  the 
appointment  of  the  board. 

It  is  well  settled  that  written  contracts  and  other  instruments  of 
writing  may  be  reformed  when,  through  fraud  or  mistake,  they  fail  to 
express  the  actual  agreement  and  intention  of  the  parties,  and  that  the 
fraud  or  mistake  may  be  established  by  parol  evidence.  That  doctrine 
has  been  fully  maintained  in  numerous  cases  in  this  state.  The  reme- 
dy has  been  administered  even  where  the  mistake  was  in  the  legal  ef- 
fect of  the  terms  of  the  instrument,  and  but  for  the  statute  of  frauds 
there  would  appear  to  be  no  reason  why  the  contracts  of  sureties  should 
not  be  subject  to  the  remedy,  the  same  as  other  written  instruments. 
The  obligation  of  the  surety  rests  upon  a  consideration  as  adequate 
as  that  of  the  principal ;  for,  though  he  receive  no  pecuniary  or  other 
benefit  for  his  undertaking,  credit  is  extended  to  the  principal,  and  ad- 
vantages are  obtained  by  him,  upon  the  faith  of  the  surety's  engage- 
ment. But  as  the  statute  requires  a  promise  to  answer  for  the  debt  or 
default  of  another  to  be  in  writing,  and  signed  by  the  party  to  be  charg- 
ed therewith,  in  order  to  be  binding,  it  is  contended  that  to  permit 
the  writing  to  be  reformed  in  any  material  part  upon  parol  proof  of 
a  mistake  would  be  to  establish  a  verbal  contract,  and  make  it  obli- 
gatory upon  the  surety,  contrary  to  the  provisions  of  the  statute.  If 
that  is  a  valid  objection  to  the  reformation  of  a  contract  executed  by 
a  surety,  it  must  be  equally  so  to  the  reformation  of  any  other  con- 
tract embraced  in  the  statute  of  frauds ;  for  it  is  obvious  the  objection 
applies  with  equal  force  to  all  contracts  that  are  within  its  provisions. 
The  statute  is  not  less  explicit  in  its  requirement  that  contracts  for  the 
conveyance  of  any  interest  in  lands  shall  be  in  writing,  and  signed  by 
the  party,  than  it  is  that  those  of  a  surety  or  guarantor  shall  be  of  that 
character.     Indeed,  it  is  expressed  as  to  both  classes  of  contracts  in 

<s  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  7G3 

the  same  language,  and  in  the  same  section.  And  if  those  of  either 
class  cannot,  on  account  of  the  statute,  be  reformed,  it  follows  that 
those  of  the  other  cannot;  but,  if  either  may  be,  then  so  may  the  other. 
The  statute  presents  no  greater  or  different  obstacle  in  the  one  case 
than  in  the  other.  It  has  long  been  the  settled  law  of  this  state  that 
contracts  concerning  lands,  and  even  deeds  and  mortgages  by  which 
they  have  been  conveyed,  may  be  reformed  on  the  ground  of  mistake, 
and  upon  parol  proof,  by  correcting  misdescriptions,  including  lands 
omitted  by  mistake,  enlarging  or  restricting  the  character  of  the  estate, 
inserting  or  qualifying  covenants  and  conditions,  and  in  other  respects. 
In  Davenport  v.  Sovil,  6  Ohio  St.  459,  it  was  held  that  a  mortgage 
might  be  reformed  so  as  to  include  land  not  described  in  it,  and  then 
enforced  against  the  same.  In  the  case  of  Clayton  v.  Freet,  10  Ohio 
St.  545,  a  deed  which  conveyed  an  estate  in  fee  simple  was  so  reformed 
as  to  convey  a  life  estate  to  the  grantee,  with  remainder  to  her  children ; 
and  a  deed,  defective  for  want  of  an  acknowledgment,  was  reformed, 
by  enlarging  a  life  estate  into  a  fee  simple,  and  a  conveyance  decreed 
accordingly,  in  the  case  of  Ormsby  v.  Longworth,  11  Ohio  St.  653. 
Other  instances  in  which  like  relief  has  been  awarded  may  be  found  in 
Hunt  v.  Freeman,  1  Ohio,  491;  Evants  v.  Strode,  11  Ohio,  480,  38 
Am.  Dec.  744;  Webster  v.  Harris,  16  Ohio,  490.     *     *     * 

After  a  careful  and  somewhat  extended  examination  of  the  ques- 
tion, we  have  arrived  at  the  conclusion  that  a  written  instrument  exe- 
cuted by  a  surety,  which  by  mistake  fails  to  express  the  actual  agree- 
ment and  intention  of  the  parties,  may  be  reformed  upon  parol  proof, 
like  other  written  instruments,  and  then  enforced  against  the  surety; 
and  such  mistake  and  the  actual  agreement  may  be  established  by 
parol  proof.  But  the  evidence  must  be  of  that  clear  and  convincing 
character  which  leaves  no  reasonable  doubt  either  of  the  mistake  or 
the  terms  of  the  agreement.     *     *     *     Judgment  affirmed. 


(B)  Statute  of  Wills 

YATES  et  ux.  v.  COLE  et  al. 

(Supreme  Court  of  North  Carolina,  1S53.    54  N.  C.  110,  59  Am.  Dec.  602.) 

Battle,  J.48  The  object  of  the  bill  is  to  obtain  the  aid  of  a  Court 
of  Equity,  for  the  purpose  of  reforming  the  will  of  the  testator,  Dan- 
iel McRae,  so  as  to  take  from  the  defendant,  Lucy  Diggs,  certain 
slaves,  therein  bequeathed  to  her  by  mistake  as  alleged,  and  give  them 
to  the  feme  plaintiff,  for  whom  it  is  said  they  were  intended.     This 

*e  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


764  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  'A 

object,  if  attained  at  all,  must  be  accomplished  by  a  parol  revocation  of 
the  bequest  of  the  said  Lucy,  and  then  by  a  nuncupative  will  giving  it  to 
the  said  feme  plaintiff.  Can  this  be  done  ?  No  authority  has  been  pro- 
duced by  the  plaintiff's  counsel  to  show  that  it  can,  and  we  think  there 
is  a  very  strong  and  decisive  reason  why  it  cannot.  Adams  in  his  Trea- 
tise on  Equity,  after  stating  the  doctrine  in  relation  to  the  reformation 
of  instruments  inter  vivos,  says,  at  page  172 : 

"That  a  will  cannot  be  corrected  by  evidence  of  mistake,  so  as  to  supply  a 
clause  or  word  inadvertently  omitted,  by  tbe  drawer  or  copyer;  for  there  can 
be  no  will  without  the  statutory  forms,  and  the  disappointed  intention  has 
not  those  forms."  *     *     * 

The  reason  given  why  a  Court  of  Equity  declines  to  interfere,  when 

called  on  to  reform  a  will,  would  seem  to  restrict  it  to  a  devise  of  real 

estate.    But  the  principle  is  certainly  applicable  to  the  will  in  this  case, 

though  it  be  but  a  bequest  of  personalty.     In  the  13th  section  of  the 

Statute  concerning  wills,  (1  Rev.  Stat.  ch.  122,)  it  is  enacted,  that: 

"No  will  in  writing,  passing  or  bequeathing  a  personal  estate  of  greater 
value  than  two  hundred  dollars,  or  any  clause  thereof,  shall  be  revocable,  oth- 
erwise than  by  some  other  will  or  codicil,  or  other  writing,  declaring  the 
same,  or  by  cancelling,"  etc.,  and  "no  written  will,  passing  or  bequeathing  a 
personal  estate  of  two  hundred  dollars  or  less,  shall  be  altered  or  revoked  by 
a  subsequent  nuncupative  will,  except  the  same  be  in  the  lifetime  of  the  tes- 
tator, reduced  to  writing  and  read  over  to  him  and  approved,"  etc. 

It  is  obvious,  that  with  a  slight  change  of  the  phraseology  quoted 
from  Adams,  and  taken  substantially  from  the  opinion  of  the  Vice 
Chancellor,  in  the  case  of  Newburgh  v.  Newburgh,  we  may  say  here, 
that  the  will  cannot  be  corrected  by  evidence  of  mistake,  so  as  to  strike 
out  the  name  of  the  legatee  and  insert  that  of  another,  inadvertently 
omitted  by  the  drawer  or  copyer ;  for  there  can  be  no  revocation  or 
alteration  of  a  written  will  of  personalty,  without  the  statutory  forms, 
and  the  disappointed  intention  has  not  these  forms. 

Such  would  be  our  conclusion  in  this  case,  were  the  evidence  of  the 
mistake  satisfactory;  but  it  may  not  be  improper  for  us  to  declare, 
that  were  the  legal  objection  removed,  the  testimony  of  the  plaintiffs 
would  be  insufficient  to  entitle  them  to  the  relief  which  they  seek. 

Without  going  fully  into  the  subject,  it  may  suffice  to  say,  that  the 
testimony,  to  convert  a  deed,  absolute  on  its  face,  into  a  mortgage,  (an 
instrument  founded  on  a  valuable  consideration,)  must  be  something 
more  than  mere  declarations :  must  be  proof  of  facts  and  circumstanc- 
es, dehors  the  deed,  inconsistent  with  the  idea  of  an  absolute  purchase. 
See  Sowell  v.  Barrett,  45  N.  C.  50,  and  the  cases  there  referred  to. 
The  testimony  to  reform  an  instrument  in  favor  of  a  mere  volunteer 
could  not  of  course  be  less. 

The  bill  must  be  dismissed  with  costs. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  765 

HUNT  et  al.  v.  WHITE. 
(Supreme  Court  of  Texas.  1800.     24  Tex.  043.) 

WhEELER.  C.  J.47  It  is  not  questioned,  that  by  the  law  of  this  state, 
in  order  to  effectuate  the  manumission  of  a  slave  by  will,  provision 
must  be  made  for  the  removal  of  the  slave  out  of  the  state.     *     *     * 

This  will  contains  no  provision  for  the  removal  of  the  slaves  out  of 
the  state ;  but  on  the  contrary,  seems  to  contemplate  their  remaining 
in  the  state,  in  the  enjoyment  of  freedom.  In  so  far  it  is  in  contra- 
vention of  law,  and  consequently  void. 

It  is  not  contended,  that  the  written  will  effectuates  the  manumission 
of  the  slaves ;  but  it  is  insisted,  that  they  are  entitled  to  their  freedom, 
by  virtue  of  the  parol  "explanation,"  by  the  witnesses  to  the  will,  which 
accompanied  its  probate  and  registration  in  the  county  court ;  and  the 
question  is,  whether  the  omission  in  the  will  to  provide  for  the  eman- 
cipation of  the  testator's  slaves,  can  be  thus  supplied  by  parol. 

It  is  insisted,  that  it  can  be,  in  the  exercise  of  the  equitable  powers  of 
the  court,  to  grant  relief  in  cases  of  accident  and  mistake,  and  that  the 
court  may  reform  the  will,  so  as  to  make  it  express  the  intention  of  the 
testator,  as  deposed  to  by  the  witnesses.  But  it  must  be  observed,  that 
the  power  of  a  court  of  chancery  to  grant  relief  in  cases  of  mistake  in 
written  instruments,  does  not  go  to  the  extent  of  adding  to  or  chang- 
ing the  nature  and  legal  import  of  the  writing.  That  would  be  to  con- 
travene the  rule,  which  obtains  as  well  in  courts  of  chancery  as  in 
courts  of  law,  that  parol  contemporaneous  evidence  is  inadmissible,  to 
contradict  or  vary  the  terms  of  a  valid  written  instrument.  The  case 
of  wills  does  not  constitute  an  exception  to  the  application  of  this 
rule.     *     *     * 

"In  regard  to  mistakes  in  wills  (says  Judge  Story)  there  is  no  doubt,  that 
courts  of  equity  have  jurisdiction  to  correct  them,  when  they  are  apparent 
upon  the  face  of  the  will,  or  may  be  made  out  by  a  due  construction  of  its 
terms."  "But  then,  the  mistake  must  be  apparent  on  the  face  of  the  will, 
otherwise,  there  can  be  no  relief." 

There  is  no  mistake  apparent  on  the  face  of  the  will  in  this  case ; 
none  that  can  be  made  out  by  a  due  construction  of  its  terms ;  and  it 
manifestly  is  not  a  case  for  relief  in  equity,  on  the  ground  of  mistake 
or  accident.  The  will  is  complete  in  itself,  and  formal  in  its  execution. 
What  is  proposed  by  the  parol  evidence  is,  to  add  to  the  will  an  inde- 
pendent substantive  bequest,  and  to  make  it  speak  upon  a  subject  on 
which  it  is  altogether  silent.  It  is  not  proposed  to  call  in  extrinsic  evi- 
dence, to  enable  the  court  to  arrive  at  the  meaning  of  the  testator's 
language,  used  in  the  will  itself,  but  to  introduce  into  the  will  an  inten- 
tion not  apparent  upon  its  face,  and  different  from  that  which  the  lan- 
guage used  imports,  by  the  proof  of  other  language  not  contained  in 
the  will :    in  effect,  to  make  a  new  devise  for  the  testator,  which  he  is 

47  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


766  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

supposed  to  have  omitted,  and  not  quite  consistent  with  that  he  has 
made.  The  effect  of  the  admission  of  such  evidence,  would  be,  that 
the  will,  though  made  and  executed  with  the  requisite  legal  solemnities, 
by  the  testator,  in  his  life-time,  would  really  and  in  fact,  be  made  by  the 
witnesses,  after  his  death.  It  is  unnecessary  to  advert  to  the  danger  of 
admitting  such  evidence.  It  is  sufficient,  that  there  is  no  authority  for 
it  in  the  law ;  that  it  would  destroy  all  the  guards  intended  to  be  se- 
cured by  the  statute  of  frauds,  and  the  statute  concerning  wills,  for  the 
prevention  of  frauds  and  perjuries;  and  would  contravene  the  clearest 
and  best  established  principles  and  rules  of  law.     *     *     * 

Our  conclusion  is,  that  there  was  no  bequest  of  freedom  to  the  ap- 
pellees, which  the  well  settled  principles  of  law  will  authorize  a  court, 
either  of  law  or  equity,  to  recognize  and  enforce;  and  that  the  judg- 
ment of  the  court,  overruling  the  demurrer  to  the  petition,  and  giving 
judgment  for  the  appellees,  is  erroneous,  and  must  be  reversed,  and 
the  cause,  remanded. 

Reversed  and  remanded. 


WOOD  v.  WHITE  et  al. 
(Supreme  Judicial  Court  of  Maine,  1S50.    32  Me.  340,  52  Am.  Dee.  654.) 

WELLS,  J.,48  orally.  A  question  has  suggested  itself,  whether  the  heirs 
should  not  be  made  parties ;  but  we  think  the  rightful  parties  are  be- 
fore the  court.  Where,  as  in  this  case,  the  executors  have  control  of 
all  the  estate,  no  other  parties  need  be  introduced.  Executors  and  ad- 
ministrators may  discharge  mortgages  and  surrender  notes. 

The  only  question  then  is,  whether  the  bequest  can  be  corrected  by 
substituting  "George  Wood"  for  J.  Wood. 

Courts  are  often  called  upon  to  adjudicate  as  to  devises  and  legacies, 
when  there  are  several  persons  of  the  same  name.  Such  cases  present 
a  latent  ambiguity. 

In  this  case,  the  complainant  is  not  of  the  name,  mentioned  in  the 
will.  There  is  no  latent  ambiguity.  It  is  a  case  of  misdescription. 
Can  the  court  inquire  who  was  meant?  There  is  jurisdiction  as  to  mis- 
takes, as  well  in  regard  to  wills  as  to  other  matters.  The  testimony 
makes  it  very  apparent,  that  there  was  a  mistake  in  the  name,  which 
ought  to  be  corrected,  and  we  consider  that  the  power  to  do  it  exists 
in  the  court. 

Prayer  of  the  bill  is  allowed. 

48  The  statement  of  facts  is  omitted. 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  TG7 


(C)  Statute  of  Limitations 
WYKLE  v.  BARTHOLOMEW. 

(Supreme  Court  of  Illinois,  1913.     258  111.  358,  101  N.  E.  597.) 

Dunn,  C.  J.49  The  appellant  filed  a  bill  to  correct  the  description 
in  a  deed,  which  the  court,  on  a  hearing,  dismissed,  and  he  ap- 
pealed.    *     *     * 

It  is  clearly  proved  that  an  agreement  was  made  for  the  settlement 
of  the  foreclosure  suit,  and  that  the  deed  to  the  appellant  was  made  in 
pursuance  of  such  agreement.  There  can  be  no  doubt  that  a  mistake 
was  made  in  the  deed ;  for,  while  a  tract  containing  only  three-quarters 
of  an  acre  is  described,  the  deed  states  "said  tract  being  one  and  a 
quarter  acres."  The  master  found  that  there  was  no  mistake  in  the 
description  of  the  tract  of  land  conveyed,  but  only  in  this  recital  that 
the  tract  contained  1*4  acres.     *     *     * 

Neither  the  statute  of  limitations  nor  laches  is  applicable  to  a  suit 
to  reform  a  deed,  where  the  complainant  has  been  all  the  time  in  undis- 
turbed possession.  Mills  v.  Lockwood,  42  111.  Ill ;  Schroeder  v.  Smith, 
249  111.  574,  94  N.  E.  969.  Nor  has  the  statute  of  frauds  any  applica- 
tion to  a  suit  to  correct  a  deed,  on  the  ground  of  mistake,  to  make  it 
conform  to  the  intention  of  the  parties.    Hunter  v.  Bilyeu,  30  111.  228. 

The  agreement  is  clearly  shown  and  the  property  intended  identified. 
The  decree  is  reversed  and  the  cause  remanded,  with  directions  to  enter 
a  decree  granting  the  relief  prayed  for. 

Reversed  and  remanded,  with  directions. 


BREEN  v.  DONNELLY  et  al.     - 
(Supreme  Court  of  California,  18S7.    74  Cal.  301,  15  Pac.  845.) 

McFarland,  J.50  This  is  an  action  to  reform  a  deed.  Judgment 
went  for  plaintiff  in  the  court  below;  and  from  the  judgment  and  or- 
der denying  a  new  trial  defendants  appeal. 

The  following  are  the  material  facts :  On  and  before  December  18, 
1867,  Patrick  Breen  and  James  Dunne  were  the  owners  in  fee  and  in 
possession,  as  tenants  in  common,  of  a  large  tract  of  land  containing 
over  48,000  acres,  and  known  as  the  "Sobrante  de  San  Lorenzo  Ran- 
cho,"  each  owning  an  equal  undivided  interest.  Prior  to  said  last- 
named  day  they  had  agreed  upon  a  partition  of  the  rancho,  to  be  ac- 
complished by  ascertaining  a  line  drawn  from  the  easterly  to  the  west- 
erly side  of  the  land,  which  should  divide  it  exactly  into  two  halves  or 

40  Parts  of  the  opinion  are  omitted. 
50  Parts  of  the  opinion  are  omitted. 


768  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

equal  parts,  and  interchanging  deeds  of  conveyance  so  that  each  would 
own  a  half  in  severalty.  To  this  end  they  had  employed  one  Smith, 
reputed  and  believed  by  them  to  be  an  honest,  competent,  and  skillful 
surveyor,  to  run  said  line,  who  had  reported  that  he  had  surveyed  and 
established  a  certain  line  which  divided  the  rancho  into  two  equal  areas 
as  contemplated.  This  line  was  marked  by  stakes,  and  was  afterwards 
designated  for  some  distance  by  a  plow  furrow.  Both  Breen  and 
Dunne  were  informed  by  Smith,  and  believed,  that  he  had  correctly 
computed  the  areas  on  each  side  of  said  line,  and  that  they  were  equal. 
Thereupon,  in  accordance  with  their  agreements,  on  the  said  eighteenth 
day  of  December,  1867,  said  Breen  executed  and  delivered  to  said 
Dunne  a  deed  of  conveyance  of  the  north-east  half  of  said  rancho,  and 
said  Dunne  in  like  manner  conveyed  to  said  Breen  the-  south-east  half, 
and  in  each  deed  the  description  by  metes  and  bounds  included  said 
line  run  as  aforesaid  by  said  Smith  as  a  boundary  line.  The  land  was 
then,  and  ever  since  has  been  used  solely  for  the  purpose  of  graz- 
ing.    *     *     * 

But  this  is  an  action  to  reform  a  deed, — to  correct  a  mistake  in  a 
written  instrument,  and  make  it  conform  to  the  real  intent  of  the  par- 
ties. That  a  court  of  equity  has  power  to  correct  such  a  mistake  in  a 
proper  case  is  of  course  beyond  doubt,  and  that  the  facts  here  make 
a  proper  case  is  equally  clear.  It  is  established  beyond  doubt  that  the 
two  tenants  in  common  intended  to  convey  by  deed  to  each  other  the 
half  of  a  tract  of  land,  and  that  by  pure  mistake  the  deed  sought  to 
be  reformed  failed  to  convey  such  half.  There  is  no  question  here  of 
innocent  purchasers.  ,  Neither  are  there  any  equities  by  reason  of  de- 
fendants having  put  any  improvements  on  the  land  not  included  in  the 
deed.  They  have  had  the  benefit  of  the  use  of  the  land  for  pasturage 
since  the  date  of  the  deed,  and  have  not  expended  upon  it  any  money 
whatever.  In  good  conscience,  they  ought  to  correct  the  mistake  ;  and 
their  only  defense  is  founded  upon  the  naked  plea  of  the  statute  of  lim- 
itations. 

But  we  think  that  the  action  was  commenced  in  time.  Section  338, 
Code  Civil  Proc,  enumerates  the  kinds  of  actions  which  must  be  com- 
menced within  three  years;  and  subdivision  4  of  said  section  is  as  fol- 
lows : 

"An  action  for  relief  on  the  ground  of  fraud  or  mistake.  The  cause  of  ac- 
tion in  such  case  not  to  be  deemed  to  have  accrued  until  the  discovery  by  the 
aggrieved  party  of  the  facts  constituting  the  fraud  or  mistake." 

In  the  case  at  bar  the  discovery  of  the  mistake  was  not  made  until 
1880,  at  which  time  the  cause  of  action  "is  deemed  to  have  accrued." 
The  action  was  commenced  in  less  than  two  years  afterwards.  It  was 
therefore  commenced  in  time,  unless  the  circumstances  were  such  that 
plaintiff  ought  to  have  known  the  mistake,  and  therefore  should  be  held 
in  law  to  have  had  knowledge  of  it  before  the  time  of  its  actual  'dis- 
covery. But  we  think  that  there  were  no  circumstances  from  which 
he  should  be  charged  with  such  knowledge.     After  the  partition  line 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  769 

had  been  run  by  a  surveyor  believed  to  be  competent  and  honest,  and 
who  had  been  specially  employed  for  that  purpose,  there  was  nothing 
to  excite  the  suspicion  of  either  party  that  such  line  did  not  divide  the 
rancho  into  two  equal  parts.  Looking  at,  or  walking  or  riding  over, 
or  using  for  grazing  purposes,  a  tract  of  land  containing  over  24,000 
acres,  would  not  indicate  to  any  one  that  it  was  500  acres  more  or  less 
than  the  half  of  another  tract  containing  over  48,000  acres.     *     *     * 

Judgment  and  order  affirmed. 

We  concur:   Thornton,  J. ;    Sharpstein,  J. 


DUVALL  v.  SIMPSON  et  al. 
(Supreme  Court  of  Kansas,  1894.    53  Kan.  291,  36  Pac.  330.) 

Johnston,  J.  The  purpose  of  this  action  was  to  rectify  a  mutual 
mistake  in  describing  lands,  in  a  deed  of  conveyance,  which  had  been 
purchased  by  plaintiff  from  defendants.  The  averments  of  the  petition 
are  to  the  effect  that,  according  to  the  understanding  and  agreement  of 
the  parties,  a  much  larger  quantity  of  land  was  purchased  than  was 
described  in  the  conveyance.  The  purchase  was  made  and  the  convey- 
ance executed  on  December  4,  1884;  and  the  plaintiff  alleged  that  she 
supposed  and  believed  that  she  had  received  a  conveyance  of  the  quan- 
tity of  land  agreed  upon  and  intended  to  be  conveyed  until  about  April 
1,  1887,  when  the  mistake  was  discovered.  Soon  thereafter,  and  with- 
in a  reasonable  time,  she  notified  defendants  of  the  mistake  in  the  de- 
scription, and  demanded  that  the  conveyance  should  be  rectified  in  ac- 
cordance with  the  mutual  understanding  and  agreement  of  the  parties, 
but  the  demand  has  not  been  acceded  to  by  defendants.  The  legal  title 
to  the  land  intended  to  be  conveyed,  and  not  included  in  the  convey- 
ance, has  remained  in  the  defendants,  so  that  the  rights  of  third  parties 
have  not  intervened,  and  would  not  be  affected  by  a  correction  of  the 
alleged  mistake.  This  action  was  begun  on  January  24,  1890;  and, 
upon  demurrer  to  the  averments  of  the  petition,  the  court  held  that  the 
plaintiff  was  not  entitled  to  the  relief  sought. 

It  is  contended  that  the  lapse  of  time  is  a  bar  to  the  correction  of  the 
conveyance,  and  it  is  said  that  this  was  the  ground  upon  which  the  dis- 
trict court  rested  its  decision.  It  is  claimed  that  the  five-years  statute 
of  limitations  applies  in  a  case  of  this  character,  and  that,  as  five  years 
and  one  month  elapsed  from  the  execution  of  the  instrument  until  the 
bringing  of  the  action,  the  court  was  justified  in  refusing  the  relief.  If 
that  statute  was  applicable,  and  began  to  run  when  the  instrument  was 
executed,  the  claim  would  be  well  founded ;  but  in  cases  of  fraud  or 
mistake  the  statute  begins  to  run  from  the  time  of  the  discovery  of  the 
fraud  or  mistake,  and  not  before,  or  from  the  time  at  which,  by  the  ex- 
ercise of  reasonable  diligence,  it  might  have  been  discovered.  The  dis- 
Boke  Eq. — 49 


770  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Cll.  3 

covery  in  this  case  was  made  less  than  three  years  before  the  beginning 
of  the  action,  and  we  cannot  hold  that  there  was  such  laches  or  negli- 
gence in  instituting  the  suit  as  would  warrant  a  court  of  equity  in  re- 
fusing the  relief  sought. 

It  is  insisted  that  by  the  exercise  of  ordinary  diligence  the  plaintiff 
could  have  known  the  quantity  of  land  described,  and  that  her  negli- 
gence in  this  respect  should  defeat  her  action.  The  description  was  by 
metes  and  bounds,  and,  being  somewhat  long,  a  mistake  could  easily 
be  made.  In  Bank  v.  Wentworth,  28  Kan.  188,  it  is  said  that  the  most 
careful  men  make  mistakes,  and  that  oftentimes  those  mistakes  are  not 
discovered  for  years.  In  such  case,  if  application  is  made  immediately 
upon  discovery  of  the  mistake,  and  it  is  shown  that  it  is  simply  a  mis- 
take, and  no  rights  of  third  parties  are  prejudiced,  then  it  is  the  duty 
of  courts  to  intervene,  and  correct  the  mistake;  and  it  matters  not 
through  how  many  papers  or  in  how  many  proceedings  the  mistake  has 
been  carried  and  appears.  See,  also,  Mcintosh  v.  Saunders,  68  111.  128 ; 
Harold  v.  Weaver,  72  Ala.  373;  2  Story,  Eq.  Jur.  §  1521 ;  Busw.  Lim. 
§  174.  According  to  the  allegations  of  the  petition,  the  description 
written  in  the  deed  was  an  unintentional  mistake,  which  was  shared  by 
both  parties  to  the  transaction.  No  one  else  can  be  prejudiced  by  cor- 
recting the  mistake,  and  carrying  out  the  intention  of  the  parties.  We 
think  it  is  shown  that  there  was  no  such  negligence  or  laches  on  the 
part  of  plaintiff  as  will  defeat  a  rectification  of  the  deed  of  conveyance. 

The  judgment  will  be  reversed,  and  the  cause  remanded  for  further 
proceedings.    All  the  Justices  concurring.51 


COLXETT  v.  FRAZIER. 
(Supreme  Court  of  North  Carolina,  1S56.    56  N.  C.  SO.) 

Cause  removed  from  the  Court  of  Equity  of  Randolph  county. 

The  plaintiff  having  a  claim,  under  the  will  of  his  father,  to  one- 
fifth  of  a  family  of  slaves,  which  had  been  bequeathed  to  him  and  four 
other  brothers,  to  be  possessed  when  the  youngest  brother,  Washing- 
ton, should  come  of  age,  sold  the  same  to  his  brother  Ezekiel,  the 

5i  In  Wall  et  al.  v.  Meilke  et  al.  (1903)  89  Minn.  232,  94  N.  W.  68S,  at  690, 
the  court  said:  "Counsel  for  both  parties  seem  to  assume  that  an  action  for 
the  reformation  and  correction  of  a  written  instrument  upon  the  ground  of 
mutual  mistake  may  be  barred  by  a  statute  of  limitations  in  this  state ;  but 
in  this  they  are  in  error.  There  is  no  statute  applicable  to  an  action  for  refor- 
mation and  correction  of  an  instrument  upon  the  ground  of  mistake.  An  ac- 
tion upon  the  ground  of  fraud  is  covered  by  the  sixth  subdivision  of  section 
5136,  Gen.  St.  1894,  where  it  also  provided  that  such  a  cause  of  action  shall 
not  be  deemed  to  have  accrued  until  the  discovery  by  the  aggrieved  party  of 
the  facts  constituting  fraud.  But,  if  we  had  such  a  statute,  it  could  uot  be- 
gin to  run,  as  against  defendants  Meilke,  until  the  time  they  discovered  the 
mistake,  or,  at  any  rate,  until  the  time  when,  by  the  exercise  of  due  diligence, 
such  mistake  ought  to  have  been  discovered  by  them.  This  is  a  well-settled 
rule  in  equity  in  the  absence  of  any  provision  of  a  statute  of  limitations  on 
the  subject  otherwise  fixing  the  time  when  it  shall  begin  to  run." 


Sec.  1)  REFORMATION   AND   RE-EXECUTION  771 

defendant's  testator,  for  $350,  and  made  a  bill  of  sale,  in  the  ordinary 
form,  for  his  share  of  the  property,  in  which  was  contained  an  ac- 
knowledgment that  he  had  received  the  purchase-money  and  a  release 
for  the  whole  amount. 

The  plaintiff,  in  his  bill  (to  which  there  was  an  amended  bill)  al- 
leges, that  he  never  received  but  $100  of  the  sum  thus  released ;  that 
being  very  poor  and  much  in  need  of  money,  while  his  brother  Wash- 
ington was  still  under  twenty-one  years  of  age,  he  sold  his  interest 
in  the  property,  which  had  been  bequeathed  to  him  by  his  father,  to 
his  brother  Ezekiel  for  $350,  and  made  the  bill  of  sale  as  above  stated ; 
that  on  the  day  when  he  made  the  bill  of  sale,  Ezekiel  was  to  have  paid 
him  the  $100  and  given  his  note  for  $250;  that  when  they  met  for  the 
purpose  of  concluding  the  bargain,  Ezekiel  said  he  had  been  disap- 
pointed in  getting  money,  and  therefore  was  not  able  to  comply  with 
his  part  of  the  agreement ;  he  insisted,  however,  on  plaintiff's  ex- 
ecuting the  bill  of  sale,  and  by  promising,  in  a  few  days,  to  pay  the 
money  and  give  his  note  as  agreed,  he  was  prevailed  on  to  do  so ; 
that,  shortly  afterwards,  he  paid  him  the  $100,  but  they  disagreeing 
about  the  amount  for  which  the  note  was  to  be  made,  the  plaintiff  in- 
sisting that  it  was  to  be  for  $250,  and  his  brother  that  it  was.  to  be  for 
only  $200,  no  note  was  ever  given.  The  matter  remained  so  until 
after  three  years  had  expired,  but  that  the  defendant's  testator,  with- 
in the  three  years  before  the  bringing  of  this  suit,  had  distinctly  ac- 
knowledged the  existence  of  the  debt,  and  had  promised  to  pay  it. 
He  particularly  relies  upon  an  acknowledgment  and  promise  made 
in  his  last  illness,  a  few  days  before  his  death,  which  was  within  one 
year  before  this  suit  was  brought.  The  plaintiff  gives  as  a  reason 
for  appealing  to  the  jurisdiction  of  the  Court  of  Equity,  that  if  he  had 
sued  at  law  he  would  have  been  barred  and  estopped  by  his  acknowl- 
edgment of  payment  and  the  release  in  the  bill  of  sale,  which  he  had 
given  to  his  brother ;  that  that  acknowledgment  was  inserted  from 
mistake,  ignorance,  and  a  misapprehension  of  its  effect  upon  his  rights. 

The  prayer  is  for  the  payment  of  the  balance  due  him  upon  the 
original  contract  for  the  sale  of  his  interest  in  the  slaves. 

The  defendant,  who  was  sued  as  administrator  with  the  will  an- 
nexed, answered  and  denied  the  allegations  contained  in  the  bill.  He 
also  relied  on  the  statute  of  limitations. 

There  were  replication  and  proofs;  and  the  cause  being  set  down 
for  hearing,  was  sent  to  this  Court  for  trial. 

Battle,,  J.52  *  *  *  The  ground  upon  which  the  plaintiff  bases 
his  title  to  relief  in  Equity,  is  admitted.  See  Crawley  v.  Timberlake, 
36  N.  C.  346.  The  only  difficulties  which  he  has  to  encounter  are  the 
proofs  and  the  statute  of  limitations.  The  defendant  cannot  resist  the 
force  of  the  proofs  that  his  intestate  took  a  bill  of  sale  for  the  plain- 
tiff's interest  in  the  slaves  in  question,  in  which  there  was  inserted  an 

52  Part  of  the  opinion  is  omitted. 


772  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

acquittance  for  the  purchase-money,  though  it  was  not  then  all  paid. 
The  main  reliance  for  defeating  the  recovery  is  the  statute  of  limita- 
tions ;  this,  the  plaintiff  admits,  would  bar  him,  but  for  distinct  ac- 
knowledgments of  the  debt,  and  promises  to  pay  it,  made  by  the  tes- 
tator within  less  than  three  years  before  the  bill  was  filed.  Upon  this 
part  of  the  case,  too,  the  proofs  are  clear  and  conclusive.  The  tes- 
tator died  in  the  month  of  April,  1849,  and  the  bill  was  filed  in  1851. 
While  on  his  death-bed,  and  only  a  few  days  before  his  death,  the 
testator  admitted  to  his  brother  John  that  he  still  owed  the  plaintiff  for 
the  negroes,  and  said  that  John  knew  how  much  it  was.  John  says, 
in  his  deposition,  that  he  did  not  know  how  much  the  debt  then  was, 
but  that,  in  1841,  when  the  parties  attempted  to  settle,  it  was  $250. 
The  day  before  he  died  he  told  his  sister,  Mrs.  Leach,  that  he  owed 
the  plaintiff  a  balance  of  $80  on  the  same  debt,  with  some  interest, 
which  would  make  it  amount  to  about  $100;  and  that  he  wanted  it 
paid.  Here,  then,  is  a  distinct  acknowledgment  of  a  certain  debt,  if 
not  a  positive  promise  to  pay  it.  This  is  clearly  sufficient,  according 
to  all  the  authorities,  to  remove  the  bar  of  the  statute;  the  court  of 
equity  in  this  respect,  following  the  rule  in  the  courts  of  law.  There 
is  some  other  testimony  of  acknowledgments  made  at  other  times, 
which  tend  to  corroborate  the  statements  of  the  witnesses  to  whom 
we  have  particularly  referred.  We  have  not  overlooked  the  testi- 
mony introduced  for  the  defendant.  It  shows  that  the  plaintiff,  at 
different  times,  and  to  different  persons,  admitted  that  his  brother, 
the  testator,  owed  him  nothing,  while  at  other  times,  to  one  or  more 
of  the  same  witnesses,  he  insisted  that  his  brother  was  justly  indebted 
to  him  for  the  slaves.  From  the  circumstances  under  which  the  ad- 
missions were  made,  it  is  manifest,  either  that  the  plaintiff  was  not 
serious  in  making  them,  or  that  he  did  it  to  avoid  the  payment  of  his 
taxes,  or  some  other  just  claim  about  to  be  made  upon  him.  We  can- 
not, therefore,  give  to  them  the  effect  of  disproving  the  testimony  of 
the  solemn  declarations  made  by  the  defendant's  testator  on  his  death- 
bed. Our  conclusion  is,  that  the  plaintiff  is  entitled  to  a  decree  for 
$80,  with  interest  thereon  from  the  year  1841.  As  assets  in  the  hands 
of  the  defendant  have  neither  been  alleged  in  the  bill  nor  stated  in  the 
answer,  there  must  be  a  reference,  if  the  parties  desire  it,  to  ascertain 
whether  any,  and  if  any,  what  amount,  is  in  the  hands  of  the  defend- 
ant, liable  to  the  plaintiff's  recovery. 
PER  Curiam,     Decree  accordingly. 


Sec.  2)  CANCELLATION   AND   RESCISSION  773 

SECTION  2.— CANCELLATION  AND  RESCISSION 


STANTON  v.  TATTERSALL. 

(In  Chancery  before  Sir  John  Stuart,  1853.    1  Sin.  &  G.  529,  65  E.  R.  231.) 

This  was  a  suit  by  a  purchaser  seeking  to  rescind  an  agreement  to 
purchase  an  edifice,  No.  58  Pall  Mall,  against  vendors  who  had  sold 
the  property  at  auction.  The  Plaintiff  insisted  that  the  contract  ought 
to  be  rescinded,  on  the  ground  of  misdescription  in  two  particulars : 
first,  that  the  house  thus  described  was  not  in  Pall  Mall  at  all;  and, 
secondly,  that  there  was  no  sufficient  access  to  the  house,  in  accord- 
ance with  the  description. 

The  Defendants,  Richard  Tattersall  and  George  Herbert  Lewin, 
offered  the  premises  in  question  in  the  cause  for  sale  by  auction,  at 
the  auction  mart,  on  the  20th  of  April,  1852.     *     *     * 

The  Vice-Chancellor.53  *  *  *  What  the  Plaintiff  avers  as 
the  substance  of  the  case  is  that  he  had  contracted  to  buy  certain  prop- 
erty, and  that  what  is  presented  to  him  and  is  proposed  to  be  con- 
veyed to  him  as  the  property  which  he  has  purchased,  does  not  agree 
with  the  description  given  in  the  particulars  of  sale  of  the  property 
which  he  contracted  to  buy.  There  are  two  particulars  in  respect  of 
which  a  misdescription  is  alleged. 

Where  the  property  is.  described  as  "a  freehold  estate,  being  an 
edifice,  No.  58  Pall  Mall,"  that  is  not  a  proper  description  of  a  house 
which,  in  fact,  is  not  in  Pall  Mall,  but  is  behind  another  house  situ- 
ated in  Pall  Mall. 

But  if  the  question  merely  depended  upon  the  right  of  the  Plaintiff 
to  have  the  contract  rescinded  on  that  ground,  I  think  that  he  has 
by  his  conduct  waived  that  right. 

The  auctioneer  who  sold  it  describes  it  in  his  affidavit,  which  is  the 
Defendants'  evidence,  as  consisting"  of  a  building  which  is  situate  at 
the  back  of  the  house  No.  57,  and  that  is  an  accurate  description,  as 
appears  from  the  model  which  has  been  produced  in  Court.     *     * 

But  there  is  another  ground  on  which  this  contract  ought  to  be  re- 
scinded. What  is  proposed  to  be  conveyed  to  the  Plaintiff,  as  a  right 
of  access  to  this  house,  which  is.  not  in  Pall  Mall,  but  is  behind  the 
house  No.  57  Pall  Mall,  is  a  right-of-way  consisting  of  a  passage,  which 
was  formerly  a  part  of  No.  57  Pall  Mall,  and  that  passage  and  access 
to  the  house,  of  the  length  of  at  least  sixty  feet,  is  described  in  the 
evidence  as  thus  situated : 

"The  floor  of  the  way  or  passage  is  the  timber  floor  of  the  house  No.  57,  in 
which  passage  is  laid  a  pavement  of  Yorkshire  stone ;   and  the  floor  of  the  one 

53  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


774  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Cll.  3 

pair  story  of  No.  57  forms  the  ceiling  of  the  said  passage.  The  stone  flooring 
of  the  said  passage  is  supported  underneath  on  a  timber  beam,  which  has 
deflected  in  the  middle  of  its  bearings  to  the  extent  of  two  inches  or  there- 
abouts: and  which  beam,"  one  of  the  witnesses  says,  "in  my  judgment,  is 
not  sufficient  to  support  the  same  in  a  substantial  and  durable  manner;  and 
which  said  way  or  passage  must  at  all  times,  in  my  judgment  and  belief,  be 
subjected  to  casualties  from  fire,  and  the  more  so  by  reason  of  the  three  sev- 
eral tenants  or  occupiers  of  the  messuage  No.  57,  and  from  the  decay  of  the 
timber  supports  which  sustain  the  said  stone  flooring;  and  the  said  entrance 
would  be  rendered  nearly  or  quite  impassable  by  a  fire  happening,  either  in 
the  basement  or  shop,  or  warehouse  behind,  forming  part  of  the  house  No.  57." 

It  is  also  said  that  the  infirmity  of  the  props  of  the  passage  is  such 
that  the  weight  of  an  ordinary  counting-house  safe  carried  along  it 
would  probahly  cause  it  to  give  way.  The  particulars  of  sale  do  not 
mention  any  peculiarity  as  to  the  access  to  the  house. 

The  house  not  being  in  Pall  Mall,  the  purchaser  is  at  least  entitled 
to  such  a  connexion  between  the  house  and  Pall  Mall,  and  such  means 
of  access  to  the  house,  as  may  be  reasonably  secure  and  commodious. 
It  is  said,  indeed,  that  in  the  abstract  of  title  this  passage  is  mentioned 
as  an  easement,  and  especially  as  an  easement  to  pass  with  the  house. 
But  that  is  not  enough,  where  in  truth  the  purchaser  of  the  house,  in 
order  to  reach  it,  must  pass  through  part  of  another  house  by  way  of 
easement,  without  having  a  firm  soil  below,  and  where  he  is  to  have 
above  him  the  floor  of  the  room  of  the  otber  house.  No  notice  what- 
ever having  been  given  that  this  wras  the  condition  of  the  access  to  the 
house  in  the  particulars  of  sale,  my  opinion  is  that  this  contract  must 
be  rescinded,  on  the  plain  principle  that  what  is  presented  to  the  pur- 
chaser as  the  subject-matter  of  his  contract  is  something  so  different 
from  what  must  be  understood  from  the  description  in  the  partic- 
ulars of  sale.  There  must,  therefore,  be  a  decree  to  rescind  this  con- 
tract, but  it  must  be  without  costs,  and  the  deposit  must  be  returned. 


LIVINGSTON  v.  PERU  IRON  CO. 

(Court  of  Chancery  of  New  York,  1S31.     2  Paige,  390.) 

The  bill  in  this  cause  was  filed  by  the  son  and  grantee  of  John  Liv- 
ingston, deceased,  to  set  aside  the  conveyance  of  a  lot  of  land,  on  the 
ground  of  fraud.  The  bill  stated  among  other  things,  that  Palmer, 
one  of  the  defendants,  applied  to  J.  Livingston  to  purchase  the  land 
in  question,  which  was  then  wild  and  uncultivated,  and  that  he  falsely 
represented  to  Livingston  that  the  same  was  of  little  or  no  value  ex- 
cept for  a  sheep  pasture,  for  which  purpose  he  wanted  the  lot ;  where- 
as in  point  of  fact  he  had  previously  discovered  a  valuable  ore  bed  on 
the  premises,  which  fact  he  fraudulently  concealed  from  Livingston. 
The  bill  also  stated  that  in  consequence  of  this  representation  and 
fraudulent  concealment,  Livingston  was  induced  to  sell  164  acres  of 
land  to  Palmer  at  $2  per  acre ;  when  the  ore  bed  alone  was  worth 
$70,000. 


Sec.  2)  CANCELLATION   AND   RESCISSION  775 

The  Peru  Iron  Company  demurred  to  the  bill  for  want  of  eq- 
uity.    *     *     * 

The  Chancellor  [Walworth].54  Upon  the  merits  of  this  case 
the  demurrer  cannot  be  sustained.  I  am  not  aware  of  any  case  in  our 
own  courts,  or  in  England,  where  the  simple  suppression,  by  the  buyer, 
of  a  fact  which  materially  enhanced  the  value  of  the  property,  has  been 
deemed  sufficient  to  set  aside  the  sale,  on  the  ground  of  fraud.  The 
rule  is  different  where  the  purchaser  applies  to  a  court  of  equity  to 
enforce  the  specific  performance  of  an  agreement.  In  such  a  case  this 
court  will  not  enforce  a  specific  performance  of  the  contract,  if  the 
complainant  has  intentionally  concealed  a  material  fact  from  the  ad- 
verse party,  the  disclosure  of  which  would  have  prevented  the  making 
of  the  agreement ;  but  he  will  be  left  to  his  remedy  at  law.  It  has  even 
been  questioned  by  many  whether  the  suppression  of  a  material  fact  by 
the  one  party,  of  which  fact  he  knew  the  other  party  to  be  ignorant, 
was  not  of  itself  sufficient  to  avoid  the  contract  on  the  ground  of  fraud. 
*  *  *  In  a  recent  case  before  Lord  Eldon,  he  adverts  to  the  gen- 
eral principle  that  parties  dealing  for  an  estate  have  a  right  to  put  each 
other  at  arm's  length ;  and  that  if  the  purchaser  knows  there  is  a 
mine  upon  the  estate,  and  the  vendor  makes  no  inquiry,  the  former  is 
not  bound  to  give  him  information  thereof.    But  he  says : 

"Yery  little  is  sufficient  to  affect  the  application  of  that  principle.  If  a 
word,  if  a  single  word  be  dropped  which  tends  to  mislead  the  vendor,  that  prin- 
ciple will  not  be  allowed  to  operate."    Turner  v.  Harvey,  Jacob's  R.  178. 

And  certainly  if  the  purchaser  does  any  act,  or  makes  any  declara- 
tion, with  the  intention  of  misleading  the  seller  and  preventing  him 
from  ascertaining  the  real  situation  of  the  property,  and  at  the  same 
time  conceals  from  him  a  fact  which  he  knows  to  be  material,  he  is 
guilty  of  a  fraudulent  deception. 

From  the  statement  in  the  bill  this  case  appears  to  be  one  of  that  de- 
scription. The  defendant  Palmer  had  discovered  a  valuable  mine  on 
the  lands  of  Livingston,  which  were  then  wild  and  uncultivated  and 
lay  remote  from  the  residence  of  the  latter.  Knowing  that  he  could 
not  obtain  the  land  if  he  discovered  the  fact  of  the  existence  of  the 
mine,  he  does  not  content  himself  with  making  a  bargain  in  the  lan- 
guage of  Lord  Eldon,  at  arm's  length ;  but  he  falsely  and  fraudulently 
represents  the  land  as  being  of  no  value  except  for  a  sheep  pasture,  and 
states  that  he  wants  it  for  that  purpose.  By  this  deception  the  vendor 
is  thrown  completely  off  his  guard,  and  he  contracts  to  sell  the  land 
at  the  usual  rate  or  price  of  rough  unbroken  land  in  that  region,  in- 
stead of  directing  his  agent,  near  the  premises,  to  inquire  and  ascertain 
its  true  value.     *     *     * 

The  demurrer  must  therefore  be  allowed.     *     *     * 

s*  Tbe  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


TIG  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

TORRANCE  v.  BOLTON. 

(In  Chancery,  1S72.    L.  K.  14  Eq.  Cas.  124.) 

Sir  R.  Malins,  V.  C.55  *  *  *  The  vendors,  from  the  begin- 
ning, intended  to  put  up  the  property  under  conditions  which  threw 
upon  the  purchaser  the  obligation  of  paying  off  the  mortgages  to  which 
it  was  subject,  or  in  other  words,  they  put  up  for  sale,  not  the  prop- 
erty free  from  incumbrances,  but  the  equity  of  redemption  in  it ;  and 
the  Plaintiff  swears  that  he  went  to  the  sale  intending  to  bid,  and  did 
bid,  in  the  belief  that  he  was  to  purchase  property  for  the  enjoyment 
of  which  he  would  only  have  to  pay  the  purchase-money,  and  would 
then,  after  the  expiration  of  the  life  estate  of  the  tenant  for  life,  who 
was  then  in  her  seventieth  year,  have  it  absolutely  free  from  all  in- 
cumbrances. Now  a  mistake  on  both  sides  is  undoubtedly  a  ground 
for  relieving  a  party  from  a  contract  into  which  he  has  entered. 

Mr.  Pearson  was  very  anxious  to  impress,  upon  me  that  the  Court 
never  entertains  a  suit  for  the  rescission  of  a  contract  unless  it  has 
been  obtained  by  fraud.  I  expressed  my  strong  impression,  derived 
from  many  years'  experience  in  cases  of  vendor  and  purchaser,  that 
mistake,  where  it  is  satisfactorily  established,  as  where  a  purchaser 
has  been  led  by  the  conduct  of  the  vendor  to  believe  that  he  has  been 
purchasing  one  thing  when  in  fact  he  has  been  purchasing  another,  is 
just  as  good  a  ground  for  rescuing  persons  from  a  contract  as 
fraud.     *     *     * 

This  case  raises  a  point  of  very  general  importance,  as  to  the  prac- 
tice, which  I  am  told,  prevails  in  almost  all  parts  of  England,  of  ad- 
vertising the  property  to  be  sold  under  conditions  of  sale  to  be  pro- 
duced at  the  auction.  They  are  not  annexed  to  the  particulars,  but 
are  read  and  listened  to  in  the  confusion  and  hubbub  of  the  auction- 
room,  by  persons  of  different  degrees  of  understanding,  who  are  in 
those  circumstances  intended  to  be  bound  by  conditions  of  the  most 
onerous  description  put  forward  by  persons  who  have  had  the  fullest 
opportunities  of  printing  and  annexing  them  to  the  particulars,  but 
have  failed  to  do  so.     *     *     * 

Take  the  present  case;  what  would  have  been  more  simple  than 
for  these  parties,  who,  I  believe,  intended  to  act  properly,  to  describe 
what  they  were  selling  in  accurate  terms  ?  When  a  man  describes 
property  he  is  selling  as  being  seventy-five  acres  of  land,  that  means 
that  he  is  selling  the  fee  simple.  Here  the  description  was  so  far  ac- 
curate as  to  state  that  what  was  sold  was  the  fee  simple,  not  in  pos- 
session, but  subject  to  the  life  estate  of  a  lady  in  her  seventieth  year; 
and  if  it  had  gone  on  to  say  that  it  was  sold  subject  to  mortgages  for 
£2,500,  it  would  have  been  perfectly  accurate;  but  the  vendor  has 
preferred  stating  this  by  way  of  a  condition.     Then  he   was  bound 

i5  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


Sec.  2)  CANCELLATION   AND   RESCISSION  777 

to  let  everybody  who  was  likely  to  bid  for  this  property  know  exactly 
what  he  would  have  when  he  bought,  and  under  what  conditions  he 
was  buying.     That  was  not  done.     *     *     * 

It  is  therefore,  in  my  opinion,  a  case  of  common  mistake.  The  clear 
doctrine  of  the  Court  is,  that  where  contracts  are  entered  into  by  mis- 
take they  must  be  rescinded.  That  is  shewn  by  the  passage  in  Lord 
St.  Leonards  on  Vendors  and  Purchasers  (14th  Ed.)  p.  120,  where 
Stanton  v.  Tattersall,  1  Sm.  &  Giff.  529,  is  referred  to,  and  the  rule 
is  laid  down  that  mistake  is  a  ground  for  rescinding  a  contract  in  this 
Court,  just  as  much  as  fraud.  And  the  mistake  being  one  into  which 
the  Plaintiff  has  been  led  by  the  grossly  negligent  and  improper  mode 
in  which  the  Defendant  has  conducted  the  sale,  though  I  am  satisfied 
there  was  no  intention  to  mislead,  the  consequence  is  that  the  contract 
must  be  rescinded.     *     *  •  * 

On  the  whole,  therefore,  I  come  to  the  conclusion  that  it  was  the 
duty  of  the  Defendant,  in  the  description  of  the  property  itself,  and 
not  merely  by  conditions  of  sale,  to  describe  that  it  was  an  equity  of 
redemption  which  he  was  selling.  I  think  it  was  an  improper  thing 
to  introduce  the  fact  of  the  property  being  mortgaged  by  way  of  con- 
dition at  all ;  but  if  the  vendor  did  it  in  that  way  it  was  incumbent 
upon  him  to  annex  the  conditions  to  the  particulars.  It  has  not  been 
attempted  to  be  denied  that  the  Defendant  must  have  failed  if  he  had 
been  Plaintiff  in  a  suit  for  specific  performance,  and  considering  that 
the  Plaintiff  was  led  to  give  more  than  the  value  of  the  property,  I 
think  it  is  my  duty  to  give  him  the  decree  which  he  asks. 

Then  comes  the  question  as  to  costs.  If  it  had  not  been  for  the 
correspondence  I  should  have  held  that  the  carelessness  of  the  Plain- 
tiff in  not  attending  to  the  reading  of  the  conditions  of  sale  and  want 
of  due  caution  in  not  making  inquiry  would  have  been  a  ground  for 
giving  him  the  relief  to  which  he  is  entitled  without  costs.  But  con- 
sidering the  offer  which  was  made  by  the  Plaintiff,  the  refusal  to  ac- 
cept which  led  to  the  litigation,  I  must  consider  the  Defendant  as  the 
cause  of  the  suit,  and  give  relief  with  costs. 

With  regard  to  the  return  of  the  deposit  I  understand  it  to  be  clearlv 
established  now  as  the  rule  of  the  Court  that  where  a  contract  has 
been  rescinded  on  the  ground  of  fraud,  surprise,  misrepresentation,  or 
anything  of  the  kind,  and  where  a  deposit  has  been  made,  it  is  within 
the  jurisdiction  of  this  Court  in  the  decree  that  is  made  also  to  order 
the  deposit  to  be  returned.  Therefore  it  will  be  part  of  my  decree 
that  the  deposit  also  shall  be  returned.  I  do  not  know  whether  you 
ask  for  interest,  Mr.  Cole?     *     *     * 


778  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

CROWE  et  al.  v.  LEWIN. 

(Court  of  Appeals  of  New  York,  1SS4.    95  N.  Y.  423.) 

Appeal  from  a  judgment  of  Special  Term  after  an  affirmance  by  the 
General  Term  of  the  Supreme  Court  in  the  first  judicial  department, 
by  order  made  March  20,  1883,  of  an  interlocutory  judgment  in  favor 
of  the  plaintiffs. 

This  action  was  brought  originally  by  Patrick  Crowe,  the  present 
plaintiff's  intestate,  for  the  rescission  of  an  alleged  contract,  for  the  ex- 
change of  real  estate  on  the  ground  of  fraud,  and  for  an  accounting 
for  the  rents  and  profits  of  the  premises  conveyed  by  plaintiff  while 
they  were  in  defendant's  possession. 

The  court  refused  to  find  fraud,  but  found  in  substance  that  in  Feb- 
ruary, 1878,  the  parties  entered  into  an  oral  agreement  whereby  the 
plaintiff  agreed  to  convey  to  the  defendant  and  Honora  Lewin,  his  co- 
executor  (now  deceased),  a  house  and  lot  in  New  York  city,  subject  to 
a  mortgage  thereon  of  $3,300,  in  exchange  for  four  lots  of  land  situ- 
ated near  Williams  Bridge  in  the  city  of  New  York,  which  the  execu- 
tors represented  and  claimed  they  had  power  to  convey  free  from  in- 
cumbrance, and  which  they  agreed  to  convey.  Plaintiff  fulfilled  on  his 
part,  and  the  defendants  executed  and  delivered  to  the  plaintiff  a  deed 
purporting  to  convey  title  to  the  four  lots.  The  court  further  found 
that  the  defendants,  when  they  executed  and  delivered  their  deed,  had 
not  nor  had  they  acquired  title  since  to  the  four  lots  or  any  power  to 
convey  the  same  or  any  other  four  lots  of  land  at  Williams  Bridge. 
An  interlocutory  judgment  was  directed  and  entered  requiring  a  recon- 
veyance by  the  parties  respectively,  and  that  defendants  account  for 
the  rents  and  profits  of  plaintiff's  premises ;  and  referring  it  to  a  ref- 
eree to  take  such  an  accounting. 

Further  facts  appear  in  the  opinion. 

Finch,  J.  In  this  case  the  minds  of  the  parties  never  met.  The  con- 
tract in  form  was  not  a  contract  in  fact.  It  originated  in  mistake,  and 
that  mistake  not  mutual  and  about  the  same  thing,  but  different  on  the 
part  of  each.  Taking  the  findings  as  our  guide,  it  appears  that  the 
plaintiff  agreed  to  exchange  his  house  and  lot  for  four  lots  at  Williams 
Bridge  which  the  defendants  represented  that  they  owned  and  could 
convey.  As  matter  of  fact  they  did  not  own  them,  but  did  own  a  tri- 
angular parcel  in  the  neighborhood  fronting  on  the  Bronx  river,  but  of 
trifling  value  and  much  inferior  area,  which  they  say  was  what  they 
intended  to  convey,  but  by  mistake  the  four  lots  at  Williams  Bridge 
were  substituted  in  the  deed  they  gave.  It  is  possible  that  the  findings 
of  fact  might  well  have  been  different.  The  evidence  on  which  they 
rest  is  quite  slender  and  unsatisfactory,  but  we  cannot  say  there  is 
none.  Assuming  them  to  be  true,  the  situation  was  this:  The  plaintiff 
came  into  court  alleging  that  by  the  fraud  and  deceit  of  a  false  asser- 
tion of  ownership  he  had  been  deprived  of  his  property.     The  defend- 


Sec.  2)  CANCELLATION   AND   RESCISSION  779 

ants  rebutted  the  charge  of  fraud  by  showing  a  mistake,  and  it  is  only 
as  the  result  of  that  explanation  that  fraud  was  not  found.  If  the  de- 
fendants' representation  of  ownership  related  to  the  four  lots,  it  was 
a  falsehood  and  a  fraud.  If  it  related  to  the  Bronx  river  lots  it  was 
not  so  understood  by  the  plaintiff,  and  he  was  misled  by  a  mistake. 
There  was  thus  either  fraud  or  mistake  against  which  equity  may  re- 
lieve. The  defendants'  mistake  was  that  they  conveyed  what  they  did 
not  own  and  did  not  mean  to  sell.  The  plaintiff's  was  that  he  bought 
what  he  meant  to  buy,  but  without  the  asserted  title  in  his  grantors. 
What  one  meant  to  sell  the  other  did  not  mean  to  buy,  and  what  one 
meant  to  buy  the  other  did  not  mean  to  sell. 

Such  was  the  judgment  rendered  and  it  was  right.  Its  details  are 
criticised  in  but  one  respect.  There  was  a  mortgage  to  a  savings  bank, 
resting  as  an  incumbrance  on  the  plaintiff's  property,  and  which  by  ac- 
ceptance of  the  deed  the  defendants  assumed  and  agreed  to  pay,  and 
they  now  complain  that  they  are  left  liable  to  the  savings  bank  for  the 
amount  of  the  mortgage  debt.  We  do  not  think  that  result  will  follow. 
The  judgment  which  declares  that  there  was  no  effectual  contract,  and 
therefore  no  valid  assumption  of  the  mortgage,  binds  both  parties  and 
privies ;  and  the  bank,  which  had  no  right  except  through  the  promise 
to  plaintiff,  and  dependent  wholly  upon  it,  and  could  only  claim  through 
it,  is  bound,  if  not  by  the  judgment  itself,  at  least  by  the  effect  of  the 
judgment  as  annulling  the  whole  transaction.  The  principle  decided 
in  Dunning  v.  Leavitt,  85  N.  Y.  30,  39  Am.  Rep.  617,  fully  covers  the 
point.  There  Mrs.  Leavitt's  promise  to  pay  the  mortgage  debt  was 
founded  upon  the  conveyance  to  her,  but  the  judgment  in  ejectment 
brought  by  the  Howell  heirs  determined  that  no  title  passed  to  her  by 
her  deed,  that  the  land  was  not  transferred,  and  as  a  consequence  that 
no  consideration  for  her  promise  to  the  grantor  for  the  benefit  of  the 
mortgage  remained,  and  so  she  never  became  liable.  The  effect  of  the 
decree  here  is  the  same.  It  annuls  the  deed  and  adjudges  that  the  land 
did  not  pass,  and  so  the  savings  bank  can  have  no  right  of  action  upon 
a  promise  divested  by  the  judgment  of  any  consideration.  Its  rights 
were  wholly  dependent  upon  an  effectual  transfer  of  the  mortgaged 
property,  and  affected  by  the  equities  existing  between  the  original  par- 
ties. 

The  judgment  should  be  affirmed,  with  costs.    All  concur. 

Judgment  affirmed. 


780  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

FOND  DU  LAC  LAND  CO.  v.  MEIKLEJOHN  et  al. 

(Supreme  Court  of  Wisconsin,  1903.     118  Wis.  340,  95  N.  W.  142.) 

Dodge;,  J.5G  *  *  *  The  most  vital  facts,  as  found  by  the  court, 
are  that  both  parties,  in  making  the  conveyance  between  them, 
mistakenly  supposed  that  the  surveyors  had  included  in  the  plat 
of  Sackett's  addition  all  the  ascertained  and  fenced  tract  of  land,  com- 
prising 39V2  acres,  purchased  by  Mrs.  Sackett  from  Prefontaine,  and 
upon  that  supposition  treated,  contracted,  and  finally  made  and  re- 
ceived conveyance ;  that  they  both  understood  and  supposed  the  de- 
scription used  in  the  deed  correctly  defined  that  particular  body  of  land 
so  fenced,  and  intended  that  the  same  should  be  thereby  conveyed. 
After  a  careful  examination  of  the  evidence,  we  have  no  doubt  that 
such  findings  are  fully  supported  by  it,  notwithstanding  the  repeated  as- 
sertion of  Dr.  Sackett  that  he  only  intended  to  sell  what  was  in  the 
plat.  There  are  numerous  circumstances,  as  well  as  his  own  state- 
ments on  cross-examination,  which  make  plain  that  such  assertions 
were  made  by  him  only  in  such  sense  as  to  make  them  entirely  consist- 
ent with  an  intent  to  convey  the  whole  tract.     *     *     * 

The  mutual  mistake  thus  found  to  have  existed,  and  to  have  been 
responsible  for  the  fact  that  plaintiff  failed  to  obtain  title  to  this  dis- 
puted strip  of  land  for  which  it  has  paid  the  consideration  to  the  own- 
er, is,  of  course,  a  sufficient  ground  to  warrant  a  court  of  equity  to  con- 
sider as  done  that  which  ought  to  have  been  done,  and  to  so  far  cor- 
rect and  reform  the  writing  and  records  as  to  make  them  truly  evidence 
the  actual  transaction.  This,  we  are  satisfied,  the  decree  does  effect- 
ively. The  conveyances  now  of  record  from  Prefontaine,  Brennan, 
and  Mr.  and  Mrs.  Sackett  make  complete  chain  of  title  to  plaintiff  of 
the  disputed  strip  but  for  the  ostensible  title  vested  in  appellant,  Mei- 
klejohn,  by  quitclaims  to  him.  He  is  found  to  have  taken  these  with 
full  notice  of  plaintiff's  rights  and  equities,  of  which,  indeed,  he  was 
chargeable  by  reason  of  its  possession.  He  therefore  could  have  taken 
no  superior  rights  against  it.  Hence  the  complete  cancellation  of  any 
claim  or  right  in  him  is  proper. 

Some  attempt  is  made  to  invoke  the  rule  that  equity  will  only  aid  the 
vigilant,  and  to  found  its  application  on  the  claim  that  the  plaintiff,  if 
vigilant,  would  have  discovered  that  the  surveyor's  stakes  set  when 
Sackett's  addition  was  platted  did  not  correspond  with  the  fenced 
boundaries  of  the  tract  supposed  to  be  included  therein.  Examination 
of  the  evidence,  however,  discloses,  by  very  obvious  preponderance  that 
such  fact  was  not  apparent  upon  any  reasonable  or  ordinary  inspection 
of  the  premises. 

Judgment  affirmed. 

56  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Sec.  2)  CANCELLATION   AND   RESCISSION  781 

SEVERSON  v.  KOCK  et  al. 
(Supreme  Court  of  Iowa,  1913.    159  Iowa,  343,  140  N.  W.  220.) 

Appeal  from  District  Court,  Woodbury  County;  David  Mould. 
Judge. 

This  action  was  brought  to  cancel  a  written  contract  and  deed,  on  the 
ground  that  the  same  were  procured  by  fraudulent  representations  and 
failure  of  title,  and  on  the  further  ground  of  an  alleged  rescission  by 
plaintiff,  after  discovery  by  him  that  defendants  did  not  have  title  to 
the  property,  and  after  he  found  that  the  representations  were  false. 
There  was  a  decree  for  plaintiff.    The  defendants  appeal. 

Preston,  J.57  On  February  3,  1911,  the  defendant  Jurgen  Kock 
made  a  quitclaim  deed  to  plaintiff  for  certain  real  estate  in  Sioux  City, 
and  on  the  same  day  the  parties  entered  into  a  written  contract  in  ref- 
erence thereto.  Among  other  things,  said  contract  provided  that  plain- 
tiff was  to  assume  and  pay  the  mortgages  and  liens  then  on  said  prop- 
erty. The  plaintiff  alleges  that  said  defendant  represented  that  he  was 
the  owner  in  fee  simple  of  the  property,  and  that  the  liens  and  incum- 
brances thereon  did  not  exceed  $40,000;  and  that  the  $25,000  mortgage 
on  the  property  was  a  first  mortgage,  and  could  be  carried  as  long  as 
plaintiff  desired  at  5  per  cent.  The  plaintiff  says  that  defendant  was 
not  the  owner  in  fee  simple  of  the  property,  and  that  the  liens  and  in- 
cumbrances were  more  than  $43,000,  and  that  for  plaintiff  to  become 
sole  owner  in  fee  simple,  free  of  all  liens,  plaintiff  would  have  to  pay 
more  than  $45,500;  that  the  $25,000  mortgage  had  been  foreclosed,  and 
was  drawing  8  per  cent.,  and  could  not  be  continued  at  5  per  cent.,  or  on 
any  terms ;  that  when  plaintiff  ascertained  said  statements  were  false 
he  rescinded  said  contract  and  deed,  and  delivered  defendant  a  quit- 
claim deed  for  the  property,  which  was  accepted  by  defendant. 

The  defendant  admits  the  making  of  the  contract  and  deed,  and  de- 
nies all  other  allegations  of  the  petition,  and  alleges  that  on  September 
22,  1910,  John  M.  Kock,  made  a  written  contract  to  convey  to  said  de- 
fendant his  right  to  the  property,  and  on  February  6,  1911,  conveyed 
the  property  to  plaintiff,  and  that  on  February  14,  1911,  in  further  ful- 
fillment of  said  contract  of  September  22d,  said  John  M.  Kock  made 
a  deed  to  defendant  for  the  property,  which  was  recorded  February 
18,  1911;  that  defendant  was  ready,  able,  and  willing  to  perform  his 
part  of  the  contract;  and  that  he  never  consented  to  rescind  the  same. 

The  appellant  contends,  first,  that  the  decree  canceling  the  contract 
and  deed  for  fraud  is  not  sustained  by  the  evidence ;  second,  that  the 
court  erred  in  finding  there  was  a  failure  of  title,  or  fraud,  after  John 
M.  Kock  delivered  plaintiff  a  deed  of  his  interest  on  February  6,  1911  ; 
and,  third,  that  the  quitclaim  deed  from  defendant  to  plaintiff,  the 
judgments,  and  the  suits  foreclosing  the  first  and  second  mortgages 

B7  Part  of  the  opinion  is  omitted. 


782  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

were  notice  to  plaintiff  of  the  condition  of  the  title  of  the  property  and 
the  debts  thereon,  and  that  the  court  erred  in  finding  that  plaintiff  had 
no  notice,  and  was  deceived  in  the  title,  the  amount  of  the  debts,  and 
the  foreclosure  of  the  first  mortgage. 

The  trial  court,  by  decree  canceled  and  set  aside  the  contract  and 
deed,  and  decreed  that  the  quitclaim  deed  delivered  by  plaintiff  to  de- 
fendant subsequent  to  February  3,  1911,  be  and  is  a  full  rescission, 
cancellation,  and  annulment  of  the  contract  and  deed  dated  February 
3,  1911.     *     *     * 

Where  there  is  a  positive  affirmation  of  a  fact,  the  party  to  whom 
the  representation  is  made  may  rely  thereon  without  investigation  by 
examination  of  the  records  and  the  like.  The  party  making  the  repre- 
sentation for  the  purpose  of  inducing  the  other  to  act  may  not  say  his 
statements  should  not  have  been  believed.  McGibbons  v.  Wilder,  78 
Iowa,  531,  43  N.  W.  520;  Riley  v.  Bell,  120  Iowa,  618,  95  N.  W.  170; 
20  Cyc.  62. 

Plaintiff  testifies  that  the  defendant  stated  there  were  about  $40,000 
in  liens  against  the  property,  but  did  not  think  it  would  be  that,  for  the 
reason  it  was  in  the  hands  of  a  receiver,  and  he  thought  there  would 
be  something  coming  from  the  receiver  which  would  probably  bring  it 
down  a  couple  of  thousands  under  that.  "He  said  all  of  the  incum- 
brances, everything  against  the  property,  would  not  exceed  $40,000." 
He  also  testified  that  defendant  represented  that  he  was  the  owner  in 
fee  simple  of  the  property.  These  were  positive  assertions  by  the  de- 
fendant, and  he  cannot  now  be  heard  to  say  that  plaintiff  should  not 
have  relied  thereon.  These  representations  were  not  true.  Plaintiff 
relied  on  them. 

At  law,  in  order  to  recover,  plaintiff  would  be  required  to  prove  the 
several  elements  constituting  fraud  and  deceit — "representation,  falsi- 
ty, scienter,  deception,  injury."  Boddy  v.  Henrv,  113  Iowa,  462,  85 
N.  W.  771,  53  L.  R.  A.  769;  Riley  v.  Bell,  120  Iowa,  618,  95  N.  W. 
170;  Smith  v.  Packard,  152  Iowa,  1,  130  N.  W.  1076.  A  different  rule 
obtains  in  equity.  This  court  said,  in  Mohler  v.  Carder,  73  Iowa,  582, 
35  N.  W.  647,  and  which  is  approved  in  Hunter  v.  League,  etc.,  96 
Iowa,  573,  65  N.  W.  828 : 

"Another  equally  well-established  rule  is  that,  to  entitle  a  party  to  relief  in 
equity  by  reason  of  fraudulent  misrepresentations,  it  is  not  necessary  that  it 
be  shown  that  the  party  making  the  false  statements  knew  that  they  were 
false  when  he  made  them.  They  may  have  been  innocently  made,  yet,  if  rep- 
resenting as  positive  statements  of  fact,  as  distinguished  from  mere  opinions 
and  relied  upon  by  the  other  party  to  bis  prejudice,  to  the  extent  that  he  is 
led  to  act  thereon,  equity  will  afford  relief." 

See,  also,  Maine  v.  Investment  Co.,  132  Iowa,  272,  109  N.  W.  801 ; 
McFadden  v.  Alexander,  154  Iowa,  716,  135  N.  W.  398;  Brokerage 
Co.  v.  Wharton,  143  Iowa,  65,  119  N.  W.  969;  WTilcox  v.  University, 
32  Iowa,  367;  Moyle  v.  Silbaugh,  105  Iowa,  531,  75  N.  W.  362. 

If  we  apply  this  rule  here,  plaintiff  was  entitled  to  the  relief  prayed. 
He  asked  a  cancellation  of  the  deed  and  contract  and  a  rescission.     It 


Sec.  2)  CANCELLATION   AND   RESCISSION  783 

is  true  he  claimed  there  had  been  a  rescission  by  the  parties  before  the 
suit  was  brought;  but  that  was  a  matter  of  proof,  and  he  had  a  right 
to  ask  the  court  to  rescind  for  the  fraud,  if  the  evidence  was  not  suffi- 
cient to  satisfy  the  court  that  there  had  already  been  a  rescission.  We 
are  satisfied  with  the  findings  and  decree  of  the  district  court. 
Affirmed. 


KRONMEYER  et  al.  v.  BUCK. 

(Supreme  Court  of  Illinois,  1913.    258  111.  586,  101  N.  E.  935, 
45  L.  R.  A.   [N.  S.]  11S2.) 

VickKrs,  J.58  Christian  W.  Kronmeyer  and  Sophia  M.  Staehle, 
plaintiffs  in  error,  filed  their  bill  in  chancery  in  the  circuit  court  of 
Will  county  against  Werden  Buck  to  set  aside  a  deed  made  by  Kron- 
meyer to  Buck,  and  also  to  compel  Buck  to  refund  the  proceeds  of  a 
$1,500  note  given  to  the  Will  County  National  Bank,  which  said  note 
was  signed  by  both  complainants.  The  prayer  for  relief  was  based  on 
the  charge  that  the  instruments  were  fraudulently  obtained  through 
threats,  coercion,  and  duress  and  that  they  were  without  consideration. 
Defendant  in  error  answered  denying  the  allegations  of  the  bill,  to 
which  a  replication  was  filed,  and  the  cause  was  heard  upon  evidence 
given  in  open  court.  The  court  below  dismissed  the  bill  for  want  of 
equity,  and  complainants  have  sued  out  a  writ  of  error.     *     *     * 

A  careful  examination  of  the  direct  evidence  tending  to  show  that 
Kronmeyer  was  guilty  of  embezzling  his  employer's  money  convinces 
us  that  the  most  that  can  be  said  of  it  is  that  it  raises  a  suspicion  that  a 
trifling  amount  of  money  received  was  not  accounted  for ;  but  this  evi- 
dence does  not  convince  us,  however,  that  this  trifling  discrepancy  may 
not  have  been  due  to  careless  methods  of  doing  business  rather  than 
to  an  intention  on  his  part  to  misappropriate  the  funds.     *     *     * 

At  the  time  Buck  procured  the  deed  to  all  the  real  estate  that  Kron- 
meyer owned,  and  $1,477  in  cash,  there  was  not,  nor  is  there  now,  clear 
and  satisfactory  evidence  that  Kronmeyer  actually  owed  him  one  cent. 
Having  obtained  this  property,  defendant  in  error  insists  on  his  right 
to  retain  it  regardless  of  whether  Kronmeyer  owed  him  anything  or 
not.  He  frankly  admits  on  the  witness  stand  that  he  would  insist  on 
retaining  all  of  this  property  even  if  he  knew  Kronmeyer  only  owed 
him  $5  at  the  time  the  deed  and  money  were  obtained.  What  are  the 
legal  rights  of  the  parties  under  the  foregoing  facts  ? 

We  have  no  hesitation  whatever  in  holding  that  the  execution  of 
the  note  by  Mrs.  Staehle  was  procured  by  duress.  She  was  an  innocent 
third  party.  There  can  be  no  pretense  that  she  was  indebted  to  Buck 
in  any  amount.  The  first  intimation  that  she  had  of  any  trouble  was 
when  her  brother  approached  her  in  a  highly  excited  manner  and  told 
her  Buck  claimed  he  had  been  stealing  from  him  and  that  unless  he 

5  8  Parts  of  the  opinion  are  omitted. 


784  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

got  this  note  executed  he  would  have  to  go  to  jail.  She  signed  the 
note  to  keep  her  brother  from  going  to  jail  and  under  the  belief  that 
if  she  did  sign  it  he  would  be  saved  from  imprisonment  and  prosecu- 
tion.    *     *     * 

But  it  is  said  by  the  defendant  in  error  that  the  deed,  being  an  exe- 
cuted conveyance  of  real  estate,  cannot  be  annulled  or  set  aside  by  evi- 
dence that  there  has  been  a  failure  of  consideration,  and  Redmond  v. 
Cass,  226  111.  120,  80  N.  E.  708,  Poe  v.  Ulrey,  233  111.  56,  84  N.  E. 
46,  and  other  cases  are  relied  on  in  support  of  this  proposition.  We 
recognize  the  full  force  of  the  well-established  rule  that  a  failure  of. 
consideration  for  an  executed  conveyance  of  real  estate  gives  the  gran- 
tor no  right,  at  law,  to  avoid  his  conveyance.  Page  on  Contracts,  § 
1479,  and  cases  there  cited.  But  this  is  an  equitable  proceeding,  in 
which  specific  justice  between  the  parties  before  the  court  is  of  greater 
importance  than  the  mere  mechanical  enforcement  of  a  general  rule  of 
law.  Courts  of  equity,  in  order  to  relieve  against  a  great  hardship 
where  one  has  been  induced  to  convey  real  estate  for  little  or  no  con- 
sideration, will  seize  upon  circumstances  of  oppression,  fraud,  or  dur- 
ess for  the  purpose  of  administering  justice  in  the  case  in  hand.  Kusch 
v.  Kusch,  143  111.  353,  32  N.  E.  267,  Dorsey  v.  Wolcott,  173  111.  539, 
50  N.  E.  1015,  and  McClelland  v.  McClelland,  176  111.  83,  51  N.  E.  559, 
are  illustrations  of  different  aspects  of  the  rule  above  stated. 

Assuming  that  Kronmeyer  did  not  owe  Buck  anything,  or  only  the 
nominal  sum  that  the  evidence  in  this  record  tends  to  prove,  it  would 
be  a  reproach  to  the  law  to  say  that  Buck  could  take  title  to  $5,000 
worth  of  property  and  hold  it  because  his  title  was  evidenced  by  a  deed 
under  seal,  which  cannot  be  impeached  by  showing  a  failure  of  con- 
sideration. The  facts  already  adverted  to  are  sufficient  to  give  a  court 
of  equity  jurisdiction  to  rescind  this  transaction.  If  Kronmeyer  em- 
bezzled any  money  belonging  to  Buck  he  ought  to  repay  it,  but  in  the 
absence  of  convincing  evidence  that  he  owes  any  sum  whatever,  and 
with  only  proof  enough  to  raise  a  bare  probability  that  he  may  owe  a 
trifling  amount,  a  court  of  equity  will  not  permit  Buck  to  take  the  law 
in  his  own  hands  and  penalize  Kronmeyer  by  taking  and  retaining 
title  to  this  property.  The  deed  should  be  set  aside.  If  Buck  has  re- 
ceived any  rents  or  net  profits  from  the  real  estate  he  should  be  re- 
quired to  account  for  the  same.  If  the  incumbrance  on  the  property 
has  been  discharged  by  Buck,  Kronmeyer  will  receive  the  property 
clear,  and  in  such  case  will  not  be  entitled  to  a  decree  for  any  amount 
that  Buck  may  have  paid  on  said  incumbrance.  If  the  incumbrance 
is  still  unpaid  Buck  should  be  required  to  account  for  $1,477,  and  in- 
terest thereon  at  the  rate  of  5  per  cent,  from  the  day  he  received  it. 

The  decree  of  the  circuit  court  of  Will  county  is  reversed,  and  the 
cause  remanded  to  that  court,  with  directions  to  enter  a  decree  for 
plaintiffs  in  error  in  accordance  with  the  views  herein  expressed. 

Reversed  and  remanded,  with  directions. 


Sec.  2)  CANCELLATION   AND   RESCISSION  7S5 


VANDERBILT  v.  MITCHELL  et  al. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1907.    72  N.  J.  Eq.  910,  67  Atl.  97. 
14  L.  R.  A.   [X.  S.]  304.) 

Appeal  from  Court  of  Chancery. 

Bill  by  John  Vanderbilt  against  Myra  L.  J.  Vanderbilt  and  others. 
From  a  decree  sustaining  a  demurrer  to  the  bill  (71  N.  J.  Eq.  632,  63 
Atl.  1107),  complainant  appeals. 

The  bill  in  this  case  is  filed  by  John  Vanderbilt  against  Myra  L.  J. 
Vanderbilt,  his  wife ;  William  Godfrey  Vanderbilt,  an  infant,  appear- 
ing herein  by  guardian,  and  Henry  Mitchell  as  medical  superintendent 
of  the  bureau  of  vital  statistics  of  the  state  of  New  Jersey.  The  com- 
plainant charges  that  he  is  the  husband  of  the  defendant  Myra  L.  J. 
Vanderbilt;  that  they  were  married  in  this  state  in  February,  1901,  and 
then  were,  and  are  now,  residents  of  this  state ;  that  they  lived  together 
as  man  and  wife  for  two  months  after  the  marriage,  and  no  longer ; 
that  from  September,  1901,  to  July,  1903,  the  wife  and  a  third  party 
named  lived  together  in  adultery  at  a  place  designated  in  the  bill,  and 
that  during  said  period  complainant  had  no  matrimonial  access  to  his 
wife ;  that  as  a  result  of  the  adulterous  intercourse  there  was  born  to 
the  said  wife,  in  the  state  of  New  Jersey,  on  or  about  the  20th  day 
of  October,  1903,  a  male  child,  by  her  named  William  Godfrey  Vander- 
bilt, which  infant  is  one  of  the  defendants  herein;  that  the  complain- 
ant is  not  the  father  of  the  child,  but  that  the  infant  is  an  adulterine 
bastard.  The  bill  charges  that  the  defendant,  Myra  L.  J.  Vanderbilt, 
upon  the  birth  of  said  infant,  falsely  stated  to  the  attending  physician 
that  the  complainant  was  the  father  of  the  child,  and  that  the  child  was 
the  lawful  issue  of  said  marriage  between  herself  and  the  complain- 
ant ;  that  she  made  these  false  statements  to  induce  the  physician  to 
insert  them  in  the  birth  certificate,  which  the  physician  did,  transmit- 
ting the  certificate  to  the  bureau  of  vital  statistics,  where  it  was  duly 
filed  and  recorded.     *     *     * 

The  bill  also  avers,  in  adequate  terms,  the  existence  of  a  testament- 
ary trust  created  by  the  mother  of  the  complainant,  by  the  terms  of 
which  certain  real  property  in  the  state  of  New  York  is  vested  in  cer- 
tain trustees,  from  which  the  complainant  receives  an  income  during 
the  lifetime  of  his  nephew  and  his  niece,  and  at  the  decease  of  both  the 
nephew  and  the  niece,  under  the  provisions  of  the  existing  trust  as 
stated  in  the  bill,  the  corpus  of  the  estate  is  to  be  distributed  to  certain 
persons,  in  which  distribution  the  complainant,  if  alive  at  the  time,  or 
otherwise  his  lawful  heirs  or  devisees,  would  share.  The  allegation  is 
that  the  complainant  is  sick,  infirm,  and  stricken  with  a  fatal  illness, 
and  that  it  is  the  purpose  of  the  defendants,  the  wife  and  the  infant,  to 
use  this  record,  false  in  fact,  after  the  death  of  the  complainant  and 
loss  of  testimony,  to  enable  the  infant  to  assert  his  claims  to  property 
Boke  Eq.— 50 


786  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

as  the  lawful  heir  of  the  complainant.  The  relief  sought  is  the  can- 
cellation of  this  fraudulent  record  and  the  destruction  of  its  evidential 
character  as  to  the  paternity  of  the  infant.  In  effect,  a  decree  of  nulli- 
ty as  to  this  status  of  parentage  thus  prima  facie  created  and  fraudu- 
lently recorded  against  the  complainant.  The  complainant  seeks  a 
permanent  injunction  restraining  both  the  mother  and  the  child  from 
claiming,  under  this  certificate,  for1  the  said  child,  the  status,  name, 
property,  or  privilege  of  a  lawfully  begotten  child  of  the  complainant. 
An  injunction  is  also  prayed  for  against  the  issuing,  by  the  state  medi- 
cal superintendent,  of  copies  of  this  fraudulent  record,  and  against 
Myra  L.  J.  Vanderbilt  and  William  Godfrey  Vanderbilt  from  using 
or  offering  in  evidence  the  record,  or  certified  copies  thereof,  or  in  any 
way  availing  themselves  of  its  evidential  character.  The  court  below 
sustained  a  demurrer  to  the  bill,  on  the  ground  that  the  case  did  not 
fall  within  any  recognized  head  of  equity  jurisprudence,  that  no  prop- 
erty right  is  shown  to  be  involved,  and  that  a  court  of  equity  could  not 
take  cognizance  of  personal  rights  or  redress  personal  wrongs  not  af- 
fecting property. 

Dill,  J.59  No  one  of  the  allegations  of  the  bill  of  complaint  pre- 
sents an  exception  to  the  general  rule  that  the  facts  alleged  must  be 
regarded  as  admitted  under  a  demurrer,  as  must  all  the  facts  which 
can  be  implied  by  a  reasonable  and  fair  intendment.  A  court  of  equity 
is  the  only  tribunal  which  can  afford  adequate  relief  to  the  complain- 
ant under  the  peculiar  and  somewhat  novel  circumstances  of  this  case, 
and  that  regardless  of  whether  certiorari  or  mandamus  would  afford 
him  relief  in  certain  respects. 

The  complainant  properly  invokes  the  aid  of  a  court  of  equity,  on 
the  ground  of  its  inherent  jurisdiction  over  frauds,  to  annul  and  can- 
cel a  fraudulent  certificate,  based  upon  the  false  statements  of  the  wife 
as  to  the  paternity  of  the  child,  filed  by  a  public  officer,  which  certifi- 
cate, by  force  of  the  statute,  has  such  evidential  character  that  it  is 
prima  facie  evidence  of  the  facts  therein  contained,  and  which,  unless 
attacked  by  competent  evidence,  becomes  conclusive  to  prove  the  facts 
therein  recorded.  As  we  view  the  gravamen  of  the  bill,  the  complainant 
does  not  seek  a  decree  dissolving  any  existing  valid  status,  thereby 
altering  the  actual  relation  of  the  parties,  but  a  judicial  determination 
of  the  matter  of  the  alleged  status  of  paternity  prima  facie  created  by 
this  certificate,  to  determine  that  such  alleged  status  does  not  exist  and 
to  give  adequate  relief.  In  other  words,  the  theory  upon  which  the 
equity  of  the  bill  rests  is  not  to  establish  a  status,  or,  on  the  other  hand, 
to  disestablish  a  status,  except  for  the  special  object  of  determining 
whether  the  information  given  to  the  physician  by  the  wife  was  fraudu- 
lent, and  whether  thereupon  the  certificate  itself,  so  far  as  it  imputes 
to  the  complainant  the  paternity  of  the  child  was  fraudulent.  The 
relief  sought  is  a  decree  expunging  from  the  public  records  of  this 

&u  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  2)  CANCELLATION   AND   RESCISSION  787 

state,  on  the  ground  of  fraud,  the  certificate  of  birth,  or  so  much  there- 
of as  relates  to  and  charges  upon  the  complainant  the  paternity  of  the 
child,  with  an  injunction  against  all  parties  who  might  issue  copies  or 
use  such  copies  or  the  original  certificate  as  evidence  of  such  pater- 
nity.    *     *     * 

Upon  the  question  of  equity  jurisdiction,  it  may  be  said  that  the  juris- 
diction of  a  court  of  equity  to  cancel,  annul,  and  set  aside  judgments  on 
the  ground  of  fraud,  as  well  as  certificates  and  determinations  of  pub- 
lic officers  charged  with  judicial  or  executive  functions,  is  settled.  The 
principle  is  well  stated  in  Johnson  v.  Towsley,  13  Wall.  72,  20  L.  Ed. 
485,  as  follows : 

"There  lias  always  existed  in  the  courts  of  equity  the  power  in  certain 
classes  of  cases  to  inquire  into  and  correct  mistakes,  injustice,  and  wrong,  in 
both  judicial  and  executive  action,  however  solemn  the  form  which  the  result 
of  that  action  may  assume,  when  it  invades  private  rights ;  and  by  virtue  of 
this  power  the  final  judgments  of  courts  of  law  have  been  annulled  or  modified, 
and  patents  and  other  important  instruments  issuing  from  the  crown,  or  other 
executive  branch  of  the  government,  have  been  corrected  or  declared  void  or 
other  relief  granted." 

It  was  held  in  Garland  v.  Wynn,  20  How.  6,  15  L.  Ed.  801.  that 
courts  of  equity  have  power  to  review  a  contested  claim  to  a  right  of 
entry  to  land  under  the  pre-emption  laws  and  to  set  aside  the  deci- 
sions of  the  register  and  receiver,  confirmed  by  the  commissioner  in 
a  case  where  they  have  been  imposed  upon  by  false  swearing.  Juris- 
diction in  equity  was  also  entertained  to  set  aside  an  adjudication  of 
a  register  authorizing  an  entry  upon  land  on  proof  "showing  that  the 
entry  was  obtained  by  fraud  and  the  imposition  of  false  testimony  on 
those  officers,  as  to  settlement  and  cultivation."  Lytle  v.  State  of 
Arkansas,  22  How.  (U.  S.)  193,  16  L.  Ed.  306.     *     * '  * 

The  jurisdiction  of  the  Court  of  Chancery  in  cases  of  fraud  is  as 
broad  and  far-reaching  as  the  forms,  the  devices,  and  the  ramifica- 
tions of  fraud  can  extend,  and  no  public  record  will  be  allowed  to 
stand  as  evidential  in  the  face  of  facts  showing  in  a  direct  proceeding 
in  a  court  of  equity  that  the  certificate  is  false,  conceived  in  fraud. 
and  with  deliberate  intent  to  use  it  in  the  future  to  wrongfully  estab- 
lish the  paternity  of  a  child,  create  a  liability  for  maintenance  and  sup- 
port, and  rob  the  lawful  heirs  of  a  decedent  of  their  inheritance.  If 
the  court  has  jurisdiction  to  set  aside  adjudications  of  judicial  officers 
on  the  ground  of  fraud,  it  necessarily  follows  that  a  public  record,  the 
essential  facts  of  which  are  obtained  by  ex  parte  statements,  without 
the  sanction  of  an  oath  and  prepared  by  an  officer  whether  performing 
a  ministerial  or  judicial  function,  may  be  annulled,  and  rendered  in- 
nocuous by  a  decree  of  a  Court  of  Chancery,  especially  where  private 
rights  are  invaded  and  where  the  forms  of  law  are  used  to  perpetrate 
a  fraud,  establish  an  unfounded  claim  or  injuriously  affect,  or  threaten 
future  vested  or  contingent  estates.  A  well-recognized  jurisdiction 
of  a  court  of  equity  is  to  compel  the  surrender  and  cancellation  of  in- 
struments, such  as  notes,  where  they  have  been  procured  by  fraud. 


788  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Cll.  3 

It  cannot  be  that  a  court  of  equity  has  jurisdiction,  on  the  ground 
of  fraud,  to  compel  the  cancellation  of  an  obligation  for  the  payment 
of  a  specified  sum  of  money,  and  has  not  the  power  to  compel  the 
cancellation  of  an  instrument,  by  fraud  made  a  public  record,  which 
unjustly  places  upon  the  complainant  the  burden  of  a  prima  facie 
status  of  paternity  and  exposes  him  to  the  liability  to  support  and 
maintain  the  infant. 

The  complainant  is  entitled  to  be  relieved  of  the  fictitious  status  of 
father  so  far  as  it  is  prima  facie  created  by  this  certificate  and  which 
may  reasonably  be  presumed  to  impose  burdens  upon  him,  both  pres- 
ent and  future.  To  prevent  the  injustice  of  his  being  forced  to  pay 
unfounded  claims  out  of  property  either  acquired  or  to  be  acquired, 
and  to  obviate  the  necessity,  on  the  part  of  the  complainant  or  his 
heirs,  of  meeting  from  time  to  time,  in  various  suits  and  proceedings, 
this  same  issue,  viz.,  the  validity  and  evidential  force  of  this  certificate, 
equity  interferes  in  prsesenti,  on  the  doctrine  of  quia  timet,  that  at 
some  time  in  the  future,  after  the  death  or  departure  of  witnesses  or 
other, loss  of  evidence,  the  party  or  his  privies  may  be  menaced  by 
the  outstanding  instrument.  The  effect  of  a  decree  of  nullity  in  this 
case,  when  entered  upon  the  record,  would  be  notice  to  all  the  world 
that  this  public  record  was  fraudulent  and  was  not  entitled  to  be  re- 
ceived in  evidence  in  any  court  of  this  state  to  prove  the  facts  therein 
contained,  or  entitled  to  full  faith  and  credit  in  other  states  under  the 
federal  Constitution.  The  question  in  this  case  is  not  whether  the 
Court  of  Chancery  would  have  power,  upon  a  bill  properly  framed,  to 
determine  that  the  complainant  was  not  the  father  of  the  child,  so 
as  to  preclude  forever  a  trial  of  that  question.  The  issue  here  is  nar- 
rower, and  the  effect  of  a  decree  canceling  the  birth  certificate,  find- 
ing that  the  statements  of  the  wife  to  the  physician  that  the  complain- 
ant was  the  father  of  the  child  were  false,  would  not  forever  preclude 
a  trial  of  the  question  of  paternity.  The  effect  of  the  decree  would  be 
to  destroy  the  evidential  character  of  this  certificate,  so  that  no  one 
would  be  entitled  thereafter  to  use  it  as  evidence  upon  such  issue.  The 
equity,  so  far  as  we  are  now  discussing  it,  stops  with  the  destruction 
of  the  fraudulent  piece  of  evidence  and  with  an  injunction  against 
its  use.     *     *     * 

Finally,  the  technical  basis  of  the  jurisdiction  we  are  exercising  is 
the  protection  of  property  rights.  The  equitable  character  of  the 
action  itself  requires  us  to  regard  comparatively  remote  and  trifling 
interferences  with  such  property  rights  in  the  light  of  the  great  and 
immediate  interference  with  the  personal  rights  of  the  complainant, 
although,  as  we  have  already  stated,  whether  this  bill  might  not  be 
rested  on  such  personal  basis  alone,  without  reference  to  the  technical 
protection  of  property,  is  not  now  decided,  because  the  present  case 
does  present  the  property  feature  to  an  extent  sufficient  to  satisfy  even 
the  rule  adopted  by  the  court  below. 


Sec.  2)  CANCELLATION   AND   RESCISSION  789 

Upon  the  whole  case,  we  are  of  the  opinion  that  the  Court  of  Chan- 
cery has  jurisdiction  to  afford  the  complainant  ample  and  complete 
relief,  as  already  indicated  in  this  opinion  ;  that,  should  the  Court  of 
Chancerv  refuse  relief  under  the  circumstances  stated  in  the  bill,  it 
would  cease  to  be  a  court  of  equity  governed  by  principles  of  natural 
justice,  especially  where  property  rights  may  be  said  to  be  threatened 
and   personal   rights   are   clearly  invaded. 

The  decree  sustaining  the  demurrer  is  reversed. 


SWEDESBORO  LOAN  &  BUILDING  ASS'N  v.  GANS  et  al. 
(Court  of  Chancery  of  New  Jersey,  1903.     65  N.  J.  Eq.  132,  55  Atl.  82.) 

Suit  by  the  Swedesboro  Loan  &  Building  Association  against  James 
Gans  and  others. 

Reed.  V.  C.60  This  suit  is  brought  to  have  a  mortgage,  which  has 
been  canceled  upon  the  record,  re-established  and  foreclosed.  The 
facts,  as  I  gather  them  from  the  pleadings,  from  the  meager  testi- 
mony, and  from  the  position  taken  by  counsel,  are  as  follows:  One 
Charles  Gans,  of  Gloucester  county,  made  a  mortgage  dated  March  11, 
1892,  to  the  Swedesboro  Loan  &  Building  Association,  to  secure  the 
sum  of  $1,100,  payable  in  one  year.  Charles  Gans,  the  mortgagor, 
died  June  9,  1894,  intestate,  leaving,  him  surviving  his  widow,  Kate 
P.  Gans,  and  as  his  heirs  two  brothers,  James  and  John,  and  three 
sisters,  Jennie,  Phebe,  and  Mary.  On  April  1,  1895,  the  widow  re- 
leased to  the  complainant  her  right  of  dower  in  the  mortgaged  prem- 
ises. The  complainant  accepted  a  deed  from  one  Sebastian  Gans, 
the  father  of  Charles,  the  deceased  mortgagor,  under  the  belief  that  on 
the  death  of  Charles  the  property  descended  to  his  father.  After  the 
execution  of  this  deed  the  loan  and  building  association,  believing  that 
it  held  the  legal  title  to  the  premises,  on  August  5,  1895,  canceled 
its  mortgage.  The  procuration  of  the  deed  from  Sebastian  Gans 
seems  to  have  been  accomplished  by  one  Benjamin  McAllister,  who 
was  a  scrivener,  and  was  at  one  time  a  director  of  the  building  asso- 
ciation and  did  writing- for  them,  and  who  seems  also  to  have  been 
mixed  up  in  the  settlement  of  the  estate  of  Charles  Gans.  He  appar- 
ently acted  as  intermediary  between  the  building  association  and  the 
Ganses,  and  got  the  deed,  which  the  complainant  accepted,  upon  his 
word,  as  a  conveyance  of  the  equity  of  redemption  in  the  mortgaged 
premises.  Upon  the  execution  of  this  deed  the  complainant  went 
into  possession,  and  has  since  received  the  rents  and  profits  therefrom. 
There  can  be  no  doubt  that  the  cancellation  of  the  mortgage  was  in- 
duced by  the  belief  that  by  force  of  the  deed  of  Sebastian  Gans  the 
loan  association  owned  a  complete  title  to  the  property. 

so  Parts  of  the  opinion  are  omitted. 


790  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

It  is  thus  manifest  that  the  equity  of  the  situation  is  entirely  with 
the  complainant.  The  defendants,  as  heirs  of  Charles  Gans,  received 
the  property  subject  to  the  lien  of  this  mortgage.  The  cancellation 
of  the  mortgage  was  a  pure  gift  to  the  defendants  of  the  mortgagee's 
interest  in  the  property.  The  heirs  had  not  paid  one  cent  to  bring 
about  this  change  in  the  respective  position  of  mortgagee  and  heirs. 
Neither  has  any  purchaser,  bona  fide  or  otherwise,  come  into  exist- 
ence upon  the  faith  of  the  cancellation  of  the  mortgage.  It  is  clear, 
therefore,  that,  unless  some  inexorable  rule  compels  otherwise,  the 
complainant  should  be  relieved  from  the  predicament  into  which  it 
was  misled  by  its  belief  in  its  ownership  of  a  complete  title  to  the 
mortgaged  property. 

The  substantial  ground  upon  which  the  heirs  resist  the  granting  of 
this  relief  is  that,  while  the  cancellation  was  caused  by  a  mistake  of 
the  complainant,  it  was  a  mistake  of  law,  and  not  of  fact.  The  maxim, 
"Ignorantia  juris  excusat  non,"  is  invoked  by  the  defendants.  This 
maxim  is  subject  to  so  many  exceptions  that  it  is  quite  as  often  inap- 
plicable as  applicable  to  suppose  mistakes  of  law. 

That  the  present  case,  involving  the  release  of  private  rights  under 
a  mistaken  notion  as  to  private  ownership  of  property,  is  one  in  which 
the  English  courts  of  chancery  would  afford  prompt  relief,  cannot  be 
doubted.     *     *     * 

The  result  of  the  English  cases  is  summed  up  by  Mr.  Kerr  in  the 

remark : 

"That  if  a  man,  through  misapprehension  or  mistake  of  the  law,  parts  with 
or  gives  up  private  rights  to  property,  or  assumes  obligations,  upon  grounds 
upon  which  he  would  not  have  acted  but  for  such  misapprehension,  a  court  of 
equity  may  grant  relief,  if,  under  the  general  consideration  of  the  case,  it  is 
satisfied  that  the  party  benefited  by  the  mistake  cannot  in  conscience  retain 
the  benefit  or  advantage  so  acquired."     Kerr  on  F.  &  M. 

This  statement  of  the  equitable  rule  was  cited  with  apparent  ap- 
proval by  Chancellor  Runyon  in  Macknet  v.  Macknet,  29  N.  J.  Eq. 
54-59,  and  in  Martin  v.  N.  Y.  S.  &  W.  R.  R.,  36  N.  J.  Eq.  109-112. 

The  equity  cases  in  this  country,  more  particularly  the  earlier  cases, 
exhibit  a  less  liberal  spirit  in  granting  relief  for  mistakes  in  law.  This 
resulted  mainly,  I  think,  from  the  great  influence  which  the  early  re- 
ported cases  decided  by  Chancellor  Kent  had  in  shaping  the  early 
equity  jurisprudence  of  this  country.  The  case  of  Lfiyon  v.  Richmond, 
2  Johns.  Ch.  (N.  Y.)  60,  was  an  application  to  set  aside  an  agreement 
because  it  was  entered  into  under  the  influence  of  a  supposed  condition 
of  the  law,  and  afterwards  the  Court  of  Errors  rendered  a  decision 
which  changed  the  law  as  it  was  supposed  to  exist  when  the  agreement 
was  made.  In  deciding  that  the  court  could  grant  no  relief,  Chan- 
cellor Kent,  having  in  mind,  of  course,  the  particular  facts  of  that  case, 
made  some  general  remarks  in  respect  to  the  impolicy  of  a  court  of 
equity  attempting  to  relieve  against  mistakes  of  law.  These  remarks 
appear  again  and  again  in  the  earlier  cases,  being  used  as  a  general 


Sec.  2)  CANCELLATION   AND   RESCISSION  791 

authority  against  the  granting  of  relief  in  all  cases  of  mistakes  of 
law.     *     *     * 

Our  later  cases  display  a  desire  to  discover  some  ground  to  rectify  an 
inequitable  result  flowing  from  mistakes  of  all  kinds.  Chilver  v.  Wes- 
ton, 27  N.  J.  Eq.  435  ;  Macknet  v.  Macknet,  supra ;  Martin  v.  N.  Y.  S.  & 
W.  R.  R.,  supra ;  Young  v.  Hill,  31  N.  J.  Eq.  429.  The  ability  of  courts 
of  equity  to  rectify  mistakes  arising  from  ignorance  of  the  law  is  every- 
where acknowledged  to  exist  in  certain  instances.  The  propriety  of 
exercising  this  power  must  depend  upon  the  circumstances  which  sur- 
round each  case.  It  will  depend  upon  whether  a  party  who  asks  relief 
has  been  negligent ;  whether  he  has  been  led  into  his  belief  by  the 
other  party;  whether  other  innocent  parties  will  be  injured  by  a  rec- 
tification of  the  mistake ;  or  whether  the  mistake  can  be  regarded  as 
one  of  fact,  although  indirectly  resulting  from  a  mistaken  notion  of 
the  law.  All  these  and  other  features  are  to  be  considered  in  decid- 
ing whether  it  is  equitable  and  politic  to  put  the  mistaken  party  in 
statu  quo.  The  cases  in  which  the  power  has  been  exercised  are  col- 
lected and  classified  in  20  Enc.  of  Law  (2d  Ed.)  p.  16.  In  my  judg- 
ment, the  power  should  be  exercised  in  the  present  case.  The  mistake 
was  in  respect  to  the  ownership  of  the  property  upon  which  the  can- 
celed mortgage  was  an  incumbrance,  and  the  English  cases  treat  such 
a  mistake  as  one  of  fact. 

Again,  the  annulment  of  the  mortgage  was  without  any  considera- 
tion whatever.  Nothing  was  received  by  the  mortgagee  and  nothing 
was  paid  by  the  heirs.  The  language  of  the  Supreme  Court  of  Maine 
(Freeman  v.  Curtis,  51  Me.  140-145,  81  Am.  Dec.  564)  in  respect  to 
the  execution  of  a  release  induced  by  a  mistaken  notion  of  the  rights 
of  the  releasor  is  pertinent.    The  court  said : 

'"There  was  nothing  between  the  parties  as  a  basis  for  any  negotiation,  and 
there  was  no  claim  of  the  one  against  the  other,  valid  or  invalid.  It  was  an 
isolated  act — the  obtaining  of  a  release  of  five-sixths  of  a  valuable  estate  with- 
out any  pretense  of  any  consideration,  through  the  ignorance  of  the  parties 
giving  it.  Whether  the  defendant  was  ignorant  or  not,  it  would  be  a  reproach 
to  the  law  if  he  should  now  be  permitted  to  retain  the  fruits  of  such  a  pro- 
ceeding." 

In  my  judgment,  the  heirs  cannot,  in  the  present  case,  equitably 
retain  the  advantage  which  the  mistaken  act  of  cancellation  gave 
them.     *     *     * 

There  should  be  the  usual  decree  of  foreclosure,  with  reference  to 
a  master  to  take  an  account  of  the  rents  and  profits  as  a  basis  for 
ascertaining  the  amount  due  upon  the  mortgage. 


792  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Cll.  3 

MORELAND  v.  ATCHISON. 

(Supreme  Court  of  Texas,  1857.    19  Tex.  303.) 

Appeal  from  Grayson.    Tried  below  before  Hon.  William  S.  Todd. 
Petition  filed  September  21,  1855,  as  follows: 

The  petition  of  George  W.  Moreland,  a  resident  of  Grayson  county,  would 
represent  and  show  that  heretofore,  to  wit:  on  the  30th  day  of  October,  A.  D. 
1854,  he  purchased  of  one  Robert  Atchison,  who  is  also  a  resident  of  Grayson 
county,  and  who  petitioner  prays  may  be  made  a  defendant  to  this  petition, 
three  hundred  and  twenty  acres  of  land  in  Grayson  county,  and  described  as 
follows:  [Here  followed  a  description  of  the  land  by  metes  and  bounds,  fixing 
the  beginning  corner  by  course  and  distance  from  the  S.  E.  corner  of  Thomas 
F.  Hay's  pre-emption  survey.]  Petition  charges  that  on  the  9th  day  of  Decem- 
ber, A.  D.  1853,  one  Daniel  Boon  filed  his  application  as  a  pre-emptioner  with 
the  county  surveyor  of  Grayson  county  to  pre-empt  the  aforesaid  land.  Peti- 
tioner further  charges,  that  on  the day  of  ,  A.  D.  1S54,  and  be- 
fore your  petitioner  purchased  the  aforesaid  land  of  the  said  Robert  Atchison, 
the  said  Atchison  purchased  the  same  of  the  said  Daniel  Boon,  for  and  in  con- 
sideration of  the  sum  of  three  hundred  and  twenty  dollars.  Petitioner  fur- 
ther charges,  that  said  sale,  made  by  the  said  Boon  to  the  said  Atchison,  was 
never  reduced  to  writing,  aud  that  after  your  petitioner  had  purchased  the 
same  as  aforesaid  of  the  said  Atchison,  he,  the  said  Atchison,  proposed,  as 
there  was  no  writing  between  him  and  the  said  Boon,  that  the  said  Boon 
should  make  a  deed  of  conveyance  to  your  petitioner  directly,  which  would 
save  the  making  of  a  deed  from  the  said  Boon  to  the  said  Atchison,  and  from 
him,  the  said  Atchison,  to  your  petitioner,  and  would  also  save  the  expenses  of 
recording  more  than  one  deed,  which  your  petitioner  agreed  to  for  convenience. 
Petitioner  further  charges,  that  in  pursuance  of  the  aforesaid  agreement,  and 
for  the  purpose  of  saving  expenses  and  for  convenience  sake,  the  said  Boon 
did,  on  the  30th  day  of  October,  1854,  execute  to  your  petitioner  a  deed  of  con- 
veyance for  the  aforesaid  320  acres  of  land.  Petitioner  charges  as  aforesaid, 
that  said  deed  was  made  directly  from  Boon  to  your  petitioner,  for  the  pur- 
pose aforesaid,  and  not  for  any  consideration  paid  by  petitioner  to  said  Boon. 
Petitioner  states  that  the  entire  trade  was  made  between  him  and  the  said  de- 
fendant, and  that  the  entire  consideration  paid  by  petitioner  for  said  land 
was  paid  to  the  said  Atchison,  with  whom  he  traded,  and  that  he  never  made 
any  contract  with  said  Boon  for  said  land,  nor  did  he  ever  pay  the  said  Boon 
any  of  the  consideration  for  the  said  land ;  and  he  further  states  that  it  was 
agreed  that  said  Boon  should  be  substituted  as  the  maker  of  said  deed  to  your 
petitioner,  in  the  place  of  said  Atchison  ;  all  of  which  the  said  Atchison  pro- 
posed himself  and  agreed  to ;  which  said  deed,  made  by  the  said  Boon  as 
aforesaid,  is  hereto  attached  and  made  a  part  of  this  petition,  and  marked 
"Exhibit  A."  Petitioner  further  states  and  charges,  that  at  the  time  he  made 
the  aforesaid  purchase  of  the  said  Atchison,  he  was  a  stranger  in  the  country, 
and  was  an  entire  stranger  to,  and  unacquainted  with,  the  land  system  of 
Texas,  he  being  just  moved  into  the  state  of  Texas,  and  that  the  said  Atchison 
represented  himself  as  an  old  settler  in  Texas,  and  entirely  familiar  with  the 
lands  and  with  the  laws  governing  land  titles  within  Texas.  Petitioner  fur- 
ther charges,  that  said  Atchison  corruptly  and  fraudulently  represented  to 
your  petitioner  that  he,  the  said  Atchison,  had  a  good  title  to  the  aforesaid 
320  acres  of  land,  and  that  your  petitioner  could  hold  the  same  without  any 
molestation  or  hindrance,  and  that  he  would  guarantee  the  title  to  the  same. 

Petitioner  states  that,  believing  and  confiding  in  the  representations  and 
statements  made  by  the  said  Atchison  as  aforesaid,  and  that  his,  the  said 
Atchison's,  title  to  the  said  land  was  good,  purchased  the  same  as  aforesaid 
from  the  said  Atchison,  for  which  he  paid  the  said  Atchison  one  stallion  Jack 
at  seven  hundred  dollars ;  also  one  order  from  Boon  on  the  said  Atchison,  one 
hundred  dollars;  he  also  executed  to  the  said  Atchison  his  two  certain  promis- 
sory notes  for  one  hundred  bushels  of  corn  each,  rating  corn  one  dollar  per 
bushel ;  one  of  said  notes  is  due  in  the  fall  of  the  year  1855 ;  the  other  due 
in  the  fall  of  the  year  1S56;    making  in  the  whole  your  petitioner  paid  and 


Sec.  2)  CANCELLATION   AND   RESCISSION  793 

was  to  pay  for  said  land,  one  thousand  dollars.  Petitioner  further  charges 
that  said  Atchison  did  not  have  any  title  to  said  land,  and  that  your  petitioner 
acquired  no  title  by  his  aforesaid  purchase,  and  that  at  the  time  the  said  Boon 
made  his  application  to  pre-emption  the  same,  it  was  not  subject  to  be  pre- 
empted or  located,  because  the  320  acres  of  land  was  lying  in  what  was  known 
and  called  refers'  colony,  and  that  by  law,  all  persons  were  prevented  from 
pre-empting  or  locating  any  lands  in  said  colony,  except  by  virtue  of  colony 
certificates.  He  therefore  charges  that  the  said  Atchison  had  no  title  what- 
ever to  said  land,  when  he  sold  the  same  to  your  petitioner.  Petitioner  there- 
fore charges  that  he  was  wholly  induced  to  purchase  said  land  by  the  false 
and  fraudulent  representations  made  to  him  by  the  said  Atchison,  that  the 
title  to  the  same  was  good. 

The  premises  considered,  he  brings  this  suit,  and  prays  that  said  Atchison 
be  made  a  defendant  herein,  and  hereby  tenders  back  the  deed  that  the  said 
Boon  executed,  to  and  all  the  rights  he  acquired  by  the  same,  to  the  said 
Atchison.  And  he  also  here  offers  to  release  unto  the  said  Atchison  all  the  in- 
terest that  he  may  have  acquired  by  his  aforesaid  purchase. 

Petitioner  also  prays  for  judgment  against  the  said  Atchison  for  the  sum  of 
eight  hundred  dollars,  which  he  has  paid  him,  together  with  the  interest 
thereon  due.  Also,  the  sum  of  five  hundred  dollars  as  damages,  by  reason  of 
the  fraud  practiced  on  him  by  the  said  Atchison. 

Petitioner  further  prays  that  the  said  Atchison  be  compelled  to  surrender 
the  two  aforesaid  notes  executed  by  your  petitioner  to  the  said  Atchison  for 
corn,  and  that  the  same  be  cancelled,  set  aside,  and  held  for  nought.  Petitioner 
further  prays  for  citation  against  said  defendant,  and  also  for  all  relief  that 
may  seem  equitable  and  just  in  the  premises,  and  the  nature  of  this  case  de- 
mands, and  as  in  duty  bound  petitioner  will  ever  pray,  etc.     *     *     * 

Defendant  filed  a  general  demurrer,  and  for  special  exceptions  as 
follows : 

1st.  Plaintiff  seeks  to  annul  a  sale  of  land  for  fraud  in  the  vendor  in  repre- 
senting his  title  to  be  good  when  he  set  out  a  deed  in  writing  as  a  part  of  this 
petition,  only  quit-claiming  to  plaintiff. 

2d.  Plaintiff  desires  to  annul  a  written  contract  and  sale  of  land  for  want 
of  a  covenant  of  warranty  in  the  same,  when  he  expressly  declares  that  the 
deed  was  made  to  him  by  Boon  instead  of  Atchison,  by  his  consent,  and  for 
his  own  convenience. 

3d.  No  matter  what  were  the  parol  representations  of  defendant  in  regard 
to  his  title,  the  plaintiff  has  accepted  the  quit-claim  and  is  bound  thereby. 

Defendant  also  denied  the  fraud  charged ;  claimed  damages  in  re- 
convention on  the  ground  of  impotency  of  the  Jack,  and  also  claimed 
in  reconvention  a  recovery  of  the  note  which  had  fallen  due.  The 
court  sustained  the  demurrer,  and  plaintiff  declining  to  amend,  the 
cause  went  to  trial  on  the  pleas  in  reconvention  (the  plaintiff  except- 
ing), and  defendant  obtained  a  verdict  for  the  amount  of  the  note ; 
judgment,  etc. 

WhEELER,  J.61  Whatever  differences  of  opinion  adjudged  cases 
may  exhibit,  as  to  the  cases  where  the  purchaser  of  land  will  be  en- 
titled to  have  the  contract  rescinded,  or  to  be  relieved  against  se- 
curities given  for  the  purchase  money,  where  there  is  no  charge  of 
fraud,  it  is  clearly  settled  beyond  controversy,  that  chancery  will 
decree  a  return  of  the  purchase  money,  for  insufficiency  of  title,  even 
after  the  purchase  has  been  carried  completely  into  execution,  by 
delivery  of  the  deed  and  payment  of  the  money,  and  whether  the  deed 

ei  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


794  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  3 

was  with  or  without  covenants,  provided  there  had  been  a  fraudulent 
representation  as  to  the  title.  Edwards  v.  McLeary,  Cooper's  Eq. 
308;  Fenton  v.  Browne,  14  Ves.  144;  Denston  v.  Morris,  2  Edw.  Ch. 
(X.  Y.)  37;  2  Kent,  Com.  471.  The  petition  avers  such  fraudulent 
representation ;  and  the  only  question  is,  whether  it  was  of  a  matter 
respecting  which  the  party  can  claim  to  be  relieved,  on  the  ground 
of  the  deception  and  fraud, — whether  he  was  not  bound  to  know  the 
law,  which  disabled  the  defendant  from  making  title,  and  whether  to 
grant  him  relief  would  not  be  to  relieve  against  ignorance  or  mistake 
of  law.  The  maxim,  "ignorantia  legis  neminem  excusat,"  is  respect- 
ed equally  in  courts  of  equity  and  law.  The  legal  presumption  is,  that 
every  man  who  is  not  non  compos  mentis  knows  the  law  where  he 
knows  the  facts;  and  this  presumption,  though  arbitrary  and  false 
in  fact,  is  founded  upon  reasons  of  sound  policy ;  for  although  a 
thorough  knowledge  of  the  law  presupposes  a  life  devoted  to  the 
laborious  study  of  principles,  and  in  the  application  of  the  knowledge 
thus  acquired,  to  the  complicated  affairs  of  men,  there  will  questions 
arise  upon  which  the  best  informed  will  differ  in  opinion,  and  no  such 
thing  as  absolute  certainty  can  be  attained  ;  yet  without  some  arbitrary 
rule,  imposing  upon  all  the  duty  of  well  considering  and  understand- 
ing the  consequences  of  their  acts  and  contracts,  there  would  be  no 
limit  to  the  excuse  of  ignorance,  no  safety  to  society,  and  no  security 
in  any  obligation.  The  law  presumes,  therefore,  that  every  man  who 
makes  a  contract  acts  advisedly  and  with  a  knowledge  of  its  legal 
effect  and  consequences.  The  question  whether,  in  any  case,  mere 
ignorance  or  mistake  of  law  will  entitle  a  party  to  relief,  has  been 
much  discussed  by  judges  and  commentators,  and  is  still  a  disputed 
question.     1  Story's  Eq.  ch.  5,  §§  111  to  138.    Judge  Story  says  that: 

"Agreements  made  and  acts  done  under  a  mistake  of  law  are  (if  not  other- 
wise objectionable)  generally  held  valid  and  obligatory.  The  doctrine  is  laid 
down  in  this  guarded  and  qualified  manner,  because  it  is  not  to  be  disguised 
that  there  are  authorities  which  are  supposed  to  contradict  it,  or  at  least  to 
form  exceptions  to  it."     *     *     * 

Admitting  the  rule  that  ignorance  of  the  law,  with  a  knowledge  of 
the  facts,  cannot  generally  be  set  up  as  a  defense  ([Storrs  v.  Barker] 
6  Johns.  Ch.  [N.  Y.]  169,  170,  10  Am.  Dec.  316),  there  are  other  ele- 
ments in  the  present  case  which  bring  it  within  the  exceptions,  or  take 
it  out  of  the  operation  of  the  rule,  and  entitle  the  party  to  relief.  It  is 
not  a  case  of  mere  ignorance  of  law,  unmixed  with  fraud  and  igno- 
rance of  fact.  There  was  both  fraud  and  ignorance  of  fact,  as  well 
as  law.  And  it  has  been  the  constant  practice  of  courts  of  chancery 
to  grant  relief,  where  the  case  did  not  depend  upon  a  mere  mistake  of 
law,  stripped  of  all  other  circumstances,  but  upon  an  admixture  of 
other  ingredients,  going  to  establish  misrepresentation,  imposition, 
undue  confidence,  undue  influence,  or  advantage  taken  of  another's 
situation.    Story's  Eq.  120  et  seq.  and  notes. 


Sec.  2)  CANCELLATION   AND   RESCISSION  795 

There  was,  in  this  case,  misrepresentation  and  fraud,  if  corruptly 
deceiving  one,  as  to  matter  of  law,  amounts  to  fraud,  in  a  legal  sense ; 
and  we  clo  not  doubt  that  it  may,  where,  as  in  this  case,  advantage  is 
taken  of  the  ignorance  of  the  party.  An  immigrant  arrives  in  the 
country,  and  his  first  object  is  to  procure  a  home.  He,  of  course,  is 
ignorant  respecting  the  land  titles  of  the  country ;  and  he  meets  with 
an  old  citizen  who  professes  familiarity  with  them,  and  who  proposes 
to  sell  him  land  to  which  he  assures  him  he  had  a  perfectly  good  title. 
The  immigrant  relies  on  his  superior  information,  and  trusts  to  his 
representation ;  and  has  he  not  a  right  to  do  so  ?  When  one  who  has 
had  superior  means  of  information  professes  a  superior  knowledge, 
even  of  the  law,  and  thereby  obtains  an  unconscientious  advantage  of 
another,  who  is  confessedly  ignorant,  and  who  has  not  been  in  a  situa- 
tion to  be  informed,  is  not  the  injured  party  as  much  entitled  to  relief, 
on  the  ground  of  fraud,  as  if  the  misrepresentation  were  of  a  matter 
of  fact?    We  think  he  is. 

The  plaintiff  is  not  supposed  to  have  had  a  knowledge  of  the  laws 
of  this  state  until  he  came  within  their  influence.  Ignorance  of  the 
law  signifies  ignorance  of  the  laws  of  one's  own  country;  ignorance  of 
the  law  of  a  foreign  government  is  ignorance  of  fact.  Haven  v.  Fos- 
ter, 9  Pick.  (Mass.)  112,  130,  19  Am.  Dec.  353.  To  deny  him  relief 
against  a  ruinous  contract,  induced  by  the  misrepresentation  of  one 
wdio  professes  a  knowledge  of  the  subject,  and  who  has  been  in  a  sit- 
uation to  be  informed,  while  he  has  not,  and  when,  if  he  had  been 
informed,  he  would  not  have  made  the  contract,  would  not  only 
be  extremely  unreasonable  and  unjust  to  the  injured  party,  but  it 
would  be  giving  a  premium  to  the  other  party  for  taking  advantage 
of  his  ignorance.  It  would  be  plainly  repugnant  to  good  morals  and 
fair  dealing.  There  can  be  no  good  reason  why  the  law,  in  this  case 
more  than  any  other,  should  suffer  one  who  has  no  right  or  title  to 
retain  that  which  is  the  property  of  another. 

But  the  truth  or  falsehood  of  the  representation  did  not  depend 
upon  a  mere  question  of  law ;  nor  would  a  knowledge  of  the  law  alone 
have  enabled  the  plaintiff  to  detect  its  falsehood.  He  might  have 
known  that  the  land  included  within  the  boundaries  of  the  colony  was 
reserved  by  law  from  location  and  pre-emption,  and  still  have  been 
ignorant  of  the  fact  that  this  land  was  within  the  bounds  of  the  re- 
served territory.  Whether  the  defendant  had  or  could  make  a  good 
title  to  the  land  was  a  question  of  fact  as  well  as  law,  no  less  in  this 
than  in  other  cases  where  there  had  been  a  prior  appropriation  of 
the  land.  The  misrepresentation,  therefore,  was  of  matter  of  fact  as 
well  as  law.  The  consequence  is,  that  the  defendant  lias  obtained  the 
property  of  the  plaintiff  without  consideration,  and  by  means  which 
does  not  divest  the  latter  of  his  title,  and  ought  not,  on  principle,  to 
deprive  him  of  his  remedy.  We  conclude  that  the  plaintiff  has  stated 
a  case  which  entitled  him  to  his  action  to  recover  back  his  property 


796  REFORMATION,  RE-EXECUTION,  RESCISSION,  ETC.  (Ch.  -\ 

or  its  value ;  and  that  the  court  erred  in  dismissing  the  petition.    The 
judgment  is  therefore  reversed  and  the  cause  remanded. 
Reversed  and  remanded.02 


BARKLEY  et  al.  v.  HIBERNIA  SAVINGS  &  LOAN  SOCIETY. 

(District  Court  of  Appeal  of  California,  Third  District,  1913.    21  Cal.  App.  456, 

132  Pac.  467.) 

Appeal  from  Superior  Court,  City  and  County  of  San  Francisco ;  J. 
M.  Seawell,  Judge. 

Action  by  Margaret  H.  Barkley,  executrix  of  the  will  of  Edward 
Duncan,  deceased,  and  George  O.  Davis  against  the  Hibernia  Sav- 
ings &  Loan  Society.  From  a  judgment  for  defendant,  and  an  order 
denying  a  motion  for  a  new  trial,  plaintiffs  appeal. 

For  memorandum  decision  of  Supreme  Court  denying  rehearing, 
see  132  Pac.  467. 

See,  also,  132  Pac.  462. 

Burnett,  J.63     *     *     *     Appellant  claims  that  this  action  is  brought 

under  section  3412  of  the  Civil  Code,  and  is  authorized  thereby.    Said 

section  provides  that : 

"A  written  instrument,  in  respect  to  which  there  is  a  reasonable  apprehen- 
sion that  if  left  outstanding  it  may  cause  serious  injury  to  a  person  against 
whom  it  is  void  or  voidable,  may  upon  his  application,  be  so  adjudged,  and 
ordered  to  be  delivered  up  or  canceled." 

62  Necessity  of  Giving  Notice  of  Rescission  before  Bringing  Suit. — In 
Sneve  et  ux.  v.  Schwartz  et  ux.  (1913)  25  N.  D.  287,  141  N.  W.  34S,  at  350, 
Burke,  J.,  said:  "The  first  and  most  serious  objection  raised  to  the  complaint 
is  that  it  contains  no  allegation  of  rescission,  thus  raising  the  question  as  to 
the  necessity  of  giving  notice  to  the  adverse  party  of  the  intention  to  rescind 
before  bringing  action.  The  general  rule  unquestionably  is  that  the  party  be- 
lieving himself  defrauded  must  elect  to  rescind  and  make  his  election  known 
in  some  manner  to  the  other  party.  This  is  founded  upon  the  plainest  princi- 
ples of  justice.  The  rule,  however,  is  not  broader  than  the  principles  of  jus- 
tice upon  which  it  is  founded.  In  executory  contracts,  where  the  parties  have 
merely  agreed  to  transfer  their  property  at  some  future  time,  the  necessity  for 
the  notification  is  not  so  imperative  as  in  contracts  fully  executed,  because  the 
other  party  knows  that,  until  the  negotiations  are  finally  completed,  there  is 
a  possibility  of  some  disagreement  necessitating  the  abandonment  thereof.  So 
in  the  case  at  bar,  where  neither  party  was  to  part  with  his  property  until  a 
future  date,  there  would  be  less  reason  why  one  of  the  parties  should  notify 
the  other  of  his  intention  to  rescind  on  account  of  fraud.  And  this  for  the 
reason  that  the  party  in  the  wrong  might  rectify  his  wrongful  acts  before  the 
day  of  final  settlement.  In  other  words,  the  plaintiff  herein  who  was  merely 
to  deposit  his  deed  in  escrow  might  not  feel  justified  in  rescinding  the  con- 
tract because  he  had  discovered  that  the  defendants  had  no  title  to  the  prem- 
ises which  they  were  obligated  to  convey,  because  the  defendants  might  ac- 
quire the  property  by  the  time  the  deeds  were  to  be  formally  transferred.  The 
defendants  had  until  November  loth  within  which  to  deposit  their  last  deed 
and  furnish  the  abstract.  This  action  was  begun  on  the  29th  of  December 
following,  which  was  about  as  soon  as  the  plaintiffs  could  be  expected  to  act. 
We  conclude,  therefore,  that  in  this  action  at  least  there  was  no  necessity  for 
the  plaintiffs  notifying  the  defendants  of  their  election  to  rescind  otherwise 
than  by  the  bringing  of  an  action  promptly  upon  learning  of  the  deceit  prac- 
ticed upon  them.     Brown  v.  Search  (1907)  131  Wis.  109,  111  N.  W.  210." 

63  Parts  of  the  opinion  are  omitted. 


Sec.  2)  CANCELLATION   AND   RESCISSION  797 

It  may  be  conceded  that  appellants  have  brought  themselves  within 
the  terms  of  this  section,  but  the  court  below  was  justified  in  sus- 
taining the  demurrer  on  the  ground  of  their  laches.  The  deed  from 
Davis  to  respondent,  as  we  have  seen,  was  executed  May  31,  1905, 
and  the  original  complaint  in  this  action  was  filed  May  13.  1908,  nearly 
three  years  thereafter.  There  is  net  even  an  excuse  offered  for  the 
delay,  nor  is  there  any  allegation  of  fraud  upon  the  part  of  respondent. 

As  to  the  degree  of  promptness  with  which,  under  the  circumstanc- 
es, steps  must  be  taken  to  have  the  instrument  canceled,  the  rule  in 
this  state  is  the  same  as  in  the  case  of  rescission  of  contracts. 

Burkle  v.  Levy,  70  Cal.  250,  11  Pac.  643,  involved  an  action  to  set 
aside  a  deed  of  trust  executed  by  the  plaintiffs  to  the  defendant  as 
trustee.  The  Supreme  Court,  after  referring  to  sections  1689  and  1691 
of  the  Civil  Code,  in  reference  to  rescission,  said :  "Here,  as  has 
been  seen,  the  trust  deed  was  executed  on  the  23d  day  of  May,  1884, 
and  this  action  was  not  commenced  till  the  10th  day  of  October,  1885. 
There  is  nothing  in  the  complaint  to  account  for  this  long  delay,  and 
under  the  circumstances  we  must  hold  it  unreasonable  and  fatal  to 
this  action." 

In  Bailey  v.  Fox,  78  Cal.  389,  20  Pac.  868,  where  the  action  was 
to  rescind  a  partnership  contract,  it  was  held  that  a  delay  of  four 
months  after  the  discovery  of  the  fraud  was  fatal  to  a  claim  of  right 
to  rescind. 

The  authorities,  it  may  be  said,  are  not  altogether  uniform  in  the 
application  of  the  doctrine  of  laches.  This  is  not  surprising,  however, 
in  view  of  the  element  of  discretion  that  is  therein  involved  and  of 
the  peculiar  facts  of  the  various  cases.  Prof.  Pomeroy  treats  the  sub- 
ject in  his  article  on  Cancellation  of  Instruments,  6  Cyc.  p.  300,  where- 
in many  citations  are  made  illustrating  the  different  views  of  different 
jurisdictions.  He  says  therein  that  no  attempt  is  made  "to  reconcile 
the  various  judicial  utterances  on  the  subject  of  laches."     *     *     * 

We  think  the  judgment  and  order  should  be  affirmed,  and  it  is  so 
ordered. 

We  concur:    Chipman,  P.  J.;   Hart,  J. 


798  #  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 

CHAPTER  IV 
INJUNCTION  IN  RELATION  TO  TORTS 


SECTION  1.— NATURE  OF  INJUNCTION 


MORRIS  v.  LESSEES  OF  LORD  BERKELEY. 
(In  Chancery  before  Lord  Hardwicke,  1752.    2  Yes.  Sr.  453,  28  E.  R.  2S9.) 

Motion  to  continue  injunction  to  stay  building. 

Lord  Chancellor.  Whoever  comes  into  this  court  on  such  a  right. 
must  found  it  either  on  defendant's  building  so  as  to  stop  ancient 
lights,  for  which  he  has  prescription  (notwithstanding  that  he  must 
lay  a  particular  prescription),  or  else  on  some  agreement,  either  prov- 
ed, or  reasonable  presumption  thereof.  An  insufficient  answer  is 
not  a  ground  to  continue  an  injunction:  it  must  be  excepted  to,  and 
then  if  reported  insufficient,  application  may  be  to  revive. 


HANSON  v.  GARDINER. 

(In  Chancery  before  Lord  Eldon,  1S02.     7  Ves.  305,  32  E.  R.  125.) 

The  Attorney-General,  and  Sir  Thomas  Turton,  for  the  Plaintiff, 
showed  cause  against  dissolving  the  injunction  upon  the  answer  put 
in.  The  prayer  of  the  bill  was  for  an  injunction  against  cutting  down 
timber  or  wood  in  a  wood  or  coppice,  consisting  of  about  130  acres, 
within  the  Manor  of  Bromley,  and  depasturing  cattle  therein.  The 
injunction  was  granted  by  the  Master  of  the  Rolls  upon  affidavits. 
The  plaintiff  represented  himself  as  seised  in  fee  of  this  wood  and 
coppice ;  which  were  formerly  enclosed ;  but  that  some  time  ago 
the  enclosure  was  thrown  down ;  and  considerable  damage  done  to 
him  by  the  cattle  of  the  commoners  trespassing  thereon.  The  de- 
fendants contended,  that  the  plaintiff  was  not  seised  in  fee.  The 
plaintiff  further  insisted  upon  his  right  as  Lord  of  the  Manor  under 
the  Statute  of  Merton.  St.  20  Hen.  Ill,  c.  4.  The  defendants  stated, 
that  there  are  large  patches  of  pasture  within  the  wood ;  upon  which 
they  claimed  as  commoners  a  right  of  pasture;  and  that  after  this 
enclosure  there  would  not  be  sufficient  common  of  pasture.  They  also 
claimed  common  of  estovers ;  and  denied,  that  the  wood  and  coppice 
were  ever  enclosed.    They  stated  various  encroachments  by  the  plain- 


Sec.  1)  NATURE   OF   INJUNCTION  799 

tiff:  that  for  some  time  they  acquiesced:  but  finding  his  encroachments 
increase,  they  at  length  resisted ;  which  produced  an  action  of  trespass 
by  the  plaintiff;  which  was  tried  at  the  Summer  Assizes,  1801 ;  and  the 
plaintiff  was  nonsuited.  He  afterwards,  having  permitted  the  enjoy- 
ment for  some  time,  gave  notice,  that  he  would  enclose  under  the 
Statute  of  Geo.  II.  St.  29  Geo.  II,  c.  36.  The  enclosure  was  ordered 
at  the  Sessions  under  an  agreement  with  some  of  the  commoners :  but 
the  defendants  appealed ;   and  that  order  was  quashed. 

Lord  Chancellor.1  This  bill  for  an  injunction  is  not  like  a  bill 
between  lord  and  tenant,  praying  the  establishment  of  rights,  and  an 
injunction  till,  or  at,  the  hearing,  as  auxiliary  to  the  rights :  this  bill 
not  stating  the  relation  between  the  plaintiff  and  the  tenants ;  but 
simply  praying  an  injunction.  The  law  as  to  injunctions  has  changed 
very  much ;  and  lately  they  have  been  granted  much  more  liberally 
than  formerly  they  were.  Formerly,  when  legal  rights  were  set  up  to 
the  extent,  in  which  they  are  set  up  in  this  case,  the  Court  were  very 
tender  in  granting  injunctions.  I  remember,  when  in  a  case  of  tres- 
pass, unless  it  grew  to  a  nuisance,  an  injunction  would  have  been  re- 
fused ;  and  even  in  the  case  of  waste,  if  by  temporary  acts,  from  time 
to  time  merely,  the  subject  of  an  action,  and  not  bringing  along  with 
it  irreparable  mischief,  Lord  Hardwicke  thought,  it  was  granted  only 
as  following  the  relief.  Lord  Thurlow  had  great  difficulty  as  to  tres- 
pass. I  have  a  note  of  a  remarkable  case,  in  which  the  name  of  one 
of  the  parties  was  Flamang.  There. was  a  demise  of  close  A.  to  a 
tenant  for  life;  the  lessor  being  landlord  of  an  adjoining  close  B. 
The  tenant  dug  a  mine  in  the  former  close.  That  was  waste  from  the 
privity.  But  when  we  asked  an  injunction  against  his  digging  in  the 
other  close,  though  a  continuation  of  the  working  in  the  former  close, 
Lord  Thurlow  hesitated  much ;  but  did  at  last  grant  the  injunction ; 
first  from  the  irreparable  ruin  of  the  property,  as  a  mine ;  secondly, 
as  it  was  a  species  of  trade ;  and  thirdly,  upon  the  principle  of  this 
court  enjoining  on  matter  of  trespass,  where  irreparable  damage  is 
the  consequence. 

This  led  to  Robinson  v.  Lord  Byron  [1  Bro.  C.  C.  588]  and  the 
other  cases ;  in  which  also  this  principle  operated ;  that  unless  there 
was  some  jurisdiction  to  prevent  it,  there  would  be  a  great  failure 
of  justice  in  the  country.  The  ground  of  that  case  was  irreparable 
mischief;  and  irreparable  mischief,  that  would  have  been  done,  be- 
fore there  could  have  been  any  trial  at  law  as  to  the  right  claimed  to 
let  off  the  water.  Isaac  v.  Humpage  is  a  case  upon  its  own  particular 
circumstances ;  certainly  not  standing  upon  the  notion  of  irreparable 
waste.  Mr.  Justice  Buller  put  it  upon  fraud.  It  does  not  appear 
exactly  how  he  applied  that  to  the  case :  but  it  certainly  is  not  at  all 
connected  with  what  is  here  stated.  If  this  is  to  be  considered  upon 
trespass  alone,  an  injunction  would  not  be  granted,  merely  because 

i  Part  of  the  opinion  is  omitted. 


SOO  INJUNCTION    IN   RELATION   TO   TORTS  (Ch.  4 

asked  for,  without  stating  distinctly,  that  it  was  upon  trespass  alone. 
If  it  is  not  to  be  so  considered,  then  it  is  a  bill  brought  by  the  Lord 
of  the  Manor;  which  must  be  taken  to  admit,  either,  that  there  are 
rights  of  common  of  pasture  and  estovers,  or,  that  it  may  so  turn 
out;  insisting  against  those  rights  upon  an  enclosure  made  under  the 
Statute  of  Merton  or  other  authority.  It  is  difficult  to  state,  what  he 
is  to  say  as  to  common  of  estovers :  this  case  stating,  that  he  has  a 
right  to  preclude  them  from  ingress,  &c. ;  denying  therefore  their 
right  to  estovers.     *     *     * 

Suppose,  this  bill  had  been  filed  before  an  action,  and  I  had  granted 
an  injunction  upon  the  affidavits  till  the  trial  of  an  action  directed  by 
me;  and  there  was  a  nonsuit:  it  would  be  extraordinary  after  that 
to  apply  for  a  continuation  of  the  injunction;  and  the  Court  would 
have  some  reason  to  reproach  itself  for  having  restrained  the  exercise 
of  the  right  in  the  mean  time.  I  think  myself  authorized  to  take 
what  passed  at  law,  as  if  an  action  had  been  directed  by  this  Court. 
After  that  nonsuit  the  plaintiff  opens  the  place  enclosed ;  and  admits 
their  right  by  permitting  the  enjoyment.  Then  he  makes  an  agree- 
ment for  a  compensation  for  shutting  them  out ;  as  far  as  it  goes  an 
additional  admission,  at  least  not  a  denial  of  the  right.  His  conduct 
therefore  at  and  since  the  trial  instead  of  affirming  the  allegations  of 
the  bill  renders  them  improbable ;  and  it  is  no  answer,  that  it  pro- 
ceeded from  mistaken  advice  or  advice  not  followed  up ;  when  there 
is  so  much  evidence  of  right  of  Common  of  Pasture  and  Estovers; 
the  bill  too  alleging  that  claim :  no  negative  of  the  right  to  be  put  in 
the  balance  against  the  nonsuit  upon  that  very  point  permitted  by 
the  plaintiff ;  the  answer  of  the  defendants ;  no  passage  in  any  one 
of  the  affidavits,  which  I  look  at  entirely  without  prejudice  to  the 
question,  whether  I  ought  to  look  at  them,  or  not,  containing  any 
assertion  of  marks  of  ancient  enclosures,  and  that  the  cattle  did  not 
pasture  here,  as  far  as  they  could,  while  it  was  unenclosed ;  the  de- 
fendants swearing  to  the  enjoyment  of  the  right  of  pasture;  and  in 
this  way,  that  if  the  130  acres  are  enclosed,  they  will  not  have  suffi- 
cient Common  of  Pasture;  upon  which  there  is  no  contradiction 
whatsoever. 

The  injunction  must  be  dissolved ;  and  if  there  is  any  hardship 
as  to  the  intermediate  enjoyment,  it  is  better  that  it  should  fall  upon 
the  plaintiff  than  upon  the  defendants.2 

2  See  Simon  v.  Nance  (1911,  Tex.  Civ.  App.)  142  S.  W.  661,  663,  where  the 
court  said:  "The  mere  lapse  of  time,  independent  of  the  statute  of  limitation, 
may  he  a  sufficient  ground  for  denying  an  injunction,  unless  legal  excuse  is 
shown  for  such  delay.  22  Cyc.  777,  and  authorities  there  cited ;  Morris  v. 
Edwards  (1884)  62  Tex.  205.  Long  and  continued  acquiescence  will  defeat  the 
right  to  injunctive  relief.  See  High  on  Injunctions,  vol.  1,  §  756;  also,  G.,  H. 
&  S.  A.  Ry.  Co.  v.  De  Groff  (1909)  102  Tex.  433,  118  S.  W.  138,  21  L.  R.  A. 
iX.  S.)  749." 


Sec.  1)  NATURE   OF   INJUNCTION  801 

ROWE  v.   HEWITT. 
(Divisional  Court  of  Ontario,  Canada,  1906.    12  Ont.  Law  Rep.  13.) 

This  was  an  appeal  by  the  defendants,  the  members  of  the  execu- 
tive committee  of  the  Ontario  Hockey  Association,  to  the  Divisional 
Court  from  the  judgment  of  Falconbridge,  C.  J.  K.  B.,  granting-  an 
injunction  restraining  the  defendants  from  expelling  the  plaintiff,  or 
suspending  him  as  a  playing  member  of  the  Hockey  Association. 

On  February  7,  1906,  an  interim  injunction  was  granted  ex  parte 
by  the  county  judge  of  the  county  of  Simcoe,  Ardagh,  Co.  J.,  and 
on  its  coining  before  Falconbridge,  C.  J.,  it  was  turned  into  a  motion 
for  judgment,  when  the  injunction  was  made  absolute  as  above  stated. 

The  complaint  set  forth  in  the  action  in  which  the  injunction  was 
sought,  was  that  the  Association  were  about  to  expel  or  suspend  the 
plaintiff  as  a  playing  member  of  the  Association,  in  which  he  held  a 
playing  certificate  for  one  year  and  which  expired  during  the  pend- 
ency of  this  action.  A  match  was  to  be  played  on  the  9th  February 
between  the  Barrie  Club  and  the  Argonaut  Club  of  Toronto,  the  plain- 
tiff being  a  member  of  the  former  club,  and  it  was  alleged  that  the 
contemplated  action  of  the  Association  was  to  prevent  him  from  play- 
ing in  that  match.  There  was  no  allegation  or  proof  on  the  part  of 
the  plaintiff  that  he  had  any  right  of  property  in  the  Association  of 
which  he  would  be  deprived  or  from  which  he  would  be  excluded. 

On  March  30,  1906,  the  appeal  was  heard  before  Boyd,  C,  and 
MagEE  and  Mabee,  JJ. 

April  4.  The  judgment  of  the  Court  was  delivered  by  Boyd,  C. 
The  whole  cause  of  action  alleged  by  the  plaintiff  is  that  the  defend- 
ants, or  the  body  that  they  represent,  are  about  to  expel  or  suspend 
him  as  a  playing  member  of  the  Hockey  Association.  He  holds  a 
playing  certificate  for  one  year,  which  expired  pending  this  action, 
and  his  anxiety  was  to  be  allowed  to  play  hockey  in  one  match  with 
the  Barrie  Club  on  the  9th  of  February  last. 

An  ex  parte  injunction  was  granted  on  the  7th  of  February  by 
Judge  Ardagh,  which  was  ultimately  made  absolute  as  on  a  motion 
for  judgment  by  Falconbridge,  C.  ].,  on  the  21st  February. 

The  game  in  view  either  did  not  go  on,  or  went  on  without  the 
plaintiff,  so  that  we  have  here  the  beginning  and  the  end  of  the  griev- 
ance; asking  the  interference  of  the  Court  that  plaintiff  might  play 
one  game  of  hockey. 

The  plaintiff  has  lost  nothing  nor  will  he  lose  anything  in  the 
nature  of  property  by  his  suspension  or  expulsion.  It  does  not  ap- 
pear that  he  has  paid  any  fee  or  admission,  nor  would  it  matter  if  he 
had,  for  that  would  be  answered  by  his  having  access  to  the  rooms 
and  grounds  of  the  Association — if  there  be  any.  for  as  to 'that  also 
we  are  in  the  dark.  According  to  the  rules,  the  only  result  which 
Boke  Eq. — 51 


802  INJUNCTION   IN   RELATION  TO   TORT?  (Ch.  4 

follows  the  expulsion  of  a  player  is  that  he  shall  be  barred  from  play- 
ing with  or  against  any  club  in  the  Ontario  Hockey  Association  till 
reinstated  (Regulation  7).  Even  if  he  is  to  be  permanently  barred 
from  play,  that  may  or  may  not  be  a  benefit,  but  it  is  certainly  no 
deprivation  of  any  property  right. 

In  brief,  there  is  no  allegation  and  no  proof  of  any  property,  real 
or  personal,  of  the  Association,  nothing  of  value  in  this  sense  from 
which  plaintiff  has  been  excluded — nothing  which  by  any  possibility 
could  come  to  him  if  the  Association  were  to  be  dissolved  or  wound 
up.  Jurisdiction  then,  according  to  binding  authorities,  is  funda- 
mentally lacking  in  this  case,  so  far  as  an  injunction  is  concerned — 
and  that  is  the  only  relief  given  or  claimed. 

This  point  upon  which  we  proceed  was  not  raised  or  suggested 
before  the  Chief  Justice — otherwise  we  should  not  have  been  troubled 
with  an  appeal. 

Even  if  jurisdiction  existed,  I  should  as  a  matter  of  discretion  re- 
fuse an  injunction.  That,  as  said  by  Cozens-Hardy,  J.,  is  a  formidable 
legal  weapon  which  ought  to  be  reserved  for  less  trivial  occasions. 
Llandudno  Urban  District  Council  v.  Woods  (1899)  2  Ch.  705,  710; 
see  also  as  to  a  football  match,  Radford  v.  Campbell  (1890)  6  Times 
L.  R.  488. 

It  must  appear,  to  give  jurisdiction  to  interfere  by  way  of  injunc- 
tion to  restrain  the  expulsion  of  a  member  of  a  society  or  club,  that 
the  plaintiff  as  member  has  some  right  of  property  for  the  protection 
of  which  the  court  will  interfere  by  this  method  of  relief.  If  it  be 
no  more  than  this,  that  paying  a  subscription  entitles  one  to  the  use 
and  enjoyment  of  the  rooms  and  property  and  effects  of  the  society, 
without  any  right  to  participation  in  its  assets  if  distribution  ensued, 
then  the  right  is  only  a  personal  one,  and,  if  the  expulsion  is  wrong- 
ful or  injurious,  the  person  injured  has  his  remedy  in  seeking  dam- 
ages ;  this  is  the  highest  measure  of  relief  which  the  court  will  give 
in  the  absence  of  a  right  of  property.  Baird  v.  Wells  (1890)  44  Ch. 
D.  661. 

In  case  of  voluntary  societies  the  court  has  jurisdiction,  where  all 
the  property,  in  the  event  of  dissolution,  will  go  ratably  among  the 
members,  because  each  one  has  a  pecuniary  interest  in  being  a  member 
and  to  resist  being  improperly  expelled.  Brown  v.  Dale  (1878)  9 
Ch.  D.  78;  Rigby  v.  Connol  (1880)  14  Ch.  D.  482,  at  p.  487,  per 
Jessel,  M.  R. 

The  facts  and  the  law  are  both  against  the  plaintiff,  and  the  action 
should  be  dismissed  with  costs  and  with  costs  of  appeal. 


SeC.  1)  NATURE   OF   INJUNCTION  803 

STATE  ex  rel.  GRAY  v.  OLSEN  et  al. 
(Supreme  Court  of  South  Dakota,  1912.    30  S.  D.  57,  137  N.  W.  561  j 

Application  by  the  State,  at  the  relation  of  John  Gray,  against  Oscar 
C.  Olsen  and  others  and  S.  C.  Polley,  as  Secretary  of  State,  for  an 
injunction.  Demurrer  to  complaint  sustained,  and  application  for  in- 
junction denied. 

McCoy,  P.  J.3  Plaintiff  makes  application  for  injunction  restrain- 
ing defendant  Samuel  C.  Polley,  as  Secretary  of  State,  from  certify- 
ing to  the  various  county  auditors  the  nominations  for  presidential 
electors  selected  by  the  Republican  state  convention  held  at  Huron 
July  2d,  under  the  provisions  of  the  primary  law.  The  electors  so 
nominated  are  also  defendants.  Plaintiff  as  a  Republican  voter  and 
elector,  by  his  petition,  claims  the  right  to  such  injunction  on  the 
ground  that  such  presidential  electors  selected  at  said  Huron  conven- 
tion were  not  and  are  not  Republicans,  and  that  their  selection  and  the 
placing  of  their  names  upon  the  official  ballots  in  the  regular  Repub- 
lican column  results  in  a  fraud  upon  plaintiff  and  all  other  Republican 
voters  of  this  state  who  desire  to  vote  for  President  Taft  by  means 
of  the  regular  Republican  ticket.  Defendants  have  demurred,  and  also 
moved  to  quash  plaintiff's  petition  on  the  ground  that  the  same  does 
not  state  facts  sufficient  to  warrant  the  injunction  relief  demanded 
by  plaintiff. 

It  is  the  contention,  among  others,  of  defendants  that  as  no  other 
Republican,  or  Taft,  electors  have  been  nominated  whose  names  might 
in  any  manner  appear  on  the  regular  Republican  ticket  in  the  Repub- 
lican column,  plaintiff  would  be  in  no  different  or  better  position  if 
the  injunction  were  granted  than  he  is  now,  in  so  far  as  his  said  po- 
litical right  to  vote  for  President  Taft  on  the  regular  ticket  is  con- 
cerned. We  are  of  the  opinion  that  this  contention  of  defendants  is 
well  taken.  Plaintiff  is  not  a  candidate  himself  for  presidential  elec- 
tor, or  for  any  other  office  affected  by  the  action  of  the  Huron  con- 
vention. The  specific  right  which  plaintiff  claims  will  be  violated  and 
invaded  is  that  of  voting,  or  the  opportunity  of  voting,  for  President 
Taft  by  means  of  the  regular  Republican  ticket  on  the  official  ballots 
to  be  used  at  the  November  election.  The  only  effect  of  the  injunction, 
if  granted,  would  be  to  prevent  the  names  of  these  electors  appearing 
in  the  Republican  column  in  the  Republican  ticket  on  the  official  bal- 
lots, and  would  accomplish  nothing  further  than  to  leave  a  vacancy  in 
the  Republican  ticket  on  the  official  ballots  as  to  Republican  nominees 
for  presidential  electors,  and  would  in  no  manner  protect  or  operate 
to  enforce  or  secure  to  plaintiff,  or  any  other  Republican  so  situated, 
the  right  or  opportunity  to  vote  for  President  Taft  by  means  of  the 
regular  Republican  ticket  on  the  official  ballots. 

3  Parts  of  the  opinions  are  omitted. 


804  INJUNCTION   IN    RELATION  TO   TORTS  (Cll.  4 

It  seems  to  be  generally  held  that  the  applicant  for  an  injunction  has 
the  burden  of  showing  that  he  would  in  some  manner  be  injured  or 
deprived  of  some  lawful  right  without  the  aid  of  such  injunction,  and 
that  by  the  granting  of  such  injunction  he  would  obtain  the  desired 
relief.  Section  197,  Code  Civ.  Pr.  It  is  another  general  rule  or  prin- 
ciple of  law  that  courts  should  never  be  required  to  perform  idle  or 
useless  acts. 

The  granting  of  the  "injunction,  as  prayed  for  by  plaintiff,  under 
the  circumstances  of  this  case,  and  in  view  of  the  present  situation 
existing  in  this  state,  with  reference  to  the  nominations  for  Repub- 
lican presidential  electors,  of  which  this  court  will  take  judicial  no- 
tice, -would  be  an  empty  and  idle  act  in  so  far  as  it  would  affect  the 
right  or  opportunity  of  plaintiff,  or  any  other  Republican  so  situated, 
to  vote  for  President  Taft  by  means  of  the  regular  Republican  ticket 
on  the  official  ballots.  On  this  ground  we  are  therefore  of  the  opin- 
ion that  the  showing  made  by  plaintiff  is  not  sufficient  to  empower 
the  court  to  grant  the  prayed  for  injunction.     *     *     * 

Some  of  our  associates  contend  that  the  injunction  prayed  for  by 
plaintiff  should  be  granted  on  the  ground  that  this  is  an  ex  rel.  action 
maintainable  by  the  Attorney  General  of  the  state  on  behalf  of  the 
people  of  the  state,  and  that  it  is  the  people  of  the  state  who  are  in- 
jured by  the  names  of  the  defendants,  nominees  for  presidential  elec- 
tors, appearing  on  the  official  ballots  in  the  Republican  column,  and, 
on  account  of  the  allegations  contained  in  plaintiff's  petition,  that  the 
Attorney  General  has  refused  to  institute  this  action  in  the  name  of 
the  people  of  the  state  plaintiff's  demand  for  injunction  should  be 
granted.  Neither  plaintiff  nor  his  counsel  have  presented  or  argued 
any  such  contention  or  question,  nevertheless,  we  are  of  the  opinion 
that  this  contention  is  also  untenable.  Whether  this  action  be  main- 
tainable by  the  Attorney  General  on  behalf  of  the  state,  or  by  private 
individuals  as  the  members  of  a  political  party,  does  not  relieve  the 
party  plaintiff,  whoever  it  may  be,  from  making  out  a  good  and  prop- 
er case  or  cause  for  injunction  under  the  rules  of  equity  applicable  to 
the  granting  of  such  relief.  Again,  we  cannot  concur  in  the  view  that 
this  is  a  cause  properly  maintainable  by  the  Attorney  General  on  be- 
half of  the  people  of  this  state.  We  are  of  the  opinion  that  neither 
a  political  party  nor  any  considerable  number  of  the  members  thereof 
constitute  the  people  of  this  state  for  the  purpose  of  seeking  relief  by 
injunction  such  as  demanded  in  the  petition  in  this  case.  Plaintiff  in 
his  petition,  in  substance,  states  that  he  is  a  Republican  voter  and 
elector  of  this  state  who  desires  to  vote  for  President  Taft,  and  that 
this  action  is  brought  by  himself  as  such  voter  and  elector  and  also 
on  behalf  of  all  other  Republican  voters  so  situated,  and  that  he  is 
injured  and  defrauded  of  his  said  right  to  so  vote  by  reason  of  the 
presence  of  the  names  of  defendants,  electors,  appearing  on  the  reg- 
ular Republican  ticket.     Conceding  that  plaintiff  has  legal  capacity  to 


Sec.  1)  NATURE   OF   INJUNCTION  805 

sue  and  maintain  this  action  as  a  party  plaintiff  for  himself  and  other 
Republican  voters  similarly  situated,  still  he  must  show  that  he  and  all 
others  so  similarly  situated  would  be  benefited  by  the  granting  of  said 
injunction  by  giving  him  the  right  or  opportunity  of  which  he  claims 
to  be  so  deprived  by  defendants.  Plaintiff  by  the  very  allegations  of 
his  petition  is  not  seeking  relief  on  behalf  of  the  whole  people  of  the 
state  or  in  which  the  whole  people  of  the  state  might  be  interested,  but 
only  as  an  elector  who  desires  to  vote  in  a  particular  manner  by  means 
of  a  particular  ticket.     *     *     * 

The  demurrer  of  defendant  may  be  sustained  and  the  application 
for  injunction  denied. 

Haney,  J.  (dissenting).  *  *  *  In  my  opinion  an  elector,  upon 
the  refusal  of  the  Attorney  General  to  prosecute,  may  maintain  a  pro- 
ceeding involving  questions  pertaining  to  the  sovereignty  of  the  state, 
its  franchises  and  prerogatives,  and  the  liberties  of  its  people,  in  this 
court,  in  the  name  of  the  state.  In  such  a  proceeding,  the  state,  not 
the  elector,  is  the  plaintiff,  and  the  latter's  interest,  other  than  as  an 
elector,  is  immaterial.  In  other  words,  in  such  a  case,  whether  on  the 
relation  of  the  Attorney  General  or  an  elector,  the  Attorney  General 
having  declined  to  act,  it  is  wholly  immaterial  what  effect,  if  any. 
the  result  of  the  proceeding  may  have  upon  the  relator.     *     *     * 

Corson,  J.  (dissenting).  I  fully  concur  in  the  dissenting  opinion  of 
my  Associate,  Judge  Haney.     *     *     * 


CITY  OF  PITTSBURGH  v.  VAN  ESSEN  et  al. 

(Common  Pleas  Court  of  Allegheny  County,  Pennsylvania,  1912. 
60  Pittsb.  Leg.  J.  711.) 

Motion  to  dissolve  preliminary  injunction.     In  Equity. 

Carnahan,  J.  This  bill  was  filed  by  the  mayor  of  the  city  of  Pitts- 
burgh, acting  for  and  in  behalf  of  the  city,  to  restrain  the  defendants 
from  organizing  and  conducting  certain  political  meetings  at  the  cor- 
ner of  Home  wood  avenue  and  Kelly  street  in  the  city  of  Pittsburgh. 
Several  meetings  had  already  been  held  in  the  place  in  question,  and 
because  of  the  vast  crowds  of  men,  women,  and  children  in  attend- 
ance, the  streets  were  blocked,  public  travel  was  suspended  and  busi- 
ness houses  in  the  immediate  vicinity  were  practically  closed.  The 
defendants,  with  others,  it  was  averred,  widely  advertised,  organized 
and  conducted  these  meetings,  to  the  prejudice  of  residents  and  busi- 
ness interests  in  the  immediate  vicinity  and  in  the  neighborhood  gen- 
erally. Upon  complaint  made  to  the  police  by  residents  and  neighbor- 
ing business  men,  notice  that  such  meetings  thereafter,  at  this  partic- 
ular place,  would  not  be  permitted,  was  given  by  the  police  to  the 
defendants,  who  appeared  to  be  largely  instrumental  in  the  organiza- 
tion and  conduct  of  the  meetings.     Future  meetings  were  then  threat- 


806  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

ened  and  particularly  one  for  Saturday  evening,  August  17,  1912; 
this  proposed  meeting  had  been  advertised,  and  it  was  the  intention  of 
the  defendants  to  hold  it,  in  open  defiance  of  police  authority.  At  one 
of  the  previous  meetings  the  presence  of  two  hundred  policemen  was 
required,  in  order  to  disperse  the  crowds  and  preserve  the  peace.  It 
was  anticipated  that  at  this  proposed  meeting  a  riot  would  take  place, 
and  the  city,  averring,  in  detail,  what  has  been  briefly  stated  here, 
and  averring  further,  that  such  assemblages  were  forbidden  by  ordi- 
nance, except  as  regulated  by  the  police,  asked  for  the  interference 
of  a  court  of  equity,  by  injunction,  on  the  ground  that  such  meetings 
had  been,  were  and  would  be  a  continuous  nuisance  and  that  it  was 
necessary  to  prevent  their  continuance,  in  order  to  avoid  probable  col- 
lision or  collisions  between  the  police  and  those  in  attendance  at  the 
meetings,  which  would  result,  possibly,  in  bloodshed. 

When  the  bill,  supported  by  the  necessary  affidavits,  was  pre- 
sented in  open  court,  counsel  for  both  plaintiff  and  defendants  were 
heard  and  the  statement  of  facts,  as  averred,  were  not  denied.  The 
right  of  the  city  to  interfere  by  its  police  officers,  or  otherwise,  was 
denied,  as  was  also  the  jurisdiction  of  a  court  of  equity. 

The  court  being  of  opinion  that  the  matters  complained  of  con- 
stituted or  were  in  the  nature  of  a  nuisance,  which  threatened  imme- 
diate and  serious  trouble,  granted  not  a  mere  temporary  restraining 
order  but  a  preliminary  injunction;  and  upon  a  motion  by  defendants 
to  dissolve  that  injunction,  the  case  is  again  before  us,  testimony  of 
witnesses  in  support  of  and  against  the  motion  having  been  taken  in 
open  court. 

It  does  not  appear  that  any  property  is  involved — at  least  no  such 
property  right  as  would  entitle  a  municipality  to  call  to  its  aid  the 
authority  and  power  vested  in  a  court  of  equity-  The  city  of  Pitts- 
burgh is  empowered  by  law  to  preserve  the  public  peace  within  its 
territorial  limits,  and  it  is  charged  with  the  duty  of  preserving  it.  It 
may,  by  ordinance,  regulate  assemblages  upon  the  public  highways 
and  enforce  obedience  to  all  of  its  reasonable  provisions.  It  does  not 
need  the  assistance  of  a  court  of  equity  to  such  end,  nor  is  it  proper 
for  a  court  of  equity  to  interfere,  in  order  to  enforce  compliance  with 
the  provisions  of  a  city  ordinance,  unless  the  act  complained  of  be  a 
nuisance  per  se.  In  case  of  nuisances,  equity  has  jurisdiction,  and 
the  facts,  as  averred,  if  proven,  may  constitute  a  nuisance.  It  is  not 
of  itself  a  nuisance  for  a  person  to  address  the  public  on  a  public 
highway.  The  mere  assemblage  of  persons  on  a  public  highway  for 
the  purpose  of  hearing  the  talk  or  address  of  a  public  speaker,  al- 
though, strictly  speaking,  is  not  lawful,  does  not  necessarily  constitute 
a  nuisance,  and  especially  is  this  so,  if  the  proper  and  customary  use 
of  the  street  is  not  interfered  with.  But  if  such  assemblages  are  of 
frequent  occurrence  and  so  block  the  street  as  to  effectually  stop  pub- 
lic travel  and  thus  prevent  the  very  use  for  which  streets  and  high- 


Sec.  1)  NATURE   OF   INJUNCTION  807 

ways  are  intended,  such  interference  may  amount  to  a  nuisance.  As- 
semblages of  this  character,  however,  are  not  nuisances  per  se. 

In  the  light  of  the  facts  as  now  presented,  it  does  not  appear  that 
this  case  is  within  the  jurisdiction  of  the  court  of  equity,  there  being 
an  adequate  remedy  at  law.  The  injunction  heretofore  granted  should, 
therefore,  be  dissolved. 

And  now,  to  wit,  October  7,  1912,  the  preliminary  injunction  granted 
August  16,  1912,  is,  upon  motion  of  defendants,  hereby  dissolved. 


MURRAY  v.   KNAPP  et  al. 
(Supreme  Court  of  New  York,  1S72.    42  How.  Prac.  462.) 

Learned,  J.  The  plaintiff  is  the  owner  of  an  island  in  the  Delaware 
River,  at  Big  Eddy.  It  appears  that  at  this  point  of  the  river  the  cur- 
rent is  of  such  a  nature  that  it  is  difficult  for  rafts  to  pass  down,  un- 
less they  are  pulled  out  of  the  eddy.  The  best,  if  not  the  only  means 
of  doing  this  is,  the  carrying  of  rope  from  the  plaintiff's  island  to  the 
rafts.  The  plaintiff  and  his  predecessors  have  made  this  a  business, 
and  in  so  doing  have  been  accustomed  to  go  on  the  plaintiff's  island 
for  this  purpose.  An  injunction  was  granted  restraining  defendants, 
from  going  on  plaintiff's  island  and  carrying  on  the  business  of  draw- 
ing rafts  through  the  eddy  or  interfering  with  plaintiff's  said  busi- 
ness.   The  defendants  now  move  to  vacate  the  injunction. 

It  is  well  known  that  generally  an  injunction  does  not  lie  to  restrain 
a  simple  trespass.  But  this  rule  has  exceptions,  and  the  present  case 
may  be  one. 

The  question  as  to  the  rights  of  raftsmen  to  use  the  shores  of  rivers 
for  tracking,  and  of  others  to  make  a  similar  use  for  the  benefit  of 
the  raftsmen  may  need  a  careful  examination.  But  in  the  view  I 
have  taken  of  the  case  I  shall  not  consider  either  of  these  matters. 

It  is  plain  that  since  the  merging  of  law  and  equity,  and  especially 
since  the  adoption  of  the  Code,  the  granting  of  preliminary  injunctions 
has  been  carried  to  excess.  Even  as  a  mode  of  final  relief,  an  in- 
junction is  not  desirable. 

When  a  plaintiff  can  be  compensated  by  damages,  such  compensa- 
tion is  the  better  remedy.  But  there  are  cases  in  which  no  final  relief 
other  than  an  injunction*will  give  the  plaintiff  his  just  rights.  And  I 
am  not  aware  that  in  final  judgments  the  courts  have,  in  recent  times, 
gone  beyond  the  cautious  use  of  this  relief,  which  characterized  the 
old  chancery  proceeding.  But  this  remark  is  not  true  of  preliminary 
injunctions.  They  have  been  granted  with  a  dangerous  frequency.  A 
plaintiff  on  an  ex  parte  application  at  the  beginning  of  his  action  has 
too  often  obtained  a  remedy  which  he  should  not  have  had  until  a 
hearing  of  both  parties  on  the  trial,  and  to  which  he  might  then  have 
been  found  not  to  have  been  entitled.     In  many  cases  of  this  kind  the 


S08  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

plaintiff  practically  has  obtained  his  judgment  at  the  outset,  and  the 
continuance  of  the  action  has  been  only  a  struggle  by  the  defendant  to 
relieve  himself  of  an  ex  parte  decision.  The  result  of  this  often  is 
that  the  plaintiff  has  a  strong  inducement  to  protract  the  litigation, 
for  a  final  decision  may  deprive  him  of  the  relief  he  has  already  ob- 
tained, and  the  defendant  under  the  pressure  of  the  injunction,  in 
limine  is  forced  to  compromise. 

This  modern  custom  has  become  a  serious  evil.  For  it,  both  the 
bar  and  the  bench  are  responsible,  and  it  is  time  that  both  returned 
to  the  correct  and  just  rules  of  earlier  days.  Said  Chancellor  Wal- 
worth : 

"There  are  many  cases  in  which  a  complainant  may  be  entitled  to  a  per- 
petual injunction  on  the  hearing,  when  it  would  be  manifestly  improper  to 
grant  an  injunction  in  limine.  The  final  injunction  is  in  many  cases  a  mat- 
ter of  strict  right,  and  granted  as  a  necessary  consequence  of  the  decree  made 
in  the  cause.  On  the  contrary  the  preliminary  injunction  before  answer,  is  a 
matter  resting  altogether  in  the  discretion  of  the  court,  and  ought  not  to  be 
granted  unless  the  injury  is  pressing  and  the  delay  is  dangerous."  New  York 
Printing,  etc.,  v.  Fitch,  1  Paige,  97. 

The  same  language  is  used  by  Chancellor  Kent  in  Ogden  v.  Kip, 
6  Johns.  Ch.  160.  Such  preliminary  injunctions  are  usually  granted 
ex  parte,  and  the  experience  of  every  one  shows  that  an  ex  parte 
statement  seldom  presents  the  full  truth. 

These  principles  are  elementary  and  ought  to  be  familiar,  but  it 
must  be  acknowledged  that  of  late  they  seem  to  have  been  forgotten 
or  overlooked.  All  who  desire  that  law  should  be  administered  justly 
should  endeavor  to  restore  these  principles  to  the  control  of  our  prac- 
tice. 

The  present  case  is  an  illustration  of  the  evil  I  have  suggested.  Tak- 
ing the  most  favorable  view  of  the  plaintiff's  rights,  and  granting  that 
on  the  trial  he  will  obtain  a  judgment  for  a  perpetual  injunction,  what 
pressing  injury,  what  danger  from  delay  rendered  it  necessary  to  re- 
strain the  defendants  in  limine? 

If  they  damaged  his  island,  money  would  compensate  the  damage. 
The  island  had  no  buildings  on  it  or  property  of  special  or  peculiar 
value.  It  was  at  times  nearly  overflowed,  and  its  only  value  was  for 
the  purposes  above  mentioned,  and  possibly  for  slight  cultivation. 
If  the  defendants  by  carrying  on  the  business  of  drawing  rafts  in- 
jured the  similar  business  of  the  plaintiff,  the  damages  for  that  injury 
could  be  readily  compensated,  and  money  would  compensate  for  them. 

If  the  defendants  were  irresponsible  still  it  would  be  a  most  dan- 
gerous proposition  that  preliminary  injunctions  should  be  granted  to 
restrain  a  trespass,  because  the  plaintiff  might  be  unable  to  collect  a 
judgment  if  he  should  recover. 

There  was  not,  that  I  can  see,  any  reason,  except  the  incorrect  cus- 
tom which  has  recently  grown  up,  and  which  I  have  mentioned,  why 
the  plaintiff  should  not  have  waited  until  the  trial  of  the  cause  before 
asking  the  court  to  interfere  by  injunction.     Yet  simply  on  the  veri- 


SeC.  1)  NATURE   OF   INJUNCTION  SOO 

fied  complaint,  and  at  the  very  commencement  of  the  action,  the  plain- 
tiff has  obtained  all  the  relief,  except  as  to  its  permanence,  which  he 
could  have  had  on  a  final  judgment.  I  do  not  speak  of  this  present 
case  as  unusual,  or  as  showing  a  greater  infringement  on  what  should 
be  the  rule  than  many  other  recent  cases. 

Evidently  the  opinion  prevails  that  when  a  plaintiff  shows  himself 
by  his  complaint  and  the  accompanying  proofs,  to  be  entitled  to  a 
final  judgment  for  an  injunction,  he  is  necessarily  entitled  to  an  injunc- 
tion in  limine.  This  opinion  has  in  part  arisen  from  the  unsettled 
practice  of  a  new  system,  but  it  is  erroneous  and  injurious,  and  it 
should  be  condemned. 

Without  therefore  passing  in  any  way  on  the  merits  of  this  action 
as  they  may  appear  on  the  trial,  or  on  the  question  whether  the  plain- 
tiff may  not  be  entitled  to  a  judgment  restraining  the  defendants,  I 
shall  dissolve  this  injunction  on  the  ground  that  there  was  no  such 
pressing  injury  or  danger  in  delay  as  called  for  an  injunction  in  limine. 
The  defendants  are  entitled  to  $10  costs  of  motion. 


COLGATE  v.  JAMES  T.  WHITE  &  CO. 

(Circuit  Court  of  the  United  States,  S.  D.  New  York,  1909.    169  Fed.  887.> 

In  Equity.     On  application  for  preliminary  injunction. 

Noyes,  Circuit  Judge.  While  there  is  much  doubt  about  the  ques- 
tions discussed  in  the  briefs,  I  am  inclined  to  the  opinion  that  the  com- 
plainant presents  a  case  calling  for  the  preservation,  so  far  as  prac- 
ticable, of  the  status  quo  of  the  parties  pending  the  litigation.  If  an 
injunction  is.  not  issued,  the  complainant  may  suffer  the  very  injury 
of  which  he  complains  before  the  cause  can  be  heard.  If  it  is  issued, 
the  defendant  will  suffer  no  especial  harm,  and  for  any  possible  injury 
should  be  protected  by  a  bond. 

Upon  filing  a  proper  and  sufficient  bond,  therefore,  an  injunction 
may  be  issued  restraining  the  defendants,  pendente  lite  from  publish- 
ing the  complainant's  portrait,  or  his  biography  so  far  as  the  same 
may  be  based  upon  information  obtained  from  him,  and  from  enforc- 
ing the  subscription  contract.  If  the  parties  cannot  agree  as  to  the 
amount,  form,  and  sufficiency  of  the  bond,  the  matter  may  be  presented 
to  the  court  upon  affidavit.4 

*  In  tbe  case  of  Knight  v.  Cohen  et  al.  (1907)  5  Cal.  App.  296,  90  Pac.  145r 
Taggart,  J.,  said:  "Provisional  remedies  of  all  kinds  are  intended  by  the  law 
to  be  used  for  the  maintenance  and  preservation  of  the  status  of  the  prop- 
erty or  person  involved  in  the  litigation,  so  that  the  judgment  of  the  court 
when  given  or  made  may  be  effectually  carried  into  execution.  A  preliminary 
injunction  is  no  exception  to  the  rule.  It  was  not  necessary  for  the  court  to> 
decide  the  merits  of  the  controversy  in  favor  of  the  plaintiff  to  support  its  or- 
der granting  him  a  preliminary  injunction.  Cases  are  not  tried  on  their  merits; 
upon  pleading  and  affidavits.     A  preliminary  injunction  is  granted  before  a 


810  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

hearing  on  the  merits  has  heen  had,  and  its  purpose  and  sole  object  is  to  pre- 
serve the  subject  in  controversy  in  its  then  existing  condition,  and,  without  de- 
termining  any  question  of  right,  merely  to  prevent  a  further  perpetration  of 
wrong  or  the  doing  of  any  act  whereby  the  right  in  controversy  may  be  ma- 
terially injured  or  endangered  until  a  full  and  deliberate  investigation  of  the 
case  is  afforded  to  the  party.    16  Am.  &  Eng.  Ency.  of  Law,  p.  345." 

In  Interstate  Commerce  Commission  v.  Southern  Pac.  Co.  et  al.  (C.  C,  S.  D. 
Cal.  1904)  137  Fed.  606,  at  page  60S,  upon  the  discretionary  right  of  the  court 
to  suspend  tlie  operation  of  a  decree  for  an  injunction  pending  an  appeal  from 
such  decree,  the  court  said:  "This  brings  me  to  the  question  whether  or  not 
the  pending  motion  presents  a  case  calling  for  the  exercise  of  said  discretion. 
In  order  to  justify  the  exercise  of  the  discretion,  or,  stating  the  matter  con- 
i  retely,  in  order  to  justify  the  suspension  of  the  decree  in  this  case,  it  should 
be  made  to  appear,  first,  that  irremediable  loss  will  result  to  the  defendants, 
during  the  pendency  of  the  proposed  appeal,  from  the  enforcement  of  the  de- 
cree ;  and,  second,  that  no  such  loss  will  result  to  the  complainant  from  its 
suspension.  The  two  conditions  set  forth  in  the  preceding  paragraph  consti- 
tute substantially  the  familiar  equity  doctrine  of  comparative  hardships,  which 
under  some  circumstances  is  determinative  on  applications  for  provisional  or 
temporary  injunctions ;  that  is  to  say,  under  certain  circumstances,  without 
stopping  to  enumerate  what  such  circumstances  are,  the  court  will  grant  an 
injunction  if  the  damages  resulting  to  the  defendant  would  be  less  than  those 
resulting  to  the  complainant  from  its  refusal.  This  rule,  it  should  be  observed, 
however,  is  applied  by  courts  of  equity  in  advance  of  any  hearing  upon  the 
merits,  and  is  therefore  the  most  favorable  rule  the  defendants  in  the  case 
at  bar  could  invoke,  because  here  there  have  been  practically  two  decrees  on 
the  merits  against  them — one  the  order  of  the  Interstate  Commerce  Commis- 
sion, and  the  other  affirmation  of  said  order  by  this  court.  It  may  be  con- 
ceded that  the  defendants  will  sustain  by  the  enforcement  of  the  decree  during 
the  pendency  of  the  contemplated  appeal  damages,  for  which  no  adequate 
compensation  can  be  found.  This  concession  I  make  without  going  into  the 
details  or  elements  of  damage,  but  with  the  qualification  that  the  amount  of 
damage,  in  the  nature  of  things,  is  unascertainable.  When  I  have  said  that 
defendants  will  sustain  damages- — large  or  considerable  damages,  it  may  be — 
by  the  enforcement  of  the  decree  during  the  pendency  of  the  appeal,  the 
amount  of  which,  however,  is  unascertainable,  the  case  has  been  stated  as 
strongly  in  favor  of  defendants  as  its  circumstances  will  permit.  The  next 
question  in  logical  sequence  is  as  to  the  effect  a  suspension  will  have  upon  the 
complainant;  and  by  'complainant'  I  do  not,  of  course,  mean  the  Interstate 
Commerce  Commission,  but  the  public  at  large,  or,  more  directly,  the  shippers 
of  citrus  fruits,  of  whom  said  complainant,  as  I  held  by  my  written  opinion 
upon  the  merits,  is  but  the  representative  in  this  litigation.  In  what  condi- 
tion, then,  would  a  stay  of  this  decree  leave  the  shippers  of  citrus  fruits? 
How  would  it  affect  them?  The  decree  restores  to  these  shippers  the  routing 
privilege.  The  stay  of  the  decree  would  longer  withhold  it  from  them.  De- 
nial of  said  privilege  to  the  shippers,  as  found  in  my  opinion  above  men- 
tioned, has  utterly  destroyed  competition  for  this  traffic  between  the  Eastern 
connections  of  the  initial  lines ;  and,  to  appreciate  the  advantages  of  compe- 
tition, as  estimated  by  the  highest  judicial  tribunal  of  the  land,  we  have  only 
to  read  the  opinions  of  the  Supreme  Court  in  the  Freight  Association  and 
Joint  Traffic  Association  Cases  (1896)  166  U.  S.  290,  17  Sup.  Ct.  540,  41  L.  Ed. 
1007,  and  (1898)  171  U.  S.  505,  19  Sup.  Ct.  25,  43  L.  Ed.  259.  Mr.  Bissell,  in 
his  affidavit  filed  on  this  motion,  says  that  the  shipments  of  citrus  fruits  this 
season  will  probably  be  between  25,000  and  30,000  cars.  What  the  benefits  of 
competition  may  be  to  the  shippers  of  that  vast  product  cannot  be  told  ac- 
curately in  dollars  and  cents,  but  it  would  be  difficult  to  overstate  them.  The 
strenuous  efforts  put  forth  by  both  parties  in  this  litigation  to  secure  the 
routing  privilege  abundantly  testify  to  its  great  value.  Of  course,  when  I 
speak  of  the  value  of  competition  to  the  shipper,  I  do  not  include  rebates  as 
an  element  of  such  value.  Rebates  flagrantly  violate  the  commerce  act,  and 
it  is  hard  to  find  language  strong  enough  to  suitably  condemn  and  stigmatize 
them.  But  the  remedy  for  rebates  is  to  be  found  in  the  severe  penal  sanctions 
denounced  against  them,  and  not  in  pooling  arrangements  between  competing 
railroads,  which  are  themselves  violative  of  said  act.     As  I  said  in  my  previ- 


Sec.  1)  NATURE   OF   INJUNCTION  811 

WESTERN  NEW  YORK  &  PENNSYLVANIA  TRACTION 
CO.  v.  STILLMAN. 

(Supreme  Court  of  New  York,  1910.    68  Misc.  Rep.  456,  124  N.  Y.  Supp.  246.) 

Brown,  J.  It  is  the  contention  of  the  plaintiff  that,  under  its  fran- 
chise to  maintain  and  operate  a  street  railway  in  the  city  of  Olean  by 
the  trolley  system,  it  has  a  vested  property  right  to  occupy  the  streets 
to  maintain  its  trolley  and  supporting  wires  17  feet  above  the  pave- 
ment, which  is  indestructible,  paramount,  and  superior  to  the  rights  of 
all  others ;  that  it  cannot  be  compelled  to  raise  or  lower  such  wires  to 
permit  the  moving  of  a  building;  that  the  moving  of  a  building  30  feet 
high,  which  would  collide  with  such  wires,  is  a  trespass ;  that  the  rais- 
ing or  the  lowering  of  such  wires,  or  the  cutting  of  the  same,  so  as 
to  permit  a  building  to  cross  its  tracks,  would  produce  such  an  injury 
to  its  trolley  wires  that  it  could  not  be  replaced  in  as  good  condition  as 
before ;  that  the  common  council  of  the  city  of  Olean  had  no  author- 
ity to  grant  a  permit  to  the  defendant  to  move  his  building  along  or 
across  the  streets,  which  would  necessitate  any  interference  with  plain- 

ous  opinion,  already  mentioned,  one  violation  of  the  commerce  act  cannot  be 
justified  on  the  plea  that  it  tends  to  or  will  suppress  or  has  suppressed  an- 
other infraction  of  the  act.  I  repeat,  it  does  not  appear  from  this  motion, 
and  counsel  for  defendants  have  industriously  and  with  ability  presented  all 
that  can  be  said  on  their  side  of  the  question — it  has  not  been  made  to  ap- 
pear that  the  damage  to  defendants  will  be  any  greater  from  the  enforcement 
of  the  decree  than  would  be  the  damage  to  the  shippers  from  its  suspension, 
and  this  view  of  the  case  is  conclusive  against  a  suspension  of  the  decree." 
See  Federal  Equity  Rules  (1913)  33  Sup.  Ct.  xxxix: 

Rule  73. — Preliminary  Injunctions  and  Temporary  Restraining  Orders 

No  preliminary  injunction  shall  be  granted  without  notice  to  the  opposite 
party.  Nor  shall  any  temporary  restraining  order  be  granted  without  notice 
to  the  opposite  party,  unless  it  shall  clearly  appear  from  specific  facts,  shown 
by  affidavit  or  by  the  verified  bill,  that  immediate  and  irreparable  loss  or 
damage  will  result  to  the  applicant  before  the  matter  can  be  heard  on  notice. 
In  case  a  temporary  restraining  order  shall  be  granted  without  notice,  in  the 
contingency  specified,  the  matter  shall  be  made  returnable  at  the  earliest  pos- 
sible time,  and  in  no  event  later  than  ten  days  from  the  date  of  the  order,  and 
shall  take  precedence  of  all  matters,  except  older  matters  of  the  same  char- 
acter. When  the  matter  comes  up  for  hearing  the  party  who  obtained  the  tem- 
porary restraining  order  shall  proceed  with  his  application  for  a  preliminary 
injunction,  and  if  he  does  not  do  so  the  court  shall  dissolve  his  temporary 
restraining  order.  Upon  two  days  notice  to  the  party  obtaining  such  tem- 
porary restraining  order,  the  opposite  party  may  appear  and  move  the  dis- 
solution or  modification  of  the  order,  and  in  that  event  the  court  or  judge  shall 
proceed  to  hear  and  determine  the  motion  as  expeditiously  as  the  ends  of  jus- 
tice may  require.  Every  temporary  restraining  order  shall  be  forthwith  filed 
in  the  clerk's  office. 

Rule  ?'}. — Injunction  Pending  Appeal 

When  an  appeal  from  a  final  decree,  in  an  equity  suit,  granting  or  dissolving 
an  injunction,  is  allowed  by  a  justice  or  a  judge  who  took  part  in  the  deci- 
sion of  the  cause,  he  may,  in  his  discretion,  at  the  time  of  such  allowance, 
make  an  order  suspending,  modifying  or  restoring  the  injunction  during  the 
pendency  of  the  appeal,  upon  such  terms,  as  to  bond  or  otherwise,  as  he  may 
consider  proper  for  the  security  of  the  rights  of  the  opposite  party. 


812  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

tiff's  wires.  To  prevent  such  trespass  and  injury  the  defendant  is  re- 
strained by  the  temporary  injunction  herein. 

It  is  the  contention  of  the  defendant  that  the  franchise  of  the  plain- 
tiff secures  to  it  the  right  to  occupy  the  streets  of  the  city  of  Olean 
for  the  purpose  of  its  business,  subject  to  the  right  of  the  public  to  use 
the  street  in  a  reasonable  manner;  that  such  reasonable  use  includes 
the  right  to  move  buildings  across  such  tracks  and  along  the  streets ; 
that  for  many  years  the  plaintiff  has  raised  or  lowered  its  wires  for 
such  purposes,  upon  being  reimbursed  the  expense  incurred ;  and  that 
such  expense  is  trifling,  and  no  damage  has  resulted. 

In  moving  defendant's  building  from  its  present  location  to  its  con- 
templated site,  it  will  necessarily  pass  under  five  span  wTires  on  the 
west  side  of  Union  street,  which  support  plaintiff's  feed  or  trolley  wire, 
and  at  the  junction  of  Union  and  Henley  streets  the  building  will  pass 
under  the  trolley  wire  extending  into  Henley  street  for  one  block.  It 
has  been  established  by  the  many  affidavits  presented  that  the  handling 
of  these  wires  by  competent  electrical  linemen,  so  as  to  permit  the  mov- 
ing of  the  building  along  Union  street,  and  into  and  through  Henley 
street  to  defendant's  premises,  will  not  produce  injury  to  the  plaintiff 
of  such  a  character  as  to  be  impossible  of  repair,  nor  which  cannot  be 
ascertained  by  careful  and  competent  inspection.  The  plaintiff  has  in 
its  employ  many  such  linemen  and  inspectors,  and  by  taking  advantage 
of  the  provisions  of  the  ordinance  of  the  city  of  Olean  adopted  June 
30,  1910,  may  protect  itself  from  careless  or  negligent  handling  of  its 
wires  by  taking  charge  of  and  doing  the  work ;  and,  as  the  defendant 
offers  to  reimburse  the  plaintiff  for  all  expense  of  such  handling  of 
such  wires  and  all  damage  caused  the  plaintiff,  the  conclusion  is  neces- 
sarily reached  that  the  plaintiff  is  not  entitled  to  maintain  its  tempo- 
rary injunction  upon  the  ground  that  defendant's  contemplated  act  of 
moving  his  building  will  cause  irreparable  injury  and  damage  to  plain- 
tiff, for  which  it  has  no  adequate  remedy  at  law. 

The  claim  that  the  moving  of  defendant's  building  and  the  conse- 
quent interference  with  plaintiff's  wires  will  be  a  trespass  upon  plain- 
tiff's property  rights  cannot  be  maintained.  The  proof  is  that  for  many 
years  it  has  been  the  usual  and  customary  practice  to  use  the  streets  of 
the  city  of  Olean  for  the  purpose  of  moving  buildings.  Many  buildings 
have  been  moved  across  plaintiff's  tracks,  plaintiff  raising  or  lowering 
its  trolley  and  span  wires  as  necessities  required,  and  the  injury,  dam- 
age, expense,  or  inconvenience  occasioned  thereby  has  been  tritiing. 
The  municipality  has  granted  defendant  a  license  permitting  him  to  use 
the  streets  for  the  purpose  of  moving  his  building.  Plaintiff's  prop- 
erty rights  in  the  street  are  subject  to  the  rights  of  the  public  to  use  the 
street  for  all  reasonable  purposes,  and  there  would  seem  to  be  no  good 
reason  why  the  common-law  right  to  move  such  a  building  along  or 
across  a  highway  should  not  be  preserved  as  a  reasonable  use  of  such 
highway.  In  Hinman  v.  Clarke,  121  App.  Div.  105,  105  N.  Y.  Supp. 
725,  affirmed  193  N.  Y.  640,  86  N.  E.  1125,  it  is  said  that  an  individual 


SeC.  1)  NATURE   OF   INJUNCTION  813 

has  "a  common-law  right,  in  the  absence  of  general  legislative  restric- 
tion by  ordinance  or  otherwise,  to  the  reasonable  use  of  the  public 
streets  and  highways  for  the  purpose  of  moving  his  buildings."  The 
common  council,  in  the  exercise  of  its  right  to  reasonably  regulate  the 
use  of  the  city  streets  in  moving  buildings,  having  granted  defendant 
the  privilege  of  moving  his  building — the  character  of  the  building  be- 
ing such  that  the  moving  of  it  through  the  streets  would  be  a  reason- 
able use  of  the  streets — the  plaintiff's  rights  in  the  street  must  be  held 
to  be  subservient  and  subject  to  defendant's  right  to  move  the  building. 
The  temporary  injunction  will  be  vacated,  upon  condition  that  the 
defendant  pay  all  expense  and  damage  incurred  by  plaintiff  in  raising 
or  lowering  its  wires  and  comply  with  the  provisions  of  the  city  ordi- 
nance adopted  June  30,  1910,  with  $10  motion  costs  to  defendant. 


ARLINGTON  HEIGHTS  FRUIT  CO.  et  al.  v.  SOUTHERN 

PAC.  CO.  et  al. 

(Circuit  Court  of  the  United  States,  S.  D.  California,  1909.    175  Fed.  141.) 

Morrow,  Circuit  Judge.5  The  court  is  not  required  at  this  stage  of 
the  proceedings  to  determine  whether  the  proposed  rate  of  $1.15  per 
100  pounds  for  the  transportation  of  lemons  to  the  New  York  market 
is  just  and  reasonable  or  unjust  and  unreasonable.  Indeed,  the  final 
determination  of  that  question  rests  with  the  Interstate  Commerce 
Commission,  and  there  is  no  disposition  on  the  part  of  the  court  to  in- 
trude upon  the  jurisdiction  of  that  tribunal. 

The  present  application  is  for  a  temporary  injunction  that  will  pre- 
serve the  status  quo  until  a  hearing  is  had  upon  the  merits  by  the  prop- 
er authority,  the  status  quo  being  a  charge  of  $1  per  100  pounds  for  the 
transportation  of  lemons  from  California  to  the  New  York  market. 
What  the  court  is  required  to  do  now  is  to  determine  from  the  evidence 
submitted  whether  there  is  a  reasonable  probability  that  the  complain- 
ants will  be  able  to  maintain  the  case  set  forth  in  the  bill  and  establish 
the  fact  that  the  proposed  increased  rate  of  $1.15  per  100  pounds  will 
be  unjust  and  unreasonable ;  and  whether  pending  such  a  hearing  upon 
the  merits  the  complainants  will  suffer  an  irreparable  injury.  In  reach- 
ing conclusions  upon  these  questions  it  is  the  duty  of  the  court  to  bal- 
ance the  equities  between  the  parties  and  ascertain  which  of  them  will 
suffer  the  greater  detriment  or  inconvenience  by  the  action  of  the  court. 
If  the  balance  of  detriment  or  inconvenience,  in  the  event  of  the  tempo- 
rary injunction  is  refused,  is  against  the  complainants,  then  the  injunc- 
tion will  be  granted.  But  if,  on  the  other  hand,  the  balance  of  detri- 
ment or  inconvenience  is  against  the  defendants,  in  the  event  the 
temporary  injunction  should  issue,  then  it  should  be  refused.  In  the 
present  case,  if  the  temporary  injunction  is  issued,  the  defendants  will 

■"  Part  of  the  opinion  is  omitted. 


S14  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

be  denied  the  right  to  collect  the  increased  rate  of  15  cents  per  100 
pounds  until  the  Interstate  Commerce  Commission  has  determined 
whether  such  increased  rate  is  just  and  reasonable  or  unjust  and  un- 
reasonable, but  in  the  meantime  the  defendants  will  be  fully  secured  in 
a  bond  to  indemnify  them  for  the  difference  between  the  proposed  rate 
and  the  rate  which  they  may  collect. 

Now,  how  will  it  be  with  the  complainants  if  the  temporary  injunc- 
tion is  refused?  They  must  pay  the  increased  rate,  which  it  is  esti- 
mated will  amount  to  about  $250,000  in  one  year.  If  it  is  finally  deter- 
mined that  this  rate  is  unjust  and  unreasonable  they  may  recover  of 
the  defendants  the  amount  so  exacted.  But  what  will  be  their  situa- 
tion or  condition  pending  this  determination?  It  appears  from  the  evi- 
dence that  the  lemon  growers  cannot  pay  the  increased  rate  and  market 
their  crops  in  the  Eastern  markets  at  a  profit.  They  must  go  out  of 
business  if  required  to  pay  the  increased  rate.  They  will  be  compelled 
to  destroy  their  lemon  trees  and  put  their  land  to  other  uses.  This  is 
a  detriment  and  inconvenience  in  addition  to,  or  rather  aside  from,  the 
difference  in  rate.  If  the  equities  of  the  parties  related  only  to  the  dif- 
ference in  rate  they  would  be  equally  balanced  and  the  temporary  in- 
junction would  be  refused.  But  there  is  evidence  before  the  court  that 
the  equities  are  not  so  balanced.  The  complainants  will  suffer  an  ir- 
reparable injury  by  the  increased  rate  not  measured  by  the  difference 
between  that  and  the  present  rate,  and  this  fact  clearly  balances  the 
equities  in  favor  of  the  complainants.  Moreover,  there  is  evidence  that 
for  some  years  prior  to  November,  1904,  the  present  rate  of  $1  per  100 
pounds  was  an  emergency  rate  established  by  the  carriers  to  enable  the 
shippers  to  meet  the  special  conditions  of  the  season  and  of  the  East- 
ern markets.  But  in  November,  1904,  after  some  negotiations  between 
the  parties,  the  rate  was  made  a  permanent  rate,  or  at  least  the  lemon 
growers  so  understood  it,  and  thereupon,  having  faith  that  such  perma- 
nent rate  would  be  continued,  they  have  enlarged  the  area  of  their  or- 
chards and  increased  their  business  upon  that  basis  of  this  factor  of 
expense.  This  rate  has  now  been  continued  for  five  years.  The  de- 
fendants deny  that  they  ever  gave  the  complainants  to  understand  that 
the  rate  of  $1  per  100  pounds  was  to  be  a  permanent  rate,  but  I  think 
the  evidence  furnished  by  the  bill  and  supported  by  the  affidavits  satis- 
factorily establishes  the  fact  'that  the  complainants,  as  a  result  of  their 
negotiations  with  the  defendant,  were  given  to  understand  that  the  rate 
of  $1  per  100  pounds  would  be  a  permanent  rate  upon  which  they  could 
go  on  and  develop  this  industry,  and  the  fact  that  it  has  been  continued 
for  five  years  indicates  that  the  rate  was  to  be  permanent,  and  is  prima 
facie  evidence  that  the  rate  is  not  unreasonably  low. 

Now,  what  has  occurred  since  November,  1904,  to  justify  the  de- 
fendants in  increasing  the  freight  rate  to  $1.15  per  100  pounds?  There 
is  some  evidence  that  there  has  been  an  increase  in  the  cost  of  labor, 
but  this  fact  applies  with  equal  force  to  the  business  of  both  parties. 


Sec.  1)  NATURE   OF   INJUNCTION  815 

The  entire  cost  of  transportation  is  not,  in  fact,  any  greater.  The 
services  rendered  by  the  carriers  do  not  appear  to  be  any  more  ex- 
pensive as  a  whole  than  they  were  in  1904,  if  indeed  they  are  as  ex- 
pensive now  as  they  were  then.  Where,  then,  is  the  change  of  condi- 
tion? Why  the  increased  rate?  It  appears  to  be  confined  exclusively 
to  the  legislation  by  Congress  respecting  the  tariff. 

By  the  Dingley  Tariff  Act  of  July  24,  1897,  c.  11,  §  1,  Schedule  G, 
par.'266,  30  Stat.  172  (U.  S.  Comp.  St.  1901,  p.  1651),  the  duty  on  im- 
ported lemons  was  1  cent  per  pound.  This  duty  was  raised  by  the 
recent  act  of  August  5,  1909,  to  U/2  cents  per  pound.  This  increase 
of  duty  appears  to  have  been  made  upon  representations  to  Congress 
that  it  was  necessary  to  have  such  a  protective  duty  to  enable  the  com- 
plainants to  sell  their  product  in  competition  with  the  Italian  or  Sicilian 
lemons  in  the  Eastern  market.  It  is  represented  that  in  Italy  or  Sicily 
the  cost  of  labor  in  producing  lemons  is  only  25  per  cent,  of  what  it 
is  in  California  and  that  the  freight  charge  from  Sicily  to  New  York 
is  only  25  per  cent,  of  the  freight  charge  on  lemons  from  California 
to  New  York.  As,  for  example,  it  costs  $1  in  labor  to  produce  100 
pounds  of  lemons  in  California,  while  it  costs  only  25  cents  to  produce 
the  same  quantity  of  lemons  in  Sicily.  The  freight  charge  on  100 
pounds  of  lemons  from  California  to  New  York  is  $1,  while  the  freight 
charge  on  the  same  quantity  of  lemons  from  Sicily  to  Xew  York  is 
25  cents.  It  was  upon  representing  such  facts  to  Congress  that  the 
duty  was  increased  one-half  cent  per  pound.  It  was  increased  because 
freight  and  labor  are  so  much  higher  in  this  country  than  in  Sicily,  be- 
cause the  cost  of  freight  and  labor  in  this  country  was  for  each  $1  per 
100  pounds,  and  the  cost  of  freight  and  labor  for  the  foreign  producer 
was  for  each  only  25  cents  per  100  pounds.  Congress  then  had  in  view 
two  facts  justifying  an  increase  in  the  duty  on  lemons.  One  was  the 
cost  of  labor  in  this  country  and  the  other  was  the  fact  that  the  lemon 
growers  in-  California  were  required  to  pay  the  railroad  companies  $1 
per  100  pounds  for  the  transportation  of  their  lemons  to  the  Xew  York 
market.     *     *     * 

Let  a  temporary  injunction  issue  as  prayed  for  in  the  complaint. 


BEECH  CREEK  R.  CO.  v.  OLAXTA  COAL  MINING  CO. 

(Circuit  Court  of  Appeals  of  the  United  States,  Third  Circuit,  1907. 
158  Fed.  36,  85  C.  C.  A.  148.) 

Holland,  District  Judge.0  This  is  a  bill  of  complaint  filed  by  the 
Olanta  Coal  Mining  Company  to  compel  the  Xew  York  Central  & 
Hudson  River  Railroad  Company,  lessee  of  the  Beech  Creek  Railroad 
Company,  to  construct  a  siding  at  its  coal  mines  to  connect  with  the 
company's  road ;    the  coal  company  offering  "to  pay  all  expenses  in 

e  Parts  of  the  opinion  are  omitted. 


81G  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 

connection  with  putting  in  the  siding."  The  request,  accompanied  by 
this  offer  of  payment,  was  refused.  The  prayer  for  relief  is  that  the 
railroad  company  "shall  proceed  without  further  delay  forthwith  to 
construct  such  siding  and  switching  connections,  and  to  give  and  grant 
to  your  orator  the  same  facilities  for  shipping  and  transporting  its 
product  to  market  as  are  furnished  to  other  miners  and  shippers  of 
bituminous  coal  on  its  lines."  The  Circuit  Court  entered  a  decree  di- 
recting the  railroad  company  to  place  in  position  and  construct  a 
switching  or  siding  connection  to  connect  with  the  proposed  siding  of 
the  coal  company  in  plaintiff's  bill  and  shown  by  plaintiff's  draft  of- 
fered in  evidence  with  the  main  track  of  the  railroad  company,  the  cost 
price  of  switching  frogs,  labor  and  expense  of  putting  them  in  place 
by  defendants  to  be  paid  by  the  plaintiff.  From  this  decree  the  rail- 
road company  took  this  appeal.     *     *     * 

Could  the  appellee  then  have  proceeded  under  the  Pennsylvania  act 
of  May  5,  1832,  and  its  supplements?  It  is  the  owner  of  mining  prop- 
erty lying  contiguous  to  the  railroad,  and  no  lands  intervene  over  which 
it  would  be  necessary  to  lay  the  proposed  siding.     *     *     * 

The  objection  so  strenuously  urged  at  the  argument,  that  the  point 
where  it  is  intended  to  connect  the  proposed  siding  "is  unsafe  and 
unfit  for  such  connection,"  can  be  obviated  by  the  parties  selecting  a 
point  of  connection  where  these  elements  of  danger  do  not  exist.  It 
appears  that  the  coal  company  "is  willing  that  the  connection  shall 
be  made  in  the  mode  and  at  the  point  the  respondents  prefer." 

As  all  railroads  are  charged  with  the  duty  and  obligation  of  trans- 
porting the  freight  offered  along  its  line,  and  as  this  transportation 
of  freight  usually  requires  the  use  of  sidings,  the  Supreme  Court  of 
Pennsylvania  has  held,  in  the  case  of  Pittsburgh  &  Lake  Erie  Railroad 
v.  Robinson,  95  Pa.  426,  that  a  railroad  company  is  a  common  car- 
rier, and  that  its  railroad  is  a  public  highway,  and  in  duty  bound  to 
permit  mill  owners,  mine  owners,  and  others  to  construct  oil  their  land 
adjoining  said  railroad  suitable  switches  for  the  use  of  their  business, 
and  to  connect  the  same  with  the  tracks  of  the  company,  subject  to 
the  general  rules  of  the  company  regulating  such  connections,  and 
that  the  railroad  company  is  thereafter  bound  to  receive  and  deliver 
to  and  from  said  switch  or  siding  cars  and  freight  for  the  parties  so 
offering  them  on  equal  terms  with  all  other  individuals  or  transpor- 
tation companies.  Mr.  Justice  Gordon,  in  that  case,  said:  "It  being 
conceded  that  under  the  Pennsylvania  acts  of  assembly  the  owners  of 
mills  and  manufactories  may  of  right  connect  their  private  sidings  with 
the  railroad  in  their  vicinity,"  it  follows  that  in  case  the  railroad  re- 
fuses to  permit  such  connections  when  necessary  some  remedy  must 
be  found  by  which  the  rights  of  shippers  can  be  enforced.  Common 
carriers  and  public  service  corporations  in  general  owe  certain  duties 
to  the  public.  Individuals  are  entitled  to  enforce  these  obligations 
in  so  far  as  they  are  themselves  concerned ;  and,  when  the  legal 
remedies   are  inadequate,   equity    will   grant   its    relief.     Accordingly 


SeC.  1)  NATURE   OF   INJUNCTION  817 

mandatory  injunctions  may  be  awarded  to  compel  a  common  carrier 
to  transport  freight  or  to  furnish  transportation  facilities.  Pomeroy's 
Equity  Remedies,  §  633.  In  Wells,  Fargo  &  Co.  v.  Northern  Pacific 
Railroad  Co.  (C.  C.)  23  Fed.  469,  a  bill  was  maintained  to  compel  a 
railroad  to  furnish  facilities  to  an  express  company,  and,  in  the  case 
of  Butchers'  &  Drovers'  Stockyard  Co.  v.  Louisville  &  N.  R.  Co.,  67 
Fed.  35,  14  C.  C.  A.  290,  the  right  to  compel  a  railroad  company  to 
furnish  facilities  for  loading  and  unloading  live  stock  was  held  by 
Tudge  Taft  to  be  enforceable  by  bill  in  the  court  of  equity ;  and  in 
Ex  parte  Lennon,  166  U.  S.  556,  17  Sup.  Ct.  661,  41  L.  Ed.  1110,  the 
Supreme  Court  held  "that  affirmative  action  may  be  required  where 
the  circumstances  of  the  case  demand  it." 

Numerous  authorities  are  collected  by  Judge  Evans  of  the  District 
Court  of  Kentucky  in  Wiemer  v.  Louisville  Water  Co.  (C.  C.)  130  Fed. 
251,  in  support  of  the  proposition  that  a  mandatory  injunction  is  often 
resorted  to  in  modern  practice.  They  will  be  found  on  page  256  of 
130  Fed.  In  this  case  the  court  compelled  a  water  company  to  supply 
water  to  one  engaged  in  business  after  it  had  arbitrarily  refused  to  do 
so  upon  his  request. 

Our  conclusion  is  that  the  court  below  was  right  in  adjudging  the 
complainant  to  be  entitled  to  such  a  connection  as  was  claimed,  and  in 
awarding  a  mandatory  injunction  to  compel  the  allowance  of  that  right ; 
but  we  think  that  the  court  below,  in  view  of  the  importance  of  the 
matter  to  the  public  as  well  as  to  these  parties,  should  be  afforded  an 
opportunity  to  further  exercise  its  discretion  respecting  the  question 
as  to  whether  the  point  of  connection  proposed  is  one  which,  all  things 
and  especially  the  question  of  safety  being  considered,  ought  to  be 
sanctioned. 

Accordingly  the  decree  of  the  Circuit  Court  is  affirmed,  but  with 
leave  to  the  defendants  below  to  apply  to  that  court  to  open  the  said 
decree  for  the  purpose  of  further  inquiry  and  determination  touching 
the  safety  and  convenience  of  the  manner  and  point  of  connection  pro- 
posed. 


HOLLENBECK  v.  ST.  MARK'S  LUTHERAN  CHURCH. 

(Supreme  Court  of  New  York,  Appellate  Division,  Third  Department,  1912. 
154  App.  Div.  328,  138  N.  Y.  Supp.  1063.) 

Lyon,  J.t  The  parties  hereto  are  owners  of  buildings  fronting 
South  Perry  street  in  the  city  of  Johnstown,  N.  Y.,  standing  so  close- 
ly together  that  the  eaves  are  in  practically  the  same  verticle  plane. 
The  building  of  the  plaintiff  consists  of  a  dwelling  house  erected  in 
1869,  and  the  building  of  the  defendant  of  a  church  edifice  erected 
in   1896,   which   the   plaintiff  claims   stands   partly   on   his   land.     At 

i  Part  of  the  opinion  is  omitted. 
Boke  Eq. — 52 


S18  INJUNCTION  IN   RELATION  TO  TORTS  (Ch.  4 

times  during  the  winter  season  snow  and  ice  have  collected  upon 
the  roofs  of  both  buildings  and  slid  off  into  the  narrow  space  which 
separates  the  bodies  of  the  structures,  in  sufficient  quantities,  plaintiff 
alleges,  to  make  a  bank  five  or  six  feet  high,  reaching  to  the  top  of 
the  window  in  the  first  story  of  his  house,  and  which,  melting,  ren- 
dered the  wall  of  his  house  damp,  and  ran  into  his  cellar.     *     *     * 

As  to  the  accumulation  of  snow  and  ice  in  the  space  between  the 
church  and  dwelling,  it  appears  that  the  plaintiff  has  contributed  ma- 
terially thereto  by  allowing  the  snow  and  ice  from  the  roof  of  his 
dwelling  to  fall  into  this  space,  although  by  far  the  greater  portion 
of  the  snow  and  ice  has  come  from  the  larger  area  of  the  northeast- 
erly portion  of  the  roof  of  the  church.  Owing  to  the  fact  that  the 
plaintiff  contributed  to  this  collection  of  snow  and  ice,  and  to  the  gen- 
eral nature  of  the  proof  as  to  amount  of  alleged  damages  to  plaintiff's 
property,  the  evidence  affords  no  basis  upon  which  any  such  damages 
could  be  ascertained.  The  defendant  has  made  no  claim  of  damage 
on  account  of  snow  and  ice  falling  from  plaintiff's  roof ;  but  as  plain- 
tiff claims  to  suffer  damage  by  reason  of  snow  and  ice  from  the 
roof  of  the  church,  defendant  should  be  enjoined  from  allowing  snow 
and  ice  from  its  roof  to  be  deposited  in  this  space  between  the  struc- 
tures of  the  parties  hereto,  to  the  damage  of  the  plaintiff.  That  it 
is  the  duty  of  the  owner  of  a  building  to  restrain,  by  snow  guards  or 
otherwise,  the  snow  and  ice  which  accumulate  upon  the  roof  of  his 
building,  and  not  allow  the  same  to  pass  off  to  the  damage  of  his 
neighbor,  is  well  settled.  Davis  v.  Niagara  Falls  Tower  Co.,  171  N. 
Y.  336,  64  N.  E.  4,  57  L.  R.  A.  545,  89  Am.  St.  Rep.  817;  Trem- 
blay  v.  Harmony  Mills,  171  N.  Y.  598,  601,  64  N.  E.  501. 

As  the  merits  of  the  controversy  seem  plain,  we  think  it  unneces- 
sary to  send  the  case  back  for  a  new  trial,  but  that  we  should  modify 
the  fourth  finding  of  fact,  herein  expressed,  and  that  the  order  deny- 
ing the  motion  for  a  new  trial  should  be  affirmed,  but  that  the  judg- 
ment should  be  reversed,  and  judgment  directed  in  favor  of  the  plain- 
tiff, requiring  the  defendant  to  use  reasonable  care  by  the  construction 
of  snow  guards  and  gutters  to  prevent  the  falling  of  snow,  ice,  and 
water  within  the  space  between  the  buildings  of  the  parties  hereto 
to  an  extent  to  damage  the  plaintiff,  without  costs  in  the  court  below 
or  upon  this  appeal.    All  concur. 


JACKSON  v.  NORMANBY  BRICK  CO. 
(In  Chancery.  [1890]  1  Ch.  Div.  438.) 
This  was  an  original  motion  by  the  plaintiff  for  an  order  directing 
the  defendants  to  pull  down  and  remove  kilns,  chimneys,  and  build- 
ings which  had  been  erected  by  them  since  the  commencement  of  the 
action  on  part  of  certain  land  comprised  in  a  lease  granted  by  the 
plaintiff  to  the  defendants,  or  for  such  other  order  as  might  be  neces- 


SeC.  1)  NATURE   OF   INJUNCTION  819 

sary  for  giving  effect  to  the  declaration  that  had  been  made  in  the 
action. 

The  action  was  to  restrain  the  defendants  from  building  on  the 
land  contrary  to  the  provisions  of  the  lease.  The  Court  of  Appeal, 
on  appeal  from  Kekewich,  J.,  had  made  a  declaration  that  the  defend- 
ants were  not  at  liberty  to  build  without  the  consent  of  the  plaintiff, 
and  gave  the  plaintiff  liberty  to  apply  for  a  mandatory  injunction  after 
the  expiration  of  three  months.  The  application  was  made  by  the 
present  motion. 

Lindley,  M.  R.  The  plaintiff  is  entitled  to  an  order  in  the  terms  of 
the  notice  of  motion.  The  registrar  has  called  our  attention  to  the 
form  in  which  orders  of  this  kind  have  hitherto  been  made,  namely, 
restraining  the  defendant  from  allowing  the  buildings  to  remain  on 
the  land;  but  in  future  it  will  be  better  for  the  court  to  say  in  plain 
terms  what  it  means,  and  in  direct  words  to  order  the  buildings  to  be 
pulled  down  and  removed.    The  order  will  therefore  go. 

Rigby  and  Collins,  L.  JJ.,  concurred.8 


CHAPMAN  et  al.  v.  SCOTT. 

(Circuit  Court  of  the  United   States,  District  of  Columbia,  1S06.     1  Cranch, 
C.  C.  302,  Fed.  Cas.  No.  2,609.) 

Injunction  to  stay  a  judgment  at  law. 

Cranch,  Chief  Judge.  The  simple  and  only  ground  of  equity  stated 
in  the  bill  is,  that  the  complainant  had  a  good  defence  at  law,  and  duly 
summoned  his  father  as  a  witness  to  prove  it,  ("which  will  appear 
from  the  annexed  summons.")     But  that  when  the  cause  came  on  to 

s  It  is  somewhat  remarkable  that  the  court  has  now  for  the  first  time  had 
the  courage  to  exercise  in  a  direct  form  a  branch  of  its  jurisdiction  which, 
for  at  least  ninety-five  years,  it  has  been  content  to  exercise  in — as  Lord 
Brougham  when  Lord  Chancellor,  said  in  1S32 — "a  roundabout  mode."  The 
first  case  in  which  a  doubt  seems  to  have  been  expressed  as  to  whether  the 
court  could  make  a  decree  or  order  in  a  direct  mandatory  form  requiring  the 
performance  of  a  particular  act,  seems  to  be  Lane  v.  Newdigate  (1S04)  10  Ves. 
192,  where  the  plaintiff  by  his  bill  prayed  that  the  defendant  might  be  decreed 
to  repair  the  1  anks,  stop-gates  and  other  works  connected  with  a  canal.  There 
Lord  Eldon,  while  admitting  the  jurisdiction  of  the  Court  to  enforce  the  per- 
formance of  a  particular  act,  expressed  a  doubt  whether  it  was  according  to 
the  practice  of  the  court  to  order  in  specific  terms  that  act  to  be  done ;  but 
added:  "I  think  I  can  direct  it  in  terms,  that  will  have  that  effect."  His 
Lordship  thereupon  pronounced  an  order  in  the  form  given  in  the  report.  In 
Blakemore  v.  Glamorganshire  Canal  Navigation  (1S32)  1  My.  &  K.  154,  184, 
which  came  first  before  Lord  Lyndhurst  and  subsequently  before  Lord  Broug- 
ham, Lord  Brougham,  adverting  to  the  point  raised  by  Lord  Eldon,  said:  "I 
take  leave  to  agree  with  Lord  Lyndhurst  in  the  opinion  that  if  the  Court  has 
this  jurisdiction" — of  ordering  a  specific  act  to  be  done — ''it  would  be  better 
to  exercise  it  directly  and  at  once ;  and  I  will  further  take  leave  to  add,  that 
the  having  recourse  to  a  roundabout  mode  of  obtaining  the  object,  seems  to 
east  a  doubt  upon  the  jurisdiction."  Lord  Brougham,  however,  in  consequence 
of  the  difficulty  felt  by  Lord  Eldon  in  Lane  v.  Newdigate,  declined,  though,  as 
he  said,  without  denying  the  jurisdiction,  to  exercise  it  in  that  particular 
case. — G.  I.  F.  C. 


820  INJUNCTION   IN   RELATION   TO   TORTS  (Cll.  4 

trial,  the  complainant's  father  was  so  much  indisposed,  that  he  could 
not,  in  time,  attend  as  a  witness  for  the  complainant,  and  judgment 
was  obtained  at  law  against  him.  The  summons  was  served  not  by  a 
marshal  or  other  officer,  but  by  the  son  of  the  witness.  The  answer 
denies  the  ground  of  defence  at  law,  but  does  not  say  any  thing  of  the 
absence  of  the  witness  at  the  trial.  If,  therefore,  the  equity  of  the  bill 
is  sufficient  to  warrant  an  injunction,  it  cannot  be  dissolved.  The 
mere  fact  of  the  absence  of  a  material  witness  at  the  time  of  trial,  is 
not  of  itself  a  sufficient  ground  for  an  injunction,  because  the  court 
of  law  who  tried  the  cause,  was  fully  competent  to  give  relief,  by  a 
continuance  or  a  new  trial.  The  bill  does  not  even  aver  that  an  ap- 
plication was  made  to  the  court  of  law  for  that  relief ;  and  if  it  had, 
and  the  court  had  erroneously  refused  it,  or  had  improperly  exercised 
its  discretion  in  refusing  it,  it  is  not  competent  for  a  court  of  equity 
to  revise  and  correct  the  errors  of  a  court  of  law  in  a  case  in  which 
the  latter  had  complete  jurisdiction,  equitable  as  well  as  legal.  There 
being  therefore,  no  ground  of  equity  in  the  bill,  the  injunction  must 
be  dissolved. 


CITY  OF  MANSFIELD  v.  HUMPHREYS  MFG.  CO. 

(Supreme  Court  of  Ohio,  1910.    82  Ohio  St.  216,  02  N.  E.  233, 
31  L.  R.  A.   [N.  S.]  301.) 

Summers,  C.  J.9  The  manufacturing  company  brought  this  action 
to  enjoin  the  city  and  its  board  of  public  service  from  shutting  off 
from  plaintiff's  factory  the  supply  of  water  from  the  city  waterworks. 
The  plaintiff  in  its  petition  filed  December  3,  1907.  avers  that  it  is, 
and  has  been,  using  at  its  factory  water  supplied  by  the  city,  and  that 
it  has  no  other  source  or  means  of  supply  for  a  portion  of  its  factory, 
and  that  if  the  city  shuts  off  this  supply  it  will  stop  a  large  portion  of 
plaintiff's  manufacturing  and  cause  it  irreparable  injury;  that  plain- 
tiff has  always  paid  the  amount  charged  against  it,  and  that  it  is  now 
willing  to  pay  the  city  for  the  water  consumed ;  that  the  city  on  the 
books  of  its  waterworks  has  charged  against  the  plaintiff  $610.13  for 
six  months'  water  rental,  and  has  given  plaintiff  notice  that,  unless  the 
same  is  paid  by  December  5th,  the  city  will  shut  off  the  supply ;  that 
the  charge  is  exorbitant;  that  the  plaintiff  has  not  during  said  time 
used  $200  worth  of  water ;  and  that  it  has  tendered  to  the  city  $200 
which  it  refuses,  and  that  it  threatens  to  and  will,  unless  enjoined,  shut 
off  the  water. 

The  city  in  its  answer  admits  that  it  has  this  amount  charged  on  its 
books  against  the  plaintiff,  and  that  it  will,  unless  enjoined,  cut  off  the 
supply  of  water.  It  then  sets  out  a  scale  of  meter  rates  established 
by  the  city,  avers  that  the  water  supplied  to  the  plaintiff  during  the  pe- 

»  Parts  of  the  opinion  are  omitted. 


Sec.  1)  NATURE   OF   INJUNCTION  821 

riod  in  controversy  was  measured  by  meters  installed  in  the  manu- 
facturing plant  of  the  plaintiff,  and  that  the  amount  charged  was  due 
as  determined  by  the  quantity  registered  by  the  meters  and  at  the  estab- 
lished rates,  and  that  the  rates  are  reasonable.  It  is  also  averred  that 
the  following  rule,  adopted  by  its  board  of  public. service,  relating  to 
the  waterworks,  was  in  force : 

"Section  20.  If  any  party  shall  refuse  or  neglect  to  pay  the  water  rent  when 
due,  or  permits  any  waste  of  water  not  authorized  by  the  rules  and  regula- 
tions of  the  board  of  public  service,  the  water  shall  be  turned  off  and  not 
turned  on  agaiu  until  all  back  rent  and  damages  shall  be  paid,  and  the  fur- 
ther sum  of  $1.00  for  turning  on  and  off  the  water." 

The  reply  of  plaintiff  denies  that  it  consumed  the  quantity  of  water 
stated  in  the  answer,  and  avers  that  if  the  meters  registered  that  quan- 
tity then  they  were  out  of  order  and  inaccurate,  and  that  if  the  meters 
were  not  inaccurate  that  they  were  inaccurately  read.  The  court  of 
common  pleas  dismissed  the  petition  and  the  plaintiff  appealed  to  the 
circuit  court.  The  circuit  court,  among  other  things,  found  that  the 
plaintiff  is  solvent  and  fully  able  to  pay  the  charge,  that  it  had  paid 
all  previous  charges,  and  that  after  the  bill  in  controversy  had  been 
presented  it  had  tendered  to  the  city  the  sum  of  $200;  "that  there  is 
a  dispute  over  said  bill  for  water  between  said  plaintiff  and  said  de- 
fendants, and  that  said  dispute  is  not  captious  and  dilatory,  but  is 
maintained  by  plaintiff  in  good  faith ;  that  the  defendants,  have  not 
resorted  to  an  action  at  law  to  determine  the  amount  of  said  bill  for 
water,  nor  has  the  amount  of  said  bill  ever  been  adjudged  in  any  civil 
action ;"  and  that  if  the  water  was  shut  off  it  would  cause  irreparable 
injury,  and  it  enjoined  the  city  from  shutting  off  or  interfering  with 
the  water  supplied  to  the  plaintiff  until  such  time  as  the  amount  due  is 
determined  by  a  court,  and  then  provided  that,  if  the  amount  so  found 
is  not  then  paid,  the  city  may  turn  off  the  water  under  its  said  rule. 
Error  is  prosecuted  in  this  court. 

Whether  the  circuit  court  enjoined  the  city  from  shutting  off  the 
water  on  the  ground  that  its  rule  respecting  that  matter  is  unreasona- 
ble, or  on  the  ground  that  under  the  circumstances  it  was  inequitable 
to  enforce  it,  does  not  appear  from'  its  judgment.  The  implication  is 
that  it  did  not  find  the  rule  unreasonable.  In  that  event  the  court  ought 
not  to  have  sent  the  city  out  of  court  without  determining  the  amount 
due  it  from  the  plaintiff.  It  should  have  enjoined  the  cutting  off  of 
the  supply  of  water  pending  the  action  only  upon  the  plaintiff  giving 
bond  to  pay  the  amount  ascertained  to  be  due,  and  should  have  ascer- 
tained in  that  action  the  amount  due. 

Section  7,  Municipal  Code,  authorizes  municipal  corporations  to 
provide  for  a  supply  of  water  by  the  construction  of  waterworks  and 
to  collect  money  for  water  supplied.  *  *  *  Section  1536 — 522 
authorizes  them  to  assess  and  collect  a  water  rent,  "in  such  manner 
as  it  deems  most  equitable  upon  all  tenements  and  premises  supplied 
with  water,  and  where  more  than  one  tenant  or  water  taker  is  sup- 


S22  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 

plied  with  water  from  one  hydrant  or  off  the  same  pipe,  and  when  the 
assessments  therefor  shall  not  he  paid  when  due,  the  board  shall  look 
directly  to  the  owner  of  the  property  for  the  entire  rent,  or  so  much 
thereof  as  remains  unpaid  for  water  furnished  said  premises,  to  be 
collected  in  the  same  manner  as  other  city  taxes."     *     *     * 

The  statutes  and  decisions  in  other  states  cannot  throw  much  light 
upon  our  own  statute,  but  they  may  be  helpful  in  determining  the  ques- 
tion of  the  reasonableness  of  the  rule  under  consideration.     *     *     * 

Turner  v.  Revere  Water  Co.,  171  Mass.  329,  50  N.  E.  634,  40  L. 
R.  A.  657,  68  Am.  St.  Rep.  432.  was  a  suit  to  compel  the  water  com- 
pany to  supply  the  plaintiff  with  water,  and  to  restrain  it  from  pre- 
venting him  from  securing  a  suitable  supply  thereof.  In  the  superior 
court  a  decree  had  been  entered  restraining  the  water  company  from 
refusing  or  neglecting  to  supply  the  plaintiff  with  a  suitable  supply  of 
water  so  long  as  he  continued  to  pay  the  regular  water  rates  and  com- 
plied with  all  other  reasonable  and  usual  regulations  of  the  company  in 
the  future,  except  those  relating  to  the  payment  of  the  water  rates 
remaining  unpaid  of  previous  owners  or  tenants.  The  decree  was  af- 
firmed. In  that  case  the  plaintiff  rented  a  dwelling  house,  the  owner 
of  which  was  indebted  to  the  company  for  water  previously  supplied, 
and  the  court  held  that,  in  the  absence  of  legislation,  the  company  could 
not  by  its  regulation  impose  a  lien  upon  land,  and  it  was  upon 
that  ground  that  the  rule  was  held  unreasonable.  Quite  a  number  of 
cases  are  referred  to  and  discussed  in  the  opinion,  and  it  is  for  that 
reason  referred  to,  and  it  is  followed  in  Burke  v.  City  of  Water  Val- 
ley, 87  Miss.  732,  40  South.  820,  112  Am.  St.  Rep.  468. 

In  People  ex  rel.  v.  Manhattan  Gas  Light  Co.,  45  Barb.  (N.  Y.)  136, 
a  mandamus  was  refused  to  compel  the  gas  company  to  furnish  gas  to 
a  person  who  was  insolvent  and  against  whom  the  company  had  a  judg- 
ment for  gas  furnished  at  another  place  in  the  city.  In  McGregor  v. 
Case,  80  Minn.  214,  83  N.  W.  140,  the  plaintiff  'sued  to  enjoin  the 
officials  charged  with  the  management  of  the  waterworks  of  the  city 
of  Buluth  from  cutting  off  the  supply  of  water  to  a  building  in  that 
city  which  they  were  about  to  do  because  of  the  refusal  to  pay  the 
sum  of  $8.77,  which  the  plaintiff  claimed  was  excessive.  It  is  there 
said: 

"It  may  be  admitted  that  in  a  controversy  over  the  rate  charged  for  water 
supply,  where  there  is  but  one  source  of  obtaining  the  same  in  a  city,  and  a 
cut-off  is  threatened,  an  injunction  may,  upon  proper  showing,  be  had  to  re- 
strain the  illegal  duress  to  collect  the  improper  charges." 

And  the  court  refused  to  hold  that  the  trial  court  had  abused  its 

discretion  in  refusing  the  temporary  injunction,  saying: 

"In  view  of  the  small  amount  involved,  the  large  interests  of  the  city  in 
operating  its  water  system,  the  difficulties  that  might  follow  if  it  should  trans- 
pire that  the  controversy  were  ill  advised  or  unfounded,  in  a  suit  to  recover 
the  small  overcharge,  we  cannot  say  that  there  was  an  abuse  of  discretion  by 
the  learned  trial  court  in  denying  the  temporary  writ.'' 


Sec.  1)  NATURE   OF  INJUNCTION  823 

In  Brass  v.  Rathbone,  8  App.  Div.  78,  40  X.  Y.  Supp.  466,  it  is  held 
that : 

"Courts  of  equity  will  not  sustain  an  action  to  restrain  the  collection  of  a 
water  tax  except  under  circumstances  of  great  necessity  and  to  prevent  ir- 
reparable damages." 

On  the  other  hand,  it  is  held,  in  some  cases,  that  a  city  cannot  en- 
force the  payment  of  old,  overdue,  and  disputed  bills  by  shutting  off 
the  supply  of  water.  In  Wood  v.  City  of  Auburn,  87  Me.  287,  292, 
32  Atl.  906,  908  (29  L.  R.  A.  376)  it  is  held : 

"The  water  taker  may  prevent  such  action  by  injunction  in  equity  ;  nor  can 
the  court  in  such  proceeding  be  required  to  investigate  and  determine  the  mer- 
its of  the  unpaid  and  disputed  installment.  The  water  company  must  resort 
to  the  court,  if  it  would  enforce  its  claim." 

In  the  opinion  it  is  said  by  Emery,  J. : 

"The  city,  as  a  water  company,  cannot  do  as  it  will  with  its  water.  It  owes 
a  duty  to  each  consumer.  The  consumer  once  taken  on  to  the  system,  becomes 
dependent  on  that  system  for  a  prime  necessity  of  business,  comfort,  health, 
and  even  life.  He  must  have  the  pure  water  daily  and  hourly.  To  suddenly 
deprive  him  of  this  water,  in  order  to  force  him  to  pay  an  old  bill  claimed  to 
be  unjust,  puts  him  at  an  enormous  disadvantage.  He  cannot  wait  for  the 
water.  He  must  surrender  and  swallow  his  choking  sense  of  injustice.  Such 
a  power  in  a  water  company  or  municipality  places  the  consumer  at  its  mercy. 
It  can  always  claim  that  some  old  bill  is  unpaid.  The  receipt  may  have  been 
lost,  the  collector  may  have  embezzled  the  money ;  yet  the  consumer  must 
pay  it.  again  and  perhaps  still  again.  He  cannot  resist  lest  he  lose  the  water. 
It  is  said,  however,  that  the  consumer  can  apply  to  the  courts  to  recover  back 
any  sum  he  is  thus  compelled  to  pay,  if  it  was  not  justly  due  from  him ;  or, 
if  he  can  show  affirmatively  that  it  is  not  a  just  claim  against  him,  he  can 
by  judicial  process  restrain  the  company  or  municipality  from  shutting  off 
the  water.  To  oblige  a  person  to  follow  such  a  course  would  be  a  violation 
of  the  fundamental  juristic  principle  of  procedure.  That  principle  is  that  the 
claimant,  not  the  defendant,  shall  resort  to  judicial  process — that  he  who  as- 
serts something  to  be  due  him,  not  he  who  denies  a  debt,  shall  have  the  bur- 
den of  judicial  action  and  proof.  It  is  only  in  the  case  of  dues  to  the  state 
that  this  principle  is  suspended." 

********** 

But  now  meters  have  come  into  use,  and  when  the  quantity  con- 
sumed is  to  be  ascertained  by  that  means,  the  sum  to  be  paid  cannot 
be  determined  in  advance,  and  the  door  to  contention  is  opened.  It  is 
like  a  sale  on  credit.  The  water  is  supplied  upon  faith  that  the  con- 
sumer will  pay  at  the  meter  rates  for  the  quantity  consumed  as  indi- 
cated by  the  meter,  and  there  is  an  implied  promise  by  the  consumer 
to  pay  the  sum  so  determined.  This  is  upon  the  assumption  that  the 
meter  is  accurate,  but  the  presumption  is  that  it  is,  and  that  the  charge 
is  correct.  The  consumer  may  dispute  the  charge  and  refuse  to  pay 
it,  but  if  he  does  he  ought  not  to  be  permitted  to  require  the  city  to 
continue  the  service.  It  is  just  as  reasonable  that  the  city  should  de- 
termine the  amount  due  as  that  the  consumer  should,  perhaps  more,  as 
the  determination  for  the  city  is.  by  officials  without  personal  interest. 
If  the  charge  is  a  lien  upon  the  premises  of  the  consumer  and  the  city 
undertakes  to  collect  in  the  manner  taxes  or  assessments  are  collected, 
the  consumer  would  have  to  apply  to  the  courts  for  relief.  Of  what 
use  are  rules  and  regulations  if  the  city  can  enforce  them  only  through 


824  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

the  courts?  It  has  been  held  that  the  consumer  may  pay  under  pro- 
test and  recover  any  excess,  or  that  he  may  sue  for  damages ;  but  it 
has  been  also  held  tbat  these  remedies  are  inadequate  and  that  he  may, 
therefore,  seek  equitable  relief.  If  he  does  he  ought  to  do  equity  and 
accompany  his  prayer  for  an  injunction  against  the  cutting  off  of  his 
supply  with  an  offer  to  pay  the  sum  the  court  may  ascertain  to  be  due.  If 
he  takes  the  matter  into  court,  why  should  it  also  be  necessary  for  the 
city  to  do  so?  The  Code  of  Civil  Procedure  has  supplanted  actions 
at  law  and  suits  in  equity  with  a  civil  action  in  which  the  remedies  of 
both  may  be  applied.  The  circuit  court  ought  only  to  have  enjoined 
until  the  amount  due  could  be  ascertained  and  it  should  have  been 
ascertained  in  that  action,  and  the  costs  assessed  against  the  party  at 
fault. 

Van  Nest  Land  &  Improvement  Co.  v.  Xew  York  &  Westchester 
Water  Co.,  7  App.  Div.  295,  296,  40  N.  Y.  Supp.  212,  was  a  suit  to 
enjoin  the  defendant  from  cutting  off  the  supply  of  water  in  violation 
of  a  contract  between  the  parties.  In  the  opinion  by  Ingraham,  J.,  it 
is  said : 

"The  plaintiff  alleges  that  it  has  tendered  the  amount  actually  due,  and  the 
sole  question  between  the  parties  is  as  to  the  amount  due  under  the  contract. 
No  doubt  is  presented  as  to  the  responsibility  of  either  of  the  parties,  the 
plaintiff  expressly  offering  in  the  complaint  to  pay  the  amount  that  the  court 
should  find  due  to  the  defendant.  It  further  appears  that  it  will  cause  the 
plaintiff  great  injury  if  the  water  supply  is  cut  off.  Upon  this  state  of  facts 
the  court  below  enjoined  the  defendant  from  cutting  off  the  water  during  the 
pending  of  this  action.  *  *  *  It  is  manifestly  difficult  to  determine  the 
cpiestion  as  to  how  much  allowance  should  be  made  to  the  plaintiff  under  tbe 
contract,  because  of  a  failure  by  the  defendant  to  comply  with  the  contract 
on  its  part.  That  can  only  be  done  upon  a  more  extended  examination  than 
could  be  had  upon  a  motion  of  this  character  where  no  cross-examination  is 
possible  and  where  the  witnesses  are  not  before  the  court.  The  plaintiff,  how- 
ever, does  not  appear  to  be  liable  to  the  defendant  for  the  amount  actually 
due  under  the  contract,  and  we  think  that,  before  the  defendant  should  be  en- 
joined from  discontinuing  its  service,  the  plaintiff  should  give  a  bond  condi- 
tioned for  the  payment  of  any  amount  found  by  the  court  to  be  due  under  tbe 
contract.  The  order  below  is,  therefore,  modified  by  providing  that  the  in- 
junction shall  be  continued  upon  the  plaintiff  filing  with  the  clerk  of  this  court 
a  bond  with  two  sureties  to  be  approved  upon  justification  in  the  penalty  of 
$10,000,  conditioned  for  the  payment  of  any  sum  found  due  by  the  court,  on 
the  trial  of  this  action,  to  the  defendant  under  the  contract  alleged  in  the  com- 
plaint; that  in  the  event  of  the  failure  to  give  such  bond  withiu  10  days  after 
service  of  a  copy  of  this  order,  the  injunction  be  vacated." 

We  think  a  similar  modification  should  be  made  in  this  case,  and  it 
will  be  so  ordered,  and  the  cause  remanded  to  the  circuit  court  for  fur- 
ther proceedings. 

Judgment  modified. 

Crew,  Spear,  Davis,  Shauck,  and  Price,  JJ.,  concur.10 

io  In  the  case  of  City  of  Madison  v.  Madison  Gas  &  Electric  Co.  (1000) 
120  Wis.  249,  L08  X.  W.  65,  66-70,  8  L.  R.  A.  (N.  8.)  31!'.).  110  Am.  St.  Rep. 
944,  9  Ann.  Gas.  819,  the  action  was  instituted  to  enjoin  the  defendant  from 
exacting  from  the  plaintiff,  the  city  of  Madison,  and  all  its  customers,  for  gas 
and  electricity  used  by  them,  unreasonable  and  excessive  rates ;  and  to  com- 
pel it  to  furnish  such  customers  in  the  future,  gas  and  electricity,  of  good 


Sec.  1)  NATURE   OF   INJUNCTION  825 

quality  and  at  reasonable  rates,  without  unjust  discriminations.  The  relief 
sought  was  in  no  way  to  affect  the  rates  at  which  gas  and  electricity  was  to 
be  furnished  the  city  during  the  period  of  the  existing  contract  between  it 
and  the  gas  company.  Siebecker,  J.,  among  other  things,  said:  "It  appears 
that  the  action  is  planted  in  equity,  and  is  one  seeking  to  enjoin  the  gas  com- 
pany and  its  officers  and  agents  from  demanding  or  exacting  from  its  cus- 
tomers unreasonable  and  excessive  rates  for  gas  to  be  furnished  to  them,  to 
compel  it  to  furnish  a  good  quality  and  a  sufficient  quantity  of  its  commodi- 
ties at  reasonable  rates,  without  unjust  discrimination,  and  to  establish  a  uni- 
form schedule  of  prices  for  them.  *  *  *  Nothing  has  been  done  by  the 
state,  either  directly,  or  indirectly  through  the  city  of  Madison  as  one  of  its 
agencies,  to  prescribe  a  rate  at  which  the  gas  company  is  to  furnish  gas  to 
the  city  and  its  inhabitants.  True,  the  gas  company  is  obligated  to  furnish 
the  commodity  at  a  reasonable  rate,  but  no  power  exists  in  the  court  to  pre- 
scribe  as  a  fixed  charge  for  such  service  in  the  future  what  it  may  find  to 
have  been  a  reasonable  rate  for  the  service  theretofore  furnished.  The  relief 
demanded,  compelling  the  gas  company  to  furnish  gas  to  its  customers  at  a 
reasonable  rate  in  the  future,  must  lie  secured,  either  directly  or  through  an 
appropriate  agency,  by  legislative  action,  prescribing  rates  or  charges  which 
shall  be  reasonable  for  the  service.  We  discover  no  other  object  in  this  ac- 
tion, nor  do  the  facts  presented,  upon  which  equitable  relief  is  sought,  afford 
any  basis  for  any  other  equitable  relief  to  remedy  the  wrongs  complained  of. 
Upon  these  considerations,  it  must  follow  that  the  court  erred  in  denying  de- 
fendants' motion  for  dismissal  of  the  action.  The  order  appealed  from  is  re- 
versed, and  the  cause  remanded,  with  directions  that  the  court  enter  an  or- 
der dismissing  the  action  and  granting  costs  to  the  defendants." 

See  Waller  v.  Village  of  River  Forest  (1913)  259  111.  223,  102  N.  Fj.  290, 
where  Carter,  J.,  said:  "This  was  a  bill  in  equity  filed  by  appellant  in  the 
circuit  court  of  Cook  county  against  the  village  of  River  Forest  and  the  Chi- 
cago &  Northwestern  Railway  Company  to  quiet  title  and  to  enjoin  them  from 
destroying  appellant's  fence  or  interfering  with  his  possession  of  a  tract  of 
land  35  feet  wide  and  400  feet  long  lying  west  of  Oak  avenue  and  north  of 
the  right  of  way  of-,  said  railway  in  said  village,  and  to  remove  as  a  cloud  a 
certain  plat  so  far  as  it  affects  a  certain  tract  theretofore  vacated  as  a  street. 
A  demurrer  filed  by  the  village  was  overruled  and  thereafter  its  answer  was 
filed.  On  a  hearing  before  the  court  the  bill  was  dismissed  for  want  of  equity, 
and  this  appeal  followed.  *  *  *  It  is  apparent  that  practically  only  the 
north  15  feet  of  said  35-foot  strip,  between  Oak  avenue  and  Waller  avenue  as 
vacated,  is  in  dispute  between  the  village  authorities  and  appellant.  *  *  * 
Counsel  for  appellee  concedes  that  if  said  Blackall  did  not  convey  a  fee  in  this 
strip  of  land  to  the  village  of  River  Forest  the  decree  below  should  be  reversed. 
Counsel  for  appellant  contend  that  this  deed  only  conveyed  an  easement  to 
the  village.  *  *  *  Beyond  question,  the  court  in  the  burnt  records  pro- 
ceeding construed  the  deed  conveying  this  strip  of  land  from  Blackall  to  the 
village  of  River  Forest  as  only  giving  an  easement  for  street  purposes  to  said 
village,  and  held  that  the  fee-simple  title  remained  in  the  grantor  by  the  terms 
of  said  deed  and  had  been  conveyed  to  the  Hibernian  Banking  Associa- 
tion. *  *  *  The  circuit  court  in  that  case  had  full  authority  to  enter  that 
decree.  It  effectually  settled  the  title  between  the  parties.  *  *  *  Where 
a  municipality  undertakes  to  take  possession  of  a  street  to  which  it  has  no 
right,  the  proper  remedy  is  injunction.  City  of  Peoria  v.  Johnston  (1870)  56 
111.  45;  Mclntyre  v.  Storey  (1875)  80  111.  127.  Under  these  authorities  the 
facts  in  this  record  authorized  a  court  of  equity  to  grant  the  relief  prayed 
for.  The  circuit  court  erred  in  dismissing  the  bill  for  want  of  equity.  The 
decree  of  that  court  will  therefore  be  reversed,  and  the  cause  remanded,  with 
directions  to  enter  a  decree  in  accordance  with  the  prayer  of  the  bill," 


826  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 


DALTON  ADDING  MACHINE  CO.  v.  STATE  CORPORATION 

COMMISSION. 

(Supreme  Court  of  the  United  States,  1915.    236  U.  S.  699,  35  Sup.  Ct.  480, 

59  L.  Ed.  .) 

Appeal  from  the  District  Court  of  the  United  States  for  the  East- 
ern District  of  Virginia  to  review  a  decree  refusing  to  enjoin  the 
threatened  enforcement  of  a  state  statute  requiring  foreign  corpora- 
tions doing  business  in  the  state  to  obtain  a  license,  at  the  instance 
of  a  corporation  which  asserts  that  its  business  within  the  state  is 
wholly  interstate. 

See  same  case  below,  213  Fed.  889. 

The  facts  are  stated  in  the  opinion. 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court: 

This  is  an  appeal  from  an  order  of  three  judges,  denying  a  prelim- 
inary injunction,  as  prayed  in  the  appellant's  bill.  The  bill  alleges  that 
the  appellant  is  a  Missouri  corporation,  having  its  factory  in  Missouri, 
that  it  obtains  orders  for  its  machines  in  Virginia  through  drummers, 
considers  and  accepts  or  rejects  them  in  Missouri,  and,  if  it  accepts, 
forwards  the  machine  from  its  factory.  In  some  cases  the  possible 
customer  is  allowed  to  try  a  machine'  previously  forwarded  and  in 
the  hands  of  the  Virginia  agent,  and  if  he  is  accepted  as  a  purchaser 
and  desires  to  keep  it,  is  permitted  to  do  so.  The  appellant  contends 
that  its  business  in  Virginia  is  wholly  interstate.  A  statute  of  Vir- 
ginia requires  foreign  corporations  doing  business  there  to  obtain  a 
license  from  the  state  corporation  commission,  to  pay  a  fee,  etc.,  and 
it  is  alleged  that  the  commission  threatens  to  take  proceedings  to  en- 
force the  statute  and  the  penalties  provided  for  disobeying  it  against 
the  appellant,  contrary  to  article  I.,  §  8,  of  the  Constitution.  The  ap- 
pellant further  alleges  that  it  has  reason  to  fear  and  fears  a  multiplic- 
ity of  proceedings  and  the  imposition  of  many  fines,  and  that  it  will 
suffer  irreparable  loss  from  even  a  temporary  interference  with  its 
affairs,  through  loss  of  sales  and  prestige,  help  to  its  competitors,  and 
encouragement  of  similar  proceedings  in  other  states.     213  Fed.  889. 

The  court  below  remarked  that  it  was  not  contended  that  the  statute 
was  unconstitutional,  but  was  alleged  only  that  it  was  feared  that  it 
might  be  enforced  in  such  a  way  as  to  contravene  the  commerce  clause, 
and  suggested  that  if  proceedings  should  be  instituted  by  the  com- 
mission there  would  be  a  hearing  before  it,  with  a  right  to  appeal  to 
the  supreme  court  of  appeals,  and,  upon  a  proper  showing,  to  take  the 
case  to  this  court,  and  that  there  was  nothing  to  indicate  that  the  com- 
mission would  not  give  the  appellant  a  fair  hearing,  or  would  attempt 
to  enforce  the  law  against  it  in  an  oppressive  way.  On  this  ground, 
without  expressing  an  opinion  as  to  the  liability  of  the  appellant  under 
the  statute,  it  held  that  no  case  for  an  injunction  was  made  out. 

We  agree  with  the  district  court  in  its  conclusion  and  in  its  grounds. 


vSeC.  1)  NATURE   OF   INJUNCTION  827 

Like  it,  we  leave  on  one  side  the  merits  of  the  appellant's  claim  of 
immunity,  and  confine  ourselves  to  deciding  that  no  reason  is  shown 
for  anticipating  the  ordinary  course  of  the  law.  We  also  leave  aside 
the  question  whether  the  action  of  the  commission  is  or  is  not  the 
action  of  a  court  protected  from  interference  on  the  part  of  the  courts 
of  the  United  States.  Rev.  Stat.  §  720.  Prentis  v.  Atlantic  Coast 
Line  Co.,  211  U.  S.  210,  226,  230,  53  L.  Ed.  150,  158,  160,  29  Sup. 
Ct.  67.  The  general  principle  is  that  it  is  not  for  the  courts  to  stop 
officers  of  this  kind  from  performing  their  statutory  duty  for  fear  that 
they  should  perform  it  wrongly.  First  Xat.  Bank  v.  Albright,  208  U. 
S.  548,  553,  52  L.  Ed.  614,  616,  28  Sup.  Ct.  349.  Especially  is  this 
true  in  the  matter  of  collecting  taxes  and  license  fees.  Boise  Artesian 
Hot  &  Cold  Water  Co.  v.  Boise  City,  213  U.  S.  276,  53  L.  Ed.  796, 
29  Sup.  Ct.  426.  The  appellant  has  an  adequate  remedy  at  law  in 
its  right  to  raise  the  constitutional  question  if  proceedings  are  taken 
against  it,  or,  it  seems,  to  recover  the  money  if  it  pays  under  protest. 
Xo  special  circumstances  are  shown,  that  we  can  notice,  to  take  this 
case  out  of  the  ordinary  rule.  Indiana  Mfg.  Co.  v.  Koehne,  188  U. 
S.  681,  690,  47  L.  Ed.  651,  656,  23  Sup.  Ct.  452. 
Decree  affirmed. 


GREEN  et  al.  v.  PIPER  et  al. 
(Court  of  Chancery  of  New  Jersey,  1912.  80  N.  J.  Eq.  288,  84  Atl.  104.) 
Emery,  V.  C.  The  bill  and  amended  bill  are  filed  by  complainants 
as  citizens,  taxpayers,  and  residents  of  Long  Branch,  an  incorporated 
city,  against  the  city  and  the  lessees  of  property  of  the  city,  called  the 
"Ocean  Park."  These  lessees,  or  their  managers  (who  have  also  been 
made  parties),  have  erected  and  are  operating  in  the  park  various 
amusement  structures,  such  as  scenic  railways,  merry-go-rounds,  Fer- 
ris wheels,  etc.,  and  operate  these,  or  some  of  them,  on  Sundays,  as 
well  as  week  days.  These  Sunday  operations,  which  have  been  con- 
tinuous during  the  seashore  season,  are  alleged  to  be  violations  of  the 
vice  and  immorality  act,  and  punishable  as  crimes.  The  lease  from  the 
city,  under  which  the  tenants  claim,  does  not  contain  any  provisions 
restricting  the  use  of  the  leased  property  in  this  respect,  or  providing 
that  the  property  shall  not  be  used  for  illegal  purposes.  The  lease  is 
for  the  term  of  20  years  from  March  1,  1910,  for  2  years  at  an  an- 
nual rental  of  $3,000,  and  for  the  next  8  years  5  per  cent,  of  the  gross 
receipts  of  the  tenant  from  all  sources,  and  for  the  remaining  10  years 
10  per  cent,  thereof. 

At  the  time  of  the  execution  of  the  lease,  February  9,  1900,  an  ordi- 
nance of  the  city,  passed  May  20,  1907,  was  in  force,  the  object  of  the 
second  section  of  which  was,  according  to  the  bill,  "to  prevent,  among 
other  things,  games  and  plays  on  the  first  day  of  the  week,  commonly 
called  Sunday;"    but  on  July  17,  1911,  as  the  bill  alleges,  this  second 


828  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

section  was  repealed  by  the  passing  of  another  ordinance,  in  lieu  there- 
of, by  the  city  council,  from  which  last  ordinance  the  second  section, 
preventing  games  and  plays  on  Sundays,  was  eliminated.  Neither  of 
these  ordinances  is  set  out  in  the  bill ;  but,  for  purposes  of  this  demur- 
rer, the  ordinances  will  be  treated  as  having  the  effect  stated  in  the 
bill,  and  as  if,  under  the  first  ordinance,  the  present  amusements  com- 
plained of  were  "games  and  plays"  forbidden  by  the  first  ordinance, 
and  as  if  the  prohibition  was  repealed  by  the  passage  of  the  second  or- 
dinance. The  charge  in  reference  to  the  ordinances  is  that  this  repeal 
of  the  ordinance  forbidding  games  and  plays  was  a  violation  of  duty 
on  the  part  of  the  mayor  and  common  council  of  the  city;  and  that 
by  this  act,  and  also  by  their  failure  to  prevent  the  operation  of  the 
scenic  railway  on  Sunday,  they  are  aiding  and  assisting  the  lessees  in 
open  and  notorious  violation  of  the  Sunday  laws.  The  "mayor  and 
the  city  council  of  the  city  of  Long  Branch"  are  made  parties  defend- 
ant by  that  name  only,  and  the  several  individuals  holding  these  of- 
fices at  the  time  of  filing  the  bill  (September  2,  1911)  have  joined  with 
Long  Branch,  the  incorporated  city,  in  demurring  to  the  bill.  The 
lessees,  and  the  defendants,  claiming  or  operating  under  them,  have 
not  joined  in  the  demurrer. 

The  relief  prayed  in  this  case  is  a  decree  that  the  council  of  the  city 
has  power  and  authority  to  stop  the  operation  of  the  scenic  railway 
on  Sunday,  that  the  tenants  and  their  managers  have  no  right  to  oper- 
ate on  Sunday,  and  may  be  enjoined  from  so  operating  it,  and  that 
the  mayor  and  common  council  be  enjoined  from  permitting  it  to  be 
operated,  and  for  a  mandatory  injunction,  compelling  the  mayor  and 
common  council  to  prevent  the  operation  on  Sunday  "by  all  proper 
means  in  their  control."  This  bill  is  not  for  the  protection  of  any  prop- 
erty rights  of  any  of  the  complainants,  but  is  essentially  a  bill  by  a 
citizen  and  taxpayer  of  a  municipal  corporation  (1)  to  compel  by  in- 
junction the  municipal  officers  to  perforin  a  duty  of  enforcing  public 
laws,  and  (2)  to  enjoin  the  lessees  of  the  municipality  from  violating 
the  criminal  laws  of  the  state  in  their  occupation  of  the  lands  leased 
by  the  city.  In  neither  aspect  of  the  case  has  a  court  of  equity  power 
to  grant  the  relief  asked. 

Jurisdiction  by  injunction,  mandatory  or  otherwise,  merely  to  com- 
pel public  officers  to  perform  their  duties  in  relation  to  the  enforce- 
ment of  the  criminal  law  has  never  been  exercised.  For  any  such  will- 
ful violation  of  merely  public  duties,  the  remedies  are  exclusively  in 
other  courts.  Courts  of  equity,  on  proper  occasion,  interfere  to  pro- 
tect property  rights,  and  for  this  purpose  sometimes  interfere  when 
the  acts  complained  of  are  crimes;  but  they  never  exercise  a  jurisdic- 
tion based  solely  on  the  right  of  a  suitor  or  citizen  to  prevent  the  com- 
mission of  a  crime,  or  its  continuance.  Ocean  City  Association  v. 
Schurch,  57  N.  J.  Eq.  269,  271,  41  Atl.  914  (Grey,  V.  C,  1898);  Gil- 
bough  v.  West  Side  Amusement  Co.,  64  N.  J.  Eq.  27,  36,  53  Atl.  289 


Sec.  1)  NATURE   OF   INJUNCTION  829 

(Pitney,  V.  C,  1902) ;  McMillan  v.  Kuehnle,  76  N.  J.  Eq.  256,  263, 
73  Atl.  1054,  1057  (Walker,  V.  C,  1909),  approved  on  this  point  on 
appeal  Id.,  78  N.  J.  Eq.  251,  252,  78  Atl.  185  (1910). 

The  exercise  of  such  a  jurisdiction  by  a  court  of  equity,  and  its  de- 
termination by  decree  that  a  crime  had  been  committed,  would  hold 
defendants  to  answer  for  a  crime  otherwise  than  by  the  presentment 
or  indictment  by  a  grand  jury,  and  violate  the  constitutional  provi- 
sion of  article  1,  par.  9.  The  bill  alleges  that  several  convictions  un- 
der the  criminal  law  for  the  operation  of  the  scenic  railway  on  Sunday 
have  been  obtained  before  a  justice  of  the  peace;  that  nominal  fines 
of  one  dollar  were  imposed ;  and  that  these  convictions  have  had  and 
will  have  no  effect  in  preventing  the  violation  of  the  law  in  the  future ; 
and,  further,  that  the  grand  jury  of  the  county  have  failed  to  indict 
the  defendants  operating  the  railway  upon  complaint,  duly  made  and 
proved  before  them,  and  in  disregard  of  the  charge  of  the  Justice  of 
the  Supreme  Court  in  relation  thereto.  A  court  of  equity  assuming- 
jurisdiction  on  these  grounds  would  become  a  criminal  court,  review- 
ing the  proceedings  of  grand  juries,  and  manifestly  act  in  violation  of 
the  constitutional  provision. 

On  the  second  claim  to  an  injunction  prohibiting  the  lessees  of  the 
municipality  from  illegal  criminal  use  of  the  public  park  by  violation 
of  the  Sunday  law,  it  is  plain  that  any  power  of  this  court  to  exercise 
jurisdiction  must  be  based  on  two  propositions:  First,  that  the  city, 
in  its  capacity  as  the  lessor  and  property  owner,  has  the  right  to  enjoin 
its  lessees  from  the  illegal  use  complained  of ;  and  second,  that  on 
the  failure  of  the  city,  as  such  lessor  and  property  owner,  to  protect 
its  property  rights,  a  citizen  and  taxpayer  has  the  right  to  sue  for  the 
injunction  on  behalf  of  the  city,  making  the  city  a  party  defendant. 

The  complainants'  case  must  fall,  in  my  judgment,  because  the  city, 
as  lessor,  has  not,  under  the  lease,  the  right  to  the  injunction  claimed. 
In  the  absence  of  any  provision  in  the  lease  itself,  by  which  the  mere 
unlawful  use  of  the  premises  leased  becomes  a  ground  for  forfeiture 
or  injunction,  or  in  the  absence  of  a  statute  providing  for  the  effect 
upon  the  lease  of  the  unlawful  use  of  the  premises,  there  is  no  ground 
for  interference  on  behalf  of  the  landlord  by  reason  merely  of  such 
illegal  use.  I  have  not  been  referred  to  any  authority  for  the  exercise 
of  any  jurisdiction  of  this  character.  The  cases  in  which  relief  of  any 
kind  is  given  to  the  lessor  by  reason  of  the  illegal  use  of  the  premises 
are  those  where  the  protection  is  based,  either  on  the  express  restric- 
tive covenants  of  the  lease,  or  upon  statutes  authorizing  forfeitures  of 
the  lease  for  such  uses. 

No  provisions  relating  to  the  illegal  use  of  the  property  were  incor- 
porated in  this  lease.  The  provisions  of  the  ordinance  then  existing, 
relating  to  Sunday  games  and  plays,  did  not.  in  the  absence  of  any 
reference  thereto  in  the  lease,  become  a  portion  of  the  lease  itself; 
and,  even  on  the  assumption  that  by  its  mere  existence  it  did  become 


830  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

part  of  the  lease,  its  subsequent  repeal  by  the  city  itself  relieved  the 
lessees  from  its  operation,  and  by  the  act  of  the  lessor  itself.  The  fact 
that  the  individuals  exercising  at  the  time  the  legislative  power  and 
discretion  of  the  city  violated  their  individual  duties  to  the  public  by 
this  repeal,  and  by  such  violation  changed  any  property  rights  of  the 
lessor  arising  by  reason  of  the  existence  of  the  ordinance  at  the  time 
of  the  lease,  does  not  have  the  effect  of  preventing  the  legal  operation 
of  the  repeal  upon  the  lease,  or  authorize  this  court  to  decree  relief, 
based  on  the  continued  existence,  either  in  law  or  equity,  of  the  section 
repealed  and  abandoned  by  the  lessor. 

Complainant  further  claims  that,  by  reason  of  the  sharing  by  the 
city  in  all  the  receipts,  it  becomes  a  sharer  in  the  profits  of  the  illegal 
Sunday  business ;  that  this  revenue  could  not  be  .collected,  and  there- 
fore the  lease  is  imperiled.  But,  unless  the  lease  expressly  provided 
for  carrying  on  such  illegal  business,  the  lessor  is  certainly  entitled  to 
an  account  for  the  receipts  from  all  the  legal  business ;  and,  inasmuch 
as  the  object  of  complainant's  bill  is  to  restrict  the  business  to  legal 
business,  there  is  plainly  no  basis  for  injunction  on  this  claim. 

Disposing  of  complainant's  case  as  presented  and  argued  on  its  sub- 
stantial claim,  the  demurrer  of  the  city  must  be  sustained,  as  also  the 
demurrer  of  the  individual  officers  holding  the  offices.  I  do  not  con- 
sider at  all  the  formal  objection  as  to  making  the  mayor  and  common 
council  defendants  by  those  names  alone ;  there  being  no  such  incor- 
poration. The  bill  also  presented  another  question,  viz.,  one  relating 
to  the  legal  validity  of  the  lease  itself,  based  on  allegations  that  under 
the  charter  and  laws  the  right  to  make  the  lease  was  vested,  not  in 
the  mayor  and  common  council,  who  made  the  lease  by  ordinance,  but 
in  another  body,  called  "the  Beach  and  Park  Commission  of  Long 
Branch."  This  commission  (not  alleged,  however,  to  be  a  corporate 
body)  is  made  defendant  by  this  name,  and  the  individuals  comprising 
the  body  have  joined  in  the  demurrer.  This  claim,  if  there  is  any 
basis  on  which  it  can  be  considered  at  all  in  any  court,  is  manifestly  a 
legal  claim  only,  involving  purely  questions  of  law,  which  complain- 
ants have  no  standing  to  have  adjudicated  in  a  court  of  equity.  If 
the  municipality  has  any  legal  claim  or  demand  arising  out  of  the 
invalidity  of  the  lease,  complainants  may  apply  to  the  courts  at  law  for 
authority  to  institute  an  action  thereon.  Practice  Act,  §  44  (3  Comp. 
Stat.  1910,  p.  4064). 

I  will  advise  an  order  sustaining  the  demurrer. 


Sec.  1)  NATURE   OF   INJUNCTION  831 


GOMPERS  et  al.  v.  BUCKS  STOVE  &  RANGE  CO. 

(Supreme  Court  of  the  United  States,  1911.     221  U.  S.  41S,  31  Sup.  Ct.  492, 
55  L.  Ed.  797,  34  L.   R.  A.   [N.   S.]  874.) 

On  Writ  of  Certiorari  to  the  Court  of  Appeals  of  the  District  of 
Columbia  to  review  a  judgment  which  affirmed  a  judgment  of  the  Su- 
preme Court  of  the  District,  punishing  by  imprisonment  an  alleged 
contempt  of  an  injunction  against  the  continuance  of  a  boycott. 

Mr.  Justice  Lamar11  delivered  the  opinion  of  the  court : 

The  defendants,  Samuel  Gompers,  John  Mitchell,  and  Frank  Morri- 
son, were  found  guilty  of  contempt  of  court  in  making  certain  publica- 
tions prohibited  by  an  injunction  from  the  supreme  court  of  the  Dis- 
trict of  Columbia.  They  were  sentenced  to  imprisonment  for  twelve, 
nine,  and  six  months  respectively,  and  this  proceeding  is  prosecuted  to 
reverse  that  judgment. 

The  order  alleged  to  have  been  violated  was  granted  in  the  equity 
suit  of  the  "Buck's  Stove  &  Range  Company  v.  The  American  Federa- 
tion of  Labor  and  Others,"  in  which  the  court  issued  an  injunction 
restraining  all  the  defendants  from  boycotting  the  complainant,  or 
from  publishing  or  otherwise  making  any  statement  that  the  Buck's 
Stove  &  Range  Company  was,  or  had  been,  on  the  "Unfair"  or  "We 
Don't  Patronize"  lists.  Some  months  later  the  complainant  filed  a 
petition  in  the  cause,  alleging  that  the  three  defendants  above  named, 
parties  to  the  original  cause,  in  contempt  of  court  and  in  violation  of 
its  order,  had  disobeyed  the  injunction  by  publishing  statements  which 
either  directly  or  indirectly  called  attention  to  the  fact  that  the  Buck's 
Stove  &  Range  Company  was  on  the  "Unfair"  list,  and  that  they  had 
thereby  continued  the  boycott  which  had  been  enjoined. 

The  defendants  filed  separate  answers  under  oath,  and  each  denied : 

(1)  That  they  had  been  in  contempt  or  disregard  of  the  court's  orders. 

(2)  That  the  statements  complained  of  constituted  any  violation  of  the 
order;  and,  on  the  argument,  (3)  contended  that  if  the  publication 
should  be  construed  to  amount  to  a  violation  of  the  injunction,  they 
could  not  be  punished  therefor,  because  the  court  must  not  only  possess 
jurisdiction  of  the  parties  and  the  subject-matter,  but  must  have  au- 
thority to  render  the  particular  judgment.  Insisting,  therefore,  that  the 
court  could  not  abridge  the  liberty  of  speech  or  freedom  of  the  press, 
the  defendants  claim  that  the  injunction  as  a  whole  was  a  nullity,  and 
that  no  contempt  proceeding  could  be  maintained  for  any  disobedience 
of  any  of  its  provisions,  general  or  special. 

If  this  last  proposition  were  sound,  it  would  be  unnecessary  to  go 
further  into  an  examination  of  the  case,  or  to  determine  whether  the 
defendants  had  in  fact  disobeyed  the  prohibitions  contained  in  the  in- 

n  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


S32  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

junction.  Ex  parte  Rowland,  104  U.  S.  612,  26  L.  Ed.  864.  But  we 
will  not  enter  upon  a  discussion  of  the  constitutional  question  raised, 
for  the  general  provisions  of  the  injunction  did  not,  in  terms,  restrain 
any  form  of  publication.  The  defendant's  attack  on  this  part  of  the 
injunction  raises  no  question  as  to  an  abridgment  of  free  speech,  but 
involves  the  power  of  a  court  of  equity  to  enjoin  the  defendants  from 
continuing  a  boycott  which,  by  words  and  signals,  printed  or  spoken, 
caused  or  threatened  irreparable  damage. 

Courts  differ  as  to  what  constitutes  a  boycott  that  may  be  enjoined. 

^  5jc  ^ 

But  whatever  the  requirement  of  the  particular  jurisdiction,  as  to  the 
conditions  on  which  the  injunction  against  a  boycott  may  issue,  when 
these  facts  exist,  the  strong  current  of  authority  is  that  the  publication 
and  use  of  letters,  circulars,  and  printed  matter  may  constitute  a  means 
whereby  a  boycott  is  unlawfully  continued,  and  their  use  for  such  pur- 
pose may  amount  to  a  violation  of  the  order  of  injunction.     *     *     * 

While  the  bill  in  this  case  alleged  that  complainant's  interstate  busi- 
ness was  restrained,  no  relief  was  asked  under  the  provisions  of  the 
Sherman  anti-trust  act.  But  if  the  contention  be  sound  that  no  court, 
under  any  circumstances,  can  enjoin  a  boycott  if  spoken  words  or 
printed  matter  were  used  as  one  of  the  instrumentalities  by  which  it 
was  made  effective,  then  it  could  not  do  so,  even  if  interstate  commerce 
was  restrained  by  means  of  a  blacklist,  boycott,  or  printed  devise  to  ac- 
complish its  purpose.  And  this,  too,  notwithstanding  §  4  (26  Stat,  at 
L.  209,  c.  647,  U.  S.  Comp.  Stat.  1901,  p.  3201)  of  that  act  provides  that 
where  such  commerce  is  unlawfully  restrained,  it  shall  be  the  duty  of 
the  Attorney  General  to  institute  proceedings  in  equity  to  prevent  and 
enjoin  violations  of  the  statute.     *     *     * 

The  court's  protective  and  restraining  powers  extend  to  every  device 
whereby  property  is  irreparably  damaged  or  commerce  is  illegally  re- 
strained. To  hold  that  the  restraint  of  trade  under  the  Sherman  anti- 
trust act,  or  on  general  principles  of  law,  could  be  enjoined,  but  that  the 
means  through  which  the  restraint  was  accomplished  could  not  be  en- 
joined, would  be  to  render  the  law  impotent. 

Society  itself  is  an  organization,  and  does  not  object  to  organizations 
for  social,  religious,  business,  and  all  legal  purposes.  The  law,  there- 
fore, recognizes  the  right  of  workingmen  to  unite  and  to  invite  others 
to  join  their  ranks,  thereby  making  available  the  strength,  influence, 
and  power  that  come  from  such  association.  By  virtue  of  this  right, 
powerful  labor  unions  have  been  organized. 

But  the  very  fact  that  it  is  lawful  to  form  these  bodies,  with  multi- 
tudes of  members,  means  that  they  have  thereby  acquired  a  vast  power, 
in  the  presence  of  which  the  individual  may  be  helpless.  This  power, 
when  unlawfully  used  against  one,  cannot  be  met,  except  by  his  pur- 
chasing peace  at  the  cost  of  submitting  to  terms  which  involve  the 
sacrifice  of  rights  protected  by  the  Constitution ;  or  by  standing  on 
such  rights,  and   appealing  to  the  preventive  powers  of   a  court  of 


Sec.  1)  NATURE   OF   INJUNCTION  833 

equity.     When  such  appeal  is  made,  it  is  the  duty  of  government  to 
protect  the  one  against  the  many,  as  well  as  the  many  against  the  one. 

%.  rjc  $: 

Contempts  are  neither  wholly  civil  nor  altogether  criminal.  And  "it 
may  not  always  be  easy  to  classify  a  particular  act  as  belonging  to 
either  one  of  these  two  classes.  It  may  partake  of  the  characteristics 
of  both."  Bessette  v.  W.  B.  Conkey  Co.,  194  U.  S.  329,  48  L.  Ed.  1002, 
24  Sup.  Ct.  665.  But  in  either  event,  and  whether  the  proceedings  be 
civil  or  criminal,  there  must  be  an  allegation  that  in  contempt  of  court 
the  defendant  has  disobeyed  the  order,  and  a  prayer  that  he  be  attached 
and  punished  therefor.  It  is  not  the  fact  of  punishment,  but  rather  its 
character  and  purpose,  that  often  serve  to  distinguish  between  the  two 
classes  of  cases.  If  it  is  for  civil  contempt  the  punishment  is  remedial, 
and  for  the  benefit  of  the  complainant.  But  if  it  is  for  criminal  con- 
tempt the  sentence  is  punitive,  to  vindicate  the  authority  of  the  court. 
It  is  true  that  punishment  by  imprisonment  may  be  remedial  as  well  as 
punitive,  and  many  civil  contempt  proceedings  have  resulted  not  only 
in  the  imposition  of  a  fine,  payable  to  the  complainant,  but  also  in  com- 
mitting the  defendant  to  prison. "  But  imprisonment  for  civil  contempt 
is  ordered  where  the  defendant  has  refused  to  do  an  affirmative  act 
required  by  the  provisions  of  an  order  which,  either  in  form  or  sub- 
stance, was  mandatory  in  its  character.  Imprisonment  in  such  cases  is 
not  inflicted  as  a  punishment,  but  is  intended  to  be  remedial  by  coercing 
the  defendant  to  do  what  he  had  refused  to  do.  The  decree  in  such 
cases  is  that  the  defendant  stand  committed  unless  and  until  he  per- 
forms the  affirmative  act  required  by  the  court's  order. 

For  example :  If  a  defendant  should  refuse  to  pay  alimony,  or  to 
surrender  property  ordered  to  be  turned  over  to  a  receiver,  or  to  make 
a  conveyance  required  by  a  decree  for  specific  performance,  he  could 
be  committed  until  he  complied  with  the  order.  Unless  there  were 
special  elements  of  contumacy,  the  refusal  to  pay  or  to  comply  with  the 
order  is  treated  as  being  rather  in  resistance  to  the  opposite  party  than 
in  contempt  of  the  court.  The  order  for  imprisonment  in  this  class  of 
cases,  therefore,  is  not  to  vindicate  the  authority  of  the  law,  but  is 
remedial,  and  is  intended  to  coerce  the  defendant  to  do  the  thing  re- 
quired by  the  order  for  the  benefit  of  the  complainant.  If  imprisoned, 
as  aptly  said  in  Re  Nevitt,  54  C.  C.  A.  622,  117  Fed.  451,  "he  carries 
the  keys  of  his  prison  in  his  own  pocket."  He  can  end  the  sentence 
and  discharge  himself  at  any  moment  by  doing  what  he  had  previously 
refused  to  do. 

On  the  other  hand,  if  the  defendant  does  that  which  he  has  been 
commanded  not  to  do,  the  disobedience  is  a  thing  accomplished.  Im- 
prisonment cannot  undo  or  remedy -what  has  been  done,  nor  afford  any 
compensation  for  the  pecuniary  injury  caused  by  the  disobedience.  If 
the  sentence  is  limited  to  imprisonment  for  a  definite  period,  the  de- 
fendant is  furnished  no  key,  and  he  cannot  shorten  the  term  by  promis- 
Hoke  Eq.— 53 


834  INJUNCTION   IN   RELATION   TO   TORTS  (Cll.  4 

ing  not  to  repeat  the  offense.  Such  imprisonment  operates  not  as  a 
remedy  coercive  in  its  nature,  but  solely  as  punishment  for  the  com- 
pleted act  of  disobedience.     *     *     * 

The  distinction  between  refusing  to  do  an  act  commanded  (remedied 
by  imprisonment  until  the  party  performs  the  required  act),  and  doing 
an  act  forbidden  (punished  by  imprisonment  for  a  definite  term),  is 
sound  in  principle,  and  generally,  if  not  universally,  affords  a  test  by 
which  to  determine  the  character  of  the  punishment. 

In  this  case  the  alleged  contempt  did  not  consist  in  the  defendant's 
refusing  to  do  any  affirmative  act  required,  but  rather  in  doing  that 
which  had  been  prohibited.  The  only  possible  remedial  relief  for  such 
disobedience  would  have  been  to  impose  a  fine  for  the  use  of  com- 
plainant, measured  in  some  degree  by  the  pecuniary  injury  caused  by 
the  act  of  disobedience.  Rapalje,  Contempts,  §§  131-134;  Wells,  F. 
&  Co.  v.  Oregon  R.  &  Nav.  Co.  (C.  C.)  9  Sawy.  601,  19  Fed.  20; 
Re  North  Bloomfield  Gravel  Min.  Co.  (C.  C.)  11  Sawy.  590,  27  Fed. 
795 ;  Sabin  v.  Fogarty  (C.  C.)  70  Fed.  483. 

But  when  the  court  found  that  the  defendants  had  done  what  the 
injunction  prohibited,  and  thereupon  -sentenced  them  to  jail  for  fixed 
terms  of  six,  nine,  and  twelve  months,  no  relief  whatever  was  granted 
to  the  complainant,  and  the  Buck's  Stove  &  Range  Company  took 
nothing  by  that  decree. 

If,  then,  as  the  court  of  appeals  correctly  held,  the  sentence  was 
wholly  punitive,  it  could  have  been  properly  imposed  only  in  a  pro- 
ceeding instituted  and  tried  as  for  criminal  contempt.  The  question 
as  to  the  character  of  such  proceedings  has  generally  been  raised,  in 
the  appellate  court,  to  determine  whether  the  case  could  be  reviewed 
by  writ  of  error  or  on  appeal.  Bessette  v.  W.  B.  Conkey  Co.,  194  U. 
S.  324,  48  L.  Ed.  997,  24  Sup.  Ct.  665.  But  it  may  involve  much  more 
than  mere  matters  of  practice.  For,  notwithstanding  the  many  ele- 
ments of  similarity  in  procedure  and  in  punishment,  there  are  some 
differences  between  the  two  classes  of  proceedings  which  involve  sub- 
stantial rights  and  constitutional  privileges.  Without  deciding  what 
may  be  the  rule  in  civil  contempt,  it  is  certain  that  in  proceedings  for 
criminal  contempt  the  defendant  is  presumed  to  be  innocent,  he  must 
be  proved  to  be  guilty  beyond  a  reasonable  doubt,  and  cannot  be  com- 
pelled to  testify  against  himself.  Boyd  v.  United  States,  116  U.  S. 
616,  29  L.  Ed.  746,  6  Sup.  Ct.  524;  United  States  v.  Jose  (C.  C.)  63 
Fed.  951 ;  State  v.  Davis,  50  W.  Va.  100,  40  S.  E.  331 ;  King  v.  Ohio 
&  M.  R.  Co.,  7  Biss.  529,  Fed.  Cas.  No.  7,800;  Sabin  v.  Fogarty  (C. 
C.)  70  Fed.  482;  Drakeford  v.  Adams,  98  Ga.  724,  25  S..E.  833. 

There  is  another  important  difference.  Proceedings  for  civil  con- 
tempt are  between  the  original  parties,  and  are  instituted  and  tried 
as  a  part  of  the  main  cause.  But,  on  the  other  hand,  proceedings  at 
law  for  criminal  contempt  are  between  the  public  and  the  defendant, 
and  are  not  a  part  of  the  original  cause.  The  court  of  appeals,  recog- 
nizing this  difference,  held  that  this  was  not  a  part  of  the  equity  cause 


Sec.  1)  NATURE   OF   INJUNCTION  835 

of  the  Buck's  Stove  &  Range  Company  v.  American  Federation  of 

Labor,  and  said  that : 

"The  order  finding  the  defendants  guilty  of  contempt  was  not  an  interlocu- 
tory order  in  the  injunction  proceeding.  It  was  in  a  separate  action,  one  per- 
sonal to  the  defendants,  with  the  defendants  on  one  side  and  the  court  vindi- 
cating its  authority  on  the  other."    33  App.  D.  C.  5GT. 

In  this  view  we  cannot  concur.  We  find  nothing  in  the  record  in- 
dicating that  this  was  a  proceeding  with  the  court,  or  more  properly 
the  government,  on  one  side  and  the  defendants  on  the  other.  On 
the  contrary,  the  contempt  proceedings  were  instituted,  entitled,  tried, 
and,  up  to  the  moment  of  sentence,  treated  as  a  part  of  the  original 
cause  in  equity.  The  Buck's  Stove  &  Range  Company  was  not  only 
the  nominal,  but  the  actual,  party  on  the  one  side,  with  the  defendants 
on  the  other.  The  Buck's  Stove  Company  acted  throughout  as  com- 
plainant in  charge  of  the  litigation.  *  *  *  But,  as  the  act  of 
disobedience  consisted  not  in  refusing  to  do  wdiat  had  been  ordered, 
but  in  doing  what  had  been  prohibited  by  the  injunction,  there  could 
be  no  coercive  imprisonment,  and  therefore  the  only  relief,  if  any, 
which  "the  nature  of  petitioner's  case"  admitted,  was  the  imposition  of 
a  fine,  payable  to  the  Buck's  Stove  &  Range  Company. 

There  was  therefore  a  departure — a  variance — between  the  pro- 
cedure adopted  and  the  punishment  imposed,  when,  in  answer  to  a 
prayer  for  remedial  relief,  in  the  equity  cause,  the  court  imposed  a 
punitive  sentence  appropriate  only  to  a  proceeding  at  law  for  criminal 
contempt.  The  result  was  as  fundamentally  erroneous  as  if  in  an 
action  of  "A  v.  B,  for  assault  and  battery,"  the  judgment  entered  had 
been   that  the   defendant  be  confined  in  prison   for  twelve  months. 

5fc       *K       *k 

If  a  party  can  make  himself  a  judge  of  the  validity  of  orders  which 
have  been  issued,  and  by  his  own  act  of  disobedience  set  them  aside, 
then  are  the  courts  impotent,  and  what  the  Constitution  now  fittingly 
calls  the  "judicial  power  of  the  United  States"  would  be  a  mere 
mockery. 

This  power  "has  been  uniformly  held  to  be  necessary  to  the  protec- 
tion of  the  court  from  insults  and  oppression  while  in  the  ordinary 
exercise  of  its  duty,  and  to  enable  it  to  enforce  its  judgments  and 
orders  necessary  to  the  due  administration  of  law  and  the  protection 
of  the  rights  of  citizens."  Bessette  v.  W.  B.  Conkey  Co.,  194  U.  S. 
333.  48  L.  Ed.  1004,  24  Sup.  Ct.  665.     *     *     * 

But,  as  we  have  shown,  this  was  a  proceeding  in  equity  for  civil  con- 
tempt, where  the  only  remedial  relief  possible  was  a  fine,  payable  to 
the  complainant.  The  company  prayed  "for  such  relief  as  the  nature 
of  its  case  may  require,"  and  when  the  main  cause  was  terminated 
by  a  settlement  of  all  differences  between  the  parties,  the  complainant 
did  not  require,  and  was  not  entitled  to,  any  compensation  or  relief 
of  any  other  character.  The  present  proceeding  necessarily  ended 
with  the  settlement  of  the  main  cause  of  which  it  is  a  part.     Bessette 


836  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

v.  W.  B.  Conker  Co.,  194  U.  S.  328,  333,  48  L.  Ed.  1002,  1004.  24 
Sup.  Ct.  665  ;  Worden  v.  Searls.  121  U.  S.  27,  30  L.  Ed.  858,  7  Sup. 
Ct.  814;  State  v.  Nathans,  49  S.  C.  2C7,  27  S.  E.  52.  The  criminal 
sentences  imposed  in  the  civil  case,  therefore,  should  be  set  aside. 

The  judgment  of  the  Court  of  Appeals  is  reversed,  and  the  case 
remanded,  with  directions  to  reverse  the  judgment  of  the  Supreme 
Court  of  the  District  of  Columbia,  and  remand  the  case  to  that  court 
with  direction  that  the  contempt  proceedings  instituted  by  the  Buck's 
Stove  &  Range  Company  be  dismissed,  but  without  prejudice  to  the 
power  and  right  of  the  Supreme  Court  of  the  District  of  Columbia  to 
punish  by  a  proper  proceeding,  contempt,  if  any,  committed  against  it. 

Reversed.* 

*See  effect  of  statute  on  contempt  proceedings,  in  opinion  of  Stephenson, 
V.  C,  in  Smith  v.  Smith  et  al.  (N.  J.  Oh.  1915)  93  Atl.  893:  "It  will  throw 
light  on  the  matters  under  discussion  to  consider  briefly  the  methods  open 
in  New  Jersey  since  the  adoption  of  the  Constitution  of  1844  for  the  enforce- 
ment of  a  decree  in  favor  of  a  vendor  of  lands  or  chattels  for  the  specific  per- 
formance of  the  contract  of  sale.  Anciently  such  decree  was  generally  en- 
forced by  proceedings  in  contempt  resulting  in  the  incarceration  of  the  con- 
tumacious vendee  until  he  obeyed  the  mandate  of  the  court  by  paying  the 
price  upon  tender  to  him  of  a  proper  conveyance.  This  remedy  appears  to 
be  at  the  present  day  seldom  available  to  the  complainant  vendor  under  the 
constitutional  provision  abolishing  imprisonment  'for  debt  in  any  action  or 
on  any  judgment  founded  upon  contract,  unless  in  cases  of  fraud.'  Aspinwall 
v.  Aspinwall,  53  N.  J.  Eq.  684,  33  Atl.  470;  Walton  v.  Walton,  54  N.  J.  Eq. 
607,  35  Atl.  289;  Grand  Lodge,  Knights  of  Pythias,  v.  Jansen,  62  N.  J.  Eq.  737, 
48  Atl.  526;  Adams  v.  Adams,  80  N.  J.  Eq.  175,  83  Atl.  190,  Ann.  Cas.  1913E, 
1083.  This  question  in  a  vendor's  suit  for  specific  performance  came  up  be- 
fore me  directly  about  two  years  ago  in  the  case  of  Max  Abrash  v.  Louis  J.  Kur- 
lantzick,  (no  opinion  filed).  In  that  case  the  defendant,  the  vendee,  disobeyed 
the  decree  by  failing  to  attend  at  the  master's  office  at  the  designated  time  for 
the  delivery  of  the  deed  and  the  payment  of  the  money.  My  ruling  was  that 
contempt  proceedings  could  not  be  sustained  unless  a  'case  of  fraud'  could  be 
exhibited  which  might  consist  of  fraud  on  the  part  of  the  vendee  defendant  in 
disposing  of  his  property  in  order  to  delay,  hinder,  or  defraud  the  vendor. 
Subsequently,  upon  a  petition  exhibiting  a  fraudulent  disposition  of  property 
by  the  vendee  in  anticipation  of  the  adverse  decree,  I  advised  an  order  in 
contempt  proceedings  under  which  the  vendee  was  lodged  in  jail  resulting  in 
a  prompt  settlement.  The  proceedings  now  available  to  a  successful  com- 
plainant in  a  vendor's  suit  for  specific  performance  by  which  his  decree  can 
be  enforced  are  expressly  provided  by  section  46  of  the  chancery  act  (1  Comp. 
Stat.  427),  which  embraces  substantially  the  provisions  of  section  48  of  Mr. 
Paterson's  chancery  act  of  1799  (Pat.  p.  433),  viz.,  process  of  sequestration 
against  the  real  and  personal  estate  of  the  defendant,  the  writ  of  fieri  facias 
against  goods  and  lands,  and  a  capias  ad  satisfaciendum  against  the  body  of 
the  defendant  if  the  case  be  infected  with  fraud.  I  do  not  pause  to  consider 
whether  any  case  can  arise  in  which  the  vendor's  decree  can  be  completely 
enforced  by  an  injunction,  which  is  one  of  the  methods  of  enforcing  decrees 
enumerated  in  Mr.  Paterson's  law.  If  applicable  to  the  facts  and  conditions 
an  injunction  of  course  can  be  employed.  Under  the  original  English  practice 
if  the  vendee  disobeyed  the  mandate  of  the  decree  against  him  for  specific 
performance,  the  decree  might  be  enforced  by  contempt  proceedings,  or  the 
contract  might  be  declared  rescinded,  or  the  complainant  if  unwilling  to  re- 
scind 'nii-iit  obtain  a  declaration  that  he  has  a  lien  on  the  property  for  unpaid 
purchase  money  and  costs,  and  an  order  for  the  sale  of  the  property  for  the 
purpose  of  paying  them.'  2  Dan.  Ch.  Pr.  star  page  1220  and  note  9  with  cases 
cited.  The  method  of  enforcement  by  contempt  proceedings,  as  we  have  seen, 
is  of  very  limited  application  in  New  Jersey  under  our  Constitution,  and  the 
rescission  of  the  contract  certainly  cannot  often  be  advantageous  to  the  ven- 


Sec.  1)  NATURE   OF   INJUNCTION  837 

dor,  the  injured  party.  The  establishment  of  a  lien  upon  the  property  sold 
for  the  amount  of  the  price  and  the  sale  of  the  property  for  the  satisfaction 
of  such  lien  all  in  one  suit,  it  seems  to  me,  in  very  many  cases  would  ac- 
complish exact  justice  by  liquidating  the  damages  of  the  vendor  if  the  pro- 
ceeds of  the  sale  did  not  yield  him  the  purchase  price  with  interest  and  costs 
of  suit,  and  by  giving  the  vendee  any  surplus  as  the  value  of  his  interest  un- 
der the  contract  as  equitable  owner.  There  seems  to  be  no  reason  why  the 
Court  of  Chancery  of  New  Jersey  should  not  adopt,  if  it  has  not  already  adopt- 
ed, this  last-mentioned  method  of  procedure  in  any  appropriate  case.  The 
inference,  I  think,. may  be  drawn  that  Vice  Chancellor  Pitney  had  substantially 
this  method  of  procedure  in  contemplation  when  he  invited  the  motion  to  stay 
the  execution  which  would  be  issued  under  his  decree  until  the  value  of  the 
subject-matter  of  the  sale,  the  New  York  mortgage,  had  been  realized  by 
proceedings  in  the  state  of  New  York.  I  can  discover  no  trace  of  any  practice 
in  England  or  this  country  which  warrants  the  enforcement  of  the  vendor's 
right  to  specific  performance  by  a  decree  of  a  court  of  equity,  an  absolute  de- 
cree for  the  price,  with  execution  in  the  usual  general  form,  while  the  vendor 
is  allowed  to  remain  the  owner  of  the  property  which  he  agreed  to  sell  and  is 
clothed  with  power  to  dispose  of  the  same  as  he  may  see  fit.  The  slightest 
reflection  will  show  how  far  from  the  whole  theory  of  specific  performance 
such  a  procedure  must  necessarily  go.  The  theory  of  the  vendor's  suit  for 
specific  performance  is  that  the  court  will  compel  the  carrying  out  of  the  con- 
tract on  both  sides,  usually  under  the  direction  of  a  master.  It  is  only  on 
tender  of  a  conveyance  of  the  property  at  the  time  designated  that  the  vendee 
is  obliged  to  pay  over  the  price." 

Injunction  Distinguished  from  Writ  of  Prohibition. — In  City  of  Lee's 
Summit  et  al.  v.  Jewel  Tea  Co.  (1914)  217  Fed.  9G5,  133  C.  C.  A.  637,  Hook, 
Circuit  Judge,  said  (in  part):  "This  is  an  appeal  from  a  decree  on  final  hearing 
enjoining  the  city  of  Lee's  Summit,  Mo.,  and  its  mayor  and  city  marshal,  from 
enforcing  against  the  Jewel  Tea  Company,  a  municipal  ordinance  imposing  a 
license  charge  of  $1  per  day  upon  vendors  of  teas,  coffees,  etc.,  'selling  at  re- 
tail from  wagon  or  other  vehicle,'  and  a  like  sum  where  the  articles  are  sold 
'by  solicitor  taking  orders  for  future  delivery.'  The  trial  court  held  that  the 
business  of  the  company  was  in  interstate  commerce  and  therefore  not  subject 
to  the  ordinance.  (D.  C.  1911)  189  Fed.  280 ;  (D.  C.  1912)  198  Fed.  532.  The 
Jewel  Tea  Company  is  an  Illinois  merchandising  corporation,  with  headquar- 
ters at  Chicago,  in  that  state.  It  employed  an  agent  residing  in  Missouri. 
The  agent  canvassed  from  house  to  house  in  Lee's  Summit  for  orders  for  fu- 
ture delivery  of  teas  and  coffees.  *  *  *  These  facts  were  undisputed,  and 
they  showT  that  the  company  was  engaged  in  interstate  commerce.  *  *  * 
It  is  further  urged  that  the  controversy  should  have  been  left  to  the  state 
courts,  where  prosecutions  had  been  begun  and  were  pending.  But  those  prose- 
cutions were  excepted  from  the  decree  of  injunction.  The  evidence  showed 
that  the  city  authorities  had  arrested  the  agent  of  the  company  several  times, 
and  threatened  to  arrest  him  every  time  he  went  there  and  transacted  busi- 
ness. The  decree  of  the  trial  court  was  right.  It  looked  to  the  future,  not  to 
pending  prosecutions  in  the  local  courts,  and  was  to  protect  the  right  to  en- 
gage in  interstate  commerce.    The  decree  is  affirmed." 

In  State  ex  rel.  Terminal  II.  Ass'n  of  St.  Louis  v.  Tracy,  Juds;e,  et  al.  (1911) 
237  Mo.  109,  at  116,  140  S.  W.  888,  at  890,  37  L.  R.  A.  (N.  S.)  448,  the  court 
compared  an  injunction  against  proceedings  at  law  with  a  writ  of  prohibition, 
saying:  "The  remedy  by  writ  of  prohibition  is  of  ancient  origin  in  our  system 
of  jurisprudence.  The  principles  of  law  governing  its  issuance  and  the  facts 
necessary  to  warrant  relief  by  that  extraordinary  writ  have  frequently  been 
the  subject  of  adjudication  in  this  and  other  courts  of  last  resort,  as  well  as 
the  theme  of  much  learning  by  the  text-writers.  It  has  been  likened  to  the 
equitable  remedy  by  injunction  against  proceedings  at  law.  The  object  in  each 
case  is  the  restraining  of  legal  proceedings;  but,  as  has  been  said:  'This  vital 
difference,  however,  is  to  be  observed  between  them:  An  injunction  against 
proceedings  at  law  is  directed  only  to  the  parties  litigant,  without  in  any  man- 
ner interfering  with  the  court,  while  a  prohibition  is  directed  to  the  court  it- 
self, commanding  it  to  cease  from  the  exercise  of  a  jurisdiction  to  which  it  has 
no  Legal  (lain).'  High's  Extraordinary  Legal  Remedies  (3d  Ed.)  §  763.  There 
is  this  further  similarity  between  the  two  remedies  thus  compared,  which  i.s  of 


838  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

NEWBERY  v.  JAMES  et  al. 
(In  Chancery  before  Lord  Eldon,  1S17.    2  Mer.  446,  35  E.  R.  1011.) 

The  Bill  stated  that  Dr.  Robert  James  deceased,  "being  the  inventor 
and  proprietor  of  certain  pills  for  the  gout,  rheumatism,  &c.  and  of  a 
certain  powder  for  the  cure  of  fevers,  &c,  and  being  desirous  to  ex- 
tend the  circulation  and  use  of  the  said  medicines,  and  thereby  to  in- 
crease the  profits  to  arise  therefrom,"  applied  to  Newbery  (the  Plain- 
tiff's late  father)  to  assist  him  in  such  design,  which  Newbery  agreed 
to  do  upon  the  terms  after-mentioned;  and  that  thereupon  certain  ar- 
ticles of  agreement  were  made  and  entered  into  between  them,  whereby 
James,  for  himself,  his  heirs,  &c.  covenanted  with  Newbery,  his  execu- 
tors, &c.  that  he,  James,  his  executors,  &c.  should,  during  the  term  of 
twenty-one  years,  prepare  and  make  the  aforesaid  pills,  and  sell  and 
deliver  the  same  to  Newbery  at  a  certain  rate  therein  mentioned,  and 
should  also  prepare  and  make  the  aforesaid  powder,  and  sell  and  deliver 
the  same  to  Newbery  at  the  rate  therein  mentioned,  when  and  as  often 
as  he  should  have  occasion  to  require  the  same  respectively,  to  supply 
his  customers ;  and  should  not  sell  or  cause  to  be  sold  any  of  the  said 
medicines,  during  the  term,  to  any  other  person  or  'persons,  (except 
in  the  course  of  his  own  private  practice,  and  then  not  in  the  same  form, 
or  under  the  same  title,  nor  at  a  lower  rate  than  Newbery  should  sell 
the  same  to  his  customers) ;  and,  in  order  to  protect  the  secret  of  pre- 
paring all  or  any  of  the  said  medicines  from  being  lost,  he  thereby 
further  covenanted  to  instruct  Newbery  in  the  true  art  and  method  of 
making  and  preparing  the  same,  and  to  be  at  an  equal  expense  with 
Newbery  in  obtaining  a  patent ;  Newbery  on  his  part  covenanting  dur- 
ing the  term  to  take  the  medicines  from  James  as  he  should  have  occa- 
sion, and  not  to  make  or  prepare,  or  cause  or  procure  to  be  made  or 
prepared,  by  any  other  person  or  persons,  nor  to  discover  or  make 
known  to  any  person  or  persons  the  secret,  art,  or  mystery  of  making 
or  preparing,  any  of  the  said  medicines,  so  long  as  James  should  con- 
tinue to  supply  him;  but  to  be  at  liberty  to  leave  an  account  in  writing, 
sealed  up,  how  to  prepare  the  same,  to  be  opened  by  his  representa- 
tives after  his  death,  in  order  to  instruct  them  therein. 

importance  in  the  consideration  of  the  case  in  hand,  namely,  that,  as  the  right 
to  the  remedy  by  injunction  implies  a  wrong  threatened  by  the  parties  litigant 
against  whom  the  relief  is  sought,  so  the  right  to  the  writ  of  prohibition  im- 
plies that  a  wrong  is  about  to  be  committed,  not  by  the  parties  litigant  as  in 
the  case  of  injunction,  but  by  the  person  or  court  assuming  the  exercise  of 
judicial  power  and  against  whom  the  writ  is  asked.  Indeed,  it  may  be  said 
generally  of  all  procedure  in  courts  of  justice  for  the  enforcement  of  civil 
rights  that  the  existence  of  a  remedy  on  the  one  hand  implies  actionable 
wrong  on  the  other.  It  follows  that,  to  entitle  a  relator  to  a  writ  of  prohibi- 
tion, it  should  be  made  to  appear  that  it  is  within  the  power,  and  that  it  is  the 
duty,  of  the  person  or  court  proceeded  against,  to  refrain  from  taking  the 
threatened  judicial  action  which  is  made  the  basis  of  the  complaint.  The  ju- 
dicial wrong  or  fault  which  calls  for  the  writ  of  prohibition  does  not  mean  an 
Infraction  of  persona]  rights  only,  bid  rather  an  offending  of  the  court  by  an 
assumption  of  judicial  power  and  jurisdiction  not  authorized  by  law." 


Sec.  1)  NATURE   OF   INJUNCTION  830 

By  Indenture  dated  the  13th  November  1747,  between  James  and 
Newbery,  reciting  the  articles  of  agreement,  and  letters  patent  of  the 
same  date,  granted  to  James  for  the  exercise  of  his  invention  during 
the  term  of  fourteen  years,  and  that  Newbery  and  James  had  contribut- 
ed in  equal  shares  to  the  expense  of  procuring  the  same,  it  was  wit- 
nessed that  James,  for  the  considerations  therein  mentioned,  assigned 
to  Newbery,  his  executors,  &c.  one  moiety  of  the  invention  during  the 
term  of  fourteen  years  mentioned  in  the  patent ;  it  being  covenanted 
on  the  part  of  Newbery  that  nothing  in  the  deed  should  be  construed  so 
as  to  alter  or  change  the  articles  of  agreement,  and  that  neither  party 
should  assign  his  respective  interest  in  the  patent  without  first  offering 
the  same  to  the  other. 

By  Deed  poll  dated  the  5th  of  May  1755,  the  term  of  twenty-one 
years  mentioned  in  the  agreement,  was  extended  to  an  indefinite  period, 
the  agreement  being  expressed  to  be  continued  so  long  as  either  of  the 
parties,  their  executors,  &c.  or  any  or  either  of  them,  should  desire. 

Newbery,  by  his  will,  dated  the  24th  of  October  1767,  bequeathed  to 
the  Plaintiff  all  his  share  and  interest  in  the  preparing  and  vending  the 
various  medicines  therein  mentioned,  and  among  others,  of  the  pills 
and  powders  above  mentioned.  The  bill  then  stated  a  similar  agree- 
ment between  James  and  the  Plaintiff,  respecting  an  invention  of 
James,  of  certain  pills  called  "Analeptic  Pills,"  but  for  which  no  patent 
had  been  obtained. 

James  died  in  the  year  1776,  having  first  made  his  will,  and  thereby 
appointed  the  Plaintiff  and  another  executors,  to  whom  he  gave  and 
bequeathed  all  the  powders  and  pills  then  in  his  possession,  or  which 
should  thereafter  be  made  by  his  son  Robert  Harcourt  James,  as  there- 
in mentioned,  upon  the  trusts  therein  mentioned,  and  subject  thereto  to 
permit  the  said  R.  H.  James  to  receive  to  his  own  absolute  use  and 
benefit  the  residue  of  the  profits  arising  from  the  sale  thereof. 

Robert  Harcourt  James  continued  to  make  and  prepare  the  several 
medicines,  and  to  deal  with  the  Plaintiff  upon  the  footing  of  the  agree- 
ment during  his  life;  and  died  in  1801,  having  by  his  will  given  to  his 
executors  therein  named,  the  sole  use  and  management  of  the  concern, 
until  his  son,  the  Defendant  Robert  George  Gordon  James,  should 
attain  twenty-four,  upon  the  trusts  therein  mentioned ;  and,  upon  his 
attaining  twenty-four,  then  he  gave  to  the  said  R.  G.  G.  James  the  right 
to  the  sale  of  the  said  medicines,  and  all  profits  arising  therefrom,  and 
directed  George  James  (one  of  his  executors,  to  whom  he  had  entrust- 
ed the  secret  of  preparing  the  medicines),  thereupon  to  deliver  the  same 
to  him. 

The  Bill,  (to  which  the  executors,  and  the  said  R.  G.  G.  James,  and 
other  parties  interested  in  the  will  of  R.  H.  James,  were  made  parties), 
charging  that  the  Defendants  or  some  of  them,  had  refused  to  supply 
the  Plaintiff  as  usual,  according  to  the  terms  of  the  agreement,  and  that 
they  threatened  to  communicate  the  secret  of  preparing  the  medicines, 
insisted  on  the  indefinite  continuance  of  the  agreement  so  long  as  either 


8-40  INJUNCTION   IN   RELATION  TO   TORTS  (Ch.  4 

party  should  desire,  and  prayed  a  specific  performance,  and  an  injunc- 
tion to  restrain  the  Defendants  from  disclosing  or  imparting  the  secret 
of  making  and  preparing  the  medicines,  other  than  and  except  to  such 
persons,  and  in  such  manner,  as  in  the  said  several  deeds  and  wills 
described ;  and  also  from  selling  or  vending  all  or  any  of  the  said  fever 
powders,  pills,  or  medicines,  to  any  persons,  for  sale  or  otherwise, 
other  than  and  except  to  the  Plaintiff,  or  with  his  consent  or  appro- 
bation. 

Upon  the  filing  of  the  bill,  an  application  was  made  for  an  injunc- 
tion only  as  to  the  sale  of  the  medicines,  which  was  granted,  expressly 
without  prejudice  to  any  question  that  might  be  made  as  to  the  possi- 
bility of  sustaining  such  an  injunction. 

The  Defendants,  by  their  answer,  insisted  on  various  acts  of  the 
Plaintiff  as  evidence  of  an  abandonment  or  waiver,  on  his  part,  of  the 
agreement,  in  consequence  of  which  they  contended  that  the  Defend- 
ants were  not  to  be  considered  as  bound  by  the  terms  thereof,  nor 
obliged  to  employ  the  Plaintiff  to  vend  the  said  medicines. 

A  motion  was  now  made,  on  the  part  of  the  Defendants,  to  dissolve 
the  injunction. 

The  Lord  Chancellor  said,  the  difficulty  in  such  a  case  was,  how 
to  decree  the  specific  performance  of  the  agreement.  Either  it  was  a 
secret,  or  it  was  none.  If  a  secret,  what  means  did  the  Court  possess 
of  interfering  so  as  to  enforce  its  own  orders? — if  none,  there  was  no 
ground  for  interfering.  The  Injunction  being  already  granted  ex 
parte,  afforded  no  reason  for  its  continuance,  even  though  the  answer 
had  not  materially  varied  the  case  made  by  the  bill ;  it  being  granted 
without  prejudice  to  any  question  that  might  be  made  in  the  cause.  In 
this  case,  the  medicines  in  question  were  the  subject  of  a  patent  which 
had  expired ;  and  the  agreement  which  the  bill  sought  to  enforce  was 
an  agreement,  by  which,  independently  of  the  patent,  the  proprietors 
had  entered  into  covenants  not  to  sell  that  which  was  the  subject  of  the 
patent,  except  to  each  other.  But,  in  order  to  support  a  patent,  the 
specification  should  be  so  clear,  as  to  enable  all  the  world  to  use  the  in- 
vention as  soon  as  the  term  for  which  it  has  been  granted  is  at  an  end. 
Then,  with  regard  to  the  Analeptic  pills,  for  which  no  patent  had  been 
procured,  if  the  art  and  method  of  preparing  them  were  a  secret,  what 
signified  an  injunction,  the  Court  possessing  no  means  of  determining 
on  any  occasion  whether  it  had  or  had  not  been  violated  ?  This  Court, 
could  do  nothing  but  put  the  parties  in  a  way  to  try  their  legal  rights 
by  an  action.  That  was  the  utmost  extent  to  which  it  would  go,  and  he 
would  not  even  order  the  Injunction  to  be  continued  in  the  meantime 
till  an  action  should  be  tried.  The  only  way  by  which  a  specific  per- 
formance could  be  effected,  would  be  by  a  perpetual  injunction;  but 
this  would  be  of  no  avail,  unless  a  disclosure  were  made  to  enable  the 
Court  to  ascertain  whether  it  was  or  was  not  infringed ;  for,  if  a  party 
comes  here  to  complain  of  a  breach  of  injunction,  it  is  incumbent  on 
him  first  to  shew  that  the  injunction  has  been  violated. 


Sec.  2)  waste  841 

His  Lordship  concluded  by  saying,  that  he  thought  he  ought  not  to 
continue  the  injunction;  and  that,  if  he  did  not  mention  the  case  again, 
his  opinion  must  be  considered  to  be  that  the  injunction  must  be  dis- 
solved,— the  Defendants  to  keep  an  account  of  what  they  sell, — and 
the  Court  to  give  the  parties  the  means  of  trying  their  rights  in  an  ac- 
tion, by  removing  out  of  their  way  the  difficulty  arising  from  the  cir- 
cumstance of  the  Plaintiff  being  one  of  Dr.  James's  executors. 


SECTION  2.— WASTE 


MOLLINEUX  v.   POWELL. 

(In  Chancery,  1730.    3  P.  Wms.  268,  note  F.) 

A.  tenant  for  years,  remainder  to  B.  for  life,  remainder  to  C.  in  fee; 
A.  is  doing  waste ;  B.  though  he  cannot  bring  waste,  as  not  having 
the  inheritance,  yet  he  is  entitled  to  an  injunction.  See  1  Roll.  Abr. 
Roswell's  case,  377.  But  if  the  waste  be  of  a  trivial  nature,  and  a 
fortiori,  if  it  be  meliorating  waste,  as  by  building  on  the  premises, 
(see  1  Inst.  53.)  the  Court  will  not  injoin;  nor  if  the  reversioner  or 
remainder  man  in  fee  be  not  made  a  party,  who  possibly  may  approve 
of  the  waste.    By  the  Lord  King. 


ANONYMOUS. 

(In  Chancery  before  Lord  Thurlow,  Feb.  11,  1790.     1  Ves.  03,  30  E.  R.  246.) 

Solicitor-General  moved  for  an  order  to  prevent  the  removal  of 
timber  wrongfully  cut  down. 

Lord  Chancellor.  I  have  no  doubt  about  the  interference  of  this 
Court  to  prevent  waste ;  the  only  difficulty  I  have,  is,  as  to  what  shall 
be  done  with  the  timber  cut.  Trover  might  be  brought  for  it ;  but  as 
the  Register  says,  many  orders  of  this  kind  have  been  made;  take  the 
order. 


COURTHOPE  v.  MAPPLESDEN. 

(In  Chancery  before  Lord  Eldon,  1804.     10  Ves.  290,  32  E.  R.  S56.) 

A  motion  was  made  by  a  landlord  for  an  injunction  to  restrain  cut- 
ting and  removing  timber,  and  committing  any  other  waste;  the 
Plaintiff  charging  collusion  by  the  Defendant  with  the  tenant. 

Tine  Lord  Chancellor.  I  have  no  difficulty  in  granting  the  in- 
junction in  this  case :  but  I  will  not  be  bound  as  to  what  is  to  be  done 


S42  INJUNCTION   IN    RELATION  TO  TORTS  (Ch.  4 

upon  a  mere  trespass;  though  it  is  strange,  that  there  cannot  he  an 
injunction  in  that  case  to  prevent  irreparable  mischief;  the  rather,  as 
there  is  a  writ  at  Common  Law,  to  prevent  the  further  commission 
of  waste  during-  the  trial;  whereas,  if  the  Court  will  not  interfere 
against  a  trespasser,  he  may  go  on  by  repeated  acts  of  damage,  per- 
fectly irreparable.  But  the  ground  -in  this  case  is,  that  the  trespass 
partakes  of  the  nature  of  waste  more  than  in  general  cases  ;  the  tenant 
colluding;  and  if  the  Tenant's  Act  is  waste,  the  act  of  the  other  must 
have  so  much  of  the  quality  of  the  Tenant's  Act  as  to  make  it  the 
object  of  an  injunction. 


LORD  GREY  DE  WILTON  v.  SAXON. 

(In  Chancery  before  Lord  Eldon,  1S01.    6  Yes.  106,  31  E.  R.  901.) 

The  Solicitor  General,  supported  by  Air.  Romilly,  moved  upon  affi- 
davits for  an  injunction  to  restrain  the  defendant,  a  tenant  to  the 
plaintiff,  from  breaking  up  meadow  for  the  purpose  of  building,  con- 
trary to  the  covenants  of  his  lease. 

The  lease  contained  covenants  not  to  convert  any  meadow  land, 
and  all  the  other  usual  covenants  in  a  lease  of  a  farm,  similar  to  those 
in  Pulteney  v.  Shelton,  5  Ves,  147,  260,  261,  showing  clearly  the  na- 
ture of  the  lease,  for  the  purpose  of  tillage,  as  a  farm. 

Lord  Chancellor  granted  the  injunction  till  appearance  and  far- 
ther order ;  observing  that  he  did  so  upon  the  ground  of  the  covenant 
not  to  convert  any  meadow;  otherwise  he  should  doubt,  whether  it 
would  do  upon  the  ground  of  waste  without  an  affidavit,  that  it  was 
ancient  meadow. 

Mr.  Romilly  said,  that  question  was  much  discussed  in  Brydges 
v.  Kilburne  (5  Yes.  689),  a  case  upon  the  conversion  of  a  mill  of  one 
species  to  a  mill  of  another  species. 


DOUGLASS  et  al.  v.  YYIGGIN  et  al. 

(Court  of  Chancery  of  New  York,  1815.     1  Johns.  Ch.  435.) 

This  was  a  bill  for  an  injunction  to  stay  waste.  It  stated,  that  the 
defendants  had  taken  a  lease  of  a  dwelling-house  in  Pearl  street,  in 
the  city  of  New  York,  for  four  years,  from  the  1st  of  May,  1815  ;  that 
the  lease  provided,  that  the  defendants  were  to  lay  out  300  dollars  in 
improvements,  to  be  approved  of  by  the  lessors ;  that,  against  the 
consent  of  the  lessors,  the  defendants  were  converting  the  whole 
dwelling-house  into  a  store,  and  were  prostrating  partitions,  and  cut- 
ting through  the  ceilings  and  floors  in  the  second  and  third  stories, 
and  fixing  a  wheel  and  tackle  in  the  third  story  to  raise  heavy  pack- 


Sec.  2)  waste  843 

ages  which  would  be  to  the  great  and  constant  injury  of  the  build- 
ing-, as  the  timbers  in  the  third  story  were  weak. 

The  ChancEixor  [James  Kent].     Let  the  injunction  issue.     Mo- 
tion granted. 


VANE  v.  LORD  BARNARD. 

(In  Chancery  before  Earl  Cowper,  Chancellor,  1710.     2  Vera.  7.38, 
23  E.  R.  1082.) 

The  defendant  on  the.  marriage  of  the  plaintiff  his  eldest  son  with  the 
daughter  of  Morgan  Randyll,  and  £  10,000  portion,  settled  (inter  alia) 
Raby  Castle  on  himself  for  life,  without  impeachment  of  waste  (subject 
to  the  two  several  yearly  sums  of  £800  and  £200  payable  to  the  plaintiff 
on  the  events,  and  in  manner  therein  mentioned  R.  L.),  remainder  to 
his  son  for  life,  and  to  his  first  and  other  sons  in  tail  male. 

The  defendant,  the  Lord  Barnard,  having  taken  some  displeasure 
against  his  son,  got  two  hundred  workmen  together,  and  of  a  sudden, 
in  a  few  days,  stript  the  castle  of  the  lead,  iron,  glass-doors  and 
boards,  &c,  to  the  value  of  £3,000. 

The  Court  upon  filing  the  bill  (and  plea  and  answer  put  in  by  Lord 
Barnard),  granted  an  injunction  to  stay  committing  of  waste,  in  pull- 
ing down  the  castle  ;  and  now,  upon  the  hearing  of  the  cause,  decreed, 
not  only  the  injunction  to  continue,  but  that  the  castle  should  be  re- 
paired, and  put  into  the  same  condition  it  was  in,  in  August,  1714;  and 
for  that  purpose  a  commission  was  to  issue  to  ascertain  what  ought 
to  be  repaired,  and  a  master  to  see  it  done  at  the  expense  and  charge 
of  the  defendant,  the  Lord  Barnard;  and  decreed  the  plaintiff  his 
costs. 


JONES  v.  CHAPPELL. 

(Chancery  Division,  1S75.    L.  R.  20  Eq.  Cas.  539.) 

The  plaintiff  was  the  lessee  of  two  houses  in  Effingham  Street  un- 
der two  leases,  dated  respectively  the  19th  of  May  and  the  8th  of 
June,  1863,  granted  by  the  trustee  of  the  will  of  Thomas  Cubitt.  The 
rooms  in  these  houses  were  let  out  to  weekly  tenants. 

These  houses  at  their  back  adjoined  a  piece  of  vacant  land  from 
which  they  were  divided  by  a  low  wall,  and  the  windows  at  the  back 
had,  at  the  time  of  the  demise  and  also  shortly  before  the  filing  of 
the  bill,  free  access  of  light  and  air.  The  adjacent  piece  of  land  had, 
by  a  lease  dated  the  16th  of  December,  1852,  and  granted  by  the 
said  Thomas  Cubitt,  been  demised  to  James  Smith  for  the  term  of 
eighty-five  years  and  three  quarters.  The  lease  contained  a  covenant 
by  the  lessee  to  keep  all  future  buildings  and  erections  in  repair,  and 
also  not  to  erect  any  steam-engine  on  the  premises,  or  commit  or  do 
anything  which  might  be  a  nuisance  or  annoyance  to  the  tenant  or 


844  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 

occupier  of  any  messuage  or  premises  near  to  the  premises  thereby 
demised. 

The  bill  alleged  that  the  defendant,  who  was  assignee  of  the  lease 
of  the  last-mentioned  premises  by  an  assignment  subsequent  to  the 
plaintiff's  lease,  had  lately  erected  steam-engines  and  stone  saw-mills, 
and  other  machinery  thereon,  and  that  the  noise,  steam,  and  smoke 
arising  from  the  working  of  the  machinery  were  a  nuisance,  and 
caused  great  damage  to  the  plaintiff  and  his  under-tenants,  and  that 
the  nuisance  arising  from  the  works  had  been  so  great  that  several 
of  the  plaintiff's  tenants  had  left  his  houses,  and  the  value  thereof 
had  been  seriously  depreciated. 

The  bill  also  alleged  that  the  defendant  had  erected  a  staging  to 
carry  a  travelling  crane  close  to  the  plaintiff's  windows,  which  ob- 
structed the  light  that  formerly  came  through  the  back  windows  of 
the  plaintiff's  houses,  and  was  erecting  a  wall  at  a  distance  of  only 
eight  feet  opposite  to  the  said  windows,  which  obstructed  the  access 
of  light  and  air,  and  rendered  the  rooms  lighted  by  the  back  windows 
nearly  uninhabitable. 

The  plaintiff  charged  that  he  was  entitled  under  his  leases  to  en- 
joy the  access  of  light  and  air  through  the  said  back  windows,  and 
that,  as  the  defendant  claimed  to  be  entitled  to  the  land  at  the  back  of 
the  plaintiff's  premises  under  a  lease  granted  by  the  plaintiff's  lessors, 
he  was  not  entitled  to  obstruct  the  light  and  air  coming  to  the  plain- 
tiff's premises. 

The  bill  prayed  that  the  defendant  might  be  restrained  by  injunc- 
tion from  sawing  any  stone  or  other  material,  and  from  working  any 
machinery  upon,  and  from  causing  any  smoke  or  steam  to  be  emitted 
from,  and  from  carrying  on  any  works  or  business  upon  the  land  at 
the  back  of  the  plaintiff's  houses,  so  as  to  cause  any  damage  or  annoy- 
ance to  the  plaintiff  or  his  tenants  ;  and  (secondly)  that  the  defendant 
might  be  restrained  from  permitting  the  wall  and  staging  erected  by 
him  to  remain  erected  so  as  to  diminish  the  access  of  light  and  air  to 
the  windows  at  the  back  of  the  plaintiff's  houses. 

Mr.  Chitty,  O.  C,  and  Mr.  Jason  Smith,  for  the  plaintiff: 

In  this  case,  although  the  windows  where  light  is  obstructed  by 
the  defendant's  buildings  are  not  ancient  lights,  yet,  as  the  assign- 
ment to  the  defendant  was  subsequent  to  the  plaintiff's  lease,  he  can- 
not be  permitted  under  such  assignment  to  injure  the  plaintiff's  hous- 
es, as  they  both  hold  under  the  same  landlord,  who  cannot  derogate 
from  his  own  grant. 

Besides,  the  defendant,  as  lessee,  had  no  right  to  erect  these 
buildings  on  the  vacant  land.  The  law  is  thus  laid  down  by  Coke,  Co. 
Litt.  53a  :   "If  the  tenant  build  a  new  house  it  is  waste." 

(The;  Master  of  the  Rolls.  That  is  not  the  law  at  the  present 
time.  In  Williams'  Notes  on  Saunders,  Vol.  ii,  p.  652,  it  is  said  : 
"It  is  a  question  whether  it  is  waste  to  build  a  new  house."  In  Lord 
Darcv  v.  Ashworth,  Hob.  234   [Ed.    1724],  the  law  is  thus   stated: 


Sec.  2)  waste  845 

"A  lessee  may  build  a  new  house  where  none  was  before ;"  and  thus 
in  Doe  v.  Earl  of  Burlington,  5  B.  &  Ad.  507,  517:  "Upon  the  whole, 
there  is  no  authority  for  saying  that  any  act  can  be  waste  which  is 
not  injurious  to  the  inheritance,  either,  first,  by  diminishing  the  value 
of  the  estate,  or  secondly,  by  increasing  the  burthen  upon  it,  or 
thirdly,  by  impairing  the  evidence  of  title.  And  this  law  is  distinctly 
laid  down  by  the  Chief  Justice  Richardson  in  Barret  v.  Barret,  Het- 
ley,  35:')     *     *     * 

Sir  G.  JESSEL,  M.  R.12  I  am  satisfied  this  bill  cannot  be  maintained. 
First,  as  regards  the  lights.  The  windows  are  not  ancient  lights,  and 
as  the  lease  under  which  the  defendant  claims  is  prior  in  date  to  the 
plaintiff's,  the  plaintiff  is  precluded  from  claiming  to  be  entitled  to 
the  lights  in  question  under  the  well-known  doctrine  on  which  the 
bill  appears  to  be  founded,  namely,  that  a  landlord  cannot  derogate 
from  his  own  grant. 

But  a  very  ingenious  argument  was  addressed  to  me,  namely,  that 
although  in  truth  the  defendant's  lease  was  prior  in  date  to  the  plain- 
tiff's, still  the  defendant,  by  erecting  these  great  buildings  on  the 
land,  which  are  manifestly  a  great  improvement  in  value  to  the  prop- 
erty, is  committing  waste.  Now,  in  my  opinion,  that  is  not  proved. 
As  I  understand  the  law,  the  erection  of  buildings  upon  land  which 
improve  the  value  of  land  is  not  waste.  In  order  to  prove  waste  you 
must  prove  an  injury  to  the  inheritance.  I  quite  agree  that  it  is  not 
mere  injury  in  the  sense  of  value.  You  may  prove  an  injury  in  the 
sense  of  destroying  identity,  by  what  is  called  destroying  evidence  of 
the  owner's  title,  and  that  is  a  very  peculiar  head  of  the  law,  which 
has  not  been  extended  in  modern  times.  In  the  lease  in  question,  not 
only  is  there  no  covenant  restraining  the  lessee  from  erecting  build- 
ings, but  there  is  a  covenant  that  lie  will  keep  all  future  buildings  and 
erections  in  repair,  shewing  that  the  erection  of  buildings  was  con- 
templated. Therefore,  so  far  as  the  lease  goes,  it  is  almost  an  implied 
license  to  erect  buildings.  But,  independently  of  license,  we  must 
consider  that  .if  there  had  been  waste  at  law,  the  landlord  could,  before 
the  abolition  of  the  action  for  waste,  have  brought  an  action  or  ob- 
tained an  injunction,  and  that  he  would  be  entitled  to  the  latter  now  if 
the  injury  were  sufficiently  serious.  It  is  plain  to  my  mind,  looking  at 
the  nature  of  the  works  and  at  what  the  defendant  is  doing,  that  the 
lessors  could  neither  have  done  the  one  formerly,  nor  could  they  do 
the  other  now.    In  fact,  I  am  satisfied  it  is  not  waste. 

With  reference  to  the  authorities,  the  doctrine  is  so  well  laid  down 
in  Doe  v.  Earl  of  Burlington,  5  B.  &  Ad.  517,  that  I  do  not  think  I 
need  add  anything  further  to  it  or  to  the  modern  expositions  of  the 
law  on  the  subject.  Therefore,  even  if  it  had  been  pleaded,  I  do  not 
think  that  the  plaintiff  is  entitled  to  say  that,  because  the  defendant 
has  done  an  act  which  he  could  not  have  done  lawfully  without  the 

i2  Parts  of  the  opinion  are  omitted. 


84G  INJUNCTION   IN   RELATION   TO   TORTS     .  (Ch.  4 

license  of  the  landlord,  he  is  entitled  to  restrain  it  by  injunction  when 
the  landlord  has  given  him  license.  The  argument  should  be  carried 
a  step  further,  and  it  should  be  alleged  that  the  landlord  has  refused 
a  license,  and  declined  to  interfere.  But  the  owner  in  possession  of 
property  erecting  a  building  of  this  kind  does  not  commit  an  illegal 
act  towards  a  stranger  because  somebody  else  might  or  might  not 
have  a  right  to  stop  it.  There  is  no  derivation  of  title  under  the  same 
landlord  in  that  sense  at  all.  It  does  not  appear  to  me  that  if  the 
landlord  had  refused  license,  and  there  had  been  an  act  of  waste,  there 
is  any  compulsion  upon  the  landlord  to  file  a  bill  for  an  injunction, 
the  action  of  waste  being  abolished,  and  he  not  being  able  now  to  re- 
cover possession  of  the  premises  by  ejectment.  The  utmost  he  could 
do  would  be  to  file  a  bill  for  an  injunction  to  restrain  the  defendant 
from  continuing  the  building. 

Upon  those  grounds,  therefore,  it  appears  to  me  plain,  so  far  as  the 
substance  of  the  case  is  concerned,  as  regards  the  light  and  air,  that 
the  bill  cannot  be  maintained.     *     *     * 


POWYS  v.  BLAGRAVE. 

(In  Chancery  before  Lord  Cranworth,  1854.     4  De  Gex,  M.  &  G.  44S, 

43  E.  R.  582.) 

This  was  an  appeal  by  the  defendants  Anthony  Blagrave  and  John 
Henry  Blagrave  from  a  decree  of  the  Vice-Chancellor  Wood,  in  a 
cause  in  which  the  trustees  of  certain  real  estates  were  the  plaintiffs 
and  John  Blagrave,  the  tenant  for  life  of  the  estates,  and  the  appel- 
lants, the  tenants  in  tail  in  remainder,  were  the  defendants.  The  ques- 
tions raised  by  the  appeal  were,  first,  whether  a  tenant  for  life  in  pos- 
session was  accountable  in  equity  at  the  instance  of  a  remainder-man 
for  permissive  waste ;  and,  secondly,  whether,  upon  the  true  construc- 
tion of  the  will,  certain  costs  of  the  trustees  who  raised  the  question 
were  payable  out  of  the  rents  and  profits,  or  out  of  the  corpus  of  the 
estates.  The  Vice-Chancellor  decided  that  a  Court  of  Equity  had  no 
means  of  interfering  in  cases  of  permissive  waste  by  a  tenant  for  life, 
and  that  the  costs  in  question  were  payable  out  of  the  corpus  of  the 
estate.     *     *     * 

The;  Lord  Chancellor.13  *  *  *  But  then  it  was  argued,  inde- 
pendently of  the  trust,  that  it  is  the  duty  of  a  tenant  for  life  to  repair. 
"Equitas  sequitur  legem."  But  even  legal  liability  now  is  very  doubt- 
ful. Gibson  v.  Wells,  1  N.  R.  291 ;  Heme  v.  Benbow,  4  Taunt.  764. 
Whatever  be  the  legal  liability,  this  Court  has  always  declined  to  in- 
terfere against  mere  permissive  waste.    Lord  Castlemain  v.  Lord  Cra- 

13  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  2)  waste  S4T 

ven.  22  Yin.  Abr.  523,  tit.  "Waste,"  pi.  11.     There  the  Master  of  the 
Rolls  said: 

"The  Court  never  interposes  in  case  of  permissive  waste  either  to  prohibit 
or  to  give  satisfaction,  as  it  does  in  case  of  wilful  waste." 

On  this  ground,  relief  was  refused  in  Wood  v.  Gaynon.  Amb.  395. 
In  that  case,  a  tenant  for  life  had  been  guilty  of  permissive  waste, 
and  the  plaintiff  and  one  of  the  defendants,  Benjamin  Lyme,  were  the 
reversioners;  Lyme  refused  to  join  with  the  plaintiff  in  an  action  at 
law.  The  Master  of  the  Rolls  refused  to  assist  the  plaintiff,  saying 
that  as  there  was  no  precedent  he  would  not  make  one ;  adopting  the 
argument  that  it  would  tend  to  harass  tenants  for  life  and  jointresses, 
and  that  suits  of  this  kind  would  be  attended  with  great  expense  in 
depositions  about  the  repairs.  With  respect  to  the  case  of  Caldwell 
v.  Baylis,  2  Mer.  408,  it  does  not  sustain  the  doctrine  for  which  it  was 
cited.  The  case  of  Re  Skingley,  3  M.  &  G.  221.  was  founded  on  the 
express  obligation  of  the  lunatic  to  keep  in  repair.  I  do  not  refer 
to  the  cases  where  the  question  has  been  as  to  the  right  to  charge 
assets.  There  the  decisions  have  rested  on  other  grounds.  There 
is  no  precedent  for  what  is  asked  in  this  respect :  I  certainly  will  not 
be  the  first  to  make  one.     *     *     * 

I  think  there  is  no  foundation  for  the  appeal,  which  must  therefore 
be  dismissed  with  costs.11 

i*  See  Caldwell  v.  Baylis  (lslT)  2  Merivale,  40^,  before  Lord  Eldon,  C, 
which  is  reported  as  follows:  "An  Injunction  was  granted  in  this  case  'to 
restrain  the  Defendant,  his  agents,  servants,  and  workmen,  from  cutting  down 
or  felling  timber  or  timber-like  trees,  except  for  repairs  of  buildings  on  the 
premises,  and  from  committing  or  permitting  or  suffering  any  further  or  other 
waste,  until  answer,  or  further  order;'  upon  affidavits  to  the  effect  following: 
Mary  Baylis  (the  Defendant's  late  wife)  being  seised  in  fee  simple  of  the 
premises,  which  were  copyhold,  made  her  will  in  pursuance  of  a  power  vested 
in  her  by  a  surrender  made  by  her  husband  and  herself  to  the  use  of  her  will, 
and  thereby  devised  to  her  husband  (the  Defendant)  for  his  life,  "he  keeping 
the  interest  of  a  certain  mortgage  charged  on  the  premises  paid,  and  keeping 
the  buildings  in  tenantable  repair,  and  not  felling  any  timber  except  for  such 
repairs."  After  his  decease  she  gave  the  same  premises  to  her  nephew  Richard 
Ballard,  his  heirs,  &c.  (in  case  he  should  then  be  living,)  but,  if  he  should  die 
in  the  lifetime  of  the  Defendant,  then  to  the  Plaintiffs,  as  tenants  in  common. 
The  Testatrix  died  in  1796,  upon  which  the  Defendant  entered  into  posses- 
sion, but  instead  of  keeping  the  premises  in  repair,  permitted  the  same  to  go 
into  decay  during  the  life  of  Ballard,  who  had  intended  to  commence  pro- 
ceedings against  him  both  at  law  and  in  equity  in  consequence  of  his  neglect, 
but  desisted  upon  his  promise  to  repair  forthwith.  In  1808  Ballard  died,  and 
the  Defendant  having  neglected  to  perform  his  promise  either  during  his  life- 
time or  since  his  death,  the  buildings  upon  the  premises,  (consisting  of  a  farm- 
house and  cottages,  three  barns,  a  stable,  and  other  edifices.)  grew  ruinous 
for  want  of  the  needful  repairs;  which,  by  an  estimate  made  on  behalf  of  the 
Plaintiffs  in  1816,  amounted  to  £157  and  upwards.  The  affidavit  went  on  to 
state  the  information  and  belief  of  the  Plaintiffs  that  the  Defendant  had,  both 
before  and  since  the  death  of  Ballard,  'by  himself,  his  servants,  agents,  and 
workmen,'  cut  down  timber  to  a.  great  amount  in  value,  and  carried  the  same 
off  from  the  premises,  or  converted  to  implements  of  husbandry  and  other 
articles  for  the  use  of  himself  and  his  tenants,  employing  a  very  inconsider- 
able part  in  or  towards  the  needful  repairs,  'thereby  committing  or  suffering 
great  waste  and  great  damage  to  the  inheritance,'  and   that  he  threatened 


848  INJUNCTION   IN   RELATION  TO  TORTS  (Cll.  4 

DOHERTY  v.  ALLMAN  et  al. 
(House  of  Lords,  1878.     L.  R.  3  App.  Cas.  700.) 

The  Lord  Chancellor  [Lord  Cairns].15  The  question  in  this 
case  arises  upon  two  leases  which  are  now  vested  in  the  Respondent. 
One  of  them  is  dated  in  the  year  1798,  and  is  for  the  long  term  of 
999  years ;  the  other  was  granted  in  1824,  and  is  for  the  term  of  988 
years;  the  first  being  at  the  rent  of  £10,  and  the  second  at  a  rent  of 
i32.  19s.  The  reversion  to  both  these  leases  is  vested  in  the  present 
Appellant. 

The  property  demised  is  thus  described:  [His  Lordship  read  the 
description  of  the  premises  contained  in  each  lease,  and  also  the  words 
of  the  covenant  in  each.]      *     *     * 

There  is  not  in  either  of  these  leases  any  power  of  entry  for  breach 
of  covenant,  but  there  is  a  power  that  if  rent  was  not  duly  paid  and 
no  sufficient  distress  found  on  the  premises  to  satisfy  the  arrears,  it 
should  be  lawful  to  the  lessor  to  re-enter  and  re-possess  himself  of 
his  former  estate. 

That  is  the  substance  of  the  two  leases.  The  property  demised,  so 
far  as  it  consisted  of  buildings,  was  in  the  form  of  stores — and,  as  we 
understand,  stores  for  storing  corn.  It  is  stated  in  evidence,  and  does 
not  appear  to  be  a  matter  of  controversy  between  the  parties,  that  since 
the  date  of  these  leases  a  considerable  change  has  occurred  with  ref- 
erence to  the  demand  for  buildings  of  this  description  in  the  neighbor- 
hood of  Bandon ;  and  it  is  stated,  and  does  not  appear  to  be  seriously 
controverted,  that  in  the  town  of  Bandon,  which  seems  to  lie  at  a 
lower  level  than  where  these  stores  are  built,  there  is  now  a  considera- 
ble— perhaps  an  exuberant — supply  of  store  buildings,  access  to  which, 
or  facility  of  carriage,  is  greater  than  to  this  higher  ground,  and  that, 
therefore,  there  is  serious  difficulty  in  obtaining  a  tenant  for  this  prop- 
erty used  as  stores.  Under  these  circumstances  the  Respondent  has 
had  specifications  prepared,  which  appear  to  be  prepared  in  a  careful, 
proper,  and  business-like  way,  and  he  has  had  a  contract  made  in  accord- 
ance with  those  specifications,  by  which  the  external  walls  of  this  build- 
ing are  to  be  retained,  and  those  external  walls,  where  one  part  of  the 
building  is  of  a  lower  height  than  the  rest,  are  to  be  raised,  so  that  the 
building  may  be  of  a  uniform  height ;  internal  changes  are  to  be  made, 
internal  party  walls  are  to  be  introduced,  the  flooring  is  to  be  altered 
in  its  level,  and  six  dwelling-houses  are  to  be  made  out  of  this  which 

'to  commit  or  suffer  further  aud  other  waste,'  &c.  This  affidavit  by  the  Plain- 
tiffs was  accompanied  by  another,  by  the  surveyor  whom  they  had  employed 
to  make  the  estimate,  as  to  the  ruinous  state  of  the  buildings,  and  also  as  to  his 
having  lieen  prevented  by  the  tenant  residing  on  the  estate  from  surveying  the 
whole  of  such  buildings.  The  Defendant  had  appeared,  but  had  not  put  in 
his  answer.     Hart  and  Heys  in  support  of  the  motion  for  an  injunction." 

is  The  statement  of  facts,  parts  of  the  opinion  of  Lord  Cairns,  and  all  of 
the  concurring  opinions  of  Lords  O'Hagan  and  Blackburn  are  omitted. 


Sec.  2)  waste 


849 


now  is  one  long  store.  Your  Lordships  have  before  you  a  photograph 
of  the  building  as  it  now  appears,  and  an  elevation  of  the  building  as 
it  is  proposed  to  be,  has  also  been  put  in  evidence ;  and  certainly  it  does 
appear  a  strange  thing  to  any  spectator  that  it  should  ever  come  to  be 
a  matter  of  grave  dispute  between  two  rational  men  as  to  whether  that 
which  was  proposed  to  be  done  is  not  almost  as  great  an  improvement 
as  could  be  effected.  However,  so  it  is,  and  with  that  state  of  things 
your  Lordships  have  to  deal. 

The  Appellant  objects  to  this  being  done.  The  owner  of  the  re- 
version subject  to  this  long  term  of  years  objects  to  that  which  the 
holder  of  the  lease  proposes  to  do.  He  objects  upon  two  grounds.  He 
says,  first,  that  what  is  proposed  to  be  done  is  waste;  and,  secondly, 
that  it  is  a  breach  of  contract.     *     *     * 

If  we  interfere  and  say,  in  aid  of  this  affirmative  covenant,  that 
something  shall  not  be  done  which  would  be  a  departure  from  it,  no 
doubt  we  shall  succour  and  help  the  Plaintiff  who  comes  for  our  as- 
sistance. But  shall  we  do  that?  Will  the  effect  of  our  doing  that  be 
to  cause  possible  damage  to  the  Defendant,  very  much  greater  than 
any  possible  advantage  we  can  give  to  the  Plaintiff?  Now,  in  a  case 
of  that  kind,  where  there  is  an  amount  of  discretion  which  the  Court 
must  exercise,  those  are  all  considerations  which  the  Court  will  care- 
fully entertain  before  it  decides  how  it  will  exercise  its  discretion. 

My  Lords,  let  us  then  apply  those  considerations  to  the  present  case. 
Suppose  the  change  which  is  contemplated  by  the  Respondent  here  is 
made  in  the  internal  arrangements  of  this  which  is  now  a  store,  will 
the  injury  be  irremediable?  Clearly  not.  Beyond  all  doubt  as  re- 
gards the  immediate  effect  it  would  be  beneficial  and  not  injurious  to 
the  reversioner;  he  will  have  a  much  better  security  for  his  rent,  and 
the  property  undoubtedly  will  be  increased  in  value,  and  if,  when  the 
lease  comes  to  an  end,  he  should  have  that  predilection  which  he  ap- 
pears now  to  have  for  a  building  of  the  character  which  we  see  rep- 
resented in  this  photograph,  it  would  be  merely  a  question  of  money, 
and  that  not  a  very  large  sum  of  money,  in  order  that  the  building 
might  be  brought  back  to  the  state  in  which  it  now  is.  Therefore  there 
would  be  no  injury  which  would  be  irremediable.  Then  will  damages 
be  a  sufficient  compensation?  The  same  answer  applies  there — an 
expenditure  of  a  sum  of  money,  of  a  very  moderate  amount,  as  we  see 
from  the  estimate  of  even  that  which  is  proposed  to  be  done  by  the 
Respondents,  will  bring  back  the  building  to  the  state  in  which  the 
Appellant  wishes  it  to  be.  Then,  again,  will  there  be  a  necessity  for 
repeated  actions  for  damages?  Certainly  not;  it  will  be  one  payment, 
and  one  only,  and  by  that  means  the  lessor  will  get  the  whole  of  his 
right. 

But  then,  my  Lords,  let  us  look  at  the  other  side— what  would  be  the 
effect  upon  the  Respondents  of  the  Interposition  of  the  Court?  Here 
Boke  Eq. — 54 


850  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 

is  a  lease  for  999  years,  of  which  900  years  and  more  are  unexpired, 
and  there  is  a  rental  on  that  lease,  and  on  the  second  lease,  amounting 
together  to  £42.  19s.  a  year.  If  the  evidence  is  to  he  believed  it  is 
either  the  case  now,  or  it  may  become  the  case,  that  the  premises  are 
absolutely  untenantable — that  no  tenant  can  be  obtained  for  them,  or 
obtained  for  them  at  a  rent  which  will  produce  the  rent  which  the  Re- 
spondents have  to  pay.  Repair,  then,  they  must,  for  they  are  bound 
to  do  so  by  the  covenant,  and  they  have  been  called  upon  to 
do  so.  They  must  therefore  lay  out  money  in  repairing  something  for 
which  they  cannot  get,  when  it  is  done,  an  equivalent  in  the  shape  of 
a  remunerative  rent,  and  the  Court  therefore  for  900  years  will  be 
sentencing  them,  or  those  who  succeed  them,  to  keep  the  premises  in  a 
shape  which  will  not  enable  them  to  get  a  remunerative  rent ;  while, 
on  the  other  hand,  they  would  be  bound  to  pay  the  substantial  rent  of 
£42.  19s.  a  year  to  the  landlord.  It  will  bear  hardly  upon  the  person 
who  stands  in  the  position  of  the  lessee,  but  it  will  give  no  present 
benefit  whatever  to  the  Appellant,  and  even  supposing  he  should  ever 
become  entitled  to  the  lease,  anything  he  would  be  entitled  to  would 
be  represented  by  the  payment  of  an  extremely  moderate  sum  of 
money. 

Now,  my  Lords,  that  being  the  case,  I  do  not  think  it  is  denied  at 
the  Bar  that  on  a  covenant  of  this  kind  the  Court  of  Chancery  before 
it  interferes  to  prevent  what  was  said  to  be  a  departure  from  the  terms 
of  the  covenant  must  exercise  its  discretion  with  regard  to  the  whole 
of  the  circumstances  of  the  case — it  appears  to  me  that  what  I  have 
said  will  probably  convince  your  Lordships  that  there  is  every  reason 
against  the  exercise,  by  the  Court  of  Chancery,  of  its  power  of  giving 
an  injunction,  and  everything  in  favour  of  its  leaving  this  matter  to  be 
the  subject  of  damages,  for  any  person  who  thinks  it  worth  while 
to  bring  an  action  for  damages.  My  Lords,  I  therefore  think  that 
the  case,  so  far  as  it  is  founded  on  the  covenant,  is  one  which,  looking 
upon  it  as  an  application  for  an  injunction,  entirely  fails. 

Then  with  regard  to  the  question  of  waste:  there  is  no  doubt  that 
the  Court  of  Chancery  exercises  a  jurisdiction  in  restraining  waste, 
and  where  waste  is  committed  in  requiring  an  account  of  the  waste 
for  the  purpose  of  recompensing  the  person  who  has  suffered ;  but 
I  apprehend  it  is  perfectly  clear  that  the  Court  of  Chancery,  acting  in 
that  case  in  advance  of  the  common  law  right,  will,  in  the  first  place, 
consider  whether  there  is,  or  is  not,  any  substantial  damage  which 
would  accrue,  and  which  is  sought  to  be  prevented,  and  will  make  that 
inquiry.  In  the  present  case  it  appears  to  me  to  be  extremely  doubtful 
whether  any  jury  could  be  found,  who,  after  this  work  shall  be  ex- 
ecuted in  the'  way  that  is  proposed,  would  say  that  any  damage  had 
been  done  by  the  work  to  the  inheritance.  And  I  doubt,  farther, 
whether  it  must  not  be  taken  as  clear  from  the  evidence  here  that  any 
jury,  or  any  tribunal  judging  upon  the  question  of  fact,  would  not  say 


Sec.  2)  waste  851 

that,  if  there  be  technically  what  in  the  eye  of  the  common  law  is  called 
waste,  still  it  is  that  ameliorating  waste  which  has  been  spoken  of  in 
several  of  the  cases,  cited  at  the  Bar.  That  which  is  done  if  it  be  tech- 
nically waste — and  here  again  I  will  assume  in  favour  of  the  Appel- 
lant that  it  is  technically  according  to  the  common  law,  waste — yet  it 
seems  to  me  to  be  that  ameliorating  waste  which  so  far  from  doing 
injury  to  the  inheritance,  improves  the  inheritance.  Now,  there  again 
the  course  which  the  Court  of  Chancery  ought  undoubtedly  to  adopt 
would  be  to  leave  those  who  think  they  can  obtain  damages  at  com- 
mon law  to  try  what  damages  they  can  so  obtain.  Certainly,  I  think 
here  again,  the  Court  of  Chancery  would  be  doing  very  great  injury 
to  the  one  side  for  the  purpose  of  securing  to  the  other,  that  slightest 
possible  sum  which  would  at  common  law  be  considered  the  full  equiv- 
alent to  which  he  was  entitled.  My  Lords,  this  was  the  view,  in  sub- 
stance, taken  by  the  Lord  Chancellor  of  Ireland  and  the  Lord  Justice 
of  the  Court  of  Appeal,  who  in  this  respect  differed  from  the  Vice- 
Chancellor.  I  must  say  that  I  entirely  concur  with  the  decision  at 
which  they  arrived,  and  therefore  I  would  advise  your  Lordships,  and 
move  your  Lordships,  to  dismiss  this  appeal  with  costs.     *     *     * 


WEST  HAM  CENTRAL  CHARITY  BOARD  v.  EAST 
LONDON  WATERWORKS  CO. 

(Chancery  Division.     [1900]  1  Ch.  624.) 

The  defendant  company  was  the  demisee  of  a  ninety-nine  year 
lease,  dated  September  29,  1830,  given  them  by  the  plaintiff's  pred- 
ecessor in  title,  by  which  lease  defendant  company  obtained  the  use 
of  twelve  acres  of  marshy  land  for  reservoir  purposes.  The  company, 
not  constructing  the  reservoir,  in  1896  sub-demised  to  Base  for  his 
use  as  a  rubbish  shoot.  Base  raised  the  level  about  ten  feet  by  the 
rubbish  shot  down  upon  it. 

This  was  an  action  by  the  West  Ham  Central  Charity  Board,  as 
Plaintiffs,  against  the  waterworks  company  and  Base  for  an  injunc- 
tion to  restrain  the  defendants,  "their  officers,  contractors,  servants, 
agents,  and  workmen  from  bringing,  or  permitting  to  be  brought,  upon 
the  said  lands  any  rubbish,  earth,  or  material,  or  otherwise  committing 
waste  on  the  said  land,  and  from  permitting  any  rubbish,  earth,  and 
material  so  brought,  or  permitted  to  be  brought,  to  remain  on  the  said 
land,"  and  for  damages. 

The  plaintiffs  by  their  statement  of  claim  alleged  that  by  the  afore- 
said acts  of  the  defendants  the  level  of  the  demised  premises  had 
been  greatly  raised  and  the  condition  thereof  materially  and  injuriously 
altered ;  that  the  reversion  of  the  plaintiffs  in  the  premises  had  been 
and  was  being  permanently  injured ;  that  the  acts  of  Base  constituted 
waste,  and  had  been  done  with  the  knowledge  and  connivance  of  the 


852  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

waterworks  company  and  in  pursuance  of  an  arrangement  in  that  be- 
half between  the  respective  defendants,  and  that  by  the  aforesaid  acts 
of  the  defendants  the  value  of  the  plaintiffs'  reversion  in  the  said 
hereditaments  had  been  greatly  diminished,  and  also  that  unless  such 
acts  were  restrained  and  discontinued  the  value  of  the  plaintiffs'  re- 
version in  the  said  hereditaments  would  be  entirely  destroyed,  and 
the  said  hereditaments  would  be  rendered  valueless  for  any  purpose 
whatsoever. 

The  action  was  tried  before  Buckley,  J.,  on  February  5,  6,  and 
7,  1900. 

Before  the  trial  the" Official  Trustee  of  Charity  Lands  was  added 
as  a  co-plaintiff,  and  at  the  trial  leave  to  amend  was  given  by  sub- 
stituting for  the  West  Ham  Central  Charity  Board  the  names  of 
the  persons  who  were  then  the  vicar,  churchwardens  and  over- 
seers.    *     *     * 

Buckley,  J.16  In  this  case  the  plaintiffs  are  entitled  to  the  reversion 
expectant  upon  the  determination  of  a  lease  granted  on  September 
29,  1830,  by  their  predecessors  in  title  to  the  East  London  Water- 
works Company.  It  is  a  lease  of  twelve  acres  of  land  situate  in  West 
Ham,  in  the  parish  of  Stratford,  and  the  case  of  the  plaintiffs  is  that 
the  defendants,  the  waterworks  company,  and  Mr.  Henry  Base, 
trading  as  J.  C.  Base,  are  liable  to  the  plaintiffs  for  waste  permitted 
on  the  premises  which  are  the  subject  of  the  demise. 

Before  stating  the  facts  of  the  case,  I  think  it  would  be  convenient 

that  I  should  state  what  I  understand  to  be  the  law  which  I  have  to 

apply  to  them.     The  best  definition  of  waste  that  I  have  been  able  to 

find  is  in  Lord  Darcy  v.  Askwith,  Hob.  234,  which  is  in  these  words : 

"It  is  generally  true,  that  the  lessee  hath  no  power  to  change  the  nature  of 
the  thing  demised ;  he  cannot  turn  meadow  into  arable,  nor  stub  a  wood  to 
make  it  pasture,  nor  dry  up  an  ancient  pool  or  piscary,  nor  suffer  ground  to 
be  surrounded,  nor  decay  the  pale  of  a  park;  for  then  it  ceaseth  to  be  a  park, 
nor  he  may  not  destroy  nor  drive  away  the  stock  or  breed  of  any  thing,  be- 
cause it  disherits  and  takes  away  the  perpetuity  of  succession,  as  villains, 
fish,  deer,  young  spring  of  woods,  and  the  like;  but  he  may  better  a  thing 
in  the  same  kind,  as  by  digging  a  meadow,  to  make  a  drain  or  sewer  to  carry 
away    water." 

The  test,  as  there  laid  down,  seems  to  be  whether  the  act  which  the 
lessor  says  is  an  act  of  waste  by  the  lessee  is  an  act  which  alters  the 
nature  of  the  thing  demised.  At  one  time  this  principle  of  law  seems 
to  have  been  carried  so  far  that  it  was  supposed  that  it  was  waste 
for  a  tenant  to  build  a  new  house  on  the  land  demised,  and  in  Co. 
Litt.  53a,  the  law  is  to  be  found  stated  thus:  "If  the  tenant  build  a 
new  house  it  is  waste ;"  and  in  a  case,  which  was  cited  in  the  course 
of  the  opening  by  Mr.  Astbury,  of  Queen's  College,  Oxford  v.  Hallett, 
14  East,  489,  13  R.  R.  293,  I  find  Lord  Ellenborough  saying  this: 

"It  is  an  injury  to  the  title  of  the  reversioners,  and  a  present  damage  to 
them.     Lord  Mansfield  held  that  building  a  wall,  where  none  was  before,  was 

i«  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  2)  waste  853 

sufficient  to  entitle  the  reversioner  to  this  kind  of  action  pending  the  lease, 
though  it  might  be  pulled  down  again  before  the  lease  expired." 

If  that  was  the  law  at  one  time,  I  think  it  is  plain  that  it  is  not  the 
law  now.  For  that  I  may  refer  to  Jones  v.  Chappell,  L.  R.  20  Eq. 
539,  a  decision  of  the  late  Sir  George  Jessel,  where  he  held  that  the 
lessee  of  land  who  erects  buildings  thereon  without  the  consent  of  his 
lessor  does  not  commit  waste  within  the  definition  in  Co.  Litt.  53a, 
unless  it  can  be  shewn  that  such  building  is  an  injury  to  the  inheritance. 
I  am  content  to  take  the  law  from  the  case  of  Doe  v.  Earl  of  Burling- 
ton ( 1833)  5  B.  &  Ad.  507,  39  R.  R.  549,  and  I  will  read  from  page 
517: 

"Upon  the  whole,  there  is  no  authority  for  saying  that  any  act  can  be  waste 
which  is  not  injurious  to  the  inheritance,  either,  first,  by  diminishing  the  value 
of  the  estate,  or,  secondly,  by  increasing  the  burthen  upon  it,  or,  thirdly,  by 
impairing  the  evidence  of  title.  And  this  law  is  distinctly  laid  down  by  Chief 
Justice  Richardson  in  Barret  v.  Barret  (1627)  Het.  34,  cited  at  the  bar  from 
Hetley's  Reports." 

If  the  permanent  character  of  the  property  demised  is  not  sub- 
stantially altered,  as  for  instance,  by  the  conversion  of  pasture  land 
into  plough  land,  by  breaking  up  ancient  meadows,  or  the  like,  I  con- 
ceive that  the  law  is  that  it  is  not  now  waste  for  the  tenant  to  do 
things  which  within  the  covenants  and  conditions  of  his  lease  he  is 
not  precluded  from  doing.     *     *     * 

The  land,  they  say,  as  raised,  is  more  valuable,  inasmuch  as  the 

increase  in  value  will  counterbalance  the  extra  cost  of  going  down  to 

obtain  foundations.     This  is  an  argument  which  comes  to  this: 

"It  is  allowable  to  alter  the  nature  of  the  thing  demised  provided  you  so 
alter  it  that  there  is  a  countervailing  advantage  which  reimburses  you  the  ad- 
ditional expense  which  you  are  put  to  by  the  alteration." 

It  seems  to  me  that  that  is  waste.  Directly  you  admit  that  you 
have  altered  the  thing  as  building  land,  so  that  you  have  to  deal  with 
it  in  a  different  way  as  building  land,  in  my  judgment  you  have,  with- 
in the  rule  that  I  have  endeavoured  to  lay  down  as  regards  waste, 
altered  the  nature  of  the  thing  demised.     *     *     * 

If  the  lessee  were  to  use  the  land  for  the  purpose  of  erecting  a 
small  mountain  upon  it  some  1000  or  1500  feet  high,  that  would  be 
such  an  alteration  of  the  thing  demised  as  would  be  waste.  I  sup- 
pose, on  the  other  hand,  the  plaintiffs  would  not  contend  that,  if  the 
tenant  top-dressed  his  land  from  time  to  time  and  added  so  many 
inches  to  the  field,  and  altered  the  level  slightly,  that  would  be  waste. 
It  must  be  to  a  great  extent  a  question  of  degree.  It  seems  to  me 
that  here  there  has  been  such  an  alteration  of  the  level  of  the  soil, 
and  such  an  alteration  of  the  thing  demised,  as  does  amount  to  waste, 
irrespective  of  the  question  whether  the  material  added  has  been  of 
an  offensive  description  or  an  inoffensive  description.  In  other  words, 
I  think  the  waterworks  company  in  authorizing  Mr.  Base  to  go  there, 
and  to  do  that  which  he  did,  are  equally  responsible  in  this  action 
for  the  consequence  of  what   has  been  done.     Under  those  circum- 


S5i  INJUNCTION   IN   RELATION   TO   TOUTS  (Ch.  4 

stances,  it  is  unnecessary  for  me  to  follow  counsel  into  the  consider- 
ation of  the  question  whether  waste  falls  under  the  same  category 
as  nuisance,  because  it  could  not  be  denied  that  the  authority  given 
to  Base  was  an  authority  to  tip  the  material  on  the  land,  and  to  in- 
crease the  height  of  the  land  ;  and,  having  given  that  authority,  the 
company  are  responsible  for  the  act  done. 

It  appears  to  me,  therefore,  that  the  plaintiffs  are  entitled  to  an 
injunction  restraining  both  the  defendants,  their  officers,  contractors, 
servants,  agents,  and  workmen,  from  bringing,  or  permitting  to  be 
brought,  upon  the  land  any  rubbish,  earth,  or  material,  or  otherwise 
committing  waste  on  the  said  land.  The  statement  of  claim  goes  on  to 
ask  for  a  mandatory  injunction  against  permitting  it  to  remain.  I 
need  not  assign  the  reasons  why  I  think  such  an  injunction  ought  not 
to  be  granted,  because  the  plaintiffs  do  not  ask  for  it.  But  they  ask 
for  an  inquiry  as  to  damages,  and  I  think  they  are  entitled  to  an  in- 
quiry as  to  damages  in  the  past  and  to  an  injunction  as  regards  the 
future,  and  that  they  are,  as  against  both  the  defendants,  entitled  to 
the  costs  of  the  action. 


GAXXOX  v.  PETERSON  et  al. 
(Supreme  Court  of  Illinois,  1901.     193  111.  372,  62  N.  E.  210,  55  L.  R.  A.  701.) 

Appeal  by  defendant  Gannon  from  a  decree  of  the  Circuit  Court 
for  St.  Clair  County  enjoining  the  opening  and  working  of  certain 
mines. 

Ricks,  J.17  (after  stating  the  facts).  In  this  case  the  seventh  clause 
of  the  will  of  Michael  Gannon  comes  before  us  for  construction,  and 
upon  that  depends  the  rights  of  the  parties  hereto.  The  first  question 
that  is  presented  is,  what  estate  or  interest  has  Matthew  Gannon  in  the 
real  estate  mentioned  in  that  clause  of  the  will  ?  Secondly.  Have  ap- 
pellees such  an  estate  or  interest  in  said  lands,  and  has  appellant 
committed  such  waste,  as  entitles  them  to  an  injunction  against 
waste?     *     *     * 

The  appellees  have  no  present  vested  interest.  Their  estate  is  in 
mere  expectancy,  depending  upon  the  contingency  of  the  death  of  Mat- 
thew Gannon  without  child  or  children  him  surviving.  Friedman  v. 
Steiner,  107  111.  125.  He  is  40  years  of  age,  has  been  married  9  years, 
and  has  not  now,  nor  has  he  had,  a  child.  He  is  able-bodied,  healthy, 
and  strong  and  in  full  possession  of  all  his  faculties,  mental  and  physi- 
cal, necessary  for  procreation.  The  law  indulges  no  presumption  that 
he  will  die  without  leaving  a  child  or  children. 

"A  possibility  of  issue  is  always  supposed  to  exist,  in  law.  unless  extin- 
guished by  the  heath  of  the  parties,  even  though  the  donees  be  each  of  them  an 
hundred  years  old."    1  Cooley,  Bl.  (3d  Ed.)  book  2,  p.  124. 


i-  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


Sec.  2)  waste  855 

It  is  admitted  of  record  in  this  case  that  the  coal  underlying  this  land 
constitutes  its  chief  value,  and  the  remaining  question  is,  does  the  min- 
ing of  this  coal  by  appellant  constitute  such  waste,  and  have  the  appel- 
lees such  interest  as  entitles  them  to  maintain  this  suit.  The  chancellor 
found  for  the  appellees;  found  that  appellant,  by  mining  these  lands, 
was  committing  waste;  granted  a  permanent  injunction;  appointed  a 
receiver ;  authorized  him  to  proceed  with  the  mining  of  the  coal,  and 
directed  that  the  royalties  should  be  withheld  from  appellant;  what 
royalty  he  had  received  should  be  paid  to  the  receiver,  the  money  in- 
vested, and  appellant  simply  to  receive  the  net  interest  or  income  dur- 
ing his  natural  life.  Matthew  Gannon  admits  that  he  has  taken  out 
coal  to  the  value  of  $50,000,  and  that  the  royalty  at  one-fourth  of  a  cent 
per  bushel  amounts  to  $8,000.  This  land  was  never  mined  during  the 
life  of  the  testator,  nor  was  there  a  mine  opened  on  it  till  done  by  ap- 
pellant. 

The  authorities  are  uniform  as  to  the  definition,  duration,  and  ex- 
tent of  a  base  or  determinable  fee.  They  are  agreed  that  it  is  a  fee- 
simple  estate ;  not  absolute,  but  qualified.  Upon  the  death  of  the  donee 
his  widow  has  dower,  although  the  contingency  may  have  happened 
that  defeats  the  estate,  and  that  within  the  general  acceptation  and 
meaning  of  the  term  the  person  seised  of  such  an  estate  is  not  chargeable 
with  waste.  But  there  has  been  ingrafted  into  equity  a  form  of  waste 
not  recognized  at  common  law,  which  is  termed  "equitable  waste,"  and 
of  which  courts  of  chancery  take  cognizance,  and  under  the  theory  of 
which  they  grant  relief  to  the  holders  of  contingent  and  executory  es- 
tates.   Equitable  waste  is  defined  by  Air.  Justice  Story  to  consist  of — 

"such  acts  as  at  law  would  uot  be  esteemed  to  be  waste  uuder  the  circum- 
stances of  the  case,  but  which,  in  the  view  of  a  court  of  equity,  are  so  esteemed 
from  their  manifest  injury  to  the  inheritance,  although  they  are  not  inconsist- 
ent with  the  legal  rights  of  the  party  committing  them."  2  Story,  Eq.  Jur. 
§  915. 

And  the  learned  jurist  gives  as  instances  of  this  class  of  interference 

where  the  mortgagor  fells  timber  on  the  mortgaged  premises  to  the 

extent  that  the  security  becomes  insufficient ;    where  a  tenant  for  life, 

without   impeachment   for  waste,   pulls   down   houses,   or   does  other 

waste,  wantonly  and  maliciously ;  and  he  adds  : 

"For,  it  is  said  a  court  of  equity  ought  to  moderate  the  exercise  of  such  a 
power,  and,  pro  bono  publico,  restrain  extraA'agant,  humorous  waste." 

And  he  concludes : 

"In  all  such  cases  the  party  is  deemed  guilty  of  a  wanton  and  unconscien- 
tioua  abuse  of  his  rights,  ruinous  to  the  interests  of  other  parties." 

The  definition  given  above  is  accepted  by  most  of  the  text  writers, 
and  quoted  with  approval  by  the  courts,  and  it  is  this  principle  the 
appellees  (complainants  below)  invoke,  and  insist  that  under  it  the  de- 
cree of  the  circuit  court  should  be  affirmed.     *     *     * 

So  far  as  we<  can  learn,  this  is  the  first  time  this  question  has  come 
before  this  court,  and  we  have  not  been  cited  to  a  single  American  case 


856  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

where  the  writ  against  waste  was  granted  against  the  donee  in  posses- 
sion of  a  fee-simple  estate  at  the  suit  of  an  executory  devisee.  It  is 
true  that  most  of  the  text  writers  have  recognized  the  right  to  such  a 
bill  and  have  uniformly  referred  to  English  cases  for  the  authority. 
On  the  contrary,  there  is  a  very  respectable  case  in  a  sister  state  that 
such  a  suit  will  not  lie.  In  Matthews  v.  Hudson,  81  Ga.  120,  7  S.  E. 
286,  12  Am.  St.  Rep.  305,  *  *  *  after  a  full  consideration  of  the 
case,  the  court  say  : 

"We  think  the  judgment  denying  the  injunction  in  the  present  case  ought  to 
be  affirmed.  It  is  conceded  that,  if  Hudson  [the  son]  took  a  fee  of  any  sort, 
he  is  exempt  from  the  supervision  of  chancery  in  respect  to  waste,  and  such 
undoubtedly  is  the  law.     *     *     *  " 

With  the  admitted  fact  that  appellant  is  but  40  years  of  age,  of  good 
health,  and  possessed  of  all  his  mental  and  physical  faculties  for  pro- 
creation, and  with  the  presumption  of  law  that  he  will  have  issue,  the 
expectant  estate  of  appellees  is  no  more  than  a  possibility.  As  the  own- 
er of  the  fee,  appellant  owns  the  soil  and  all  that  is  beneath  and  above 
it.  He  owns  the  coal  and  the  other  minerals  below  the  sod,  as  much  as 
the  grass  that  grows  upon  it.  It  appears  the  coal  under  this  land  is  the 
more  valuable  part  of  the  estate.  The  coal  industry  of  this  state  is  of 
vast  importance  and  of  great  extent.  We  all  know  that  it  is  becoming  a 
common  practice  for  the  owners  of  lands  to  divide  them  into  practically 
two  distinct  estates,  and  to  sell  the  coal  and  retain  the  surface.  The 
authorities  say  the  writ  lies  pro  bono  publico.  So  far  as  the  public  can 
have  any  interest  in  this  matter,  it  lies  in  the  direction  of  having  the 
mines  worked,  the  coal  put  on  the  market  to  go  into  consumption  and 
swell  the  traffic  and  business  of  its  citizens. 

The  most  valuable  use  of  this  land  is  for  mining  the  coal.  Ap- 
pellant has  a  fee-simple  estate,  and  to  grant  the  contention  of  ap- 
pellees we  must  hold  that  appellant  must  not  have  the  greatest 
and  most  beneficial  use  and  enjoyment  of  it,  because  it  is  possible 
that  he  may  die  without  leaving  children,  and  his  fee  be  deter- 
mined. It  is  also  possible  that  all  of  the  appellees  may  die  before 
the  appellant,  and  yet  by  the  decree  appealed  from  this  valuable 
estate  must  be  withheld  from  him  who  owns  it,  the  funds  arising  from 
it  kept  under  the  control  of  the  court,  and  appellant  allowed  the  net 
interest  resulting  from  such  management.  Such  a  course  as  this  is  not 
in  unison  with  the  idea  of  a  fee  in  appellant,  and  not  in  keeping  with 
the  spirit  of  American  institutions  that  favors  the  vesting  of  estates, 
opposes  entailments,  and  endeavors  to  secure  to  the  citizen  the  greatest 
immediate  enjoyment  of  property  consistent  with  law.  The  appellees 
believed  that  it  would  be  best  to  have  the  mine  continue,  and  the  chan- 
cellor took  the  same  view,  and  by  his  order  assumed,  through  the  re- 
ceiver, perpetual  supervision  over  it.  In  the  light  of  such  facts,  are  we 
warranted  in  saying  that  appellant  was  making  such  use  of  this  prop- 
erty "as  a  prudent  man  would  not  do  with  his  own  property?"  Can 
we  say  that  it  is  such  extravagant,  humorous  waste  that  a  court  of 


Sec.  2)  waste  857 

equity  ought,  pro  bono  publico,  to  moderate  it?  To  such  contention 
we  cannot  assent.  Prudent  men  mine  their  lands,  and  sell  the  minerals 
and  ores.  They  sell  the  right  to  others,  and  they  lease  them  upon 
royalties,  and  we  cannot  say  it  constitutes  equitable  waste. 

The  decree  of  the  circuit  court  is  reversed,  and  the  cause  remanded, 
with  the  direction  to  that  court  to  dismiss  appellees'  bill.  Reversed  and 
remanded. 


PERROT  v.  PERROT. 

(In  Chancery  before  Lord  Hardwicke,  1744.    3  Atk.  94,  26  E.  R.  S57.) 

There  was  a  limitation  in  a  settlement  to  the  defendant  for  life,  to 
trustees  to  preserve  contingent  remainders,  to  his  first  and  every  other 
son  in  tail,  remainder  to  plaintiff  for  life,  with  remainder  to  his  first 
and  every  son  in  tail,  reversion  in  fee  to  the  defendant. 

The  first  tenant  for  life  cuts  down  timber,  the  plaintiff,  who  is  the 
second  tenant  for  life,  brings  his  bill  for  an  injunction  to  stay  waste. 

Mr.  Attorney  General  for  the  plaintiff  shewed  cause  why  the  injunc- 
tion for  restraining  the  defendant  from  committing  any  further  waste 
should  not  be  dissolved. 

It  was  insisted  by  Mr.  Solicitor  General,  for  the  defendant,  that  the 
timber  which  he  has  cut  down,  are  decayed  trees,  and  will  be  the 
worse  for  standing,  and  that  it  is  of  service  to  the  public,  that  they 
should  be  cut  down ;  and  that  it  is  very  notorious  that  timber,  especial- 
ly oak,  when  it  is  come  to  perfection,  decays  much  faster  in  the  next 
twenty  years,  than  it  improves  in  goodness  the  twenty  years  immedi- 
ately preceding. 

That  as  the  defendant  has  exercised  this  power  in  such  a  restrained 
manner,  and  confined  himself  merely  to  decayed  timber,  which  grows 
worse  every  day,  that  this  court  will  not  interpose,  especially  as  the 
plaintiff  is  not  entitled  to  come  into  this  court  as  he  has  not  the  im- 
mediate remainder,  and  besides  has  no  remedy  law. 

Lord  Chancellor.  The  question  here  does  not  concern  the  inter- 
est of  the  public,  unless  it  had  been  in  the  case  of  the  King's  forests 
and  chases ;  for  this  is  merely  a  private  interest  between  the  parties ; 
and  it  is  by  accident  that  no  action  at  law  can  be  maintained  against 
the  defendant,  because  no  person  can  bring  it,  but  who  has  the  im- 
mediate remainder. 

Consider  too  in  how  many  cases  this  court  has  interposed  to  prevent 
waste. 

Suppose  here  the  trustees  to  preserve  contingent  remainders  had 
brought  a  bill  against  the  defendant  to  stay  waste  for  the  benefit  of  the 
contingent  remainders. 

I  am  of  opinion  they  might  have  supported  it,  but  here  it  is  the  sec- 
ond tenant  for  life,  who  has  done  it,  and  though  he  has  no  right  to  the 
timber,  yet  if  the  defendant,  the  first  tenant  for  life,  should  die  without 


858  INJUNCTION    IN    RELATION    TO   TOUTS  (Ch.  4 

sons,  the  plaintiff  will  have  an  interest  in  the  mast  and  shade  of  the 
timber. 

The  case  of  Welbeck  Park,  which  has  been  mentioned,  was  a  very 
particular  one,  because  there,  by  the  accident  of  a  tempest,  the  timber 
was  thrown  down,  and  was  merely  the  act  of  God. 

But  this  is  not  the  present  case,  for  here  a  bare  tenant  for  life  takes 
upon  him  to  cut  down  timber,  and  it  is  not  pretended  that  they  are 
pollards  only:  and  though  the  defendant's  counsel  have  attempted  to 
make  a  distinction  between  cutting  down  young  timber  trees  that  are 
not  come  to  their  full  growth,  and  decayed  timber,  I  know  of  no  such 
distinction,  either  in  law  or  equity. 

Therefore  upon  the  authority  of  those  cases  which  have  been  very 
numerous  in  this  court,  of  interposing  to  stay  waste  in  the  tenant  for 
life,  where  no  action  can  be  maintained  against  him  at  law,  as  the  plain- 
tiff has  not  the  immediate  remainder,  the  injunction  must  be  continued 
till  the  hearing. 


MICKLETHWAIT  v.  MICKLETHWAIT. 

(In  Chancery.  1S5T.    26  Law  J.  Ch.  [N.  S.]  721.) 

This  was  a  motion,  on  the  part  of  the  defendant,  the  tenant  for  life 
in  possession  of  certain  estates  in  Norfolk,  called  respectively  the 
"Beeston"  and  the  "Taverham  Hall"  estates,  to  dissolve  an  ex  parte 
injunction  obtained  by  the  plaintiff,  who  was  the  next  tenant  for  life, 
restraining  him  from  felling,  or  injuring,  or  selling  and  disposing  of 
153  trees.    The  facts  may  be  shortly  stated  as  follows : 

Nathaniel  Micklethwait  being  seised  in  fee  of  both  estates,  executed 
a  settlement  in  1812,  whereby  the  estates  were  settled  on  himself  for 
life,  with  remainder,  after  the  death  of  his  eldest  son,  without  issue, 
to  himself  in  fee.  At  this  time,  he  was  residing  at  the  mansion  house 
on  the  Beeston  estate,  but  in  1823  he  removed,  with  his  family,  from 
Beeston  to  Taverham  Hall,  which  was  seven  or  eight  miles  from 
Beeston ;  and  in  1845,  with  the  consent  of  his  eldest  son,  who  was 
unmarried,  he  took  down  the  Beeston  mansion-house,  leaving  the 
shrubbery,  gardens  and  garden  walls  about  the  house  in  the  same  state 
as-  they  had  theretofore  been  in,  and  the  garden  was  let  to  a  market 
gardener. 

By  his  will,  dated  the  9th  of  May,  1852,  Nathaniel  Micklethwait 
devised  the  Beeston  and  Taverham  Hall  estates,  subject  to  the  settle- 
ment of  1812,  to  his  second  son,  the  defendant,  for  life,  without  im- 
peachment of  or  for  any  manner  of  waste,  other  than  and  except  vol- 
untary waste  in  pulling  down  houses  or  buildings.     *     *     * 

Two  or  three  handsome  trees  upon  the  estate  had  been  cut  down  by 
the  testator  in  his  lifetime,  and  the  defendant  now  proposed  to  cut 
down  153  of  the  old  oak  trees,  many  of  which  were  standing  in  the 
avenue  and  park.     The  trees  had  all  arrived  at  maturity,  and  if  not 


Sec.  2)  waste  859 

ornamental  timber,  were  such  as  might  properly  be  felled,  and  several 
of  them  might  have  been  advantageously  felled  many  years  ago. 

The  plaintiff  having  obtained  an  injunction  to  restrain  the  waste  as 
above  mentioned. 

Wood,  V.  C.18  *  *  *  There  must  be  an  injunction  restraining 
the  defendant  from  cutting  trees  forming  either  side  of  the  avenue, 
or  any  otber  trees  planted  or  left  standing  for  ornament  on  the  Bee- 
ston  estate.  Then  there  must  be  an  inquiry  such  as  was  suggested  in 
YVombwell  v.  Belasyse,  6  Ves.  110,  note,  as  to  what  trees  have  been 
planted  or  left  standing  for  ornament  or  for  the  purpose  of  the  estate, 
and  whether  any  and  which  of  the  trees  are  proper  to  be  cut  for  the 
purpose  of  repair  or  sale,  having  regard  to  the  purpose  for  which  they 
were  planted,  or  left  standing. 

From  this  order  the  defendant  appealed,  and  on  the  appeal  coming 
on  an  arrangement  was  made  by  which  it  should  be  brought  on  to- 
gether with  a  motion  for  a  decree,  and  the  same  accordingly  came  on 
before  the  Lords  Justices  on  the  27th,  28th  and  29th  of  July. 

Lord  Justice  Knight  Bruce.  *  *  *  The  injunction  should, 
in  my  opinion,  be  dissolved,  and  the  bill  as  to  the  timber  dismiss- 
ed.    *     *     * 

Lord  Justice  Turner.  The  questions  in  this  case  are  new  and  im- 
portant, and  are  not,  as  I  think,  free  from  difficulty.  By  far  the  most 
important  question  in  point  of  law  is  that  as  to  the  timber,  as  it  in- 
volves the  extent  of  the  doctrine  of  this  Court  with  respect  to  equi- 
table waste.     *     *     * 

This  doctrine  of  equitable  waste,  although  far  too  well  settled  in 
this  Court  to  be  now  in  any  way  disturbed,  is,  it  is  to  be  observed, 
an  encroachment  upon  a  legal  right.  At  law,  a  tenant  for  life  without 
impeachment  of  waste  has  the  absolute  power  and  dominion  over  the 
timber  upon  the  estate ;  but  the  Court  controls  him  in  the  exercise  of 
that  power,  and  it  does  so,  I  apprehend,  upon  this  ground,  that  it  will 
not  permit  an  unconscientious  use  to  be  made  of  a  legal  power.  It 
regards  such  an  unconscientious  use  of  a  legal  power  as  an  abuse, 
and  not  as  a  use  of  it.  When,  therefore,  the  Court  is  called  upon  to 
interfere  in  cases  of  this  description,  it  is  bound,  I  think,  in  the  first 
place,  to  consider  whether  there  are  any  special  circumstances  to  af- 
fect the  conscience  of  the  tenant  for  life ;  for  in  the  absence  of  such 
special  circumstances,  it  cannot  be  unconscientious  in  him  to  avail 
himself  of  the  power  which  the  testator  has  vested  in  him.  We  have, 
then,  to  consider  what  are  the  special  circumstances  which  the  Court 
will  regard  as  affecting  the  conscience  of  a  tenant  for  life,  and  I  ap- 
prehend that  which  is  principally  to  be  regarded  is  the  intention  of  the 
settlor  or  devisor.  If  by  his  disposition  or  by  his  acts  he  has  indi- 
cated an  intention  that  there  should  be  a  continuous   enjoyment   in 

is  The  statement  of  facts  is  abridged,  and  parts  of  the  opinions  of  Wood, 
V.  C,  Lord  Justice  Knight  Bruce,  and  Lord  Justice  Turner  are  omitted. 


S60  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

succession  of  that  which  he  himself  has  enjoyed,  in  the  state  in  which 
he  has  himself  enjoyed  it,  it  must  surely  be  against  conscience  that  a 
tenant  for  life  claiming  under  his  disposition  should  by  the  exercise 
of  a  legal  power  defeat  that  intention.  We  have  here,  I  think,  the 
clue  by  which  the  difficulty  in  this  case  may  be  solved.  If  a  devisor  or 
settlor  occupies  a  mansion-house,  with  trees  planted  or  left  standing 
for  ornament  around  or  about  it,  or  keeps  such  a  mansion-house  in  a 
state  for  occupation,  and  devises  or  settles  it  so  as  to  go  in  a  course  of 
succession,  he  may  reasonably  be  presumed  'to  anticipate  that  those 
who  are  to  succeed  him  will  occupy  the  mansion-house,  and  it  cannot 
be  presumed  that  he  meant  it  to  be  denuded  of  that  ornament  which 
he  himself  enjoyed.  This  Court,  therefore,  in  such  a  case,  protects 
the  trees  against  the  acts  of  a  tenant  for  life ;  but  if,  on  the  other 
hand,  the  devisor  or  settlor  himself  pulls  down  the  mansion-house, 
upon  what  ground  is  it  to  be  presumed  that  he  intended  that  which  is 
incident  to  the  mansion-house  to  be  preserved?  Is  it  to  be  presumed 
that  he  meant  that  the  incident  should  be  preserved  when  he  has  him- 
self destroyed  the  principal?  It  was  said  for  the  plaintiff  that  the  tes- 
tator may  have  intended  that  the  trees  should  be  preserved  as  an  orna- 
ment to  the  estate,  without  reference  to  the  mansion-house ;  and  it  was 
argued  that  if  the  trees  were  in  fact  planted  or  left  standing  for  orna- 
ment, it  could  make  no  difference  whether  there  was  a  mansion-house 
on  the  estate  or  not ;  but  there  is  a  plain  difference  between  cases  in 
which  there  is  and  cases  in  which  there  is  not  a  mansion-house  on  the 
estate.  In  the  former  case  continued  residence  may  well  be  presumed 
to  have  been  contemplated,  in  the  latter  case  it  cannot.  There  is  an- 
other consideration  which  seems  to  me  to  have  an  important  bearing 
upon  this  case.  These  trees  are  assumed  to  have  been  planted  for 
ornament  to  the  mansion-house :  are  they  to  be  preserved  for  orna- 
ment to  the  estate  when  the  mansion-house  is  pulled  down  ?  Are  trees 
which  are  planted  for  one  purpose  to  be  protected  for  another?  The 
difficulty  in  which  the  Court  will  be  involved  if  it  carries  the  doctrine 
of  equitable  waste  to  the  length  contended  for  by  the  plaintiff,  is,  I 
think,  also  a  matter  not  unworthy  of  consideration.  It  is  already  diffi- 
cult in  many  cases  to  determine  whether  trees  have  been  planted  or 
left  standing  for  ornament,  but  the  existence  of  the  mansion-house 
generally  furnishes  some  criterion  for  determining  the  point.  How 
is  the  loss  of  that  criterion  to  be  supplied?  I  have  hitherto  dealt  with 
the  case  without  reference  to  the  testator's  acts  and  conduct.  It  ap- 
pears that  he  not  only  pulled  down  the  mansion-house,  but  wholly  dis- 
mantled the  place.  The  ornamental  garden  had  been  protected  by  a 
wire  fence.  He  took  away  the  fence  and  removed  it  to  his  other 
residence.  He  appears  to  have  planted  extensively,  and  to  have  taken 
into  the  plantation  about  100  yards  of  the  avenue  nearest  to  the  man- 
sion-house. After  he  left  the  mansion-house  he  cut  down  and  sold 
several  of  the  trees  which  were  in  the  line  of  the  avenue  and  had  been 


Sec.  2)  waste  8G1 

taken  into  the  plantation.  He  also  cut  down  at  other  times  other  trees 
standing  about  the  mansion-house  and  in  the  park  which  were  at 
least  as  well  entitled  to  be  considered  as  having  been  planted  or  left 
for  ornament  as  the  trees  which  are  now  in  question.  The  gardens 
and  pleasure  grounds  were  suffered  to  grow  wild  and  left  without  pro- 
tection, with  the  exception  of  what  I  suppose  was  the  kitchen  gar- 
den, which  was  let  to  a  market  gardener.  The  testator  was  fond  of 
sporting,  and  after  he  had  removed  to  Taverham  he  seems  to  have 
regarded  the  estate  at  Beeston  merely  as  a  covert  for  game.  These 
acts  and  this  conduct  on  the  part  of  the  testator  furnish,  I  think,  the 
strongest  evidence  that  the  trees  on  the  estate  were  not  left  standing 
for  ornament.  If  the  testator  was,  as  I  think  he  was,  to  be  considered 
between  the  parties  as  tenant  in  fee,  I  hardly  see  what  better  evidence 
we  could  have  of  his  intention.     *     *     * 

Upon  the  whole,  therefore,  finding  no  authority  to  support  the  plain- 
tiff's case,  I  am  driven  to  the  conclusion  that  what  we  are  asked  in  this 
case  to  do  is  to  extend  the  doctrine  of  equitable  waste.  I  am  not  dis- 
posed to  do  so ;  and  upon  the  grounds  I  have  stated  I  think  that,  so 
far  as  respects  the  trees,  this  bill  ought  to  be  dismissed  and  the  in- 
junction, of  course,  dissolved.  I  have  satisfaction  in  adding  that  if 
this  case  had  come  before  us  as  it  came  before  Vice  Chancellor  Wood 
upon  motion  only,  I  should  probably  have  thought  it  right  to  grant  the 
injunction  (without  reference  to  the  grounds  upon  which  the  Vice 
Chancellor  proceeded),  considering  the  question  proper  to  be  discussed 
at  the  hearing  of  the  cause.  His  Lordship  then  referred  to  the  remain- 
ing question  upon  the  bill,  and  agreed  in  the  decree  already  pro- 
nounced.19 

is  In  Halliwell  v.  Phillips  (1858)  4  Jurist  (N.  S.)  607,  608,  a  limitation  on 
the  subject-matter  of  equitable  waste  was  pointed  out  by  Sir  W.  P.  Wood,  V.  C: 
"There  is  not  here  any  question  to  be  considered  as  to  how  far  timber  is  or 
not  ornamental,  in  the  sense  of  being  connected  with  the  residence,  and  the 
residence  being  pulled  down,  as  in  Micklethwait  v.  Micklethwait  (1857)  3  Jur. 
(N.  S.)  765 ;  it  is  open  to  contention  that  the  ornamental  nature  of  the  timber, 
and  the  consequent  protection,  is  lost.  Here  there  is  a  residence,  and  it  is 
not  denied  by  the  defendant  that  the  timber  is  ornamental  to  the  residence. 
But  in  order  to  protect  the  timber  I  apprehend  that  it  must  be  ornamental 
in  the  strict  legal  sense  of  the  term,  viz.  planted  or  left  standing  for  the  pur- 
poses of  ornament.  The  question  I  have  now  to  try  is,  therefore,  a  question 
of  fact,  whether  the  trees,  as  to  which  this  litigation  has  arisen,  were  or  are 
trees  planted  or  left  standing  for  ornament.  The  onus  is  on  the  plaintiffs  to 
prove  that  this  is  the  case ;  and  further,  to  prove  that  the  defendant  is  about 
to  make  such  a  use  of  his  powers,  as  tenant  for  life  without  impeachment  of 
waste,  as  would  be  inequitable  as  against  the  plaintiffs,  the  remaindermen. 
*  *  *  It  was  argued  that  the  father  of  the  defendant,  who  was  the  original 
purchaser  of  these  other  portions,  both  of  which  are  in  sight  of  the  house,  must 
be  taken  to  have  acquired  these  properties  either  with  a  view  of  their  being 
ornamental,  or  in  order  to  turn  them  to  a  profit;  that  he  did  cut  and  sell 
other  portions  of  the  timber,  but  reserved  these  ;  and  that  it  is,  therefore,  to 
be  inferred  that  he  left  these  standing  for  ornament.  That  is  going  a  great 
deal  too  far:  it  is  asking  me  to  declare  that  any  person  having  one  estate  and 
purchasing  a  neighboring  estate,  must,  if  he  does  not  cut  down  all  the  timber 
on  it,   be  taken  to  have  dedicated  to  ornament  every  stick  which  he  leaves 


8G2  INJUNCTION    IN    RELATION    TO   TORTS  (Ch.  4 


\YHITFIELD  v.  BEWIT. 

(In  Chancery  before  Lord  Macclesfield,  1724.    2  P.  Wins.  240,  24  E.  R.  714.) 

One  seised  in  fee  of  lands  in  which  there  were  mines  all  of  them  un- 
opened, by  deed  conveyed  those  lands  and  all  mines,  waters,  trees,  &c, 
to  trustees  and  their  heirs,  to  the  use  of  the  grantor  for  life  (who  soon 
after  died),  remainder  to  the  use  of  A.  for  life,  remainder  to  his  first, 
&c,  son  in  tail  male  successively,  remainder  to  B.  for  life,  remainder 
to  his  first,  &c,  son  in  tail  male  successively,  remainder  to  his  two  sis- 
ters C.  and  D.  and  the  heirs  of  their  bodies,  remainder  to  the  grantor 
in  fee. 

A.  and  B.  had  no  sons,  and  C.,  one  of  the  sisters,  died  without  issue, 
by  which  the  heir  of  the  grantor,  as  to  one  moiety  of  the  premises,  had 
the  first  estate  of  inheritance. 

A.  having  cut  down  timber  sold  it  and  threatened  to  open  the  mines ; 
the  heir  of  the  grantor  being  seised  of  one  moiety  ut  supra  by  the 
death  of  one  of  the  sisters  without  issue,  brought  this  bill  for  an  ac- 
count of  the  moiety  of  the  timber  and  to  stay  A.'s  opening  of  any 
mine.20     *     *     * 

Cur'.  The  right  to  this  timber  belongs  to  those  who  at  the  time  of 
its  being  severed  from  the  freehold  were  seised  of  the  first  estate  of  in- 
heritance, and  the  property  becomes  vested  in  them. 

standing.  There  must  be  some  act  of  dedication.  If  the  court  finds  an  owner 
cutting  out  vistas,  or  planting  avenues  or  clumps,  or  erecting  statues  or  col- 
umns, or  the  like,  the  case  is  clear.  Anything  short  of  such  clear  indications 
of  intention  it  is  very  unsatisfactory  to  act  on ;  and  this  very  case  shows  the 
fallacy  to  which  any  less  positive  indications  may  lead.  *  *  *  As  to  inter- 
ference with  rutting  trees  in  the  hedge-rows,  that  is  going  very  far  beyond 
the  original  cases,  which  only  extended  to  those  trees  planted  not  at  all  for 
purposes  of  profit,  but  which  were  as  much  for  pure  ornament  as  an  obelisk 
or  tower.  Such  trees  were  not  to  be  sacrificed  and  sold  whenever  an  oppor- 
tunity occurred  for  getting  a  good  price.  But  as  to  hedge-rows,  there  never 
was  any  not  inn  that  trees  were  planted  in  them  for  mere  ornamentation.  Or- 
namental they  are,  no  doubt,  as  every  tree  is  more  or  less  a  handsome  object; 
but  it  must  be  shewn  that  they  were  specially  placed  for  mere  ornament." 

To  the  same  effect  is  the  opinion  of  Lord  Eldon  in  Burges  v.  I  jamb  (1809)  10 
Vesey  174,  1S3:  "The  question  upon  the  principle  as  to  ornamental  timber,  in 
the  extent,  to  which  it  has  been  pushed  in  this  argument,  appears  to  be  new; 
that  by  building  a  house  near  a  wood  the  wood  is  devoted  to  the  protection  of 
that  principle  of  Equity ;  and  so,  the  effect  of  making  walks  through  a  wood, 
is,  that  no  part  of  that  wood  is  to  come  down.  The  Court  has  not  gone  fur- 
ther than  protecting  what  is  planted  or  growing  for  ornament;  and  has  fre- 
quently refused  to  act  upon  affidavits,  stating  merely,  that  the  timber  is  orna- 
mental Upon  this  subject  I  have  anxiously  guarded  my  expression  against  the 
inference,  that  all  the  trees,  which  are  ornamental,  were  within  the  principle. 
In  the  instance  of  a  Park,  once  full  of  wood,  if  timber  had  been  felled,  leaving 
vistas  and  rows,  and  some  scattered  trees,  it  would  be  difficult  to  say,  the  Court 
would  protect  the  former,  and  not  the  latter.  Upon  these  affidavits  it  is  diffi- 
cult to  apply  that  equitable  doctrine.  At  least  the  timber  must  be  described, 
not  as  ornamental  merely,  but  as  planted  and  growing  for  ornament.  Let  this 
motion  be  mentioned  again  at  the  next  Seal;  and  the  other  Defendants  must 
have  distinct  notice  of  it.-' 

20  The  statement  of  facts  is  abridged. 


Sec.  2)  waste  8G3 

As  to  the  objection  that  trover  will  lie  at  law,  it  may  be  very  neces- 
sary for  the  party  who  has  the  inheritance  to  bring  his  bill 21  in  this 
Court,  because  it  may  be  impossible  for  him  to  discover  the  value  of 
the  timber,  it  being  in  the  possession  of,  and  cut  down  by  the  tenant  for 
life.  This  was  the  very  case  of  the  Duke  of  Newcastle  versus  Mr. 
Vane,  where  at  Welbeck  (the  Duke's  seat  in  Nottinghamshire)  great 
quantities  of  timber  were  blown  down  in  a  storm;  and  though  there 
were  several  tenants  for  life,  remainder  to  their  first  and  every  other 
son  in  tail,  yet  these  having  no  sons  born,  the  timber  was  decreed  to  be- 
long to  the  first  remainder-man  in  tail. 

Neither  do  I  think  the  defendant  ought  (as  he  insists)  to  be  allowed 
out  of  this  timber  what  money  he  has  laid  out  in  timber  for  repairs, 
since  it  was  a  wrong  thing  to  cut  down  and  sell  the  same,  and  shews 
quo  animo  it  was  done,  not  to  repair  but  to  sell. 

2dly,  It  was  urged,  that  the  mines  being  expressly  granted  by  this 
settlement  with  the  lands,  it  was  as  strong  a  case  as  if  the  mines  them- 
selves were  limited  to  A.  for  life,  and  like  Saunders's  Case  in  5  Co.  12, 
where  it  is  resolved,  that  on  a  lease  made  of  land  together  with  the 
mines,  if  there  be  no  mines  open,  the  lessee  may  open  them;  so  in  this 
case,  there  being  no  mines  open,  the  cestui  que  use  for  life  might  open 
them. 

But  Lord  Chancellor  contra:  A.  having  only  an  estate  for  life 
subject  to  waste,  he  shall  no  more  open  a  mine  than  he  shall  cut  down 
the  timber-trees,  for  both  are  equally  granted  by  this  deed ;  and  the 
meaning  of  inserting  mines,  trees,  and  water,  was,  that  all  should  pass, 
but  as  the  timber  and  mines  were  part  of  the  inheritance,  no  one  should 
have  power  over  them  but  such  as  had  an  estate  of  inheritance  limited 
to  him. 

Of  which  opinion  was  Lord  Chancellor  King  on  a  rehearing."2 

2i  In  Lee  v.  Alston,  1  Bro.  C.  C.  194,  3  Bro.  C.  C.  37,  1  Ves.  Jun.  82,  Lord 
Tlmrlow  was  of  opinion  that  the  mere  circumstance  of  timber  having  been 
wrongfully  cut  down  gave  a  right  to  an  account,  and  accordingly,  though  the 
bill  prayed  an  injunction,  the  decree  was  for  an  account  only.  Reg.  Lib.  B. 
17S2,  534.  But  the  later  cases  have  decided,  according  to  Jesus  College  v. 
Bloom,  that  the  right  to  an  account  depends  upon  the  right  to  an  injunction. 
Pulteney  v.  Warren,  6  Ves.  89 ;  Upiversities  of  Oxford  and  Cambridge  v. 
Richardson,  6  Ves.  089;  Grierson  v.  Eyre,  9  Yes.  346;  Richards  v.  Noble,  3 
Mer.  673.  This  rule,  however,  does  not  extend  to  eases  where  there  is  no 
remedy  at  law  for  waste  already  committed ;  an  account  may  there  be  decreed 
without  an  injunction.  Garth  v.  Cotton,  ub.  sup. ;  Marq.  of  Lansdowne  v. 
Marchioness  Dowager  of  Lansdowne,  1  Madd.  116.     *     *     *     [Rep.] 

22  Lord  Hardwicke,  Chancellor,  speaking  on  the  matter  of  account  for  tim- 
ber cut  down  as  waste,  said  in  the  case  of  Jesus  College  v.  Bloom  (1745) 
Ambler,  54:  "On  this  bill  there  arise  two  questions:  1st,  Whether  bills  are  to 
be  maintained  in  this  Court  merely  for  timber  cut  down  after  the  term  is 
gone  out  of  the  tenant  by  assignment?  or,  Whether  such  bills  can  only  be 
brought  for  an  account  of  such  waste  done,  without  at  the  same  time  praying 
an  injunction?  And  I  am  of  opinion  that  they  cannot.  Waste  is  a  loss  for 
which  there  is  a  proper  remedy  by  action  ;  in  a  court  of  law  the  party  is  not 
necessitated  to  bring  an  action  of  waste,  but  he  may  bring  trover;  those  are 
the  remedies,  and  therefore  there  is  no  ground  of  equity  to  come  into  this 
Court,  for  satisfaction  of  damages  is  not  the  proper  ground  for  the  Court  to 


8G4  INJUNCTION   IN    RELATION   TO  TORTS  (Cll.  4: 

WILLIAMS  v.  DUKE  OF  BOLTON. 

(In  Chancery  before  Lord  Thurlow,  1784.    1  Cox,  72,  29  E.  R.  1068.) 

On  the  hearing  of  this  exception,  the  Registrar  did  not  understand 
the  Lord  Chancellor  to  have  given  a  final  opinion,  and  had  taken  no 
minutes;   it  therefore  stood  for  judgment  in  the  paper  this  day. 

Lord  Chancellor.  I  have  not  the  particular  circumstances  of  the 
case  now  in  my  head ;  but  the  general  ground,  upon  which  I  intended 
to  go  when  I  made  the  order,  was  this :  The  duke  was  tenant  for  life 
(not  without  impeachment  of  waste),  with  contingent  remainders  to  his 
own  children,  with  remainder  to  Miss  Pawlett  (afterwards  Mrs.  Orde) 
for  life,  with  remainder  to  her  first  and  other  sons  in  tail,  with  remain- 
der to  the  Duke  in  fee.  The  Duke  being  seized  for  life,  and  also  of 
a  vested  remainder  in  fee,  while  the  contingent  estates  were  in  expec- 
tancy, cut  down  timber,  and  the  question  is  to  whom  the  timber  shall 
belong.  If  any  other  person  entitled  in  remainder  to  an  estate  of  in- 
heritance had  been  in  being  at  the  time,  the  law  would  have  thrown  the 
timber  on  that  remainder ;  but  I  was  of  opinion,  that  although  the 
Duke  had  a  vested  remainder,  yet  as  it  was  not  competent  for  him  to 
cut  down  the  timber  in  respect  of  his  life  estate,  he  could  not  take  ad- 
vantage, in  respect  of  his  estate  in  remainder,  of  his  own  wrong.  I 
thought  if  the  case  had  been  so  shaped  in  the  pleadings,  it  would  have 
been  a  fraud  on  the  settlement  (especially  considering  the  express  words 
of  the  settlement).  If  he  then  was  not  entitled  to  the  timber,  the  ques- 
tion was,  who  should  be?  Mr.  Orde  had  had  a  son  born,  who  died 
soon  afterwards;  the  father  administered  to  him,  and  it  was  argued, 
that  the  timber  belonged  to  his  son  (and  consequently  to  his  father  as 
his  administrator)  by  a  sort  of  analogy  to  what  would  have  been  the 
case  if  the  timber  had  been  cut  down  during  that  estate  tail.  My  opin- 
ion was,  that  it  did  not  belong  to  him  by  the  operation  of  the  law ;  and 
I  did  not  see  any  rule  of  equity  to  bring  him  quasi  within  that  situa- 
tion. My  opinion  was  that  the  fund  would  be  part  of  the  estate  tail : 
another  son  is  born  of  Mrs.  Orde,  does  it  belong  to  him?  I  think  at 
present,  no.  He  takes  an  estate  tail,  always  subject  to  be  divested  by 
a  subsequent  estate  of  a  child  of  the  Duke's  coming  into  being.  The 
timber  is  part  of  the  realty;  by  an  accident  (as  to  all  but  the  Duke,. and 
him  therefore  I  bar)  it  is  severed  from  the  realty,  and  becomes  in  its 

admit  of  these  sort  of  bills,  but  the  staying  of  waste;  because  the  Court  pre- 
sumes, when  a  man  has  done  waste  he  may  commit  the  same  again,  and  there- 
fore will  suffer  the  lessor  or  reversioner,  when  he  brings  his  bill  for  an  in- 
junction to  stay  waste,  to  pray  at  the  same  time  an  account  of  the  waste  done ; 
for  though  a  court  of  law  may  give  damages,  yet  it  cannot  prevent  further 
waste ;  and  it  is  upon  this  ground,  to  prevent  multiplicity  of  suits,  that  this 
Court  will  decree  an  account  of  waste  done  at  the  same  time,  with  an  in- 
junction ;  just  like  the  case  of  a  bill  brought  for  discovery  of  assets,  an  ac- 
count may  be  prayed  at  the  same  time;  and  though  originally  the  bill  was 
only  brought  for  a  discovery  of  assets,  yet,  to  prevent  multiplicity  of  suits,  the 
Court  will  direct  an  account  to  be  taken." 


Sec.  2)  waste  865 

nature  personalty,  but  yet  bound  as  far  as  it  can  to  the  uses  of  the 
realty.  In  this  I  follow  the  rule  laid  down  in  a  case  which  was  much 
contested,  that  of  Pelham  and  Gregory.  The  Duke  may  now  have 
sons;  if  so,  there  is  no  estate  but  what  is  subject  to  be  divested,  for 
though  the  remainder  vests  only  in  expectancy,  and  is  liable  by  the 
rules  of  law  to  other  uses  springing  to  the  prejudice  of  such  expec- 
tancy. The  master  must  therefore  take  an  account  of  the  timber,  and 
compute  interest  at  £4  per  cent.  The  money  is  to  be  paid  into  the  bank 
to  the  credit  of  the  cause,  and  subject  to  further  order ;  and  any  person 
to  be  at  liberty  to  apply  to  the  court.  I  do  not  at  present  see  the  per- 
son to  whom  I  can  give  it,  but  if  any  think  they  have  a  right  they  must 
apply.    I  do  not  think  there  ought  to  be  any  costs  given. 

His  Lordship  directed  that  the  Duke  should  pay  into  the  bank  to  the 
credit  of  the  cause,  the  sum  of  £2943,  for  which  the  timber  had  been 
sold,  and  ordered  that  the  master  should  inquire  into  and  ascertain  the 
time  at  which  the  said  sum  or  any  part  thereof  was  received  by  the 
Duke,  and  should  compute  interest  thereon  at  4  per  cent,  from  such 
times  respectively,  and  that  the  Duke  should  pay  into  court  in  like  man- 
ner what  should  be  found  to  be  the  amount  of  such  interest,  and  that 
such  principal  and  interest  should  be  laid  out,  with  liberty  for  any  per- 
son interested  to  apply.    Reg   Lib.  B.  1783,  fol.  326. 


MARQUIS  OF  LANSDOWNE  et  al.  v.  MARCHIONESS 
DOWAGER  OF  LANSDOWNE. 

(In  Chancery,  1815.     1  Madd.  116,  56  E.  R.  44.) 

William  Marquis  of  Lansdowne  died  the  7th  of  May,  1805,  and 
thereupon  said  John  Henry  Marquis  of  Lansdowne  came  into  posses- 
sion, or  into  the  receipts  of  the  rents  and  profits  of  the  aforesaid  here- 
ditaments, by  virtue  of  the  limitations  aforesaid ;  and  he  continued  in 
such  possession  or  receipt  during  his  life :  and  said  John  Henry  Mar- 
quis of  Lansdowne,  at  different  times  since  the  death  of  his  said  late 
father,  that  is  to  say,  during  the  winter  of  the  years  1805,  1806,  1807, 
and  1808,  cut  down,  or  caused  to  be  cut  down,  large  quantities  of  tim- 
ber trees,  and  other  ornamental  trees,  standing  and  growing  near  said 
capital  mansion-house  at  Bowood ;  and  he  also  cut  down  divers  young 
trees  and  saplings,  which  had  been  planted  before  the  death  of  said 
William  late  Marquis  of  Lansdowne,  and  were  growing  for  timber 
upon  the  lands  of  which  said  John  Henry  Marquis  of  Lansdowne  was 
tenant  for  life,  as  aforesaid ;  and  he  sold  and  disposed  of  a  large  part 
thereof  for  large  sums  of  money;  and  same  were  received  by  him,  or 
by  his  orders,  or  for  his  use ;  and  particularly  he  cut  down,  or  caused 
to  be  cut  down,  after  the  death  of  said  William  Marquis  of  Lansdowne, 
a  large  avenue  of  elm  and  ash  trees,  leading  towards  and  up  to  said 
mansion-house  at  Bowood,  on  the  north-east  front  thereof,  and  all  the 
Boke  Eq. — 55 


SG6  INJUNCTION   IN   RELATION  TO  TORTS  (Cll.  4 

trees  on  the  pleasure-ground  and  lawn  thereto  belonging;  and  he  also, 
since  the  death  of  said  William  late  Marquis  of  Lansdowne,  cut  down, 
and  caused  to  be  cut  down,  divers,  oak,  ash,  and  other  tellers  and  sap- 
lings, standing  and  growing  upon  other  parts  of  said  premises,  of  which 
he  was  tenant  for  life  as  aforesaid ;  and  same  were  standing  and  grow- 
ing for  timber ;  and  same  were  in  a  thriving  and  improving  condition ; 
and  they  would  have  been  good  timber  trees  if  they  had  been  permitted 
to  stand  and  grow ;  but  same  were  so  small  as  not  to  be  measured  as 
timber  according  to  the  usage  of  timber-merchants,  and  same  were  not 
fit  to  be  cut  down. 

In  consequence  of  such  waste,  said  John  Eardley  Wilmot  and  Sir 
Francis  Baring,  in  February,  1809,  filed  their  bill  against  said  John 
Henry  Marquis  of  Lansdowne,  and  the  Plaintiff  Henry  Marquis  of 
Lansdowne,  by  his  then  name  of  Lord  Henry  Petty,  stating  the  fore- 
going facts  and  praying  that  an  account  might  be  taken  by  and  under 
the  direction  of  the  Court,  of  the  ornamental  trees,  young  trees,  and 
saplings,  so  improperly  cut  down  by  said  John  Henry  Marquis  of  Lans- 
downe, and  of  the  value  thereof :  And  that  said  John  Henry  Marquis 
of  Lansdowne  might  be  decreed  to  account  and  answer  for  the  value 
thereof,  or  for  the  monies  which  had  been  received  by  him,  or  by  his 
orders,  or  for  his  use,  on  account  thereof ;  and  to  pay  to  the  Plaintiffs 
in  such  bill,  or  to  the  Accountant-General  of  the  Court  what  should  be 
found  due  from  him  on  taking  such  account,  for  the  benefit  of  the  per- 
son who  might  become  entitled  thereto  :  And  that  the  said  John  Henry 
Marquis  of  Lansdowne,  his  agents,  servants  and  workmen,  might  be 
restrained  from  cutting  any  timber  or  other  trees  growing  upon  the 
said  premises,  which  were  growing  there  for  the  shelter  of  the  man- 
sion-houses, or  for  their  ornament,  or  which  were  growing  in  lines, 
walks,  or  vistas  for  the  ornament  of  the  lawns  and  pleasure-grounds, 
and  from  cutting  down  saplings  and  trees  not  fit  for  the  purposes  of 
timber,  and  from  cutting  down  timber  trees  at  unseasonable  times,  and 
in  an  unhusbandlike  manner ;   and  for  general  relief. 

Upon  the  bill  being  filed,  together  with  affidavits  in  support  of  the 
same,  an  injunction  was  granted  by  the  Court,  according  to  the  prayer 
of  said  bill.  John  Henry  Marquis  of  Lansdowne  afterwards  put  in  his 
answer  to  the  bill,  and  counter  affidavits  were  filed  by  John  Henry 
Marquis  of  Lansdowne;  and  an  application  was  made  to  dissolve  the 
injunction;  but  before  any  order  was  thereupon  made,  or  any  further 
proceedings  were  had  in  the  suit,  and  on  or  about  the  14th  of  Novem- 
ber, 1809,  said  John  Henry  Marquis  of  Lansdowne  died,  and  thereby 
the  suit  abated. 

The  present  supplemental  bill  was  filed  after  his  death,  stating  the 
former  proceedings.     *     *     * 

The;  Vice-Chancexlor  [Sir  Thomas  Plumeir].23  *  *  *  The 
late  marquis  was  tenant  for  life,  without  impeachment  of  waste,  and 

23  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  2)  waste 


867 


as  such  had  a  right  at  law  to  cut  timber  on  the  estate,  and  had  a  prop- 
erty in  the  trees,  but  having  abused  that  power  by  cutting  ornamental 
trees,  and  trees  not  ripe  for  cutting,  a  Court  of  Equity  says  he  Shall  not 
do  these  things  with  impunity,  but  interposes  to  restrain  the  legal  right ; 
and  equity  not  only  restrains  him  from  doing  further  waste,  but  directs 
an  account  of  the  waste,  done,  and  will  not  suffer  the  individual  to 
pocket  the  produce  of  the  wrong,  but  directs  the  money  produced  by 
such  waste  to  be  laid  up  for  the  benefit  of  those  who  succeed  to  the  es- 
tate.    *     *     * 

Demurrer  overruled. 


LIPPINCOTT  v.  BARTON  et  al. 

(Court  of  Chancery  of  New  Jersey,  1886.    42  N.  J.  Eq.  272,  10  Atl.  884.) 

Bird,  V.  C.  This  bill  is  filed  by  the  executor  of  Ann  H.  Pancoast, 
deceased,  to  recover  the  value  of  trees  cut  by  her  husband,  David  C. 
Pancoast,  who  continued  in  possession  as  tenant  by  the  curtesy  of  her 
lands  after  her  death.  The  defendants  against  whom  the  suit  is  in- 
stituted are  the  executors  of  the  tenant  for  life.  It  is  claimed  that  this 
suit  may  be  maintained  in  this  court  for  the  waste  committed,  on  the 
ground  of  equitable  conversion,  and  upon  the  ground  of  injustice  to 
Clement  G.  Lippincott,  one  of  the  grandsons  of  David  C.  Pancoast,  by 
whose  will  he  has  but  $100  bequeathed  him,  while  by  the  will  of  Ann 
H.  Pancoast  he  has  an  equal  interest  with  the  other  legatees. 

Neither  of  these  alleged  grounds  brings  the  case  within  the  jurisdic- 
tion of  this  court.  I  have  examined  a  number  of  authorities,  and  none 
of  them  goes  so  far  as  to  sustain  the  complainant's  insistment.  In 
Ware  v.  Ware,  6  N.  J.  Eq.  117,  the  doctrine  which  is  expressed  in  all 
the  other  authorities  is  that  an  account  for  waste  done  is  only  incidental 
to  relief  by  injunction  against  further  waste.  1  Lead.  Cas.  Eq.  1024; 
College  v.  Bloom,  3  Atk.  262 ;  Winship  v.  Pitts,  3  Paige  (N.  Y.)  259 ; 
1  Story,  Eq.  Jur.  §,§  515,  518. 

From  these  and  other  cases  it  appears  that  this  court  only  has  juris- 
diction to  compel  an  account  as  incidental  to  the  right  of  an  injunction 
to  stay  the  commission  of  further  waste,  and  that  only  in  order  to  pre- 
vent a  multiplicity  of  suits.  Grierson  v.  Eyre,  9  Ves.  341,  346;  Wat- 
son v.  Hunter,  5  Johns.  Ch.  (N.  Y.)  169,  9  Am.  Dec.  295;  1  Add. 
Torts,  319.  Nor  can  I  conceive  of  any  principle  upon  which  this  com- 
plainant can  stand  in  this  court  for  the  recovery  of  these  moneys.  If 
he  is  entitled  to  them,  he  can  recover  them  by  an  action  at  law  for 
money  had  and  received,  or  for  the  trespass  in  cutting,  or  trover  in 
converting.    Revision,  p.  396,  §  5. 


868  INJUNCTION   IN   RELATION  TO  TOUTS  (Ch.  4 

HILL  v.  BOWIE. 

(High  Court  of  Chancery  of  Maryland,  1829.    1  Bland,  593.) 

This  bill  was  filed  on  the  14th  of  December,  1826,  by  Morgan  Hill 
against  Daniel  Bowie.  It  states  that  the  plaintiff  was  in  possession  of 
a  part  of  a  tract  of  land  called  Grammar's  Chance,  to  which  he  had  a 
good  title  in  fee  simple ;  that  the  defendant  had  committed  waste  upon 
it  by  cutting  down  timber  trees ;  and  that  he,  this  plaintiff,  had  brought 
an  action  of  quare  clansum  fregit  against  the  defendant  to  try  the  title 
to  the  land ;  which  action  was  then  depending.  Whereupon  the  plain- 
tiff prayed  for  an  injunction  to  stay  waste,  &c.  An  injunction  was 
granted  as  prayed. 

The  defendant  put  in  his  answer,  in  which  he  admitted,  that  the 
plaintiff  was  entitled  to  a  certain  part  of  the  tract  of  land  as  stated ;  but 
he  averred,  that  a  part  of  the  same  tract  of  land  belonged  to  his,  the 
defendant's  wife,  the  boundaries  of  which  part  had  been  well  ascer- 
tained ;  and  the  defendant  denied,  that  he  had  committed  any  waste 
as  charged  by  the  bill. 

On  the  11th  of  September,  1828,  the  plaintiff  filed  a  supplemental  bill 
in  which  he  alleged,  that  he  had  obtained  a  verdict  and  judgment  in 
his  action  of  trespass ;  and  thereupon  prayed,  that  the  injunction  might 
be  made  perpetual. 

The  defendant,  by  his  answer  to  this  supplemental  bill,  admitted,  that 
the  plaintiff  had  recovered  a  judgment  as  stated;  but  averred,  that 
although  by  the  verdict  it  had  been  ascertained,  that  a  part  of  the  land, 
on  which  it  appeared  the  defendant  had  trespassed,  was  the  property  of 
the  plaintiff ;  yet  it  had  not  ascertained  the  claim  and  pretensions  of  the 
plaintiff  to  be  as  extensive  as  in  his  bill  he  had  supposed. 

Bland,  Chancellor.  This  case  having  been  submitted  on  bill  and 
answer,  the  proceedings  were  read  and  considered. 

An  injunction  of  this  description  is  in  the  nature,  and  in  all  respects 
performs  the  office  of  the  ancient  writ  of  estrepement.  It  is  an  attend- 
ant upon  the  action  at  common  law ;  and,  as  its  inseparable  ally,  fol- 
lows its  fortunes,  and  must  submit  to  its  fate.  Duvall  v.  Waters,  1 
Bland,  569.  The  restriction  of  this  kind  of  injunction,  in  its  com- 
mencement, must,  from  its  nature,  be  coextensive  with  the  pretensions 
of  the  plaintiff  as  made  in  his  bill  in  equity  and  action  at  common  law. 
But  if,  in  that  action,  the  plaintiff  fails  to  recover  entirely  according  to 
his  pretensions,  the  injunction  can  be  perpetuated  to  the  extent  of  his 
recovery  only  and  no  further;  and  upon  the  same  principle,  if  the 
plaintiff  fails  in  his  action  at  law  altogether,  the  injunction  mujt  be  to- 
tally dissolved. 

In  this  case  it  does  not  distinctly  appear,  by  the  proceedings,  how  far 
the  plaintiff  has  failed  in  sustaining  his  pretensions  at  law.  The  de- 
fendant by  his  answer,  which  is  to  be  taken  for  true  in  this  mode  of 
submitting  the  case  on  bill  and  answer,  avers  that  the  judgment  at  law 


Sec.  2)  waste  869 

does  not  ascertain  the  plaintiffs  pretensions  to  be  as  extensive  as  in 
his  bill  it  would  appear  he  supposes.  Hence  although  it  must  be  taken 
for  true,  that  there  is  some  difference  between  the  extent  of  the  plain- 
tiff's pretensions,  which  he  asked  to  have  protected  by  an  injunction, 
and  his  actual  recovery,  yet  that  difference  is  in  no  manner  designated 
by  this  vague  allegation  of  the  defendant,  or  by  any  thing  to  be  found 
in  the  proceedings.  If  the  unequivocal  extent  of  the  future  operation 
of  this  injunction  be  of  the  importance  the  parties  now  seem  to  con- 
sider it,  the  exact  extent  of  the  plaintiff's  pretensions,  as  established  by 
his  judgment  at  law,  should  have  been  clearly  and  distinctly  shewn  to 
this  court  to  enable  it  to  limit  the  injunction  accordingly.  But  a  judg- 
ment in  the  general  terms  that  this  appears  to  be,  must,  without  some 
equally  authentic  evidence  to  the  contrary,  be  taken  as  sufficiently 
shewing,  that  the  injunction  should  continue  to  operate  to  the  full  ex- 
tent of  its  original  scope. 

Whereupon  it  is  decreed,  that  the  injunction  heretofore  granted  in 
this  case  be  and  the  same  is  hereby  made  perpetual ;  and  that  the  said 
defendant  pay  unto  the  said  plaintiff  the  costs  of  this  suit  to  be  taxed 
by  the  register. 


DENNETT  v.  DENNETT. 

(Supreme  Judicial  Court  of  New  Hampshire,  1862.     43  N.  H.  499.) 

In  Equity.  The  bill  sets  forth,  that  the  defendant,  by  the  last  will 
of  Jeremiah  Dennett,  proved  August  17,  1818,  is  seized  as  tenant  for 
life  of  a  certain  farm  and  buildings  in  Portsmouth,  bounded,  &c,  con- 
taining about  eighty  acres ;  that  the  plaintiff  is  seized  of  the  remainder 
thereof,  expectant  on  the  defendant's  decease  ;  and  the  defendant  on 
or  about  the  1st  of  July,  1860,  entered  upon  and  took  possession  of 
said  premises  as  tenant  for  life,  and  has  ever  since  been  in  possession 
of  it. 

There  were  then  a  great  number  of  timber  and  other  trees  on  said 
farm,  and  the  defendant  has  lately  caused  divers  of  said  trees,  namely, 
one  hundred  and  sixty  pine  trees  and  one  elm  tree,  to  be  felled  and 
cut  up  for  fuel,  the  same  not  being  fit  to  be  cut,  and  said  wood  amount- 
ing to  forty  cords  pine  and  two  cords  elm  wood :  and  the  said  quantity 
of  wood  is  not  needed  for  use  upon  said  farm,  and  the  defendant  in- 
tends to  sell  and  dispose  of  the  same  to  his  own  use,  and  to  the  damage 
of  the  plaintiff's  reversion,  and  the  defendant  intends  and  threatens  to 
cut  down  and  use  for  fuel  other  trees  there  growing,  to  the  injury  of 
the  plaintiff's  reversion.  The  bill  then  prayed  an  injunction  to  re- 
strain the  defendant  from  committing  waste  upon  said  premises,  and 
from  felling  and  cutting  down  timber  or  other  trees  growing  on  said 
premises,  except  at  seasonable  times,  in  proper  quantities,  for  use  on 
said  premises,  and  in  a  husbandlike  manner;  and  for  other  relief. 

The  defendant's  answer  admits  he  is  in  possession  of  the  premises 


S70  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

described,  under  a  decree  of  the  court  in  the  case  reported  40  N.  H. 
498,  but  denies  that  he  is  a  mere  tenant  for  life,  and  says  he  owns  in 
fee  two-thirds  of  the  reversion  after  his  life  estate,  unless  the  court 
shall  decide  that  the  reversion  belongs  to  his  oldest  male  heir.  He 
admits  he  has  cut  one  elm  on  said  premises,  but  it  was  in  great  dan- 
ger of  falling,  and  a  quantity  of  pine  wood  not  measured,  he  supposes 
forty  cords.  He  says  the  buildings  have  been  long  neglected,  and  in 
need  of  repair,  and  he  commenced  cutting  wood  to  sell,  to  obtain 
money  to  make  said  repairs,  as  he  believes  he  has  a  right  to  do,  and 
that  in  so  doing  he  intends  only  to  cut  such  trees  as  are  suitable  for 
the  purpose.  The  defendant  believes  the  bill  vexatious  and  oppres- 
sive, because,  so  far  as  he  knows  or  believes,  the  plaintiff  can  not, 
under  any  construction  of  the  will,  claim  more  than  one  sixth  part 
of  the  reversion  of  the  property;  by  the  amended  answer  not  over 
one  forty-eighth. 

It  is  agreed  that  either  party  may  refer  to  the  will  of  Jeremiah 
Dennett,  the  material  words  of  which  are : 

"I  give  and  devise  to  my  son,  Mark  Dennett,  all  the  residue  of  my  estate, 
to  descend  to  the  youngest  son  of  his  body  begotten,  and  from  him  to  the  old- 
est male  heir  of  said  youngest  son  of  his  body  lawfully  begotten,  and  in  fail- 
ure of  such  issue,  then  to  the  heirs  of  said  Mark  Dennett  for  ever." 

Joseph  F.  Dennett,  the  defendant,  was  the  youngest  son  of  Mark 
Dennett. 

William  H.  Dennett,  the  plaintiff,  was  an  older  son,  who  claimed 
the  property  by  virtue  of  a  deed  from  his  father. 

This  deed  was  impeached  on  the  ground  of  want  of  capacity  of  the 
grantor.  And  much  evidence  was  taken  relative  to  his  mental  condi- 
tion. He  was  subject  to  fits;  for  the  last  eight  or  ten  years  of  his 
life  not  always  temperate,  and  his  health  and  mind  feeble.  Some  of 
the  witnesses  thought  him  capable,  others  incapable  of  transacting 
business. 

Bell,  C.  J.24  *  *  *  The  great  question  of  the  case  is,  whether 
the  defendant's  interest  is  merely  a  life  estate.     *     *     * 

Our  conclusion  then,  is,  that  Joseph  F.  Dennett  took,  by  the  will 
here  in  question,  a  life  estate  and  nothing  more,  and  that  there  is  no 
implication  in  his  favor  of  any  estate  whatever.  Having  but  a  life 
estate,  he  cannot  justify  the  waste  he  has  committed.     *     *     * 

The  remainder  to  the  heirs  of  Mark  Dennett  united  with  his  life 
estate,  and  he  was  seized  in  fee,  subject  to  the  intervening  estate  of 
Joseph  F.  Dennett,  &c.  This  interest  he  had  consequently  the  power 
to  convey. 

We  have  examined  the  evidence  in  relation  to  the  capacity  of  Mark- 
Dennett  to  execute  the  deed  under  which  the  plaintiff  claims  the  re- 
version ;  and  though  the  evidence  shows  his  mental  powers  somewhat 
impaired  from  age,  disease,  and  other  causes,  it  falls  very  far  short 
of  proving  incapacity  to  contract  or  to  convey  his  property.    His  deed, 

2*  Parts  of  the  opinion  are  omitted. 


Sec.  2)  waste  871 

then,  conveyed  his  interest,  and  the  title  is  now  vested  in  the  plain- 
tiff, who  is  consequently  the  proper  party  to  commence  a  suit  to  pre- 
vent waste,  and  the  injunction,  as  prayed  in  the  bill,  is  consequently  to 
be  made  perpetual. 

The  right  to  an  account  for  waste  already  committed  is  incidental 
to  the  right  to  file  a  bill  to  prevent  future  waste,  though  no  bill  will  lie 
merely  for  an  account  for  waste  done,  because  the  plaintiff  has  an 
ample  remedy  at  law.  Will.  Eq.  Jur.  139;  1  Stor.  Eq.  Jur.  §  518;  Jer. 
Eq.  Jur.  510;  1  Mad.  Ch.  149. 

Upon  a  motion  for  that  purpose,  a  master  may  be  appointed  to 
take  an  account  of  the  wood  cut,  beyond  what  the  defendant  might 
rightfully  cut  for  the  use  of  the  farm,  if  the  parties  are  unable  to 
agree. 


POERTNER  v.  RUSSEL  et  al. 
(Supreme  Court  of  Wisconsin,  1873.    33  Wis.  193.) 

Appeal  from  the  County  Court  of  Milwaukee  County. 

Appeal  from  an  order  adjudging  the  appellants  in  contempt  for 
violating  an  injunction  order. 

The  plaintiff  commenced  an  action  against  the  appellants  and  others, 
and  alleged  in  his  complaint  that  he  leased  to  the  defendants  certain 
premises  and  a  certain  mill  thereon,  situated  in  the  city  of  Milwaukee, 
for  one  year  from  March  1,  1872;  that  it  was  provided  in  such  lease 
"that  all  improvements  which  might  be  put  on  said  premises  by  said 
lessees  during  the  said  term,  should,  by  said  lessees,  be  left  upon  said 
premises,  and  should  be  and  become  the  property  of  the  plaintiff  so 
soon  as  they -should  be  annexed  to  said  premises,  and  without  any 
charge  or  expense  to  said  plaintiff" ;  that  the  lessees  put  into  said 
mill  "certain  machinery  known  as  and  called  a  middling  separator,  and 
machinery  and  fixtures  connected  therewith  and  appurtenant  there- 
to, and  that  the  same  has  become  and  is  annexed  to  said  premises,  and 
constitutes  part  of  the  machinery  of  said  mill,  and  is  now,  by  virtue  of 
said  agreement,  the  property  of  this  plaintiff" ;  that  the  defendants 
threaten  and  are  about  to  remove  such  machinery  from  the  mill,  and 
a  portion  of  them  "are  now  at  work,  by  the  instruction  and  procure- 
ment of  said  other  defendants,  in  removing  said  improvement  and 
machinery  from  said  premises,  and  that  it  is  the  intention  of  said  de- 
fendants not  to  leave  such  improvements  on  the  said  premises  as 
required  by  said  agreement,  but  to  carry  off  the  same  and  wholly 
deprive  the  said  plaintiff  thereof,  to  his  irreparable  damage  and  in- 
jury" ;  and  that  the  plaintiff  is  informed  and  believes  that  the  defend- 
ants are  pecuniarily  irresponsible,  and  an  action  for  damages  would 
not  afford  him  adequate  relief.  The  complaint  prayed  for  an  injunc- 
tion. 

On  the  17th  day  of  February,  1873,  the  county  judge  granted  an 
injunction  against  the  defendants,  restraining  them  and  each  of  them, 


872  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

their  agents  and  attorneys  and  each  of  them  from  removing,  separat- 
ing or  interfering  with  such  machinery  and  fixtures,  until  the  further 
order  of  the  court.  The  injunction  order  was  duly  served  on  the 
defendant  George  W.  Shepard  during  the  afternoon  of  said  February 
17,  and  on  the  defendants  Ashkell  K.  Shepard  and  Harvey  Russel 
about  noon  of  the  following  day. 

On  the  5th  day  of  March,  1873,  upon  certain  affidavits  which  tend 
to  show  that  the  injunction  order  had  been  violated  by  the  appellants, 
the  county  judge  made  an  order  upon  them  to  show  cause  before  the 
county  court  (that  being  the  court  in  which  the  action  was  pending) 
why  they  should  not  be  punished  for  the  alleged  misconduct.     *     *     * 

Lyon,  J.25  It  is  claimed  by  the  learned  counsel  for  the  appellants, 
that  the  complaint  does  not  state  a  case  proper  for  equitable  relief, 
and  hence  that  the  county  court  has  no  jurisdiction  to  grant  the  in- 
junction which,  it  is  alleged,  the  appellants  have  violated. 

The  jurisdiction  of  a  court  of  equity  to  entertain  an  action  brought 
by  the  owner  of  the  reversion,  against  the  tenant,  whether  for  life  or 
for  years,  to  stay  waste  threatened  or  being  committed,  and  to  inter- 
pose its  injunction  to  prevent  such  threatened  waste,  cannot  be 
doubted.  This  jurisdiction  has  been  so  universally  asserted  and  exer- 
cised by  courts  of  equity,  that  all  of  the  legal  remedies  for  waste  have 
nearly  fallen  into  disuse.  The  common  law  action  for  waste  is  of  rare 
occurrence  in  modern  times,  and  the  various  remedies  given  by  the 
statute  of  Gloucester  (13  Edw.  I,  ch.  22)  and  other  English  statutes, 
have  given  way  to  the  action  on  the  case  for  waste;  and  the  latter,  in 
its  turn,  has  been  very  nearly  superseded  by  the  action  in  equity  to 
stay  waste.  This  equitable  jurisdiction  is  sustained  on  the  ground 
that  the  remedy  at  law  is  at  best  an  inadequate  one.  Of  course  there 
can  be  no  remedy  at  law  until  the  waste  is  actually  committed,  and  it 
is  well  settled  that  the  reversioner  need  not  wait  until  waste  has  actu- 
ally been  committed  before  bringing  his  action. 

"If  he  ascertains  that  the  tenant  is  about  to  commit  any  act  which  will  oper- 
ate as  a  permanent  injury  to  the  estate,  or  if  he  threatens  or  shows  any  in- 
tention to  commit  waste,  the  court  will  at  once  interfere  and  restrain  him  by 
injunction  from  doing  so."  Bouvier's  Law  Dictionary,  title  "Waste,"  subdi- 
vision 9,  and  cases  cited. 

To  illustrate  the  inadequacy  of  the  remedy  at  law  for  waste,  it  may 
be  observed  that  at  common  law  the  action  could  only  be  maintained 
against  tenant  in  dower,  tenant  by  the  courtesy,  and  guardian  in 
chivalry,  and  the  remedy  was  extended  by  statute  against  tenants 
for  life  and  for  years,  and  some  others.  Jefferson  v.  The  Bishop  of 
Durham,  1  Bos.'&  P.  105;  Eden  on  Injunctions,  ch.  VIII,  p.  104,  1st 
Am.  Ed.  An  action  on  the  case  will  not  lie  at  law  for  permissive 
waste  (that  is,  the  neglect  or  omission  to  do  what  will  prevent  in- 
jury) ;  but  in  equity  an  injunction  will  be  granted  to  restrain  permis- 
sive as  well  as  voluntary  waste.     2  Story's  Eq.  Jur.  §  917,  and  cases 

25  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


Sec.  2)  waste  873 

cited.     In  the  same  section  Judge  Story,  sums  up  the  whole  question 

of  equitable  jurisdiction  in  such  cases  in  the  following  language : 

"From  this  very  brief  view  of  some  of  the  more  important  eases  of  equita- 
ble interference  in  eases  of  waste,  the  inadequacy  of  the  remedy  at  common 
law,  as  well  to  prevent  waste  as  to  give  redress  for  waste  already  committed, 
is  unquestionable,  and  there  is  no  wonder  that  the  resort  to  the  courts  of  law 
has,  in  a  great  measure,  fallen  into  disuse.  The  action  of  waste  is  of  rare 
occurrence  in  modern  times ;  an  action  on  the  case  for  waste  being  generally 
substituted  in  its  place,  whenever  any  remedy  is  sought  at  law.  The  remedy 
by  a  bill  in  equity  is  so  much  more  easy,  expeditious  and  complete  that  it  is 
almost  invariably  resorted  to.  By  such  a  bill  not  only  may  future  waste  be 
prevented,  but,  as  we  have  already  seen,  an  account  may  be  decreed  and  com- 
pensation given  for  past  waste." 

And  again  in  section  919,  the  learned  author  says : 

"The  jurisdiction,  then,  of  courts  of  equity,  to  interpose  by  way  of  injunc- 
tion in  cases  of  waste,  may  be  referred  to  the  broadest  principles  of  social  jus- 
tice. It  is  exerted  where  the  remedy  at  law  is  imperfect,  or  is  wholly  denied: 
where  the  nature  of  the  injury  is  such  that  a  preventive  remedy  is  indispensa- 
ble, and  it  should  be  permanent ;  where  matters  of  discovery  and  account  are 
incidental  to  the  proper  relief;  and  where  equitable  rights  and  equitable  in- 
juries call  for  redress,  to  prevent  a  malicious,  wanton  and  capricious  abuse  of 
their  legal  rights  and  authorities  by  persons  having  but  temporary  and  limited 
interests  in  the  subject  matter." 

In  this  case,  the  complaint  shows  that  certain  machinery,  the  prop- 
erty of  the  plaintiff  and  part  and  parcel  of  the  realty,  was  about  to 
be  taken  down  and  removed  by  the  defendants,  to  the  great  and 
irreparable  mischief  and  injury  of  the  plaintiff  and  his  property. 
Within  the  principles  above  stated,  this  is  enough  to  give  the  court 
jurisdiction  to  award  the  injunction,  without  the  further  averment  of 
the  insolvency  of  the  defendants.     *     *     * 

By  the;  Court.    The  order  of  the  county  court  is  affirmed. 


LOWNDES  v.  BETTLE. 

(In  Chancery,  1S64.     33  Law  J.  Ch.   [N.   S.]  451.) 

This  was  an  injunction  suit.  The  bill  was  filed,  by  William  Selby 
Lowndes  the  elder  and  William  Selby  Lowndes  the  younger,  against 
Jonathan  Bettle,  to  restrain  him  from  paring,  cutting  or  otherwise 
injuring  any  grass,  turf  or  sods  upon  the  plaintiffs'  estates,  or  any  part 
thereof,  and  from  cutting,  felling  or  otherwise  injuring  or  destroying- 
any  of  the  timber  or  timber-like,  trees,  brushwood,  underwood  or 
shrubs,  growing,  standing  and  being  on  the  said  estates,  and  each  and 
every  part  thereof ;  and  from  doing  or  permitting  any  other  act,  mat- 
ter or  thing  which  might  interfere  with  or  be  prejudicial  to  the  free 
and  uninterrupted  rights  of  the  plaintiffs  to  the  ownership  and  enjoy- 
ment of  the  said  estates,  and  each  and  every  part  thereof;  that  he 
might  pay  the  costs,  and  for  further  and  other  relief.     *     *     * 

William  Selby  Lowndes  the  younger  had  never  been  married.  Not- 
withstanding the  time  during  which  the  plaintiffs  and  their  ancestors 


874  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

had  been  in  possession  of  the  estates,  continual  claims  had  been 
made  to  them,  and  amongst  others,  by  a  family  named  "Bettle." 

In  September,  1861,  the  defendant  sent  a  notice  to  the  plaintiffs  to 
the  effect  that  the  tenants  of  the  estates  were  not  to  pay  their  rents  to 
"the  present  trustee,  Mr.  William  Selby  Lowndes."  In  May,  1862. 
he  wrote  to  Mr.  Lowndes  stating  his  intention  of  "attending  in  a  few- 
days  to  assert  his  right  to  the  estates  and  to  take  such  steps  as  he 
might  be  advised  to  dispute  and  disturb  the  possession."  In  the  same 
year  he  wrote  another  letter  to  a  similar  effect,  more  strong  in  its 
terms  than  the  former,  alluding  to  a  destruction  of  twelve  trees  on  the 
estates,  by  a  claimant  to  the  property,  a  few  years  previously,  and 
threatening,  "so  soon  as  it  suits  my  convenience  and  that  of  my 
friends,  to  proceed  to  different  parts  of  your  estates  (so  called)  and 
there  cut  down  trees,"  &c,  as  an  assertion  of  "my  just  claim,  and  as 
the  real  owner  of  the  Selby  estates." 

The  bill  charged  that  the  defendant  had  no  right  or  claim  to  the 
estates  whatever,  but  that  even  if  he  had  he  was  barred  by  the  Stat- 
ute of  Limitations;  that  the  estates  had  valuable  timber  upon  them, 
and  choice  shrubs,  and  ornamental  trees,  the  cutting  down  or  in- 
juring of  which  would  do  irreparable  mischief  and  damage ;  that  the 
defendant  threatened  to  cut  sods  and  trees;  and  the  bill  prayed  an 
injunction  to  the  effect  already  stated. 

On  the  12th  of  June,  1862,  a  motion  was  made  and  an  order  for 
an  interim  injunction  obtained  on  an  affidavit  of  service,  the  defend- 
ant not  appearing.  Subsequently  the  defendant  appeared  and  put  in  his 
answer,  which  contained  allegations  of  his  right  to  the  estates  as  heir- 
at-law,  and  stated  that  he  did  not  now  intend,  by  himself  or  his  agents, 
to  enter  forcibly,  but  to  prosecute  his  claims  as  heir-at-law  under  the 
direction  of  this  Court.  He  had  not,  however,  entered  into  any  evi- 
dence in  support  of  his  claims. 

The  cause  now  came  before  the  Court  upon  an  application  to  make 
the  interim  injunction  perpetual. 

KinderslEy,  V.  C.26  *  *  *  It  was  contended,  for  the  defend- 
ant, that  assuming  the  truth  of  all  those  facts,  the  Court  could  not, 
according  to  the  law  as  administered  by  it,  interfere  to  restrain  such 
acts  as  had  been  threatened;  and  several  cases  were  cited,  although 
only  some  of  the  many  which  exist  on  the  subject.     *     *     * 

The  difficulty  arises  (in  part,  no  doubt)  from  the  very  considerable 
change  which  has  taken  place  in  the  views  of  this  Court  on  the  sub- 
ject of  granting  injunctions  to  restrain  injury  to  property,  and  from 
the  fact  that  the  Court  will  now  do  what  in  the  time  of  Lord  Thurlow, 
and  the  earlier  days  of  Lord  Eldon,  it  would  not  have  done.  Lord 
Eldon,  in  the  earlier  part  of  his  time,  alluded  to  the  change  even  then 
in  progress,  and  to  the  facility  in  granting  injunctions  as  being  even 
then  greater  than  in  former  times.     The  other  Judges  subsequently 

ze  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  2)  waste  875 

advert  to  the  continuous  modifications,  which  in  some  degree  also,  and 
not  unnaturally,  accounts  for  the  conflict  of  authorities  that  now 
exists.  Another  cause  for  such  apparent  conflict  is,  the  not  distin- 
guishing the  cases  under  certain  heads.  Now  the  proper  mode  of 
arranging  them,  I  think,  is  this, — at  least,  it  would  be  convenient  thus 
to  distinguish  them.  There  should  be  two  distinct  classes  of  cases : 
the  one  where  the  party  against  whom  the  application  for  the  in- 
junction is  made  is  in  possession;  and  the  other,  where  the  plaintiff 
is  in  possession  and  is  asking  the  Court  to  protect  the  estate.  A 
priori,  it  is  obvious  that  the  Court  will  draw  a  clear  distinction  be- 
tween the  two  classes  of  cases.  If  a  man  claims  to  be  the  owner  of 
an  estate  of  which  he  either  is  in  possession,  or  in  a  position  tanta- 
mount to  that,  the  Court  will  be  very  slow  to  interfere  to  restrain 
such  an  apparent  owner  from  doing  those  acts  which  an  owner  so 
situated  may  properly  do.  There  is  a  wide  difference  between  such 
a  case  and  that  of  a  person  claiming  to  be  owner  (whatever  the  ground 
of  this  claim),  not  taking  proceedings  at  law  to  recover,  but  coming 
on  the  owner's  estate,  and  doing  acts  injurious  to  it.  Therefore,  it 
appears  to  me  the  cases  are  to  be  arranged  under  these  two  heads. 
I  have  endeavoured  to  do  that,  but  at  the  same  time  I  am  bound  to 
say,  that  the  great  difficulty,  is  to  ascertain  which  party  is  in  posses- 
sion; notwithstanding  that  these  are  the  two  obvious  heads  (which  I 
have  mentioned),  and  having  so  divided  them,  the  next  thing  is  to 
discover  the  law  of  this  Court  on  the  subject,  so  far  as  it  can  be  ex- 
tracted from  the  authorities.  First,  then,  I  may  observe  that,  accord- 
ing to  the  older  cases,  a  wide  distinction  was  taken  between  what 
was  then  called  waste  and  trespass.  The  term  "waste"  was  used  in 
the  sense  of  spoliation,  though  with  a  technical  and  personal  applica- 
tion. It  was  considered  waste  when  the  plaintiff  and  defendant  had 
a  privity  of  title,  such  as  that  of  tenant  for  life  and  remainderman.  If 
the  tenant  for  life  committed  waste  the  remainderman  could  ask  for 
an  injunction.  So  in  the  case  of  landlord  and  tenant ;  then  there  was 
a  privity,  and  the  tenant  in  possession  doing  acts  amounting  to  waste 
the  landlord  could  have  got  an  injunction.  It  was  by  reason  of  the 
privity  of  title  that  the  law  called  it  waste.  But  when  parties  did  not 
claim  in  that  way,  but  by  an  adverse  title,  any  act  done  by  the  one  or 
by  the  other  of  them  was  then  called  "trespass."  That  act  might  have 
been  one  of  destruction  or  spoliation.  That  broad  distinction  runs 
through  all  those  cases. 

I  am  not  now  going  to  consider  the  cases  of  waste,  but  only  those 
of  trespass,  as  distinguished  from  waste,  which,  in  strictness,  ought  to 
be  called  spoliation,  and  not  waste.  Referring  then  only  to  cases  of 
trespass,  those  ought  to  be  ranged  again  under  two  heads,  viz.,  the 
one  where  the  defendant  is  in  possession  and  the  plaintiff  seeks  the 
injunction,  and  the  other  where  the  plaintiff  is  in  possession  and  asks 
to  restrain  some  acts  done  by  the  defendant  who  claims  adversely. 

With  respect  to  the  cases  where  the  defendant  is  in  possession,  of 


876  INJUNCTION   IN   RELATION   TO  TORTS  (Ch.  4 

course,  one  can  hardly  conceive  a  plaintiff  asking  for  an  injunction 
unless  on  an  adverse  claim,  each  claiming  to  be  the  real  owner  of  the 
estate.  The  earliest  case  under  this  head  was  that  of  Hamilton  v. 
Worsefold,  before  Lord  Thurlow.     *     *     * 

Lord  Thurlow  at  first  considered  it  as  trespass,  but  ultimately  did 
restrain  the  defendant  and  the  tenants  (Reg.  Book,  [A]   1786,  fol.  1). 

The  next  case  was  Pillsworth  v.  Hopton,  in  1801.  There,  the  de- 
fendant being  in  possession,  the  plaintiff  claimed  under  an  adverse 
title,  and  Lord  Eldon  refused  the  injunction.     *     *     * 

I  now  come  to  the  cases  which  resemble  the  present  one,  where  the 
plaintiff  was  in  possession.  Those  again  are  to  be  divided  under  two 
subordinate  heads :  First,  where  the  defendant  claims  under  a  colour 
of  right ;  and  secondly,  where  he  is  an  absolute  stranger.  It  is  not 
easy  to  distinguish  these  cases ;  the  latter  may  be  cases  of  mere  spite  : 
still  there  are  such.  In  Mogg  v.  Mogg,  2  Dickens,  670,  the  injunction 
was  refused  on  the  ground  that  the  defendant  was  a  mere  trespasser, 
and  an  action  would  lie.  In  Mortimer  v.  Cottrell,  2  Cox,  205,  the 
injunction  to  stay  waste  was  refused,  because  it  was  a  case  of  trespass 
and  the  defendant  might  at  law  have  been  turned  out  immediately. 
Mitchell  v.  Dors,  6  Yes.  147,  was  a  case  of  coal-mines  in  work;  there 
it  was  held  to  be  tresoass  and  not  waste,  and  yet  an  injunction  was 
granted,  because  being  coal-mines  the  mischief  was  considered  irrep- 
arable.    *     *     * 

I  now  come  to  the  cases  which  more  immediately  resemble  the 
present  one.  In  this  case  Mr.  Lowndes  and  his  ancestors  have  been 
in  possession  of  the  property  for  eighty  years,  and  the  defendant 
claims  a  title,  not  as  a  mere  stranger,  but  saying  that  he  is  heir  to  the 
property,  and  that  the  statute  is  no  bar,  because  he  has  removed  it 
by  having  come,  and  by  claiming  to  come  upon  the  estate,  and  by 
having  cut  down  trees  as  he  pleased  in  order  to  assert  his  right. 
"With  respect  to  cases  of  this  kind,  I  may  observe  that  an  injunction 
was  granted  in  all  cases  but  one  ;  but  there  were  elements  in  some  of 
the  cases  which  are  not  to  be  found  here. 

Those  cases  are  six  in  number :  one  was  before  Lord  Camden,  not 
reported  originally,  but  cited  in  Mogg  v.  Mogg.  No  name  is  there 
given  to  it;  but  it  was  a  case  where  persons  were  cutting  timber  under 
colour  of  a  right  to  estovers.  The  plaintiff,  who  was  the  lord  of  the 
manor,  probably  alleged  the  cutting  to  be  beyond  what  was  wanted 
for  estovers  ;  at  all  events,  the  injunction  seems  to  have  been  granted. 
Lord  Thurlow,  however,  said  that  the  case  did  not  apply  to  Mogg  v. 
Mogg;  for  in  that  case  (as  referred  to  by  the  plaintiff's  counsel  in 
Mogg  v.  Mogg),  there  appeared  to  be  a  right  to  something  in  the  de- 
fendants, though  perhaps  they  carried  it  beyond  what  such  right 
went  to ;  and  that  until  such  right  was  determined,  it  was  very  proper 
to  stay  them  from  doing  an  act  which,  if  it  turned  out  that  they  had 
no  right  to  do,  would  be  irreparable.  But  in  Mogg  v.  Mogg  the  de- 
fendant had  no  interest ;    he  was  a  mere  trespasser.     As   such,  an 


Sec.  2)  waste  877 

action  of  trespass  would  lie  against  him ;  and  therefore  Lord  Thurlow 
would  not  grant  the  motion.  It  was  not,  as  I  take  it,  because  the 
mischief  might  not  have  been  capable  of  compensation,  but  because 
it  was  a  destruction  of  part  of  the  inheritance.  In  the  case  of  Robin- 
son v.  Lord  Byron,  1  Bro.  C.  C.  588,  the  plaintiff  was  in  possession 
of  his  own  water-mill.  The  defendant  was  the  owner  of  the  stream 
above  the  mill,  and  in  order  to  vex  the  plaintiff,  sometimes  kept  back 
water  from  the  mill,  and  sometimes  deluged  it  with  water.  In  that 
case  it  was  difficult  to  say  which  was  in  possession ;  but  Lord  Byron 
was  restrained  from  so  using  the  stream  as  to  do  mischief  to  the  plain- 
tiff's mill.     *     *     * 

In  all  these  cases  (except  Smith  v.  Collyer,  8  Ves.  89),  where  the 
plaintiff  was  in  possession  and  the  motion  was  made  for  an  injunction 
to  restrain  the  defendant,  who  claimed  under  an  adverse  title,  the 
injunction  was  granted.  Many  other  cases  might  be  referred  to  con- 
taining dicta  which  tend  to  shew  the  continually-increasing  feeling  and 
opinion  among  the  learned  Judges,  of  the  impropriety  of  preserving 
the  distinction  between  trespass  and  waste,  and  the  injustice  of  re- 
fusing to  interfere  in  all  cases  of  trespass. 

But  I  have  now  to  consider  what  the  Court  is  to  do  in  this  case, 
where  the  plaintiff  is  in  possession,  as  it  seems  lawfully,  and  is  asking 
for  an  injunction  to  restrain  the  defendant  who  is  out  of  possession, 
but  who  claims  a  title  (however  incapable  it  may  be  of  being  sup- 
ported) as  heir-at-law  to  the  property.  He  has  also  given  notice  that 
whenever  it  suits  his  convenience  he  will  cut  down  trees,  cut  sods,  &c, 
and  he  has  reminded  the  plaintiff  of  twelve  trees  cut  down  by  him  or 
his  family  on  a  former  occasion,  which  is  as  much  as  to  say  that  he 
will  do  the  same  thing  again.  If  a  person  desires  to  do  a  certain  act 
for  the  purpose  of  asserting  a  right,  or  keeping  alive  a  claim,  this 
Court  will  not  restrain  him  from  doing  the  act  if  it  is  necessary  to  his 
title,  and  for  his  benefit,  but  nothing  can  be  more  absurd  than  the  no- 
tions, not  to  say  the  delusion  of  the  defendant ;  he  has  only  to  refer 
to  any  lawyer,  who  would  say  to  him,  "How  can  you  do  any  good 
by  cutting  down  trees?"  &c. ;  but  his  own  opinion  was,  that  although 
the  plaintiff  has  an  eighty  years'  title,  he  had  a  right  to  the  property 
as  heir.  Then,  again,  even  assuming  that  he  is  the  heir,  and  means 
to  shew  his  title,  he  has  not  shewn  it.  No  doubt,  under  the  old  rule, 
his  acts  would  have  been  tantamount  to  a  trespass.  He  might,  as  it 
is,  come  on  the  land  and  do  irremediable  damage,  incapable  of  being 
compensated  by  money.  He  might  injure  the  most  valuable  and 
ornamental  trees,  the  cost  of  which  could  not  be  compensated  for  by 
money.  The  question,  then,  would  be,  whether  such  acts  were  against 
his  conscience?  That  would  be  the  test.  It  appears  to  me  that  the 
case  comes  under  the  head  of  "irremediable  waste,"  as  defined  by  Lord 
Eldon,  that  is,  a  destruction  of  the  substance  of  the  inheritance ;  and 
I  think  it  comes  within  the  cases  in  which  the  plaintiff  being  in  pos- 
session and  the  defendant  not,  an  injunction  has  been  granted.     I 


878  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

think,  therefore,  that  under  the  circumstances,  and  having  regard  to 
what  appears  to  me  to  be  the  constant  tendency  of  the  decisions  upon 
the  subject,  viz.,  to  break  down  the  unreasonable  distinction  between 
trespass  and  waste,  that  this  is  a  case  in  which  the  injunction  ought 
to  be  granted. 

I  have  gone  into  this  case  at  great  length,  because  of  the  difficulty 
of  finding  the  principle  upon  which  to  act ;  I  should  say,  however, 
that  it  is  this  :  where  a  defendant  is  in  possession,  and  a  plaintiff  claim- 
ing possession  seeks  to  restrain  him  from  committing  acts  similar  to 
those  here  complained  of,  the  Court  will  not  interfere,  unless,  indeed, 
as  in  Neale  v.  Cripps,  4  Kay  &  J.  472,  the  acts  amount  to  such  flagrant 
instances  of  spoliation  as  to  justify  the  Court  in  departing  from  that 
general  principle.  Where  the  plaintiff  is  in  possession,  and  the  person 
doing  the  acts  complained  of  is  an  utter  stranger,  not  claiming  under 
the  colour  of  right,  then  the  tendency  of  the  Court  is  not  to  grant 
an  injunction,  unless  there  are  special  circumstances,  but  to  leave 
the  plaintiff  to  his  remedy  at  law.  though  where  the  acts  tend  to  the 
destruction  of  the  estate,  the  Court  will  grant  it.  But  where  the 
person  in  possession  seeks  to  restrain  one  who  claims  by  an  adverse 
title,  the  tendency  of  the  Court  will  be  to  grant  the  injunction,  at 
least  when  the  acts  done  either  do  or  may  tend  to  the  destruction  of 
the  estate,  I  am  of  opinion  therefore  that  this  injunction  must  be  made 
perpetual. 


PALMER  v.  YOUNG. 

(Appellate  Court  of  Illinois,  1903.    108  111.  App.  252.) 

January  1,  1882,  appellant,  Palmer,  with  one  C.  Marion  Hotchkin, 
now  deceased,  leased  from  Walter  R.  Roche  certain  premises  described 
in  the  bill  of  complaint  for  a  term  ending  the  last  day  of  April,  1902. 
In  accordance  with  provisions  of  the  lease  the  lessees  erected  a  build- 
ing thereon,  and  maintained  the  same.  May  1,  1900,  appellee,  Young, 
entered  into  a  lease  with  Sarah  Roche  and  Harriett  Albee,  successors 
in  title  to  Walter  P.  Roche,  of  the  said  real  estate,  for  a  term  of  ninety- 
nine  years,  "commencing  on  the  1st  day  of  May,  1902."  There  was  no 
covenant  in  this  latter  lease  that  there  should  be  a  building  on  the 
land. 

April  11,  1902,  appellee  filed  his  bill  of  complaint  setting  out  the 
two  leases,  the  erection  of  the  building  on  the  property,  and  alleging 
that  Palmer  claimed  the  right  to  remove  from  the  building  the  ele- 
vators, the  steam  plant,  the  radiators,  the  plate  glass,  the  marble  stair- 
case and  marble  wainscoting  in  said  building  and  threatened  to  do  so. 
The  court  was  asked  to  enjoin  Palmer  from  carrying  out  these  alleged 
threats,  on  two  grounds :  first,  that  such  removal  would  be  a  violation 
of  appellant's  lease  with  Roche ;  and,  second,  that  such  removal  would, 


Sec.  2)  waste  879 

by  depreciating  the  value  of  said  building,  greatly  injure  the  rights  of 
complainant. 

The  court  below,  on  the  face  of  the  bill  and  the  recommendation 
of  a  master  in  chancery,  issued  a  preliminary  writ  of  injunction  with- 
out notice.  Defendant  Palmer  shortly  afterward  appeared  and  filed 
a  motion  to  dissolve  the  preliminary  injunction,  and  a  demurrer  to 
the  bill.  Both  were  argued  at  the  same  time.  The  court  below  over- 
ruled the  demurrer,  dismissed  the  motion  to  dissolve  the  preliminary 
injunction,  and,  appellant  electing  to  stand  by  his  demurrer,  entered 
a  decree  of  perpetual  injunction  against  him,  granting  relief  in  accord- 
ance with  the  prayer  of  the  bill,  and  costs  against  the  appellant. 

From  this  decree  appellant  took  an  appeal  to  this  court. 

Mr.  Presiding  Justice  Waterman  delivered  the  opinion  of  the 
court. 

Appellant  insists  that  the  injunction  was  improperly  granted  and 
should  be  set  aside  because,  first,  the  complainant  in  the  bill  was  not 
privity  of  title  with  the  defendant,  and  because  the  complainant  had 
no  title  to  the  land  upon  which  it  was  alleged  the  defendant  was  threat- 
ening to  commit  waste ;  and  because  appellant  has  a  complete  and 
adequate  remedy  at  law;  and  because  no  irreparable  injury  to  the 
premises  was  or  is  threatened.  Waste  can  only  be  committed  by  one 
in  the  rightful  possession  of  land.  That  which  is  waste  by  such  per- 
son, if  done  by  a  mere  intruder  or  trespasser,  would  ordinarily  be 
merely  trespass.  For  waste,  the  remedy  by  injunction  is  fully  estab- 
lished, and  has  not  only  virtually  superseded  the  common  law  action 
of  waste,  but  has  to  a  great  extent  taken  the  place  of  the  action  on  the 
case  for  damages. 

In  modern  equity  practice  an  injunction  to  restrain  waste  will  be 
granted  in  many  instances  where  no  legal  action  could  be  maintained, 
although  the  interest  of  the  injured  party  is  legal,  and  also  where  the 
estate  of  the  injured  party  is  entirely  equitable.  An  injunction  may 
also  be  granted  to  restrain  threatened  waste  although  none  has  been 
committed.     Pomeroy's  Equity  Jurisprudence,  §§  237  and  1348. 

Anything  is  waste  which  changes  the  character  of  the  inheritance; 
hence,  even  acts  which  increase  the  pecuniary  value  of  an  estate  may 
amount  to  waste;  such  waste  is  called  meliorating  waste.  Bispham's 
Principles  of  Equity,  430-432. 

The  common  law  remedies  for  waste  were  insufficient;  for,  among 
other  reasons,  that  they  did  not  stop  the  injury  that  was  going  on ; 
hence,  course  of  equity  interposed  by  injunction  to  restrain  the  de- 
fendant from  continuing  to  commit  waste ;  and  its  remedy  has  been 
found  so  simple  and  so  effective  that  it  has  to  a  great  extent  super- 
seded the  common  law  action.  At  common  law  the  only  parties  lia- 
ble for  waste  were  the  tenants  of  legal  estates,  i.  e.,  estates  which  were 
created  by  act  of  law  as  distinguished  from  those  created  by  act  of 
party,  and  which  were  termed  conventional  estates. 


880  INJUNCTION   IN    RELATION   TO   TORTS  (Cll.  4 

At  common  law,  when  a  limited  estate  was  created  by  deed,  the 
particular  tenant  was  not  liable  for  waste,  unless  it  was  so  expressly 
stipulated ;  because  the  law  would  not  protect  parties  who  did  not 
care  to  protect  themselves.  The  liability  for  waste  was  afterward, 
by  statutes  of  Marlbridge,  52  Henry  III,  chapter  23,  and  of  Gloucester, 
6  Edward  I,  chapter  5,  extended  to  conventional  tenants  for  life  and 
to  tenants  for  years. 

The  injunction  to  restrain  waste  may  be  granted  in  other  cases 
besides  those  of  particular  tenants  and  remaindermen.  At  common 
law  an  action  for  waste  would  not  lie  by  a  remainderman  against  the 
tenant  for  life,  if  there  were  a  mesne  remainderman ;  but  in  equity 
the  ultimate  remainderman  was  allowed  to  maintain  a  bill  for  an  in- 
junction. Bispham's  Principles  of  Equity,  §  433 ;  Story's  Equity 
Jurisprudence,  §  913. 

The  interference  of  courts  of  equity  by  injunction  to  restrain  waste 
was  originally  confined  to  cases  founded  in  privity  of  title,  but  at 
present  the  courts  have  enlarged  the  jurisdiction  so  as  to  reach  cases 
of  adverse  claims  and  rights  not  founded  in  privity — even  to  instances 
of  cases  of  trespass  attended  with  irreparable  mischief.  Story's  Equity 
Jurisprudence,  §  918. 

The  relief  obtainable  at  equity  has  been  extended  to  cases  wherein 
the  titles  of  the  parties  are  purely  of  an  equitable  nature  and  to  re- 
strain waste  by  persons  having  limited  interests  in  property,  on  the 
mere  ground  of  the  common  law  rights  of  the  parties  and  the  diffi- 
culty of  obtaining  an  immediate  preservation  of  the  property  from 
destruction  or  irreparable  injury  by  the  course  of  the  common  law. 
Story's  Equity  Jurisprudence,  §  912. 

There  are  many  cases  where,  a  person  is  not  punishable  at  law  for 
committing  waste,  and  yet  a  court  of  equity  will  enjoin  him  at  the 
instance  of  a  party  who  could  not  maintain  an  action  at  law  against 
him  for  such  waste;  as,  where  there  is  a  tenant  for  life,  remainder 
for  life,  remainder  in  fee,  the  tenant  for  life  will  be  restrained,  by 
injunction,  from  committing  waste,  although  if  he  did  so  no  action 
of  waste  would  lie  against  him  by  the  remainderman  for  life,  for  he 
has  not  the  inheritance;  nor  would  an  action  for  waste  lie  by  the  re- 
mainderman in  fee,  by  reason  of  the  interposed  remainder  for  life. 
High  on  Injunctions,  §§  686,  687;    Story's  Equity,  §  913. 

A  ground  landlord,  may  have  an  injunction  against  an  under  lessee 
to  stay  waste.  So  a  lessee  may  be  enjoined  from  making  material 
alterations  in  a  dwelling  house.     Story's  Equity  Jurisprudence,  §  913. 

It  was  anciently  held  that  a  court  of  equity  would  not  restrain 
waste  except  upon  unquestionable  evidence  of  plaintiff's  title.  The 
more  modern  doctrine  and  the  common  practice  is,  in  cases  where 
irremediable  mischief  is  being  done  or  threatened,  going  to  the  sub- 
stance of  an  estate,  to  issue  an  injunction  though  the  title  to  the  prem- 
ises be  in  litigation.    Beach  on  Modern  Equity  Jurisprudence,  §  730. 


Sec.  2)  waste  881 

In  this  state  it  is  not  necessary  to  the  issuing  of  an  injunction  re- 
straining waste  that  the  party  in  possession  should  be  shown  to  be 
insolvent.  Williams  v.  Chicago  Exhibition  Company,  188  111.  19,  58 
N.  E.  611. 

The  portions  of  the  building  which  appellant  is  enjoined  from  re- 
straining are  clearly  a  part  of  the  realty  which,  so  far  as  appears,  ap- 
pellant could  not  lawfully  remove.  Bass  v.  Metropolitan  W.  S.  El. 
R.  R.  Co..  82  Fed.  857,  27  C.  C.  A.  147,  39  L.  R.  A.  711. 

Upon  the  expiration  of  a  lease,  should  the  lessee  fail  to  remove 
from  the  premises  or  surrender  possession  of  the  same,  it  does  not 
devolve  upon  his  landlord  to  obtain  and  give  possession  of  the  prem- 
ises to  a  succeeding  tenant  to  whom  he  has.  leased.  Gazzolo  v.  Cham- 
bers, 73  111.  75;   Cobb  v.  Lavalle,  89  111.  331,  31  Am.  Rep.  91. 

It  does  not  appear  that  appellee  has  a  plain  and  adequate  remedy  at 
law  for  the  waste  threatened  by  appellant.  Among  other  reasons,  why 
appellee  has  not  such  remedy  is  appellant's  threat  to  do  to  the  property 
of  appellee  that  which  he  has  no  right  to  do,  even  if  such  action  would 
pecuniarily  add  to  the  value  of  appellee's,  estate  in  expectancy. 

Without  reference  to  these  conditions,  appellant's  insistence  that 
appellee  has  a  plain  and  adequate  remedy  at  law  is  not  properly 
urged  upon  this  appeal,  because  no  such  objection  was  made  to  com- 
plainant's bill  in  the  court  below. 

The  decree  of  the  Circuit  Court  is  affirmed. 


CROWE  v.  WILSON. 

(Court  of  Appeals  of  Maryland,  1886.    65  Md.  479,  5  Atl.  427,  57  Am.  Rep.  343.) 

Bryan,  J.  The  appellant  is  possessed  of  a  leasehold  interest  in  a  lot 
of  ground  in  the  city  of  Baltimore,  which  by  the  terms  of  the  original 
lease  was  demised  for  99  years,  with  a  covenant  for  perpetual  renewal. 
The  appellee  is  seized  of  the  reversion  in  fee.  A  bill  in  equity  was  filed 
by  the  appellee  to  restrain  the  appellant  from  tearing  down  and  remov- 
ing from  the  lot  a  certain  dwelling-house  which  had  been  erected  there- 
on; and  it  was  alleged  in  the  bill  of  complaint  that  if  the  dwelling- 
house  should  be  torn  down  and  removed,  that  the  reversioner's  security 
for  the  rent  reserved  on  the  lease  would  be  greatly  and  irreparably 
impaired. 

We  prefer  to  consider  the  general  question  of  the  rights  of  the  par- 
ties to  this  lease,  without  at  present  adverting  to  the  structure  of  the 
pleadings.  By  the  common  law  a  lease  for  any  number  of  years  is 
merely  a  chattel  interest,  and  is  inferior,  in  legal  contemplation,  to 
an  estate  for  life.  In  England  many  leases  have  been  made  for  a 
thousand  years ;  but  they  stand  on  the  same  footing  as  leases  for  one 
year.  The  lessees  have  no  freehold  in  the  land,  and  are  described  in 
Boke  Eq.— 56 


S82  INJUNCTION   IN   RELATION  TO   TORTS  (Ch.  4 

legal  language  as  possessed,  not  of  the  land,  but  of  the  term  of  years. 
Many  important  consequences  follow  from  this  principle.  The  pres- 
ent inquiry  does  not  make  it  necessary  to  mention  them  in  detail.  It 
suffices  to  say  that  the  commission  of  waste  by  tenant  for  years  in- 
volved the  forfeiture  of  his  estate,  according  to  the  express  provisions 
of  the  statute  of  Gloucester.  And  waste  is  defined  to  be  "spoil  or 
destruction  in  houses,  gardens,  trees,  or  other  corporeal  hereditaments, 
to  the  disherison  of  him  that  hath  the  remainder  or  reversion  in  simple 
or  fee-tail."  If  such  a  doctrine  should  be  rigidly  applied  to  the  present 
case,  it  would  follow  that  the  destruction  of  the  house  in  question 
would  forfeit  the  estate  of  the  appellant.  The  doctrines  of  the  com- 
mon law,  however,  require  considerable  modification  when  they  are 
applied  to  social,  domestic,  and  political  conditions  different  from  those 
which  prevail  in  the  country  of  its  origin.  And  their  inherent  wisdom 
was  strikingly  manifested  in  the  ease  and  flexibility  with  which  they 
were  adopted  to  new  and  altered  circumstances.  The  law  of  waste, 
as  understood  in  England,  would  have  made  it  impossible  for  tenants 
to  cultivate  the  wild  lands  of  this  country.  It  is  also  inapplicable  to 
the  renewable  leases  in  the  city  of  Baltimore.  It  is  a  part  of  the  pub- 
lic history  of  the  state  that  a  very  large  portion  of  the  real  estate  in 
this  city  is  held  subject  to  these  leases.  In  a  vast  number  of  instances 
the  rent  reserved  bears  a  very  small  proportion  to  the  annual  value  of 
the  land.  In  a  considerable  number  it  is  only  "one  cent,  payable  if 
demanded." 

The  right  of  the  reversioner  depends  on  fixed  principles  of  law,  and 
is  in  no  way  modified  by  the  amount  of  the  rent  reserved.  If  the  re- 
versioner can  enforce  a  forfeiture  of  the  lease  for  waste  where  the 
rent  is  a  thousand  dollars,  it  must  be  no  less  his  right  to  do  so  where 
it  is  one  cent.  The  lessee  has  a  right,  according  to  the  terms  of  the 
covenant  for  perpetual  renewal,  to  make  his  interest  endure  forever. 
It  is  totally  inconsistent  with  this  right  to  suppose  that  he  has  not  the 
absolute  control  and  management  of  the  property.  And  such  has  al- 
ways been  the  understanding.  It  may  be  considered  as  the  local  com- 
mon law  of  the  city  of  Baltimore,  founded  on  a  fixed,  uniform,  in- 
variable usage  reaching  back  much  longer  than  a  century.  The  cove- 
nant of  the  reversioner  is  that  the  tenant  and  his  representatives  may 
hold,  occupy,  and  enjoy  the  land  throughout  all  future  time,  provided 
they  pay  the  stipulated  rent.  If  they  continue  to  pay  the  rent,  and 
elect  to  hold  the  premises  by  renewals  of  the  lease,  the  reversioner  can 
never,  under  any  circumstances,  obtain  possession  of  the  demised 
premises.  It  would  be  utterly  and  entirely  inconsistent  with  the  cove- 
nanted rights  of  the  parties  to  hold  that  he  could  interfere  with  the 
management  of  the  property  by  the  tenant  in  any  way,  which  his  inter- 
est or  wishes  might  suggest.  By  the  common  law  it  is  waste,  and  a 
forfeiture  of  the  lease,  when  a  tenant  converts  one  species  of  edifice 
into  another,  even  though  its  value  is  improved.     The  application  of 


Sec.  2)  waste 


883 


such  a  doctrine  to  the  perpetual  leases  of  the  city  of  Baltimore  would 
shock  and  startle  the  profession,  and  would  do  immeasurable  injus- 
tice. The  forms  usually  adopted  for  these  leases  secure  the  rights  of 
the  reversioner. 

In  the  present  case,  the  lease,  following  the  ordinary  course,  stip- 
ulates for  the  right  of  distraint  for  rent  in  arrear ;  and,  if  any  part  of 
the  rent  shall  be  60  days  in  arrear,  for  the  right  to  re-enter  and  hold 
the  property  until  all  arrearages  are  paid ;  and,  if  the  rent  is  in  arrear 
for  six  months,  for  the  right  to  re-enter  and  annul  the  lease.  In  cer- 
tain contingencies,  not  unlikely  to  occur,  the  reversioner  may  find  it 
requisite  to  repossess  the  premises  demised.  It  is  sufficiently  obvious 
that  his  security  for  his  rent  is  much  enhanced  by  valuable  buildings 
erected  upon  them,  and  that  this  security  would  be  impaired  by  the 
destruction  of  them.  Justice,  of  course,  requires  that  no  impediments 
should  be  placed  in  the  way  of  the  collection  of  his  rent.  Anything 
which  tends  to  defeat  it,  or  to  render  it  more  difficult  or  uncertain, 
operates,  to  such  extent,  to  work  him  injustice. 

We  may  find  some  analogies  to  the  present  case  in  the  practice  of 
courts  of  equity  in  regard  to  what  is  called  equitable  waste,  which  is 
defined  to  be  such  acts  as  work  manifest  injury  to  the  inheritance, 
although  they  are  not  inconsistent  with  the  legal  rights  of  the  party 
who  commits  them.  Among  the  instances  given  are  such  as  these : 
Where  a  mortgagor  in  possession  fells  timber  on  the  estate,  and  there- 
by renders  the  security  insufficient;  and  where  a  tenant  for  life,  with- 
out impeachment  of  waste,  pulls  down  houses,  or  does  other  waste 
wantonly  and  maliciously ;  and  where  tenants  for  life,  without  im- 
peachment of  waste,  or  tenants  in  tail,  after  possibility  of  issue  ex- 
tinct, commit  acts  in  destruction  of  the  estate,  or  cut  down  trees  planted 
for  the  ornament  and  shelter  of  the  premises.  These  cases  are  men- 
tioned in  Story.  Eq.  Jur.  §  915.  It  will  be  observed  that  the  acts  enu- 
merated are  within  the  legal  competency  of  the  party  who  does  them. 
But  most  of  the  acts  which  a  court  of  equity  will  enjoin,  might  be 
committed  at  law  with  impunity ;  and  this  is  usually  the  ground  for 
equitable  interposition.  The  learned  jurist  states  that  the  party  doing 
the  acts  described  is  deemed  guilty  of  a  wanton  and  unconscientious 
abuse  of  his  rights,  ruinous  to  the  interests  of  other  persons,  and  is  for 
this  reason  restrained  in  equity. 

We  do  not  know  that  a  clearer  example  of  equitable  waste  could  be 
found  than  the  case  which  the  appellee  has  stated  to  the  bill  of  com- 
plaint. The  court  below  granted  the  injunction  prayed  for  in  the 
bill.  An  answer  was  filed,  and  the  cause  was  set  down  for  final  hear- 
ing on  bill  and  answer ;  no  motion  having  been  made  to  dissolve  the 
injunction.  When  a  motion  for  the  dissolution  of  an  injunction  is 
heard  on  bill  and  answer,  all  the  allegations  of  the  bill,  which  are  not 
denied  by  the  answer,  are  taken  to  be  true.  This  is  as  well  settled  as 
any  rule  of  practice  can  be.    But  the  rule  is  different  if  the  final  hear- 


884  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

ing  is  on  bill  and  answer.  In  such  case  the  answer  is  to  be  considered 
as  true  in  regard  to  all  matters  which  are  susceptible  of  proof  by- 
legitimate  evidence ;  and,  if  any  material  matter  charged  in  the  bill  of 
complaint  has  been  neither,  denied  nor  admitted  by  the  answer,  it 
stands  for  naught.  Warfield  v.  Gambrill,  1  Gill  &  J.  503;  Dugan  v. 
Gittings,  3  Gill,  138,  43  Am.  Dec.  306;  Briesch  v.  McCauley,  7  Gill, 
189;  Warren  v.  Twilley,  10  Md.  39.  Taking  the  answer  as  true  in  all 
its  statements  of  fact,  as  we  are  bound  to  do,  we  find  that  it  clearly 
appears  that  the  appellant  intended  to  remove  the  building  on  the 
leased  premises,  and  that  this  removal  would  greatly  impair  and  en- 
danger the  security  for  the  rent  reserved.  We  think,  therefore,  that 
the  court  below  was  correct  in  its  decree  making  the  injunction  per- 
petual. It  will  be  seen  that  the  right  to  interfere  with  the  tenant  in 
the  management  and  control  of  his  own  property  exists  only  under 
circumstances  which  would  justify  the  exercise  of  the  preventive  juris- 
diction of  a  court  of  equity.  We  do  not  think  that  it  is  just  for  him  to 
exercise  his  legal  right  in  such  a  manner  as  to  render  the  reversioner's 
rent  insecure.  But,  as  long  as  this  is  secured,  his  power  ought  not  to 
be  questioned  to  take  down  and  build  up,  alter,  remodel,  and  recon- 
struct at  his  own  pleasure. 

Decree  affirmed,  with  costs.1'7 

27  "Grey.  V.  C.  (orally).  *  *  *  The  complainant  files  her  bill,  and  seeks 
to  restrain  the  defendant  from  the  removal  of  a  back  building,  which  at  pres- 
ent is  detached,  by  severing  from  the  front  building,  but  still  remains  on  ber 
premises.  *  *  *  The  tenant  is  put  into  possession  by  the  landlord,  and 
thereby  obtains  control  of  the  demised  premises.  His  possession  is  that  of 
his  landlord.  It  is  inequitable  that  he  should  be  permitted  so  to  use  his  pus- 
session  as  to  destroy  the  landlord's  reversion,  leaving  liim  to  an  action  of  law 
for  his  remedy.  On  the  question,  then,  of  jurisdiction,  the  question  presented 
is  simply  this:  Has  the  court  of  chancery  power  to  enjoin  a  tenant  in  posses- 
sion from  removing  a  portion  of  the  real  estate  off  the  demised  premises,  and 
thereby  destroying  them  for  their  accustomed  use?  I  do  not  think  there  ought 
to  be  any  question  that  this  court  has  in  such  cases  full  jurisdiction,  and  that 
the  court  ought,  under  such  conditions,  to  issue  a  writ,  and  restrain  the  re- 
moval. *  *  *  There  is  also  in  the  bill  a  suggestion  as  to  a  restoration  of 
this  hardware  building  as  it  was  before  the  defendant  severed  it.  As  to  that, 
I  think  a  sufficient  remedy  can  be  obtained  by  the  recovery  of  damages.  I 
am  not  willing  to  advise  the  issue  of  a  mandatory  injunction  for  restoration. 
If  relief  for  damage  done  is  sought,  the  complainant  has  a  complete  remedy 
in  the  courts  of  law.  I  will  advise  the  issue  of  an  injunction  to  restrain  the 
defendant  from  removing  the  back  building  of  the  hardware  store  from  the 
complainant's  premises. 

"Mr.  Pancoast:  A  perpetual  injunction? 

•"The  Vice  Chancellor:  Yes;  this  is  on  final  hearing."  Fortescue  v.  Bowler 
et  al.  (1897)  55  N.  J.  Eq.  741,  3S  Atl.  445. 


Sec.  2)  wastej  885 

PEER  et  al.  v.  WADSWORTH  et  al. 
(Court  of  Chancery  of  New  Jersey,  1904.    67  N.  J.  Eq.  191,  58  Atl.  379.) 

Emery,  V.  C.28  The  complainants,  as  owners  of  the  fee  and  lessors, 
file  this  bill  against  Wadsworth,  their  lessee,  and  the  Goerke  Com- 
pany, a  sublessee  of  part  of  the  leased  premises,  to  enjoin  the  viola- 
tion of  a  covenant  in  the  lease  relating  to  cutting  through  the  walls 
of  the  building  on  the  premises,  and  to  compel  the  restoration  of  the 
walls  to  their  original  condition  when  leased.  The  premises  leased  to 
Wadsworth  comprised  a  four-story  building,  No.  157  Market  street, 
in  the  city  of  Newark,  and  a  building  adjoining  it  in  the  rear,  in 
the  shape  of  an  L,  fronting  on  another  street;  this  L  extension  being 
known  as  Xo.  12  Library  court.     *     *     * 

After  the  execution  of  this  sublease,  and  about  the  middle  of 
September.  1902,  the  defendant  company  cut  down  to  the  floor  a  win- 
dow in  the  eastern  wall  of  the  second  story  of  157  Market  street,  con- 
verting it  into  an  open  passageway,  and  constructed  from  it  a  bridge 
connecting  with  a  similar  opening  in  155  Market  street.  Subsequent 
to  the  filing  of  the  bill,  similar  connections  by  the  conversion  of  win- 
dows into  passageways  and  by  bridges  built  into  the  wall,  have  been 
made  between  tbe  third  and  fourth  stories  of  these  buildings.  The 
former  entrance  to  the  second  story  of  Xo.  157  Market  street  from 
the  first  story  has  been  closed  up  by  the  lessee  and  the  subtenant,  and 
the  entire  access  to  the  second,  third,  and  fourth  stories  of  the  com- 
plainants' building  is  now  from  the  defendant  company's  other  build- 
ings in  Market  street.  The  bridges  over  the  alley,  which  are  fastened 
at  one  end  in  the  complainants'  buildings,  are  now  used  for  providing 
the  sole  ingress  and  egress  into  the  three  upper  stories  of  their  build- 
ing from  the  defendant's  other  buildings.  All  of  these  alterations  or 
erections  and  this  use  of  the  building  have  taken  place  without  the 
written  consent  of  either  of  the  complainants,  and  the  first  bridge  was 
constructed  during  the  absence  of  both  the  owners  from  the  city,  and 
without  their  knowledge.  These  alterations  come  within  the  reach 
of  the  covenants  in  both  of  the  leases,  and,  as  I  think,  they  constitute 
such  a  substantial  alteration  of  the  building,  and  in  its  use,  as  to  con- 
stitute a  waste  of  the  premises.  At  law  there  is  no  privity  of  estate 
or  contract  between  the  original  lessor  and  the  subtenant.  1  Taylor, 
L.  &  Ten.  (8th  Ed.)  §§  109,  448.  But  in  equity  a  subtenant  who  enters 
on  the  land  is  chargeable  with  notice  of  the  covenants  in  the  lease 
relating  to  its  use.  Id.  §  109;  Coster  v.  Collinge,  3  Myl.  &  K.  283. 
And  the  landlord  has  the  same  remedy  in  equity  against  the  subten- 
ant as  against  any  other  purchaser  with  notice.  In  this  case  the  sub- 
lease was  expressly  made  with  reference  to  the  covenants  of  the  orig- 

28  Parts  of  the  opinion  are  omitted. 


886  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

inal  leases,   restricting  the   right   to   open   the   walls   of   the  building 
without  written  consent  of  the  lessors.     *     *     * 

Independent  of  the  jurisdiction  to  enforce  covenants,  the  injunction 
in  this  case  may  properly  be  granted  on  the  ground  that  the  changes 
made  by  the  defendant  company  are  material  alterations  of  the  build- 
ing, which  constitute  waste.  Windows  admitting  light  are  discon- 
tinued, and  openings  for  doors  substituted — a  material  difference  in  the 
easement  in  the  adjoining  alley.  A  subtenant  may  be  enjoined  from 
committing  waste.  Farrant  v.  Lovel,  3  Atk.  723.  Complainants  are 
therefore  entitled  to  a  mandatory  injunction  requiring  the  removal  of 
the  bridges  from  the  walls  and  alley,  and  the  restoration  of  the  win- 
dows, and  a  perpetual  injunction  against  the  erection  of  bridges  in 
the  future.  On  the  application  for  preliminary  injunction,  the  de- 
fendant company,  as  a  condition  for  denying  it,  gave  a  bond  to  pay 
damages,  to  be  assessed  by  this  court.  I  will  hear  counsel  on  the 
order  or  decree  to  be  made  in  reference  to  the  damages. 


FREEMAN  et  al.  v.  UNITED  STATES  TALC  CO. 

(Supreme  Court  of  New  York,  Appellate  Division,  Third  Department,  1912. 
151  App.  Div.  732,  136  N.  Y.   Supp.  233.) 

Appeal  from  Special  Term,  St.  Lawrence  County. 

Action  by  Frank  N.  Freeman  and  another,  individually  and  as 
executors  of  the  will  of  Nelson  H.  Freeman,  deceased,  against  the 
United  States  Talc  Company.  From  an  order  vacating  a  temporary 
injunction,   plaintiffs  appeal. 

Argued  before  Smith,  P.  J.,  and  Kellogg,  Houghton,  Betts,  and 
Lyon,  JJ. 

Smith,  P.  J.  The  action  is  brought  to  restrain  the  defendants  from 
removing  from  leased  property  certain  timbers,  tracks,  supports,  and 
other  structures  in  a  talc  mine.  The  property  had  been  leased  by 
the  plaintiff  to  the  defendant,  with  a  right  to  terminate  the  same  by 
the  defendant,  and  with  the  provision  that,  in  case  of  terminating 
the  lease,  the  party  should  have  the  right  and  privilege  "to  take  and 
remove  any  and  all  buildings,  machinery,  and  tools  of  whatsoever 
nature  that  they  may  have  on  said  premises,  or  may  have  put  thereon." 
The  lease  further  provided  that  upon  the  termination  thereof  the 
said  property  "shall  be  left  in  a  good  and  workmanlike  condition." 
The  papers  show  that  to  remove  the  staircases,  the  tracks,  and  the 
supports  in  the  mine  would  endanger  the  mine,  and  make  possible 
the  caving  in  thereof,  and  render  it  impossible  to  get  the  water  out, 
thus  greatly  impairing  its  value.  If  this  be  true,  it  wouid  seem  that  it 
was  not  within  the  contemplation  of  the  lease  that  such  supports, 
stairs,  and  tracks  should  be  removed.  Whether  or  not  the  lease 
contemplated  that  certain  particular  structures  should  be  allowed  to 


Sec.  2)  waste  887 

remain,  in  order  to  leave  the  mine  in  a  good  and  workmanlike  condi- 
tion, depends  so  largely  upon  the  nature  of  those  structures,  and 
upon  the  necessity  thereof  to  protect  the  mine  and  keep  the  walls  safe 
from  falling,  that  in  our  opinion  it  should  properly  be  left  to  the  trial 
court  for  the  determination  upon  the  evidence  there  to  be  produced. 

The  criticism  is  made  that  the  affidavits  are  insufficient,  as  stating 
the  facts  upon  information  and  belief,  without  alleging  why  the  affi- 
davit of  the  informant  is  not  produced.  The  affidavit  shows,  how- 
ever, that  defendant's  workmen  were  found  removing  the  buildings 
and  timbers,  and  shows  their  statements  that  they  had  been  instructed 
to  remove  these  other  structures,  the  removal  of  which  is  claimed 
to  impair  the  value  of  the  mine.  This  information  would  seem  to  be 
sufficient  to  authorize  the  granting  of  the  injunction,  without  attempt- 
ing to  get  the  affidavits  of  these  parties  that  such  was  their  instruc- 
tion. See  Finegan  v.  Eckerson,  32  App.  Div.  233,  52  N.  Y.  Supp. 
993. 

These  views  lead  to  a  reversal  of  the  order  vacating  the  injunction, 
with  $10  costs  and  disbursements. 

Order  vacating  injunction  reversed,  with  $10  costs  and  disburse- 
ments, and  motion  denied,  with  $10  costs.  All  concur,  except  KEt,- 
LOGG,  J.,  who  concurs  as  to  the  supports,  and  otherwise  dissents. 


USBORNE  v.  USBORNE. 

(In  Chancery  before  Lord  Hai'dwicke,  Chancellor,  1740.     Dickens,  75, 

21  E.  R.  196.) 

The  order  of  this  date  states,  that  the  plaintiff,  under  an  assign- 
ment, was  entitled  to  a  mortgage  term  of  500  years  of  two  farms 
and  premises,  for  securing  £630  and  interest  from  the  defendant  Us- 
borne,  subject  to  redemption :  that  Usborne  had  sold  the  timber  stand- 
ing and  growing  on  the  mortgaged  premises  to  the  defendant  Bathurst : 
that  he  had  entered  on  the  mortgaged  premises,  and  cut  down  several 
trees,  and  threatened  to  cut  down  more,  by  means  whereof  the  mort- 
gage security  would  be  lessened.  It  was  therefore  ordered  that  an 
injunction  should  be  awarded  to  stay  the  defendants,  &c,  from  com- 
mitting any  waste  or  spoil  on  the  premises,  &c,  until  answer  and  fur- 
ther order. 

Note. — A  similar  order  in  Hopkins  v.  Monk,  A.  D.  1742,  and  in 
Uvedale  v.  Uvedale,  7  March,  1740;  and  by  Lord  Thurlow,  C,  in 
Gross  v.  Chilton,  25  April,  1782,  after  a  doubt  and  consideration, 
thinking  it  was  the  mortgagee's  fault  in  permitting  the  mortgagor 
to  continue  in  possession. 


888  INJUNCTION   IN   RELATION   TO  TORTS  (Ch.  4 


SECTION  3.— TRESPASS 


COULSON  v.  WHITE. 

(In  Chancery  before  Lord  Hardwicke,  1743.    3  Atk.  21.) 

Lord  Chancellor.  Every  common  trespass  is  not  a  foundation 
for  an  injunction  in  this  court,  where  it  is  only  contingent  and  tem- 
porary; but  if  it  continues  so  long  as  to  become  a  nuisance,  in  such 
a  case  the  court  will  interfere  and  grant  an  injunction  to  restrain  the 
person  from  committing  it. 


FIELDEN  v.  COX. 

(Chancery  Division,  1906.    22  Times  Law  Rep.  411.) 

This  was  the  trial  of  an  action  brought  by  Mr.  John  Ashton  Fielden, 
of  Holme  Wood-house,  Holme,  Huntingdonshire,  against  Mr.  G.  L. 
Cox,  Mr.  Rupert  Brooke,  Mr.  Neville  Brooke,  and  Mr.  Justin  Brooke, 
for  an  injunction  and  damages  in  respect  of  alleged  trespasses  by  the 
pursuit  of  moths  and  other  insects  on  the  Holme  Wood  estate  and  a 
public  road  or  highway  called  the  Holme  Lode-road,  by  which  the 
estate  is  intersected. 

The  plaintiff's  estate  contains  a  great  amount  of  game,  and  at  the 
time  of  the  defendants'  visit  to  the  neighborhood  there  were  pheasants 
sitting  close  to  the  road  running  across  it,  which  is  a  public  highway. 
Mr.  Cox,  one  of  the  defendants,  was  at  the  time  of  the  visit  a  medical 
student,  and  is  a  B.  A.  of  Cambridge.  He  is  now  22  years  old.  The 
other  defendants  were  three  brothers,  rather  younger  than  Mr.  Cox. 
The  visit  took  place  in  June  and  July  of  last  year,  and  one  of  the 
brothers  was  only  down  one  day,  returning  home  the  following  day. 
As  Mr.  Buckmaster  observed,  he  "went  to  catch  a  butterfly  and  caught 
a  writ."  During  their  visit  the  defendants  occupied  a  considerable 
time  in  catching  moths  and  other  insects ;  and  the  principal  complaint 
against  them  was  that  they  had  visited  the  road  and  trespassed  there- 
on by  using  it,  not  for  passing  and  repassing  as  wayfarers,  but  in  a 
wrongful  manner  by  frequenting  and  stopping  upon  it  for  hours  at 
a  time  by  night  as  well  as  by  day,  and  setting  appliances  and  lights 
thereon  for  the  purpose  of  carrying  on  their  pursuit  of  attracting  and 
collecting  moths  or  other  insects.  There  was  also  a  complaint  that 
Messrs.  Rupert  and  Justin  Brooke  had  actually  entered  one  of  the 
coverts  and  traversed  it  with  lighted  lamps.  This  gang  of  desperate 
men,  as  one  of  their  own  counsel  described  them,  had,  when  tackled 
by  a  solicitor's  clerk  in  pursuit  of  their  solicitors'  names,  &c,  and 
armed  with  a  solicitor's  letter  for  three  of  the  four,  obtained  from  the 


Sec.  3)  trespass  889 

clerk  a  definition  of  an  injunction,  and  told  him  that  they  had  no  so- 
licitor, and  would  accept  personal  service.  They  had  also  performed 
a  dance  to  relieve  their  feelings,  but  had  ultimately  accepted  a  sugges- 
tion from  the  clerk  that  they  should  leave  the  neighborhood,  and  give 
their  word  of  honour  not  to  repeat  their  acts.  Some  evidence  was 
adduced  to  show  damage.  Some  peculiar  kind  of  grass  abounding  on 
the  estate,  and  said  to  be  highly  inflammable,  was  produced,  and  it 
was  also  alleged  that  sitting  hen  pheasants  would  be  disturbed  by  the 
flashing  of  lights,  and  that  the  damage  by  a  nest  being  deserted  was 
25s.  It  was  not  alleged  that  the  defendants,  all  of  whom  gave  evi- 
dence, behaved  otherwise  than  in  a  civil  and  gentlemanly  manner. 

Mr.  Rawlinson,  in  support  of  his  case  as  to  the  trespasses  by  what 
was  done  on  the  highway — putting  up  sticks  and  a  sheet  and  using 
lamps — referred  to  Harrison  v.  Duke  of  Rutland,  [1893]  1  O.  B.  142, 
and  Hickman  v.  Maisey,  [1900]  1  O.  B.  752.  He  also  referred  to 
Merest  v.  Harvey,  5  Taunt.  442. 

Mr.  Buckmaster,  for  the  defendants,  submitted  that  as  there  was 
no  threat  or  intention  to  repeat  even  what  had  been  done,  the  High 
Court  would  not  interfere  by  injunction;  that  no  damage  had  been 
shown ;  and  that  the  action  was  frivolous,  vexatious,  and  contemptible. 

Mr.  Justice  Buckley,  in  delivering  judgment,  said  that  the  plain- 
tiff had  a  passion  for  sporting,  and  the  defendants  had  a  passion  for 
catching  moths.  The  plaintiff  was  the  owner  of  land  near  the  line 
of  the  Great  Northern  Railway,  and  not  far  from  Whittlesey  Meer, 
which  was  drained  in  or  about  1848.  This  land  was  a  valuable  pheas- 
ant ground.  Pheasants  were  there  in  considerable  quantities,  and 
there  were  many  hen  pheasants  sitting  at  the  time  when  the  matters 
complained  of  took  place.  The  coverts  were  crossed  by  a  public  road, 
and  the  defendants,  using  it  properly,  had  a  perfect  right  to  be  upon 
the  road.  The  action  was  brought  for  "an  injunction  to  restrain 
the  defendants  and  each  of  them  from  using  the  said  road  otherwise 
than  in  a  reasonable  and  usual  manner  as  a  highway,  and  from  re- 
peating" certain  alleged  "acts  of  trespass  thereon,  and  from  breaking, 
or  entering,  or  otherwise  trespassing  upon  the  lands  of  the  plaintiff,'' 
and  for  damages.  The  four  defendants  were  really  lads,  whose  ages 
were  from  18  to  22  years.  The  first  defendant,  Mr.  Cox,  was  a 
B.  A.  of  Cambridge,  and  the  other  defendants  were  three  brothers. 
All  of  the  defendants  were  persons  who  might  be  expected  to  behave 
civilly  and  properly.  On  June  19,  1905,  the  defendant  Cox,  who  was 
putting  up  sticks  and  a  sheet  on  the  road,  for  the  purpose  of  catch- 
ing moths,  was  addressed  by  one  Tant,  an  under-keeper  of  the  plain- 
tiff's. Tant  told  Cox  that  in  the  rough  ground  at  the  side  of  the 
road  there  were  pheasants'  nests,  and  he  obtained  from  Cox  a  promise 
that  he  would  not  go  on  the  fen  at  night.  From  that  date  to  July 
1  Cox  was  at  the  same  place,  and  although  Tant  appeared,  nothing 
further  was  said.     On  July    1,   which  was  a   Saturday,   Tant   spoke 


890  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

again  to  Cox  and  complained  of  the  untidiness  of  the  highway,  and 
Cox,  who  had  turned  out  the  contents  of  an  acetylene  lamp  and  whit- 
tled a  stick,  answered  the  man  civilly  and  expressed  his  regret.  On 
July  2  (Sunday)  the  plaintiff's  keepers  told  these  youngsters  that  they 
had  received  orders  to  express  the  plaintiff's  wish  that  they  would  re- 
frain from  erecting  a  sheet  and  using  other  methods  of  catching 
moths  on  the  estate  or  the  highway,  and  to  tell  them  that  if  they 
did  not  so  refrain  the  keepers  were  to  take  "the  necessary  steps"  to 
prevent  them.  On  that  day  Cox  was  on  the  railway  embankment  on 
which  the  plaintiff  had  shooting  rights.  He  was  asked  for  and  gave 
his  own  name  and  address,  and  was  asked  by  one  of  the  keepers  for 
the  names  and  addresses  of  his  friends,  two  of  the  Brookes,  who  had 
been  on  the  road  and  were  in  the  woods ;  but  he  refused  to  give  this 
information.  Then  two  defendants  lit  their  lamps  and  caught  some 
moths,  and  on  being  met  by  the  keepers  and  told  they  had  no  business 
there  they  said  they  had  done  no  harm  and  that  if  they  had  done  any 
damage  they  would  pay  for  it.  It  was  technically  wrong  to  go  on  the 
coverts,  and  the  principal  acts  of  trespass  had  now  been  stated.  Cox 
had  said  he  would  not  go  on  the  fen,  but  he  had  gone  to  look  at  an  iron 
post  and  a  wheelbarrow.  Cox  had  trespassed,  and  Neville  Brooke 
had  also  gone  on  to  look  at  the  post.  On  Monday,  July  3,  Brown, 
a  clerk  of  the  plaintiff's  solicitors,  gave  to  three  of  the  defendants  a 
letter  from  the  solicitors,  in  which,  after  complaints  about  the  moth- 
catching,  there  was  the  following  passage : 

"We  have  to  request  that  you  will  kindly  hand  the  bearer  the  name  of  your 
solicitor,  who  will  accept  service  of  proceedings  which  Mr.  Fielden  feels  com- 
pelled to  institute  against  you  in  his  Majesty's  High  Court,  claiming  an  in- 
junction to  restrain  you  from  entering  his  property,  and  this  in  order  to 
avoid  a  personal  service  of  the  writ." 

The  boys  at  this  had  been  taken  aback,  and  at  first  executed  some- 
thing like  a  war  dance.  But  they  had  soon  sobered  down,  and  asked 
Brown  what  they  ought  to  do.  He  suggested  that  they  should  at  once 
leave  the  neighborhood  and  give  their  word  of  honor  not  to  do  it 
again;  and  this  they  did.  Whether  Brown  told  his  employers  what 
had  occurred  his  Lordship  did  not  know,  but  the  frame  of  the  boys' 
minds  was  to  give  their  word  and  to  act  upon  it.  On  July  5  the  writ 
in  the  action  was  issued.  Now  an  injunction  was  a  formidable  weapon 
and  one  which  was  not  to  be  invoked  lightly.  An  order  for  an  injunc- 
tion was  not  made  unless  the  Court  was  satisfied  that  there  was  an 
intention  to  do  the  act  sought  to  be  restrained.  In  an  old  bill  in 
Chancery  for  an  injunction  there  was  always  and  necessarily,  an  al- 
legation that  the  defendant  threatened  and  intended  to  do  the  act 
sought  to  be  restrained.  But  these  defendants  never  had  threatened 
or  intended  from  first  to  last,  and  had  never  intended  to  infringe  any 
rights  of  property.  So  much  for  the  injunction.  But  the  plaintiff 
also  asked  for  damages ;  and  two  of  the  defendants,  Rupert  and  Jus- 
tin  Brooke,   in  their   pleading,  while  denying  that   the   plaintiff   had 


Sec.  3)  TRESrAss  891 

suffered  any  damage,  said  that  they  brought  into  Court  the  sum  of 
Is.,  tendered  before  action  brought,  and  pleaded  that  that  sum  was 
sufficient  to  satisfy  the  plaintiff's  claim  in  respect  of  their  trespasses. 
In  Merest  v.  Harvey,  5  Taunt.  442,  the  Court,  in  1814,  held,  upon  a 
declaration  for  breaking  the  plaintiff's  close,  treading  his  grass  and 
hunting  for  game,  and  other  wrongs,  that  £500  were  not  excessive 
damages  lor  a  trespass  in  sporting,  persevered  in  in  defiance  of  notice, 
and  accompanied  with  indecent  and  offensive  demeanour ;  and  one 
of  the  Judges,  Mr.  Justice  Heath,  observed  that  it  went  to  prevent 
the  practice  of  duelling  if  juries  were  "permitted  to  punish  insult  by 
exemplary  damages."  That  had  no  application  to  the  case  now  before 
the  Court.  The  defendants  had  not  been  insolent  or  asserted  any 
rights,  but  had  thought  that  they  were  doing  no  harm  to  any  one. 
They  had  not  asked  for  leave,  because  they  believed  that  leave  would 
not  be  given.  -There  was  no  evidence  of  any  damage.  It  was  said 
that  the  lamps  might  have  set  fire  to  the  place;  but  there  was  no  ne- 
cessity to  bring  an  action  for  damages.  It  followed  that  the  writ 
ought  never  to  have  been  issued  against  these  four  schoolboys,  as  they 
might  be  called,  after  they  had  given  their  word  of  honor,  and  the 
action  was  oppressive  to  the  last  degree.  The  plaintiff  was  entitled  to 
an  order  for  payment  out  of  Court  of  the  Is.  paid  in,  but  he  must 
pay  the  defendants'  costs  of  the  action. 


LIVINGSTON  v.  LIVINGSTON. 

(Court  of  Chancery  of  New  York,  1822.     6  Johns.  Ch.  497,  10  Am.  Dec.  .033.) 

The  bill  stated,  that  the  plaintiff  was  seised  and  possessed,  by  himself 
and  his  tenants,  of  a  tract  of  land  in  the  manor  of  Livingston,  being 
part  of  great  lot  No.  4,  in  the  town  of  Livingston,  and  lying  to  the  north 
and  west  of  Ruleff  Janse's  Kill.  That  he  derived  title  by  the  will  of 
his  father;  which  he  set  forth,  and  the  title,  as  far  back  as  1728.  That 
the  defendant  has,  in  his  own  right,  and  in  right  of  his  wife,  a  number 
of  tenants,  in  the  town  of  Clermont ;  and  they,  by  authority  derived 
from  or  under  him,  had,  shortly  before  filing  the  bill,  entered  upon 
the  land  of  the  plaintiff,  and  cut  wood  and  timber ;  and  the  defendant 
declared,  and  directed  his  tenants  to  declare,  that  he  and  they  had  right 
so  to  do,  for  the  use  of  their  houses  and  upon  their  farms,  in  Clermont. 
That  the  plaintiff's  father  and  grandfather  always  held  and  enjoyed 
the  said  manor  as  an  absolute  and  unencumbered  estate,  in  fee,  saving 
only  the  rights  of  their  own  tenants,  holding  under  them;  and  no  right 
to  cut  wood  there,  by  any  person  residing  in  Clermont,  had  been  as- 
sented to  or  exercised.  That  in  1812,  Elias  Hicks,  who  resided  in 
Clermont,  as  tenant  of  R.  R.  Livingston,  father  of  the  wife  of  the  de- 
fendant, and  under  whom  the  defendant  claims,  cut  wood  on  lot  No. 


892  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 

4,  and  in  that  part  now  possessed  by  the  plaintiff,  and  the  father  of  the 
plaintiff  sued  him  in  trespass;  that  Hicks  undertook  by  plea,  to  justify, 
as  tenant  of  R.  R.  L.,  who  claimed,  for  himself,  and  his  tenants  of 
Clermont,  a  right  to  cut  and  carry  away  wood  from  the  manor  of  L., 
necessary  for  their  families  and  farms  in  Clermont ;  and  the  agent  of 
R.  R.  L.  defended  the  suit.  That  the  cause  was  tried  at  the  Columbia 
circuit,  in  August,  1815;  and,  after  the  defendant,  had  given  his  proof, 
the  Chief  Justice  ruled,  that  the  plaintiff  was  entitled  to  recover ;  but 
a  verdict  was  taken  for  the  plaintiff,  at  his  request,  subject  to  the  opin- 
ion of  the  Supreme  Court,  upon  a  case  to  be  made,  and  the  damages 
were  assessed  at  $100  for  the  wood  and  timber  cut.  A  similar  verdict 
was  taken,  also,  in  another  similar  case,  against  Marks  Platner.  That 
the  case  against  Platner  was  argued  and  decided  in  the  Supreme  Court, 
in  favour  of  the  then  plaintiff,  (a  tenant  of  the  father  of  the  plaintiff,) 
and  the  defendant,  and  all  claiming  under  him,  have  desisted,  since, 
from  trespasses  on  the  wood,  &c,  until  the  death  of  the  father  of  the 
plaintiff,  in  November  last.  That  the  plaintiff  has  given  directions  to 
have  the  case  brought  to  argument  in  the  suit  against  Hicks ;  but  the 
trespasses,  in  the  meantime,  will  greatly  injure  the  value  of  the  plain- 
tiff's estate.  Prayer,  for  an  injunction  to  restrain  the  defendant  and 
his  tenants  from  cutting  timber,  &c. 

E.  Williams  for  the  plaintiff. 

The:  Chancellor  [James  Kent].  This  is  not  the  case  of  a  stran- 
ger entering  upon  the  land,  as  a  trespasser,  without  pretence  of  right, 
and  cutting  down  timber.  In  such  a  case,  Lord  Thurlow,  in  Mogg  v. 
Mogg,  Dickens'  Rep.  670,  refused  to  interfere  by  injunction.  This 
is  analogous  to  a  case  before  Lord  Camden,  referred  to  by  the 
counsel  in  Mogg  v.  Mogg,  and  which  Lord  Thurlow  seemed  to  approve 
of.  It  was,  where  a  defendant  claimed  a  right  to  estovers  and,  under 
that  right,  cut  down  timber ;  there  was  a  claim  of  right,  and,  until  it 
was  determined,  it  was  proper  to  stay  the  party  from  doing  an  act, 
which,  if  it  turned  out  he  had  no  right  to  do,  would  be  irreparable.  So 
also,  in  Harson  v.  Gardiner,  7  Vesey,  305,  the  injunction  was  granted, 
where  the  defendant  claimed  common  of  pasture  and  estovers ;  and,  in 
that  case,  Lord  Eldon  observed,  that  the  law,  as  to  injunctions,  had 
changed  very  much,  and  they  had  been  granted  much  more  liberally 
than  formerly.  They  were  granted  in  trespass,  when  the  mischief 
would  be  irreparable,  and  to  prevent  a  multiplicity  of  suits. 

In  Mitchell  v.  Dors,  6  Ves.  147,  the  defendant,  in  the  process  of  tak- 
ing coal,  had  begun  to  work  into  the  land  of  the  plaintiff,  and  though 
this  was  strictly  a  trespass,  yet  the  injunction  was  granted,  because  ir- 
reparable mischief  would  be  the  consequence  if  the  defendant  went  on. 
In  Hamilton  v.  Worsefold,  and  in  Courthope  v.  Mapplesden,  10  Ves. 
290,  and  note,  ibid.,  injunctions  were  granted  against  a  trespasser  en- 
tering with  permission,  or  by  collusion  with  the  tenant,  and  cutting 
timber. 


Sec.  3)  trespass  893 

Injunctions  granted  against  trespasses,  as  well  as  against  waste,  under 
special  circumstances. 
Lord  Eldon  repeatedly  suggested  the  propriety  of  extending  the  in- 
junction to  trespasses  as  well  as  waste,  and  on  the  ground  of  preventing 
irreparable  mischief,  and  the  destruction  of  the  substance  of  the  inheri- 
tance. The  distinction,  on  this  point,  between  waste  and  trespass,  which 
was  carefully  kept  up  during  the  time  of  Lord  Hardwicke,  was  shaken 
by  Lord  Thurlow,  in  Flamang's  Case,  respecting  a  mine,  and  seems  to 
be  almost  broken  down  and  disregarded,  by  Lord  Eldon.  This  pro- 
tection is  now  granted  in  the  case  of  timber,  coals,  lead  ore,  quarries, 
&c,  and  "the  present  established  course,"  as  he  observed  in  Thomas  v. 
Oakley,  18  Ves.  184,  "was  to  sustain  the  bill  for  the  purpose  of  in- 
junction, connecting  it  with  the  account,  in  both  cases,  and  not  to  put 
the  plaintiff  to  come  here  for  an  injunction,  and  to  go  to  law  for  dam- 
ages." 

Cases  of  trespass,  in  which  injunctions  have  been  granted,  in  order  to 
preserve  the  estate  from  destruction. 
The  injunction  was  granted  in  Crockford  v.  Alexander,  15  Ves.  138, 
against  cutting  timber,  when  the  defendant  had  got  possession  under 
articles  for  a  purchase;  and  in  Tworl  v.  Tworl,  16  Ves.  128,  against 
cutting  timber  between  tenants  in  common ;  and  in  Render  v.  Jones, 
17  Ves.  110,  where  the  title  to  boundary  was  disputed;  and  in  the  case 
of  Earl  Cowper  v.  Baker,  17  Ves.  128,  against  taking  stones  of  a  pecul- 
iar and  valuable  quality  at  the  bottom  of  the  sea,  within  the  limits  of 
a  manor;  and  in  Gray  v.  Duke  of  Northumberland,  17  Ves.  281,  against 
digging  coal  upon  the  estate  of  the  plaintiff ;  and  in  Thomas  v.  Oakley, 
ubi  supra,  against  exceeding  a  limited  right  to  enter  and  take  stone  from 
a  quarry.  In  all  these  cases,  the  injury  was  considered  a  trespass,  and 
in  two  of  them  it  was  strictly  so;  and  the  principle  of  the  injunction 
was  to  preserve  the  estate  from  destruction.  But  I  can  safely  allow  the 
injunction  in  the  present  case,  without  going  to  the  extent  of  these  lat- 
ter cases,  or  following  the  habit,  as  Lord  Eldon  termed  it,  in  Field  v. 
Beaumont,  1  S'wanston,  208,  of  the  English  Chancery,  in  granting  in- 
junctions in  cases  of  trespass  as  well  as  of  waste.  Here  has  been  one 
action  of  law,  in  which  the  claim  of  the  defendant  to  estovers  in  the 
lands  of  the -plaintiff  has  received  a  decision  against  him,  and  there  is 
another  suit  at  law  still  depending,  in  which  the  same  question  arises. 
It  is  just  and  necessary  to  prevent  multiplicity  of  suits,  that  the  further 
disturbance  of  the  freehold  should  be  prevented,  until  the  right  is  set- 
tled ;  and  the  case  decided  by  Lord  Camden,  is  a  sufficient  authority  for 
the  interposition  asked  for  in  this  case. 

An  injunction  is  not  granted  in  case  of  mere  trespass,  and  where  there 
is  legal  remedy  for  the  intrusion. 
The  recent  decision  of  the  Vice-Chancellor,  in  Garstin  v.  Asplin,  1 
Madd.  Ch.  Rep.  150,  shows,  that  it  is  not  the  general  rule,  that  an  in- 
junction will  lie  in  a  naked  case  of  trespass,  where  there  is  no  privity 


894  INJUNCTION   IN   RELATION  TO   TORTS  (Ch.  4 

of  title,  and  where  there  is  a  legal  remedy  for  the  intrusion.  There 
must  be  something  particular  in  the  case,  so  as  to  bring  the  injury 
under  the  head  of  quieting  possession,  or  to  make  out  a  case  of  irrep- 
arable mischief,  or  where  the  value  of  the  inheritance  is  put  in  jeop- 
ardy. 

Injunction  granted. 


WALDRON  et  al.  v.  MARSH. 
(Supreme  Court  of  California,  1S55.    5  Cal.  119.) 

HeydenfELdt,  J.,  delivered  the  opinion  of  the  Court.  Murray,  C. 
J.,  concurred. 

An  injunction  ought  not  to  be  granted  in  aid  of  an  action  of  tres- 
pass, unless  it  appear  that  the  injury  will  be  irreparable,  and.  cannot  be 
compensated  in  damages. 

In  this  case,  how  the  cutting  of  a  ditch  through  the  plaintiff's  land 
would  be  such  an  injury  I  cannot  imagine.  It  is  not  sufficient  that  the 
affidavit  alleges  that  the  injury  would  be  irreparable — it  must  be  shown 
to  the  Court  how  and  why  it  would  be  so,  otherwise  the  extraordinary 
remedy  of  injunction  will  not  be  allowed,  especially  where  no  action 
has  ever  determined  the  plaintiff's  rights. 

The  injunction  in  this  case  ought  not  to  have  been  granted,  and  the 
order  dissolving  it  is  affirmed. 


DAUBENSPECK  et  al.  v.  GREAR  et  al. 
(Supreme  Court  of  California,  1861.    IS  Cal.  444.) 

Injunction  to  restrain  defendants  from  entering  within  plaintiff's 
enclosure  and  digging  up  and  washing  away  fruit  trees,  etc.,  and  for 
damages. 

Plaintiffs,  some  eight  years  since,  took  up  a  tract  of  about  two  hun- 
dred and  twelve  acres  of  land  under  the  Possessory  Act  of  this  State, 
enclosed  it  and  planted  it  with  fruit  trees.  The  complaint  avers,  in 
substance,  that  plaintiffs  and  those  under  whom  they  claim  now  are 
and  from  the  year  1852  have  been  the  owners  and  in  possession  of  a 
certain  tract  of  land  about  two  hundred  and  forty  feet  long  by  one 
hundred  and  sixty  feet  wide;  that  in  1857  they  planted  on  said  tract 
one  hundred  and  sixteen  apple  and  peach  trees  of  two  years'  growth, 
which  are  now  fruit-bearing  trees  ;  that  plaintiffs  took  up,  enclosed,  and 
hold  said  land  under  the  Possessory  Act  of  this  State  for  agricultural 
purposes;  that  there  is  on  the  land  a  frame  house,  the  residence  of  one 
of  the  plaintiffs,  fifteen  ornamental  trees  and  a  large  quantity  of  shrub- 
bery, which  are  permanent  and  valuable  improvements ;  that  defendants 
on  the  twenty-first  of  December,  1860,  and  at  other  times  entered  upon 


Sec.  3)  trespass  895 

said  premises  and  dug  a  ditch  thereon  for  mining  purposes,  thus  wash- 
ing away  and  destroying  the  trees,  and  that  they  threatened  to  continue 
so  to  do ;  that  these  acts  if  continued  will  cause  irreparable  injury,  etc. ; 
that  defendants  are  insolvent ;  that  plaintiffs  have  already  sued  defend- 
ants for  similar  trespasses  and  obtained  judgment.  Prayer  for  perpet- 
ual injunction,  and  for  damages. 

The  answer  denies  insolvency,  and  then  substantially  sets  up  that 
plaintiffs  hold  as  agriculturists  only  under  the  Possessory  Act,  and 
that  defendants,  being  miners,  have  a  right  to  enter  for  mining  pur- 
poses; that  they  have  paid  the  judgment  against  them  for  the  value  of 
trees  heretofore  destroyed,  and  have  offered  and  are  ready  to  pay  the 
value  of  all  trees  destroyed,  which  they  put  at  three  dollars  per  tree. 

The  case  was  tried  before  a  jury.  The  evidence  is  not  in  the  record, 
but  the  agreed  statement  of  facts  is  as  follows,  to  wit : 

Plaintiffs  some  eight  years  since  took  up  a  possessory  claim  under 
the  laws  of  this  State,  containing  two  hundred  and  twelve  acres  on  the 
mineral  lands,  fenced  and  enclosed  the  same  for  the  purposes  of  a 
fruit  orchard,  and  planted  the  same  with  fruit  trees. 

Defendants,  being  miners,  about  four  years  since  took  up  a  mining 
claim  inside  this  enclosure,  consisting  of  a  piece  of  ground  about  two 
hundred  feet  long  by  one  hundred  and  thirty  feet  wide,  containing 
about  one  hundred  and  thirteen  of  these  fruit  trees,  most  of  them  bear- 
ing fruit,  which  was  sold  by  plaintiffs.  Defendants  having  destroyed 
some  of  these  trees  in  their  mining  operations,  plaintiffs  began  suit 
against  them,  obtained  a  temporary  injunction,  and  subsequently  a 
judgment  for  the  sum  of  forty-two  dollars,  as  the  value  of  the  trees  de- 
stroyed. The  Court  refused  to  make  the  injunction  perpetual.  In 
pursuing  their  mining  operations  defendants  again  dug  up  and  destroy- 
ed several  other  trees  growing  on  the  same  piece  of  ground,  having 
previously  tendered  to  plaintiffs  the  value  of  the  trees  they  were  about 
to  destroy,  which  tender  plaintiffs  declined  to  accept,  and  the  money 
was  deposited  in  Court.  Plaintiffs  again  brought  suit  and  obtained 
another  temporary  injunction.  The  verdict  on  trial  was:  "We,  the 
jury,  award  the  plaintiffs  forty-two  dollars  damages."  Judgment  ac- 
cordingly. Plaintiffs  then  moved  the  Court  on  the  pleadings,  the  fore- 
going facts  and  judgment,  to  make  the  injunction  perpetual  against 
digging  up  the  trees.  Motion  denied,  and  an  order  made  refusing  to 
continue  the  injunction.  From  which  refusal  and  order  plaintiffs  ap- 
peal.    *     *     * 

Cope,  J.,  delivered  the  opinion  of  the  Court.  Field,  C.  J.,  and 
Baldwin,  J.,  concurring. 

There  is  no  doubt  that  the  plaintiffs  are  entitled  to  the  equitable  re- 
lief prayed  for.  The  verdict  is  conclusive  of  the  rights  of  the  par- 
ties, and  the  only  remedy  from  which  the  plaintiffs  can  derive  ade- 
quate relief  is  by  injunction.  They  are  threatened  with  injuries  which 
must,  if  committed,  result  in  the  destruction  of  their  property,  and  it 
is  the  duty  of  the  Courts  in  such  cases  to  interpose  and  prevent  the 


896  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

perpetration  of  the  injurious  acts.  We  can  hardly  conceive  of  a  more 
appropriate  case  than  the  present  for  the  administration  of  this  species 
of  justice;  the  mischief  against  which  the  plaintiffs  seek  protection  is 
irreparable  in  its  nature,  and  destructive  of  interests  for  which  no 
equivalent  can  be  returned.  The  fact  that  the  defendants  are  willing 
to  pay  for  the  property  is  immaterial,  for  there  are  no  means  of  deter- 
mining whether  the  value  of  the  property  in  money  would  compensate 
the  plaintiffs  for  its  destruction.  It  may  possess  a  value  to  them  which 
no  other  person  would  place  upon  it ;  and  there  is  neither  justice  nor 
equity  in  refusing  to  protect  them  in  the  enjoyment  of  it,  merely  be- 
cause they  may  possibly  recover  what  others  may  deem  an  equivalent 
in  money.  The  nature  of  the  property,  which  consists  of  fruit  trees, 
ornamental  shrubbery,  etc.,  gives  them  a  peculiar  claim  to  this  protec- 
tion. 

The  order  appealed  from  is  reversed,  and  the  cause  remanded  for  a 
judgment  in  accordance  with  this  opinion. 


THOMAS  v.  OAKLEY. 
(In  Chancery  before  Lord  Eldon,  1811.    18  Yes.  1S4,  34  E.  R.  287.) 

The  case,  stated  by  this  bill,  was,  that  the  Plaintiff  was  seised  in  fee- 
simple  of  an  estate,  in  which  there  was  a  stone  quarry ;  and  the  Defend- 
ant, having  a  contiguous  estate,  with  a  right  to  enter  the  Plaintiff's 
quarry,  and  take  stone  for  building  and  other  purposes,  confined  to  a 
part  of  his  estate  called  Newton  farm,  had  taken  stone  to  a  consider- 
able amount  for  the  purpose  of  using  it  upon  the  other  parts  of  his 
estate;  praying  an  injunction  and  account. 

To  this  bill  the  Defendant  demurred. 

The  Lord  Chancellor.  The  case  has  this  specialty:  the  bill  ad- 
mits the  Defendant's  right  of  entry  into  this  quarry,  and  of  taking 
stones  for  all  the  purposes  of  Newton  farm ;  though,  if  he  takes  for 
any  other  purpose,  undoubtedly  an  action  would  lie :  but  is  there  any 
distinction  between  this  case  and  that  of  a  coal-mine  ?  Is  not  this  taking 
away  the  very  substance  of  the  estate  just  as  much  as  in  the  case  of 
a  coal-mine?  After  the  decisions,  that  have  taken  place,  this  demur- 
rer cannot  be  maintained.  The  Plaintiff  represents  himself  to  be  seis- 
ed as  tenant  in  fee  of  an  estate,  in  which  there  is  a  stone-quarry  that 
is  parcel  of  the  estate.  He  then  states,  which  upon  this  occasion  I 
must  take  to  be  true,  that  the  Defendant,  having  an  estate  in  his  neigh- 
bourhood, consisting  of  Newton  farm,  among  other  lands,  as  owner 
of  that  farm  has  a  right  to  enter  into  the  quarry  for  the  purpose  of  tak- 
ing stone,  as  far  as  he  has  occasion  for  building  and  other  purposes 
upon  that  farm :  but  the  Plaintiff  represents,  that  the  defendant  has 
taken  stone,  for  the  purpose  of  application,  not  upon  Newton  farm  only, 
but  also  upon  his  other  estates,  and  to  a  very  considerable  amount.  That 
is  trespass  beyond  all  doubt,  and  not  waste :  as  there  is  no  such  privity 


Sec.  3)  trespass  807 

between  the  parties  as  would  make  it  waste.  His  entry  for  the  purpose 
of  taking  stone  with  reference  to  Newton  farm  is  lawful :  but,  if  under 
colour  of  that  right  he  takes  stone  for  the  enjoyment,  not  of  his  farm 
only,  but  his  other  estates,  his  entry  to  that  extent  is  unlawful,  and  his 
act  a  trespass ;  and,  if  it  is  settled,  that  the  Court  will  interfere  by  way 
of  injunction  and  account,  this  demurrer  cannot  prevail. 

The  distinction,  long  ago  established,  was,  that  if  a  person,  still  liv- 
ing, committed  a  trepass  by  cutting  timber,  or  taking  lead-ore,  or  coal, 
this  Court  would  not  interfere ;  but  gave  the  discovery ;  and  then  an 
action  might  be  brought  for  the  value  discovered :  but,  the  trespass 
dying  with  the  person,  if  he  died,  the  Court  said,  this  being  property, 
there  must  be  an  account  of  the  value  ;  though  the  Law  gave  no  remedy. 
In  that  instance  therefore  the  account  was  given,  where  an  injunction 
was  not  wanted.  Throughout  Lord  Hardwicke's  time,  and  down  to 
that  of  Lord  Thurlow,  the  distinction  between  waste  and  trespass  was 
acknowledged  :  and  I  have  frequently  alluded  to  the  case,  upon  which 
Lord  Thurlow  first  hesitated :  a  person,  having  a  close  demised  to  him, 
began  to  get  coal  there ;  but  continued  to  work  under  the  contiguous, 
close,  belonging  to  another  person ;  and  it  was  held,  that  the  former,  as 
waste,  would  be  restrained:  but  as  to  the  close,  which  was  not  demised 
to  him,  it  was  a  mere  trespass :  and  the  Court  did  not  interfere :  but  I 
take  it,  that  Lord  Thurlow  changed  his  opinion  upon  that ;  holding,  that, 
if  the  Defendant  was  taking  the  substance  of  the  inheritance,  the  liber- 
ty of  bringing  an  action  was  not  all  the  relief,  to  which  in  Equity  he 
was  entitled.  The  interference  of  the  Court  is  to  prevent  your  re- 
moving that  which  is  his  estate.  Upon  that  principle  Lord  Thurlow 
granted  the  injunction  as  to  both.  That  has  since  been  repeatedly  fol- 
lowed ;  and  whether  it  was  trespass  under  the  colour  of  another's  right 
actually  existing,  or  not. 

If  this  protection  would  be  granted  in  the  case  of  timber,  coals,  or 
lead-ore,  why  is  it  not  equally  to  be  applied  to  a  quarry?  The  com- 
parative value  cannot  be  considered.  The  present  established  course 
is  to  sustain  a  bill  for  the  purpose  of  injunction,  connecting  it  with  the 
account  in  both  cases :  and  not  to  put  the  Plaintiff  to  come  here  for  an 
injunction,  and  to  go  to  Law  for  damages. 

The  demurrer  was  overruled. 


'NICHOLS  v.  JONES  et  al. 
(Circuit  Court  of  the  United  States,  N.  D.  Alabama,  1884.    19  Fed.  S55.) 

In  Equity. 

The  complainant's  bill  shows  that  on  the   seventh  of   May,    1873, 

Henry  Clews  being  the  owner  and  in  possession  of  certain  mineral 

lands  in  Calhoun  county,  in  this  state,  sold  and  conveyed  for  value 

the  same  to  John  M.  Guiteau,  who  afterwards,  on  the  sixth  of  June, 

Boke  Eq. — 57 


898  INJUNCTION   IN   RELATION   TO   TOUTS  (Cll.  4 

1876,  sold  and  conveyed  to  John  P.  McEwan,  and  that  the  latter,  with 
his  wife,  on  the  sixth  of  March,  1880,  by  proper  deed,  sold  and  con- 
veyed the  same  to  complainant,  and  that  all  of  the  said  conveyances 
were  properly  acknowledged  and  recorded  in  the  county  of  Calhoun 
prior  to  the  year  1880,  except  the  one  last  mentioned.  Further,  that 
the  defendants  claim  title  to  the  same  premises  by  virtue  of  an  attach- 
ment suit  instituted  in  the  circuit  court  of  Calhoun  county  early  in  the 
year  1880,  by  defendant  Jones  against  said  Henry  Clews,  a  citizen  of 
Xew  York,  in  which  suit  said  lands  were  attached,  a  judgment  re- 
covered, and  the  lands  sold  by  the  sheriff  of  Calhoun  county  under 
execution  to  said  Jones  on  May  31,  1880.  Further,  that  at  a  former 
term  of  this  court  complainant  had  instituted  a  suit  for  the  possession 
of  said  lands  against  one  Ashley,  a  tenant  of  defendant  Jones  in  pos- 
session of  the  same,  and  recovered  a  judgment,  which  was  executed 
by  the  marshal,  who,  under  a  writ  of  habere  facias  possessionem,  placed 
complainant  in  possession,  and  that  complainant  took  possession  and 
held  the  same  by  his  agent  and  tenant,  and  that  thereafter  the  defend- 
ant, with  fraud  and  illegal  influence  over  the  said  tenant,  dispossessed 
complainant,  possessed  himself,  and  has  ever  since  detained  and  now 
holds  the  same.  Further,  that  complainant  has  instituted  an  action  for 
damages  against  said  Jones  in  the  circuit  court  of  Calhoun  county, 
because  of  his  said  trespass,  which  action  is  now  pending.  The  bill 
also  alleges  that  the  lands  are  valuable  only  as  mineral  lands ;  that 
defendants  are  mining  and  removing  ore,  and  thereby  inflicting  ir- 
reparable damage;  that  defendant  Jones  is  insolvent,  and  defendant 
Morgan  has  little,  if  any,  means ;  and  that  only  by  a  multiplicity  of 
suits  at  law  can  complainant,  if  at  all,  protect  his  rights. 

The  defendants,  by  answer  not  sworn  to,  deny  that  complainant  is 
owner  of  the  lands  described,  and  allege  fraud  and  collusion  in  the 
conveyances  from  Clews  to  complainant's  grantor,  and  the  fraud  and 
collusion  of  complainant  and  Ashley  in  obtaining  the  judgment  in  this 
court  for  possession,  which  judgment  has  been  set  aside  and  defend- 
ants admitted  as  parties,  and  that  the  suit  is  still  pending;  and  they 
deny  all  fraud  and  illegal  influence  in  obtaining  possession  from  com- 
plainant's tenant  as  set  forth  in  the  bill ;  and  all  other  matters  charg- 
ed in  the  bill  are  admitted,  the  defendants  particularly  claiming  bona 
fide  title  under  the  attachment  proceedings  set  forth  in  bill  and  answer. 

An  admission  is  now  filed  in  the  record  that  when  the  bill  in  this  case 
was  filed  an  action  of  ejectment  by  the  complainant- against  the  defend- 
ants for  the  land  in  controversy  was  pending  in  this  court ;  that  on 
November  5,  1883,  the  complainant  dismissed  his  said  action  of  eject- 
ment, and  that  there  is  now  no  action  of  ejectment  pending  by  the  com- 
plainant for  the  land  in  controversy.  An  inspection  of  the  record 
shows  that  the  said  action  of  ejectment  was  dismissed  under  an  order 
of  court  rendered  at  last  term  compelling  the  complainant  to  elect  be- 
tween his  action  of  ejectment  and  this  equity  action.  At  this  time  a 
motion,  after  due  notice,  is  made  for  an  injunction  to  restrain,  pendente 


Sec.  3)  trespass  899 

lite,  the  defendants  from  wasting  the  lands  in  controversy  by  removing 
the  mineral  deposits  therefrom.  The  defendants  admitting  the  facts 
of  removal  of  minerals,  resist  the  motion  on  the  two  grounds — of  want 
of  equity  in  the  bill,  and  of  diligence  on  the  part  of  complainant. 

Pardee,  J.  It  seems  clear  that  if  complainant  has  brought  his  case 
within  our  equity  jurisdiction  a  proper  and  meritorious  case  for  an  in- 
junction is  shown.  The  admitted  damages  committed  and  being  com- 
mitted by  defendants  are  irreparable,  restitution  being  impossible,  and 
the  money  value  not  being  ascertainable,  and  the  defendants  are  insol- 
vent, or  next  door  to  insolvency.  The  defendants  first  urge  that  as  no 
suit  in  ejectment  is  pending,  and  no  specific  fraud  alleged  in  the  bill, 
the  action  is  one  of  ejectment  in  the  form  of  a  bill  in  chancery.  Were 
this  all  of  the  case  there  would  be  nothing  further  to  do  than  to  refuse 
the  motion  and,  sua  sponte,  direct  the  bill  to  be  dismissed.  Lewis  v. 
Cocks,  23  Wall.  469,  23  L.  Ed.  70.  But  the  complainant  shows  one 
suit  for  damages  now  pending,  the  recovery  of  one  judgment  in  eject- 
ment, and  possession  obtained  thereunder,  which  was  lost  by  the  fraud 
and  illegal  influences  of  the  defendants,  and  the  case  shows  that  a 
multiplicity  of  suits  at  law  will  be  necessary  for  the  complainant  to 
obtain  at  law  an  adequate  remedy.  Equity  will  entertain  bill  to  pre- 
vent a  multiplicity  of  suits.  Garrison  v.  Ins.  Co.,  19  How.  312,  15  L. 
Ed.  656;  Story,  Eq.  Jur.  §  928.  Injunctions  are  granted  to  prevent 
trespasses  as  well  as  to  stay  waste,  where  the  mischief  would  be  ir- 
reparable and  to  prevent  a  multiplicity  of  suits.  Livingston  v.  Living- 
ston, 6  Johns.  Ch.  (N.  Y.)  497,  10  Am.  Dec.  353 ;  Story,  Eq.  Jur.  §§ 
928,  929. 

That  the  defendants  deny  complainant's  title,  and  that  no  suit  at  law 
is  pending  to  settle  the  question  of  title,  is  a  very  serious  objection  to 
the  granting  of  the  injunction  asked;  but  it  seems  the  effect  of  this  is 
avoided  from  the  following  facts  apparent  on  the  record:  (1)  The 
defendants  do  not  deny  nor  assert  title  under  oath.  Griffin  v.  Bank, 
17  Ala.  258;  Rainey  v.  Rainey,  35  Ala.  282.  (2)  The  title  claimed  by 
defendant  as  defeating  complainant's,  appears  to  be  one  obtained  by 
attachment  against  a  bankrupt,  issued  long  after  the  bankruptcy  and 
seizing  property  sold  by  the  bankrupt  months  before  the  bankruptcy, 
making  a  very  doubtful  pretense  of  title,  nearly  a  sham  on  its  face. 
Rev.  St.  §§  5119,  5120;  Bank  v.  Buckner,  20  How.  108,  15  L.  Ed.  862. 
(3)  The  defendants  compelled  the  complainant  to  elect  between  his  bill 
in  equity  and  his  suit  in  ejectment,  and  now  object  to  the  state  of  liti- 
gation as  forced  by  themselves. 

In  the  case  of  West  Point  Iron  Co.  v.  Reymert  it  was  held  that  mines, 
quarries,  and  timber  are  protected  by  injunction,  upon  the  ground  that 
injuries  to  and  depredations  upon  them,  are,  or  may  cause,  irreparable 
damage,  and  with  a  view  to  prevent  a  multiplicity  of  suits ;  nor  is  it 
necessary  that  the  plaintiff's  right  should  be  first  established  in  an  ac- 
tion at  law.  45  N.  Y.  (6  Hand)  703.  And  in  that  case  the  court  fur- 
ther said : 


900  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

"It  was  a  proper  case  for  relief  by  injunction  if  the  plaintiffs  right  to  the 
mine  was  established,  and  it  was  not  necessary  that  the  right  should  be  first 
established  in  an  action  at  law.  The  injury  complained  of  was  not  a  mere 
fugitive  aud  temporary  trespass,  for  which  adequate  compensation  could  be 
obtained  in  an  action  at  law,  but  was  an  injury  to  the  corpus  of  the  estate.'* 
Page  7'>-~>. 

See,  also,  Thomas  v.  Oakley,  18  Yes.  184;  Story,  Eq.  Jur.  929;  and 
see  McLaughlin  v.  Kelly,  22  Cal.  211. 

The  want  of  diligence  urged  against  the  complainant  is  that,  as  the 
defendants  filed  their  answer  September  14,  1883,  the  complainant 
should  have  had  his  case  ready  for  hearing  at  the  October  term  follow- 
ing. The  complainant  had  until  the  October  rules  to  demur,  or  reply, 
and  then  he  was  entitled  to  three  months  to  take  testimony  before  he 
could  be  charged  with  want  of  diligence.  Besides  the  October  term 
seems  to  have  been  used  up  in  determining  whether  complainant  should 
elect  between  his  action  at  law  and  his  bill  in  equity,  and  from  affidavit 
on  file,  it  seems  the  chancery  docket  was  not  called  from  press  of  other 
business. 

On  the  whole  case,  I  do  not  see,  in  view  of  the  insolvency  of  the  de- 
fendants, rendering  a  multiplicity  of  suits  necessary  for  the  complain- 
ant to  protect  himself  at  law,  and  that  the  injuries  complained  of  are 
to  the  body  of  the  estate,  and  considering  that  this  court  has  forbidden 
the  complainant  to  prosecute  his  suit  at  law  and  his  bill  in  equity  at  the 
same  time,  how,  in  equity,  an  injunction  preserving  the  rights  of  the 
parties,  pending  the  suit,  can  be  refused. 

The  rights  of  the  defendants  will  be  saved  by  complainant's  giving 
bond  in  the  sum  of  $1,000. 


OLIVEIXA  v.  NEW  YORK  &  H.  R.  CO.  et  al. 

(Supreme  Court  of  New  York.  Special  Term,  New  York  County,  1899. 
31  Misc.  Rep.  203,  64  N.  Y.  Supp.  10S6.) 

Injunction  by  Susanna  Olivella  against  the  Xew  York  &  Harlem 
Railroad  Company  and  others. 

GildERSLEEve,  J.  The  plaintiff  demurs  to  the  fourth  separate  de- 
fense of  the  answer,  which  is  as  follows,  viz. : 

"For  a  further  fourth  and  separate  defense,  the  defendant  alleges,  upon  in- 
formation and  belief,  that  for  the  pretended  injuries  or  causes  of  action  alleged 
in  the  complaint  the  plaintiff  has  a  complete  and  adequate  remedy  at  law, 
and  that  the  plaintiff  has  no  right  to  invoke  the  equitable  interference  of  this 
court." 

The  plaintiff  demurs  to  this  defense  "on  the  ground  that  it  is  insuffi- 
cient in  law  upon  the  face  thereof."  The  demurrer  is  based  on  section 
494  of  the  Code  of  Civil  Procedure,  which  is  as  follows,  viz. : 

"The  plaintiff  may  demur  to  a  counterclaim  or  defense,  consisting  of  new 
matter,  contained  in  the  answer,  on  the  ground  that  it  is  insufficient  in  law, 
upon  the  face  thereof." 

The  plaintiff's  claim  is  that  a  demurrer  admits  as  true  only  such 
relevant  facts  as  are  well  pleaded,  and  not  a  conclusion  of  law  (see 


Sec.  3)  trespass  901 

Masterson  v.  Townshend,  123  N.  Y.  458,  25  N.  E.  928,  10  L.  R.  A. 
816) ;  and  that  the  defense  in  question  avers  no  facts,  but  simply  and 
purely  a  conclusion  of  law,  and  is,  therefore,  demurrable.  See  Ham- 
mond v.  Earle,  58  How.  Prac.  438. 

It  is  further  urged  by  the  plaintiff  that  the  allegations  of  the  com- 
plaint show  that  the  cause  of  action  is  in  point 'of  fact  properly  an  equi- 
table one,  inasmuch  as  the  complaint  alleges  that  the  injuries  complained 
of  will  be  constant  and  continuous  trespasses ;  and  that,  to  prevent  a 
multiplicity  of  suits,  and  to  afford  the  plaintiff  adequate  relief,  the  equi- 
table interference  of  the  court  is  necessary  ;  and  the  complaint  asks  for 
a  perpetual  injunction  restraining  defendants  from  maintaining  a  struc- 
ture, and  from  operating  thereon  trains  of  cars,  in  front  of  plaintiff's 
premises,  and  for  a  judgment  directing  the  removal  of  said  structure, 
together  with  damages  for  the  trespass  committed  by  defendants.  It 
is  well  settled  that,  although  trespasses  on  real  property  effected  by  an 
illegal  structure  thereon  are  continuous  in  their  nature,  and  give  to  the 
owner  separate  successive  causes  of  action  at  law  for  damages,  from 
time  to  time,  as  the  injuries  are  perpetrated,  still  the  owner  may  also 
resort  to  equity  to  prevent  continuance  of  the  trespass  and  a  multiplic- 
ity of  actions  at  law.  See  Pappenheim  v.  Railroad  Co.,  128  N.  Y. 
436,  28  N.  E.  518,  13  L.  R.  A.  401,  26  Am.  St.  Rep.  486.  See,  also, 
Golden  v.  Health  Department,  21  App.  Div.  420,  47  N.  Y.  Supp.  623. 

In  opposition  to  the  demurrer  the  defendants  urge  that  the  defense 
in  question  does  not  consist  of  new  matter,  and  therefore  the  demurrer 
is  not  warranted  by  section  494  of  the  Code,  above  quoted.  This  sec- 
tion, however,  does  not  require  that  the  defense  should  "set  up  new 
facts,"  but  simply  should  "consist  of  new  matter."  I  am  inclined  to 
the  opinion  that  the  defense  does  "consist  of  new  matter."  It  sets  up 
a  conclusion  of  law,  not  an  answer  to  any  of  the  allegations  of  the 
complaint.    The  demurrer  must  be  sustained,  with  costs. 

Demurrer  sustained,  with  costs. 


MURPHY  v.  LINCOLN  et  al. 
(Supreme  Court  of  Vermont,  1S91.    63  Vt.  27S,  22  Atl.  41S.) 

Appeal  in  chancery  from  Rutland  county ;   R.  S.  Taft,  Chancellor. 

Bill  in  chancery  by  Patrick  Murphy  against  William  F.  Lincoln 
and  others  to  enjoin  a  trespass.  There  was  a  pro  forma  decree  dismiss- 
ing the  bill,  and  the  orator  appeals. 

Thompson,  J.29  1.  The  defendants  contend  that  this  case  is  not 
within  the  jurisdiction  of  a  court  of  equity,  for  the  reason  that  the 
orator  has  an  adequate  remedy  at  law.  The  bill  charges  the  commit- 
ting of  several  continuous  trespasses  by  defendants  by  drawing  wood 
and  logs  from  their  land  across  the  pasture  and  meadow  land  of  the 

29  Parts  of  the  opinion  are  omitted. 


902  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

orator,  and  that  the  defendants  threaten  to  continue  to  commit  these 

trespasses.    The  defendants,  in  their  answer,  either  expressly  or  tacitly, 

by  their  failure  to  deny  them,  admit  the  truth  of  these  allegations. 

*     *     *     These  facts  bring  the  case  within  the  jurisdiction  of  a  court 

of  equity.    The  rule  applicable  to  cases  of  this  kind  is  stated  in  3  Pom. 

Eq.  Jur.  §  1357,  as  follows: 

"If  the  trespass  is  continuous  in  its  nature,  if  repeated  acts  of  wrong  are 
done  or  threatened,  although  each  of  these  acts  taken  by  itself  may  not  be  de- 
structive, and  the  legal  remedy  may,  therefore,  be  adequate  for  each  single  act 
if  it  stood  alone,  then  also  the  entire  wrong  will  be  prevented  or  stopped  by 
injunction  on  the  ground  of  avoiding  a  repetition  of  similar  actions." 

The  use  of  this  way  across  the  orator's  land  by  defendants  under  a 
claim  of  right,  if  continued  long  enough  would  ripen  into  an  easement. 
Equity  will  interfere  to  enjoin  such  wrongful  acts,  continued  or  threat- 
ened to  be  continued,  to  prevent  the  acquisition  of  an  easement  in  such 
a  manner.     *     *     * 

The  pro  forma  decree  is  reversed,  and  cause  remanded,  with  direc- 
tions to  enter  a  decree  for  the  orator  in  accordance  with  mandate  on 
file. 


FELTON  et  al.  v.  JUSTICE  et  al. 
(Supreme  Court  of  California,  1S76.    51  Cal.  529.) 

Appeal  from  the  District  Court,  Seventeenth  Judicial  District,  Coun- 
ty of  Los  Angeles. 

The  plaintiffs,  in  their  complaint,  alleged  that  they  owned  the  Azusa 
rancho ;  that  there  was  and  had  been  for  twenty  years,  on  said  rancho, 
a  ditch  for  the  conveyance  of  water  through  which  water  from  the 
San  Gabriel  river  was  appropriated ;  that  for  twenty  years  plaintiffs 
had  been  in  possession  of  the  ditch  and  used  the  water  to  run  a  mill 
and  irrigate  a  vineyard  on  the  rancho ;  that,  in  October,  1873,  defend- 
ants, with  force  and  arms,  ousted  plaintiffs  from  the  possession  of  the 
ditch  and  converted  to  their  own  use  the  water  flowing  therein,  and 
threatened  to  continue  the  trespass,  and  that  plaintiffs'  vineyard  would 
be  destroyed  and  the  mill  rendered  valueless  if  the  defendants  carried 
out  their  threats.  There  was  a  prayer  for  damages  and  an  injunction. 
The  court  overruled  a  demurrer  to  the  complaint.  On  the  trial  the 
plaintiffs  waived  damages.  The  court  gave  judgment,  granting  the  in- 
junction.   The  defendants  appealed. 

By  the  Court.  The  purpose  of  this  action  is  to  enjoin  the  com- 
mission of  trespasses  upon  lands  alleged  to  be  the  property  of  plaintiffs. 
The  plaintiffs  allege  that  the  defendant  had  entered  upon  the  lands, 
and  ousted  and  removed  plaintiffs  therefrom,  prior  to  the  time  when 
the  alleged  trespasses  were  committed  and  threatened. 

An  action  at  law  cannot  be  maintained  for  trespasses  committed  on 
land  when  the  plaintiff  is  totally  disseised  and  the  defendant  is  in  the 
adverse  possession  thereof.    Raffetto  v.  Fiori,  50  Cal.  363. 


Sec.  3)  trespass  903 

A  fortiori,  in  such  case  a  court  of  equity  will  not  intervene  to  restrain 
the  commission  of  threatened  trespasses. 
Judgment  reversed  and  cause  remanded. 


STANFORD  v.  HURLSTONE. 
(In  Chancery,  1S74.     30  Law  Times,  140.) 

Appeal  Motion. 

The  plaintiff,  Mr.  Stanford,  was  the  owner  in  fee  simple  of  a  farm 
at  Slaugham,  in  the  county  of  Sussex,  which  his  father  had  purchased 
in  1828,  and  to  which  he  had  become  entitled  under  his  father's  will. 
He  claimed,  as  part  of  this  farm,  a  wood,  which  was  bounded  by  the 
farm  on  two  sides,  and  by  the  property  of  the  defendant  Mr.  Hurl- 
stone  on  another  side. 

Mr.  Hurlstone  claimed  to  be  entitled  to  one  moiety  of  the  wood 
in  question,  and  in  1859  two  actions  of  ejectment  were  commenced  by 
him,  and  by  persons  claiming  to  be  entitled  to  the  other  moiety  of  the 
wood,  against  Mr.  Stanford  to  recover  the  wood. 

At  the  trial  of  one  of  these  actions  in  1860,  Mr.  Stanford  adduced 
evidence  that  his  father  and  he  had  been  in  undisputed  possession  of 
the  wood  for  more  than  twenty  years,  namely,  from  1828  to  1859,  and 
the  plaintiffs  in  the  action  elected  to  be  nonsuited. 

The  other  action,  brought  by  Mr.  Hurlstone,  was  not  brought  on 
for  trial,  but  was  discontinued  in  1861. 

In  August,  1860,  Mr.  Hurlstone  went  to  reside  in  a  cottage  on  his 
property  adjoining  the  wood,  and  it  appeared  that  he  had  ever  since 
resided  there  for  a  portion  of  each  year;  and  had  from  time  to  time 
gone  into  the  wood  and  walked  and  sat  in  it,  and  that  he  had  frequently 
turned  his  cattle  into  the  wood,  and  cut  away  the  underwood,  that  he 
might  walk  there  more  conveniently. 

On  the  10th  of  October,  1873,  Mr.  Hurlstone  got  two  of  his  servants 
to  cut  down  a  tree  in  the  wood,  having  called  in  the  police  to  prevent 
Mr.  Stanford  from  forcibly  resisting;  and  he  told  Mr.  Stanford's  bailiff 
that  he  would  cut  down  twenty  more  trees. 

Mr.  Stanford  did  not  resist  by  force,  but  on  the  21st  Oct.  filed  his 
bill,  praying  for  an  injunction  to  restrain  Mr.  Hurlstone  from  cutting 
any  timber  in  the  wood,  or  otherwise  interfering  with  the  plaintiff's 
possession. 

An  ex  parte  injunction  was  granted  on  the  following  day.  A  mo- 
tion to  dissolve  this  injunction  was  made  by  Mr.  Hurlstone,  who  in  his 
affidavit  in  support  of  the  motion  stated  that  he  had,  from  1860  down 
to  the  present  time,  frequently  walked  in  the  wood,  turned  his  cattle 
into  it,  and  performed  other  acts  of  ownership  without  any  interfer- 
ence on  the  part  of  Stanford  or  his  servants. 

The  Master  of  the  Rolls  refused  the  motion,  with  costs.  In  giving 
judgment  his  Honour  said: 


904  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

A  more  perverse  proceeding  on  the  part  of  anybody  who  professes 
a  knowledge  of  the  law  I  never  heard.  This  defendant,  it  appears,  is 
a  barrister  of  nearly  forty  years'  standing ;  a  gentleman  certainly  not 
without  experience  as  regards  the  decisions  of  the  courts — I  do  not 
say  of  this  court,  but  of  courts  of  law  in  general — because  he  has  been 
for  many  years  a  reporter  in  one  of  the  Superior  Courts  of  law.  If 
there  ever  was  a  man  placed  in  a  position  that  would  have  made  it  his 
bounden  duty  to  respect  the  law,  I  think  it  is  the  defendant ;  but  his 
conduct  appears  to  me  to  have  been  so  thoroughly  wanton  and  un- 
justifiable that  I  am  only  surprised  that  he  did  not  allow  himself  to  be 
restrained  by  the  advice  which  I  am  sure  he  must  have  received  from 
his  legal  advisers,  from  attempting  to  dissolve  this  injunction.  Now 
before  going  into  a  statement  of  what  the  defendant  has  done,  I  think 
it  right  to  say  upon  what  legal  grounds  I  intend  to  maintain  this  injunc- 
tion. I  subscribe  almost  entirely  to  the  words,  and  entirely  to  the 
substance,  of  the  decision  of  Kindersley,  V.  C,  in  Lowndes  v.  Bettle, 
10  L.  T.  Rep.  (N.  S.)  55,  and  to  the  doctrines  there  laid  down.  The 
marginal  note  states  that : 

"Where  a  defendant  is  in  possession  of  an  estate  and  a  plaintiff  claiming 
possession  of  it,  seeks  to  restrain  him  from  cutting  down  trees,  and  digging 
sods  and  other  such  like  acts,  the  court  will  not  interfere  unless  the  acts  com- 
plained of  amount  to  such  flagrant  instances  of  spoliation  as  to  justify  th? 
court  in  departing  from  the  general  rule.  Where  a  plaintiff  is  in  possession 
and  the  person  doing  the  acts  complained  of  is  an  utter  stranger  not  claim- 
ing under  colour  of  right,  then  the  tendency  of  the  court  is  not  to  grant  an  in- 
junction unless  there  are  special  circumstances,  but  to  leave  the  plaintiff  to 
Ms  remedy  at  law,  though  if  the  acts  tend  to  the  destruction  of  the  inheritance 
the  court  will  grant  an  injunction.  But  where  a  plaintiff  in  possession" — ■ 
which  is  this  case — "seeks  to  restrain  one  who  claims  by  an  adverse  title,  the 
tendency  of  the  court  will  be  to  grant  an  injunction,  at  least  when  the  acts 
committed  do  or  may  tend  to  the  destruction  of  the  estate." 

I  said  that  I  subscribed  entirely  to  the  doctrine  or  the  substance  of 
the  doctrine,  though  I  have  some  difficulty  about  the  words,  and  the  dif- 
ficulty I  feel  about  the  words  is  that  for  "tendency"  I  should  substitute, 
that  it  is  the  "duty"  of  the  court ;  but  in  substance,  I  entirely  agree  with 
the  decision,  and  I  think  that  is  the  law.  Then  the  marginal  note  of  the 
case  proceeds  thus : 

"Where,  therefore,  a  person  not  being  in  possession  of  the  estate  claimed  it 
as  heir-at-law"- — which  is  very  much  like  this  case,  except  that  the  defendant 
here  claims  as  a  purchaser — "and  entered  upon  it,  cut  down  trees  and  cut 
sods,  and  threatened  to  repeat  his  conduct  in  order  to  establish  his  alleged  ti- 
tle"— which  is  exactly  this  case,  the  defendant  here  having  cut  down  a  tree, 
and  threatened  to  cut  down  more — "as  against  the  possessor  who,  by  himself 
and  his  ancestors,  had  been  in  possession  of  the  estate  for  upwards  of  eighty 
years,  it  was  held  upon  a  bill  filed  by  the  possessor  against  the  claimant,  that, 
;is  the  acts  of  the  defendant  might  be  injurious  to  the  inheritance,  he  must  lie 
restrained  by  the  injunction  of  the  court  from  committing  them." 

1  may  say  that  the  court  acted  in  that  case  as  I  intend  to  act  in  this 
case,  until  I  am  told  that  I  am  acting  wrongly  by  a  higher  authority. 
[His  Honour  then  stated  the  facts  of  the  case  at  some  length,  and 
concluded:]  I  feel  it  to  be  my  duty  to  follow  up  and  mark  my  disap- 


Sec.  3)  trespass  905 

probation  of  the  defendant's  conduct  by  refusing  this  motion,  and  or- 
dering him  to  pay  the  costs  of  it. 

The  Lord  Chancellor  [Selborne]  said:  I  think  a  more  proper 
order  than  that  of  the  Master  of  the  Rolls  in  this  case  was  never  made 
by  the  court.  Upon  the  evidence  before  us,  so  far  as  the  case  has  now- 
gone,  it  appears,  and  without  contradiction,  that  the  plaintiff,  if  he  had 
no  other  title,  had  been  sixty  years  in  possession — in  undisturbed  pos- 
session— and  had  done  all  necessary  acts  of  ownership  to  prove  it  for 
more  than  twenty  years.  Therefore,  under  the  present  Statute  of  Lim- 
itations, he  had  then,  unless  something  were  shown,  which  is  not  shown, 
to  prevent  the  operation  of  the  statute,  a  good  title  in  fee  simple.  At 
that  time  two  actions  were  brought,  one  by  persons  in  the  same  inter- 
est as  the  defendant  to  this  suit,  as  to  one  undivided  part,  and  another 
by  the  defendant  to  this  suit,  admitting  that  state  of  possession ;  and 
in  one  of  those  actions  the  plaintiffs  elected  to  be  nonsuited ;  in  the 
other  the  plaintiff  (the  present  defendant)  discontinued  the  action,  and 
did  not  venture  to  go  to  trial.  Then  it  is  said  that,  having  acquired  the 
means  of  residing  near  the  wood  in  some  cottage,  the  title  of  which  is 
not  in  question,  he  has  given  evidence  to  show  that  from  time  to  time 
since  1860  he  has  done  certain  acts  in  the  wood  which  would  be  evidence 
of  ownership  if  there  were  a  title  as  owner,  but  which  were  ordinary 
trespasses  if  there  was  not  such  a  title.  As  the  case  stands  upon  the 
evidence,  those  acts  were,  in  my  opinion,  mere  ordinary  trespasses, 
and  in  no  way  whatever  acts  which  could  bring  the  legal  possession, 
which  had  existed  for  more  than  twenty  years  before  1860,  into  con- 
troversy. In  that  state  of  things  the  defendant  takes  upon  himself  to 
cut  down  a  tree  in  the  plaintiff's  wood,  and  he  takes  measures,  by  the 
aid  of  the  police  (the  plaintiff  in  that  respect  properly  acquiescing)  to 
prevent  the  resistance  by  force  on  the  part  of  the  plaintiff  to  that  il- 
legal act.  So  that  the  plaintiff,  unless  the  court  should  help  him,  is 
powerless  to  prevent  the  irreparable  destruction  of  his  timber ;  and  the 
defendant  threatens  upon  his  own  statement  to  bring  down  a  body  of 
navvies  from  London  to  cut  an  opening  through  the  wood,  which,  in 
my  judgment,  means  to  cut  down  trees  in  the  wood;  and  the  plaintiff's 
witness  proves  that  the  defendant  threatened  to  cut  down  twenty  more 
trees.  A  clearer  case  for  the  interference  of  the  court,  unless  there 
is  authority  to  prevent  it,  I  cannot  imagine.  It  is  true  that  there  have 
been  authorities  on  analogous  subjects  which  are  in  a  condition  that 
may  well  be  said,  as  to  some  of  them,  to  be  not  entirely  reasonable  or 
satisfactory,  but  the  most  doubtful  of  those  authorities  in  modern 
times  are  cases  where  a  person  out  of  possession,  alleging  it  might  be 
a  bona  fide,  incontrovertible  title,  sought  to  prevent  ordinary  acts  of 
ownership  of  a  person,  also  alleging  title  bona  fide,  who  was  in  posses- 
sion ;  and  in  those  cases  the  court  would  not  think  fit  to  interfere,  and 
even  allowed  demurrers  when  there  were  suggestions  of  what  would 
be  equitable  waste.  It  is  not  for  us  to  say  whether,  in  those  particular 
cases,  the  court  rightly  exercised  their  discretion,  if  it  was  a  question 


906  INJUNCTION    IN   RELATION   TO   TORTS  (Cll.  4 

of  discretion,  or  rightly  decided  the  law,  if  it  was  matter  of  law.  It 
is  enough  to  say  that  the  present  case  is  not  like  them,  and  that  this 
case  resembles  one  (Lowndes  v.  Bettle,  10  L.  T.  Rep.  [N.  S.]  55;  in 
which  a  very  learned  and  accurate  judge,  Sir  R.  Kindersley,  very 
righteously  and  properly  granted  a  similar  injunction.  We  have  very 
great  satisfaction  in  expressing  our  approval  of  that  decision  of  Kin- 
dersley, V.  C,  and  following  its  authority,  and  we  dismiss  the  appeal 
motion  with  costs. 

Lord  Justice  James  concurred. 

Lord  Justice  Mellish  also  concurred. 

Appeal  motion  accordingly  dismissed  with  costs. 


COX  v.  DOUGLASS. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1SS2.    20  W.  Va.  175.) 

Johnson,  P.30  D.  S.  Cox  on  the  2d  day  of  March,  1882,  obtained 
an  injunction  against  the  defendant,  Andrew  Douglass.  The  bill  al- 
leges, that  the  plaintiff  is  the  owner  of  one  hundred  and  ninety-five 
acres  of  land  in  Ritchie  county,  describing  it  by  reference  to  a  deed  filed 
as  Exhibit  A ;  that  there  was  a  dispute  as  to  the  title ;  and  that  Andrew 
Douglass  has  entered  upon  the  said  land  and  claims  title  thereto ;  that 
plaintiff  has  instituted  in  the  circuit  court  of  Ritchie  county  an  action 
of  ejectment  against  said  Douglass  to  settle  the  title  to  said  land,  which 
suit  is  still  pending  and  undetermined ;  that  there  is  valuable  timber 
growing  on  said  land,  which  said  defendant,  Douglass,  is  cutting  and 
destroying  and  removing  from  said  land,  which,  if  permitted,  will  in- 
jure the  value  of  said  land;  and  that  said  Douglass  is  insolvent.  The 
bill  prays  an  injunction  restraining  said  Douglass  from  cutting  and 
destroying  the  timber  growing  on  said  land  and  from  removing  any 

that  is   cut,   until  the   said  ejectment  suit  is   heard   and  determined. 
*     *     * 

The  answer  of  Douglass  denies,  that  Cox  is  the  owner  of  the  land ; 
but  avers,  that  he  is  owner  of  said  land  under  a  grant  from  the  com- 
monwealth of  Virginia.  It  denies  the  charge,  that  defendant  is  cut- 
ting and  destroying  the  timber  on  said  land  and  removing  it  therefrom, 
and  also  denies  the  charge  of  insolvency;  but  admits  that  the  plaintiff 
has  instituted  an  ejectment  suit  against  him  in  the  circuit  court  of 
Ritchie  county  to  recover  said  land  and  try  the  title  thereto,  and  that 
the  same  is  still  pending  and  undetermined.  He  prays,  that  the  injunc- 
tion may  be  dissolved,  and  the  bill  be  dismissed.     *     *     * 

An  injunction  is  not  granted  to  restrain  a  mere  trespass  to  real  prop- 
erty, when  the  bill  does  not  on  its  face  clearly  aver  good  title  in  the 
plaintiff;  nor  even  then,  as  a  general  rule,  where  the  injury  complain- 
so  Parts  of  the  opinion  are  omitted. 


Sec.  3)  trespass  907 

ed  of  is  not  destructive  of  the  substance  of  the  inheritance,  of  that 
which  gives  it  its  chief  value,  or  is  not  irreparable,  but  is  susceptible  of 
complete  pecuniary  compensation,  and  for  which  the  party  may  ob- 
tain adequate  satisfaction  in  the  ordinary  course  of  law.  McMillan  v. 
Ferrell,  7  W.  Va.  223.  But  a  court  of  equity  will  enjoin  a  mere  tres- 
pass to  real  property,  where  good  title  in  the  plaintiff  is  alleged,  and  it 
is  also  alleged  in  the  bill,  that  the  trespasser  is  insolvent ;  because  in 
such  case  the  party  could  have  no  adequate  remedy  at  law. 

The  bill  in  this  cause  does  not  allege  good  title.  The  plaintiff  al- 
leges, that  he  is  the  owner  of  the  land,  and  vouches  as  proof  thereof  a 
deed.     *     *     * 

It  is  a  general  rule  in  equity,  that  an  injunction  will  be  dissolved  at 
the  hearing  of  a  motion  to  dissolve  on  the  bill  and  answer  sworn  to,  if 
the  answer  fully,  fairly,  plainly,  distinctly  and  positively  denies  the 
allegations  of  the  bill  on  which  the  injunction  was  granted,  and  if  the 
material  allegations  of  the  bill  are  not  supported  by  proof  other  than 
the  affidavit  verifying  the  truth  of  its  allegations.  Hayzlett  v.  McMil- 
lan, 11  W.  Va.  464.  Every  allegation  of  the  bill  in  this  case  was  fully, 
fairly,  plainly,  distinctly  and  positively  denied  by  the  answer.  The 
court  therefore  erred  in  refusing  to  dissolve  the  injunction,  unless  the 
mere  fact  of  the  pendency  of  the  ejectment  suit  gave  the  court  juris- 
diction and  required  it  to  continue  the  injunction  in  force  until  the  de- 
termination of  said  ejectment  suit.  It  is  insisted  by  counsel  for  appel- 
lee, that  the  denial  of  the  plaintiff's  title  in  the  answer  does  not  warrant 
the  dissolution  of  an  injunction  against  waste,  pending  an  ejectment 
suit  between  the  parties  as  to  the  same  land;  and  he  cites  Duval  v. 
Waters,  1  Bland  (Md.)  569.  That  case  I  think  fully  sustains  the  posi- 
tion of  the  counsel.    In  that  case  the  chancellor  says  (18  Am.  Dec.  363) : 

"The  writ  of  injunction  in  case  of  this  kind  to  stay  waste,  pending  a  suit 
to  try  the  right,  has,  in  Maryland,  taken  the  place,  and  performs  the  office  in 
all  respects,  of  the  ancient  writ  of  estrepeinent.  It  is  an  injunction  not 
founded  on  any  privity  of  title  or  contract,  whatever :  it  is  an  attendant  upon, 
and  an  auxiliary  of,  the  action  at  common  law,  or  the  suit  in  this  court,  in 
which  the  title  has  been  or  may  be  called  in  question ;  it  follows  and  shares 
the  fate  of  tbat  suit,  and  can  not  be  dissolved  upon  an  answer,  in  any  way 
denying  the  plaintiff's  title,  until  that  suit  has  been  fully  determined  in  favor 
of  the  defendant.  *  *  *  It  must  however  be  recollected,  that  there  is  no 
instance  of  this  court's  ever  having  interfered  by  an  injunction,  to  prevent  a 
mere  trespass  not  instant,  and  irreparable,  when  no  suit  has  been  instituted, 
here  or  in  a  court  of  common  law  involving  the  title." 

The  chancellor  does  not  claim,  that  an  injunction  was  ever  granted 

for  such  cause  in  England,  and  cites  no  authority  outside  of  Maryland 

to  sustain  him,  that  does  so,  except  Shubrick  v.  Guerard,  2  Desaus. 

(S.  C.)  616.     He  relies  on  the  practice  and  decision  of  Maryland  from 

a  very  early  period.    The  case  in  South  Carolina  supra  was  much  like 

the  one  at  bar,  and  Mr.  Desaussure,  resisted  the  application,  and  said  : 

"This  is  the  common  case  of  trespass  and  a  dispute  about  the  title  between 
persons  claiming  by  adverse  titles  where  there  is  a  plain  and  adequate  remedy 
at  law.  The  defendant  is  in  possession  and  the  actual  cultivation  of  the 
land;    and  the  right  is  triable  at  law.     That  the  complainant  has  brought  a 


DOS  INJUNCTION    IN   RELATION   TO   TORTS  (Cll.  4 

suit  to  try  the  title  which  is  now  depending ;  and  if  the  court  should  inter- 
fere in  this  case  to  restrain  the  defendant,  from  cutting  down  timber  and 
cultivating  the  laud,  till  the  legal  title  should  be  established  at  law,  it  might 
as  well  do  so  in  every  case  of  trespass  and  a  disputed  title,  which  would  be 
a  very  injurious  interference  with  the  rights  of  property." 

The  reporter,  Judge  Desaussure,  says : 

"Chancellor  Rutledge  granted  the  injunction  in  this  case  restraining  the  de- 
fendant from  cutting  timber  or  committing  other  waste  till  the  trial  and  de- 
termination at  law  of  the  rights  of  the  parties.  No  note  has  been  preserved 
of  the  grounds  of  the  decree.  The  defendant  afterwards  filed  a  demurrer,  but 
it  was  never  argued,  the  parties  having  compromised.  This  is  the  only  case, 
which  is  remembered,  of  the  court  of  equity  in  this  State  having  ever  granted 
an  injunction  to  restrain  a  defendant  in  possession,  and  claiming  by  an  ad- 
verse title,  from  cutting  down  timber,  or  exercising  other  act  of  ownership, 
over  his  property,  till  the  trial  and  determination  of  the  right,  at  law." 

In  a  note  to  the  report  he  reviews  many  English  cases,  none  of 
which  countenance  such  a  practice,  and  says  at  the  close  of  his  review : 

"The  only  case,  which  I  find  decided  in  America  on  this  point  is  that  of 
Stevens  v.  Beekman  and  others,  1  Johnson  Ch.  (N.  Y.)  31S.  It  was  argued  be- 
fore Chancellor  Kent  of  New  York,  who  refused  to  grant  the  injunction  against 
the  repetition  of  the  trespass,  by  defendants  who  claimed  under  an  adverse 
title,  or  had  no  title.  That  eminent  judge  said  it  was  the  case  of  an  ordinary 
trespass  on  land  and  cutting  down  timber,  the  plaintiff  was  in  possession,  and 
had  complete  and  adequate  remedy  at  law." 

********** 

He  concluded  his  able  note  as  follows : 

"It  appears  from  this  review  of  the  decided  cases,  that  the  court  has  relaxed 
the  ancient  strictness  of  the  rule,  and  has  granted  injunctions  to  restrain  the 
commission  of  trespass  in  certain  specified  cases.  These  are  where  irrepara- 
ble damage  might  be  the  consequence,  if  the  act  continues,  or  where  the  tres- 
pass has  grown  into  a  nuisance ;  or  where  the  principle  of  the  prevention  of  a 
multiplicity  of  suits  among  numerous  claimants  was  applicable;  or  where  the 
persons  cutting  timber  got  possession  under  articles  to  purchase  as  in  15  Ves. 
138;  or  where  the  trespasser  colluded  with  the  tenant.  But  that  without  the 
special  circumstances  which  have  induced  the  relaxation,  the  rule  remains  in 
force,  to-wit,  that  in  case  of  trespass  committed  by  a  person  who  is  a  mere 
sti anger,  or  claims  under  an  adverse  title,  the  court  will  not  enjoin  but  leave 
the  plaintiff  to  his  remedy  at  law." 

We  have  searched  the  Virginia  Reports  in  vain  for  any  countenance 
given  the  Maryland  decision  on  this  subject;  and,  so  far  as  I  know, 
the  Maryland  practice  has  not  obtained  in  the  other  States.  We  can 
see  no  reason  for  an  injunction  to  restrain  the  cutting  of  timber  on 
land  pending  a  suit  to  try  the  title  to  the  land,  unless  the  defendant  is 
insolvent,  or  it  appears,  that  if  the  injunction  is  not  granted,  the  plain- 
tiff will  suffer  irreparable  damage.  Where  there  is  a  complete  and 
adequate  remedy  at  law,  a  court  of  equity  will  not  interfere.  When 
the  party  invokes  the  aid  of  a  court  of  law  to  try  his  title  to  land, 
that  is  no  reason  in  itself,  why  a  court  of  equity  should  restrain 
the  defendant  from  cutting  timber  on  the  land  pending  the  suit.  It 
would  be  very  inconvenient  to  adopt  such  a  practice ;  and  in  many  cases 
it  would  work  the  grossest  injustice.  A  man  owns  or  thinks  he  owns 
1,000  acres  of  timber-land;  he  has  made  a  contract  to  deliver  at  a  cer- 
tain time  1,000,000  staves  to  be  taken  therefrom,  he  has  hired  his  men 
and  has  nine-tenths  of  the  staves  manufactured;  he  is  worth  ten  thou- 


Sec.  3)  trespass  909 

sand  dollars  over  and  above  the  value  of  the  land.  Is  it  not  unjust  to 
permit  a  man,  who  has  not  any  claim  of  title  to  the  land,  and  who  has 
instituted  an  action  of  ejectment  against  him  for  the  recovery  of  the 
land,  to  obtain  an  injunction  to  prevent  him  from  cutting  any  more 
timber  or  taking  off  the  land  the  staves  already  manufactured,  until  his 
suit  at  law  is  determined,  without  any  charge  in  the  bill,  that  the  de- 
fendant is  insolvent,  or  that  the  plaintiff  would  suffer  irreparable  dam- 
age? The  man  might  be  ruined  by  such  an  injunction,  and  the  plaintiff 
not  injured  by  its  refusal. 

We  think  the  same  allegations  must  accompany  the  bill  to  authorize 
an  injunction  to  restrain  the  cutting  of  timber  on  land,  whether  there  is 
or  is  not  an  action  at  law  pending  between  the  parties  to  try  the  title  to 
the  land. 

The  circuit  court  of  Ritchie  erred  in  refusing  to  dissolve  the  injunc- 
tion. The  order  refusing  to  dissolve  the  injunction  is  reversed  with 
costs  to  the  appellant ;  and  this  Court  proceeding  to  make  such  order  as 
the  judge  of  the  circuit  court  of  Ritchie  county  should  have  made 
upon  the  hearing  of  the  motion  to  dissolve  said  injunction  made  in 
chamber,  the  said  injunction  is  dissolved;  and  this  cause  is  remanded 
to  the  circuit  court  of  Ritchie  county  for  further  proceeding  therein  to 
be  had. 

The  other  Judges  concurred. 

Order  reversed.    Cause  remanded. 


WHEELOCK  v.  NOONAN. 

(Court  of  Appeals  of  New  York,  1SS8.     10S  N.  Y.  179,  15  N.  E.  67, 
2  Am.  St.  Rep.  405.) 

Appeal  from  general  term,  superior  court,  city  of  New  York. 

Suit  for  mandatory  injunction,  by  William  A.  Wheelock,  respond- 
ent, against  Michael  Xoonan,  appellant. 

Fixch,  J.  The  findings  of  the  trial  court  establish  that  the  defend- 
ant, who  was  a  total  stranger  to  the  plaintiff,  obtained  from  the  latter 
a  license  to  place  upon  his  unoccupied  lots,  in  the  upper  part  of  the 
city  of  New  York,  a  few  rocks  for  a  short  time,  the  indefiniteness 
of  the  period  having  been  rendered  definite  by  the  defendant's  assur- 
ance that  he  would  remove  them  in  the  spring.  Nothing  was  paid 
or  asked  for  this  permission,  and  it  was  not  a  contract  in  any  just 
sense  of  the  term,  but  merely  a  license  which  by  its  terms  expired  in 
the  next  spring.  During  the  winter,  and  in  the  absence  and  without 
the  knowledge  of  plaintiff,  the  defendant  covered  six  of  the  lots  of 
plaintiff  with  "huge  quantities  of  rock,"  some  of  them  10  or  fifteen 
feet  long,  and  piled  to  the  height  of  14  to  18  feet.  This  conduct  was 
a  clear  abuse  of  the  license,  and  in  excess  of  its  terms,  and  so  much 
so  that  if  permission  had  been  sought  upon  a  truthful  statement  of 


910  INJUNCTION    IN    RELATION   TO   TORTS  (Cll.  4: 

the  intention  it  would  undoubtedly  have  been  refused.  In  the  spring 
the  plaintiff,  discovering  the  abuse  of  his  permission,  complained  bit- 
terly of  defendant's  conduct,  and  ordered  him  to  remove  the  rocks  to 
some  other  locality.  The  defendant  promised  to  do  so,  but  did  not, 
and  in  the  face  of  repeated  demands  has  neglected  and  omitted  to 
remove  the  rocks  from  the  land.  The  court  found  as  matter  of  law 
from  these  facts  that  the  original  permission  given  did  not  justify 
what  was  done  either,  as  it  respected  the  quantity  of  rock  or  the  time 
allowed ;  that  after  the  withdrawal  of  the  permission  in  the  spring, 
and  the  demand  for  the  removal  of  the  rock,  the  defendant  was  a 
trespasser,  and  the  trespass  was  a  continuing  one  which  entitled  plain- 
tiff to  equitable  relief ;  and  awarded  judgment  requiring  defendant 
to  remove  the  rocks  before  March  15,  1886,  unless  for  good  cause 
shown  the  time  for  such  removal  should  be  extended  by  the  court. 

The  sole  question  upon  this  appeal  is  whether  the  relief  granted  was 
within  the  power  of  the  court,  and  the  contention  of  the  defendant  is 
mainly  based  upon  the  proposition  that  the  equitable  relief  was  im- 
proper since  there  was  an  adequate  remedy  at  law.  The  plaintiff 
objects  that  no  such  defense  was  pleaded.  If  it  arises  upon  the  facts 
stated  in  the  complaint,  it  can  scarcely  be  said  to  be  new  matter  re- 
quired to  be  stated  in  the  answer,  and  I  doubt  whether,  under  the 
present  system  of  pleading,  the  technical  objection  is  good.  It  is  bet- 
ter, therefore,  to  consider  the  defense  which  is  interposed.  One  who 
would  justify  under  a  license  or  permission  must  bring  his  acts  with- 
in the  terms  of  the  license.  He  exceeds  them  at  his  peril.  There  is 
no  equity  in  allowing  him  to  strain  them  beyond  their  fair  and  rea- 
sonable interpretation.  The  finding  shows  permission  asked  for  "a 
few  stone,''  described  as  "a  portion"  of  what  defendant  was  getting 
from  the  boulevard.  The  plaintiff  was  justified  in  inferring  that  for 
the  bulk  of  his  stone  the  defendant  had  a  place  of  deposit  and  only 
wanted  additional  room  for  a  small  excess, — for  a  few  stone.  Under 
this  permission  defendant  was  not  justified  in  covering  six  lots  with 
heavy  boulders  to  a  height  of  14  to  18  feet.  The  thing  done  was 
gravely  and  substantially  in  excess  of  the  thing  granted,  and  the  li- 
cense averred  does  not  cover  or  excuse  the  act.  Beyond  that  the  per- 
mission extended  only  to  the  spring  of  1880,  and  expired  at  that  date. 
The  immediate  removal  of  the  stone  was  then  demanded,  and  from 
that  moment  its  presence  upon  plaintiff's  lands  became  a  trespass,  for 
which  there  was  no  longer  license  or  permission.  Such  parol  license, 
founded  upon  no  consideration,  is  revocable  at  pleasure,  even  though 
the  licensee  may  have  expended  money  on  the  faith  of  it.  Murdock 
v.  Railroad  Co.,  73  N.  Y.  579.  And  this  was  a  continuing  trespass. 
So  long  as  it  lasted  it  incumbered  the  lots,  prevented  their  use  and  oc- 
cupation by  the  owner,  and  interfered  with  the  possibility  of  a  sale. 
It  is  now  said  that  the  remedy  was  at  law,  that  the  owner  could  have 
removed  the  stone  and  then  recovered  of  the  defendant  for  the  ex- 
pense incurred.     But  to  what  locality  could  the  owner  remove  them? 


Sec.  3)  TRESPASS  Oil 

He  could  not  put  them  in  the  street;  the  defendant  presumably  had 
no  vacant  lands  of  his  own  on  which  to  throw  the  burden ;  and  it 
would  follow  that  the  owner  would  be  obliged  to  hire  some  vacant 
lot  or  place  of  deposit,  become  responsible  for  the  rent,  and  advance 
the  cost  of  men  and  machinery  to  effect  the  removal.  If  any  adjudi- 
cation can  be  found  throwing  such  burden  upon  the  owner,  compelling 
him  to  do  in  advance  for  the  trespasser  what  the  latter  is  bound  to 
do,  I  should  very  much  doubt  its  authority.  On  the  contrary,  the 
law  is  the  other  way.  Beach  v.  Crain,  2  N.  Y.  97,  49  Am.  Dec.  369. 
And  all  the  cases  which  give  to  the  injured  party  successive  actions 
for  the  continuance  of  the  wrong  are  inconsistent  with  the  idea  that 
the  injured  party  must  once  for  all  remove  it.  Such  is  neither  an 
adequate  remedy  nor  one  which  the  plaintiff  was  bound  to  adopt. 

But  it  is  further  said  that  he  could  sue  at  law  for  the  trespass.  That 
is  undoubtedly  true.  The  case  of  Uline  v.  Railroad  Co.,  101  N.  Y. 
98,  4  N.  E.  536,  54  Am.  Rep.  661,  demonstrates  upon  abundant  au- 
thority that  in  such  action  only  the  damages  to  its  date  could  be 
recovered,  and  for  the  subsequent  continuance  of  the  trespass  new 
actions  following  on  in  succession  would  have  to  be  maintained.  But 
in  a  case  like  the  present,  would  that  be  an  adequate  remedy?  In 
each  action  the  damages  could  not  easily  be  anything  more  than  the 
fair  rental  of  the  lot.  It  is  difficult  to  see  what  other  damages  could 
be  allowed,  not  because  they  would  not  exist,  but  because  they  would 
be  quite  uncertain  in  amount  and  possibly  somewhat  speculative  in 
their  character.  The  defendant,  therefore,  might  pay  those  damages, 
and  continue  his  occupation,  and  if  there  were  no  other  adequate  reme- 
dy, defiantly  continue  such  occupation,  and  in  spite  of  his  wrong- 
make  of  himself  in  effect  a  tenant  who  could  not  be  dispossessed.  The 
wrong  in  every  such  case  is  a  continued  unlawful  occupation,  and  any 
remedy  which  does  not  or  may  not  end  it  is  not  adequate  to  redress 
the  injury  or  restore  the  injured  party  to  his  rights.  On  the  other 
hand,  such  remedy  in  a  case  like  the  present  might  result  to  the 
wrong-doer  in  something  nearly  akin  to  persecution.  He  is  liable  to 
be  sued  every  day,  die  de  diem,  for  the  renewed  damages  following 
from  the  continuance  of  the  trespass;  and  while,  ordinarily,  there 
is  no  sympathy  to  be  wasted  on  a  trespasser,  yet  such  multiplicity  of 
suits  should  be  avoided,  and  especially  under  circumstances  like  those 
before  us.  The  rocks  could  not  be  immediately  removed.  The  courts 
have  observed  that  peculiarity  of  the  case,  and  shaped  their  judgment 
to  give  time.  It  may  take  a  long  time,  and  during  the  whole  of  it 
the  defendant  would  be  liable  to  daily  actions.  For  reasons  of  this 
character  it  has  very  often  been  held  that  while,  ordinarily,  courts  of 
equity  will  not  wield  their  power  merely  to  redress  a  trespass,  yet  they 
will  interfere  under  peculiar  circumstances,  and  have  often  done  so 
where  the  trespass  was  a  continuing  one,  and  a  multiplicity  of  suits  at 
law  was  involved  in  the  legal  remedy.  The  doctrine  was  recognized 
and  the  authorities  cited  in  the  Murdock  Case,  supra,  and  the  rule 


912  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

deemed  perfectly  settled.  That  case,  and  those  referred  to,  it  is  true, 
were  cases  of  intrusion  where  no  consent  had  been  given  for  the  entry 
of  the  intruder,  but  whether  the  trespass  was  such  from  the  begin- 
ning, or  became  one  after  a  revocation  of  the  license,  can  make  no 
difference,  as  it  respects  the  adequacy  of  the  legal  remedy.  That  is 
the  same  in  either  event.  Two  cases  of  the  former  character  were 
cited  in  the  Uline  Case.  Bowyer  v.  Cook,  4  Alan.,  G.  &  S.  236 ; 
Holmes  v.  Wilson,  10  Adol.  &  E.  503.  In  one  stumps  and  stakes  had 
been  left  on  plaintiff's  land  and  in  the  other  buttresses  to  support  a 
road;  in  each  an  action  of  trespass  had  been  brought,  and  damages 
recovered  and  paid;  and  in  each,  after  a  new  notice  to  remove  the 
obstruction,  a  further  action  of  trespass  was  brought  and  sustained, — 
so  that  as  I  have  said,  the  legal  remedy  is  identical,  however  the  tres- 
pass originated. 

It  is  a  general  rule  that  a  court  of  equity  will  act  in  such  cases  only 
after  the  plaintiff's  right  has  been  established  at  law;  but  lhat  rule 
has  its  exceptions.  Railroad  Co.  v.  Railroad  Co.,  86  N.  Y.  128. 
Where  the  facts  are  in  doubt,  and  the  right  not  clear,  such,  undoubt- 
edly, would  be  a  just  basis  of  decision,  though  the  modern  system  of 
trying  equity  cases  makes  the  rule  less  important.  Where,  as  in  an 
intrusion  by  railroad  companies  whose  occupation  threatens  to  be 
continuous,  the  injury  partakes  of  that  character,  an  action  at  law  to 
establish  the  right  has  not  been  required.  Indeed,  I  am  inclined  to 
deem  it  more  a  rule  of  discretion  than  of  jurisdiction.  In  Avery  v. 
Railroad  Co.,  106  N.  Y.  142,  12  N.  E.  619,  to  which  we  have  been 
referred  since  the  argument,  we  were  disposed  to  sustain  a  mandatory 
injunction  requiring  defendant  to  remove  so  much  of  a  fence  as  ob- 
structed plaintiff's  right  of  way,  although  the  obstruction  was  not  a 
nuisance,  but  an  invasion  of  a  private  right.  In  that  case  the  equi- 
table remedy  was  not  challenged  by  either  counsel  or  the  court,  and 
evidently  stood  upon  the  grounds  here  invoked  ;  those  of  a  continu- 
ing trespass,  the  remedy  for  which  at  law  would  be  inadequate,  and 
involve  repeated  actions  by  the  injured  party  for  damages  daily  oc- 
curring. 

These  views  of  the  case  enable  us  to  support  the  judgment  rendered. 
It  should  be  affirmed,  with  costs.  All  concur,  except  RuGER,  C.  J.,  not 
voting. 


Sec.  3)  TREsrAss 


913 


DUNKER  v.  FIELD  &  TULE  CLUB. 

(District  Court  of  Appeal  of  California,  Third  District,  1907.    6  Cal.  App.  524, 

92  Pac.  502.) 

Appeal  from  Superior  Court,  Solano  County ;   L.  G.  Harrier,  Judge. 

Action  by  Chris.  Dunker  against  the  Field  &  Tule  Club.  From  a  de- 
cree in  favor  of  plaintiff,  and  from  an  order  denying  defendant's  mo- 
tion for  a  new  trial,  it  appeals. 

Chtpman,  P.  J.31  Action  to  restrain  defendant  from  trespassing 
upon  certain  land.  Plaintiff  had  judgment,  from  which,  and  from 
the  order  denying  its  motion  for  a  new  trial,  defendant  appeals. 

The  complaint  avers :  That  on  and  prior  to  February  2,  1903,  one 
McMaster  was  the  owner  of  the  land  in  question,  and  on  said  day 
plaintiff  and  McMaster  entered  into  a  lease,  whereby  the  latter  leased 
said  land  to  plaintiff  for  the  term  of  five  years  from  November  1, 
1904,  "for  hunting  purposes  only"  ;  that  plaintiff  entered  into  posses- 
sion of  said  land  on  November  1,  1904,  and  still  is  in  possession,  "and 
has,  under  said  lease,  the  right  of  possession  of  same" ;  that  on  April 
4,  1903,  McMaster  conveyed  the  land  to  one  Goosen,  subject  to  and 
with  notice  of  said  lease,  and  on  that  day  McMaster  assigned  to  Goosen 
"all  his  rights  and  privileges  under  said  lease" ;  that  during  the  term 
of  said  lease  defendant,  "its  servants,  agents,  and  employes,  at  various 
times  and  on  numerous  occasions  have  interfered  with  plaintiff's  quiet 
and  peaceable  possession  and  enjoyment  of  said  leased  land,  and  has 
attempted  and  threatens  to  further  interfere  with  plaintiff's  quiet  and 
peaceable  possession  and  enjoyment  of  said  property" ;  that,  during 
the  term  of  said  lease,  defendant,  its  servants,  employes,  and  agents, 
have  without  plaintiff's  consent  entered  upon  said  premises  for  the  pur- 
pose of  hunting  and  shooting  thereon,  and  have  wrongfully  hunted 
and  shot  large  numbers  of  wild  geese  and  wild  ducks  on  said  premises 
and  threaten  to  continue  so  to  do,  thus  interfering  with  plaintiff's  use 
for  the  purposes  for  which  he  leased  said  premises ;  that,  if  plaintiff 
is  permitted  to  carry  out  its  said  threats,  it  "will  render  the  said  prem- 
ises valueless  to  this  plaintiff  as  a  hunting  and  shooting  ground  and 
preserve,  and  cause  great  and  irreparable  damage  to  this  plaintiff." 
Damages  are  alleged  in  the  sum  of  $1,000. 

Defendant  denies  most  of  the  material  averments  of  the  complaint, 
and  alleges  that  at  all  times  mentioned  in  the  complaint  "defendant 
has  been  in  the  occupation,  possession,  and  enjoyment  of  the  premises 
under  a  lease  from  the  owner  thereof,  and  that  the  plaintiff  has  never 
at  any  time  been  in  the  quiet  or  peaceable  possession  or  enjoyment  of 
said  leased  premises,  but  has  attempted  at  various  times  and  on  va- 
rious occasions  to  interfere  with  the  quiet  or  peaceable  possession  and 
enjoyment  of  defendant."     *     *     * 

3i  Parts  of  the  opinion  are  omitted. 
Boke  Eq. — 58 


914  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

It  seems  to  us  that  the  only  question  in  the  present  case  not  dis- 
posed of  by  Kellogg  v.  King,  is  the  one  principally  urged,  namely,  that 
injunction  will  not  lie  to  enjoin  the  commission  of  a  trespass  when 
plaintiff  is  not  in  actual  possession  and  the  defendant  is  in  possession. 
To  this  proposition  defendant  cites  Felton  v.  Justice,  51  Cal.  529, 
claiming  further  that  courts  never  enjoin  a  defendant  in  possession 
from  mere  use  of  the  premises,  citing  5  Pomeroy's  Equity  Jurispru- 
dence, §§  504,  507.  In  discussing  the  question  it  must  be  borne  in 
mind  that  in  Kellogg  v.  King  [114  Cal.  378,  46  Pac.  166,  55  Am.  St. 
Rep.  74]  the  court  held  that  "the  property  right  which  is  here  the  sub- 
ject of  inquiry  is  of  a  peculiar  and  exceptional  character,"  and  that 
"the  sole  value  of  the  invaded  premises  to  the  plaintiff  is  as  a  game 
preserve,  by  reason  of  its  feature  as  a  resort  for  wild  game,"  which 
by  the  acts  of  defendant  "is  being  taken  from  it,  and  its  value  largely, 
if  not  wholly,  destroyed."  And  the  court  further  held  that  this  show- 
ing "makes  out  a  case  of  irreparable  damage  from  the  destruction  of 
the  very  substance  of  the  property  right  which  plaintiff  holds  under 
the  lease."  We  have  before  us  the  case  of  an  injury,  amounting  to  the 
destruction  of  the  very  substance  of  the  property  right  under  circum- 
stances which,  in  the  opinion  of  the  court  in  the  Kellogg  Case,  make 
out  a  case  of  irreparable  damage.  The  question,  then,  is  not  whether 
the  rule  in  ordinary  cases  applies,  but  whether  the  rule  in  this  par- 
ticular kind  of  a  case  is  as  claimed  by  defendant. 

Mr.  Pomeroy,  with  his  usual  clearness,  in  his  Equity  Jurisprudence 
(volume  5,  c.  23,  §§  493-511),  shows  how  and  when  the  English  chan- 
cellors broke  through  the  ancient  rule  that  chancery  refused  to  inter- 
fere and  restrain  any  trespasser.  He  divides  into  four  classes  the 
many  cases  in  which  trespassers  to  realty  are  enjoined,  where:  (1) 
The  legal  remedy  is  inadequate  because  the  injury  is  irreparable  in 
its  nature.  (2)  The  legal  remedy  is  inadequate  because  the  trespass 
is  continuous,  or  because  repeated  acts  of  wrong  are  done  or  threat- 
ened, although  each  of  these  acts,  taken  by  itself,  is  not  destructive. 
(3)  Insolvency  of  the  defendant.  (4)  The  legal  remedy  is  inadequate 
in  a  miscellaneous  class  of  cases  because  the  courts  for  one  reason  or 
another  cannot  give  any  or,  at  best,  not  accurately  estimated  or  suffi- 
cient damages,  though  damages  would  be  a  perfectly  adequate  kind 
of  remedy.  The  essential  features,  marking  an  injury  as  irreparable 
are:  (1)  That  the  injury  is  an  act  which  is  a  serious  change  of,  or  is 
destructive  to,  the  property  it  affects,  either  physically  or  in  the  char- 
acter in  which  it  has  been  held  and  enjoyed.  (2)  That  the  property 
must  have  some  peculiar  quality  or  use  such  that  its  pecuniary  value, 
as  estimated  by  a  jury,  will  not  fairly  recompense  the  owner  for  the 
loss  of  it.    Id.  §  495. 

In  Kellogg  v.  King  these  essential  features  were  found  to  exist,  and 
they  exist  in  the  present  case.  The  jurisdiction  of  equity  to  restrain 
continuous  or  repeated  trespasses  rests  Upon  the  ground  of  a  repeti- 
tion of   similar  actions,  and  this  class  of  cases  is  comprehended  in 


Sec.  3)  trespass  915 

the  broader  jurisdiction  of  equity  to  prevent  multiplicity  of  suits.  This 
was  one  of  the  distinct  grounds  upon  which  the  decision  in  Kellogg 
v.  King  was  placed.  Among  the  nonclassified  cases  is  Watson  v. 
Sutherland,  5  Wall.  74,  18  L.  Ed.  580,  where  the  court  gave  the  follow- 
ing criterion  of  jurisdiction: 

"It  is  not  enough  that  there  is  a  remedy  at  law;  it  must  be  plain  and  ade- 
quate, or,  in  otlier  winds,  as  practical  and  efficient  to  the  ends  of  justice,  and 
its  prompt  administration,  as  the  remedy  in  equity." 

We  come,  then,  to  the  specific  question  of  a  defendant,  an  admitted 
trespasser,  in  possession  without  right,  with  knowledge  of  plaintiff's 
right,  and  acting  in  defiance  of  it.  *  *  *  Trespassing  sportsmen 
have,  in  a  number  of  instances,  felt  the  restraining  hand  of  a  court 
of  equity.  In  Lamprey  v.  Danz,  86  Minn.  317,  90  N.  W.  578,  plaintiff 
was  the  owner  of  certain  swamp  land,  the  chief  value  of  which  was 
the  shooting  opportunities  it  offered.  Defendant  and  his  friends  were 
in  the  habit  of  shooting  on  this  land  from  a  place  of  concealment  on 
defendant's  land,  thus  interfering  with  the  feeding,  roosting,  and 
breeding  of  ducks  and  impaired  the  value  of  plaintiff's  land.  The 
court  enjoined  defendant  from  continuing  this  conduct.  In  Simpson 
v.  Moorhead,  65  N.  J.  Eq.  623,  56  Atl.  887,  where  the  defendant  in- 
truded upon  plaintiff's  tide  land,  it  was  held  that  the  injury  suffered  by 
the  owner,  in  lessening  the  quantity  of  game,  increasing  the  danger 
of  accidental  shooting,  and  interfering  with  his  exclusive  shooting 
rights,  is  not  adequately  remediable  in  damages.  To  like  effect  is 
Lembeck  v.  Nye,  47  Ohio  St.  336,  24  N.  E.  686,  8  L.  R.  A.  578,  21 
Am.  St.  Rep.  828.     We  quote  from  the  syllabi : 

"Equity  may  he  at  once  resorted  to  for  appropriate  relief,  where  numerous 
acts  of  trespass  are  being  committed,  and  their  continuance  threatened  under 
claim  of  right,  and  when  the  injury  arising  from  each  act  is  trifling,  and  the 
damages  recoverable  therefor  inadequate  as  compared  with  the  expense  neces- 
sary to  prosecute  separate  actions  at  law," 

See  extended  note,  upon  the  subject  of  injunction  against  trespass 
on  realty,  reported  in  Moore  v.  Halliday,  99  Am.  St.  Rep.  724  (43 
Or.  243,  72  Pac.  801).  See,  also,  valuable  note  to  the  leading  case  of 
Jerome  v.  Ross,  7  Johns.  Ch.  (X.  Y.)  315,  reported  in  11  Am.  Dec.  484. 

We  invite  attention,  also,  to  Fabian  v.  Collins,  3  Mont.  215,  where 
Felton  v.  Justice,  supra,  and  Raffetto  v.  Fiori,  50  Cal.  363,  on  which 
the  former  rests,  relied  upon  by  appellant,  are  dealt  with.  Suffice  for 
us  to  say  that  the  principle  announced  in  these  cases  has  no  application 
to,  nor  should  it  control,  the  case  we  have  here.  Impotent,  indeed, 
would  be  the  most  valuable  arm  of  the  law  if  equity  could  in  no  case, 
however  flagrant,  be  invoked  against  a  trespasser,  in  aid  of  the  owner 
or  one  entitled  to  the  possession,  to  protect  his  estate  from  destruction, 
simply  because  he  happens  to  be  out  of  actual  possession.  It  ought 
not  to  be,  and  we  think  it  is  not  the  rule. 

The  judgment  and  order  are  affirmed. 

We  concur :   Hart,  J. ;  Burnett,  J. 


916  INJUNCTION    IN   RELATION   TO   TOUTS  (Ch.  4 

STOCKER  v.  PLANET  BLDG.  SOCIETY. 

(Court  of  Appeal,  1879.     27  Wkly.  Rep.  ST7.) 

The  plaintiff  was  tenant  to  the  defendant  society  of  certain  houses 
under  a  lease  containing  usual  covenants  to  repair,  with  a  power  of 
re-entry  on  breach,  but  with  no  power  for  the  lessor  to  do  repairs  on 
the  tenant's  default. 

The  tenant  neglecting  to  repair  after  notice  from  the  lessors,  the 
society  obtained  leave  of  the  weekly  tenants,  to  whom  some  of  the 
houses  were  sub-let,  and  began  to  repair,  giving  notice  to  the  lessee 
that  they  intended  to  charge  him  with  the  cost.  The  lessee  thereupon 
issued  the  writ  in  this  action  to  restrain  the  society. 

The  society  themselves  held  from  a  superior  landlord,  and  under 
their  lease  were  liable  to  forfeiture  for  non-repair. 

Jessel,  M.  R.,  granted  an  ex  parte  injunction,  and  on  motion  contin- 
ued it. 

The  society  appealed. 

James,  L.  J.  I  am  of  opinion  that  the  order  of  the  Master  of  the 
Rolls  must  be  affirmed.  The  real  question  is  upon  the  claim  raised  by 
the  society.  Where  a  reversioner  has  granted  a  lease  with  no  power 
of  re-entry  reserved  on  breach  of  a  covenant  to  repair,  can.  he  give 
himself  the  right  to  enter  and  do  the  repairs?  It  is  a  plain  invasion 
of  the  rights  of  property.  He  has  no  more  right  than  any  stranger 
has.  There  is  no  excuse  in  point  of  law  for  what  has  been  done.  As 
a  matter  of  law,  according  to  the  present  legal  rights  in  this  country, 
there  is  no  right  in  a  reversioner  to  go  in  and  do  necessary  repairs. 
As  to  the  other  point,  the  Master  of  the  Rolls  was  of  opinion  that  the 
case  was  one  where  the  Judicature  Act,  following  the  Common  Law 
Procedure  Act,  1854,  gave  power  to  the  court  to  grant  an  injunction. 
It  is  hardly  necessary  to  consider  that  question.  The  jurisdiction  is 
indisputable.  It  is  quite  clear  that  under  the  old  law  the  Court  of 
Chancery  could  have  granted  an  injunction.  Then  it  is  said  that  the 
balance  of  convenience  at  all  events  was  against  the  exercise  of  the 
jurisdiction.  Balance  of  convenience  has  nothing  to  do  with  a  case 
of  this  kind ;  it  can  only  be  considered  where  there  is  some  question 
which  must  be  decided  at  the  hearing.  Here  the  defendants  say,  "Al- 
low us  to  commit  a  trespass."  I  think  the  injunction  is  quite  right. 
The  right  claimed,  if  it  existed,  would  apply  to  all  the  property,  a 
large  number  of  houses.  I  may  add  that  I  was  not  particularly  struck 
with  the  catalogue  of  dilapidations.  They  were  trifling  things  to 
which,  in  a  trial  at  nisi  prius,  a  jury  would  not  pay  much  attention. 

BRETT,  L.  J.  I  am  of  the  same  opinion.  I  think  this  is  one  of  the 
clearest  cases  I  ever  heard.  There  was  a  wrongful  act  for  which  an 
action  of  trespass  would  lie.  Lord  Justice  James  says  it  is  a  case 
where  the  Court  of  Chancery  would  have  granted  an  injunction.    But 


Sec.  3)  TRESPASS 


917 


suppose  not.  Suppose  it  had  said  there  was  a  sufficient  remedy  at 
law.  The  Common  Law  Procedure  Act,  1854,  gave  power  to  the  courts 
of  common  law  to  grant  injunctions  in  such  cases,  and  therefore  there 
would  have  been  still  less  reason  for  the  Court  of  Chancery  to  inter- 
fere, because  the  courts  of  common  law  had  such  ample  power.  The 
Master  of  the  Rolls,  therefore,  had  power  to  grant  the  injunction 
both  under  the  Common  Law  Procedure  Act,  1854,  and  under  the 
Judicature  Act. 

Cotton,  L.  J.  If  there  was  a  mere  act  of  trespass,  there  could  be 
no  question.  But  there  is  this  claim  to  a  qualified  right  of  entry,  and 
the  defendants  say  there  ought  not  to  be  an  injunction  because  this 
right  must  be  decided  at  the  hearing.  In  reality  it  is  an  attempt  to  add 
a  clause  to  the  lease,  and  there  is  no  justification  for  the  defendants' 
act,  and  no  question  of  balance  of  convenience. 

Appeal  dismissed,  with  costs. 


STARR  v.  WOODBURY  GLASS  WORKS. 

(Court  of  Chancery  of  New  Jersey,  1901.     48  Atl.  911.) 

Grey,  V.  C.  (orally).  The  complainant  owns  and  is  in  possession  of 
a  piece  of  meadow  and  pasture  land  in  Woodbury  adjoining  the  prop- 
erty where  the  defendant  has  located  its  glass  works,  in  which  it  uses 
large  quantities  of  crude  kerosene  oil.  All  the  affidavits  show  that  the 
waste  from  the  use  of  this  oil  was  by  the  defendant  permitted  to 
flow  over  and  upon  the  complainant's  lands.  That  the  presence  of 
such  material  upon  a  meadow  is  destructively  injurious,  fouling  the 
waters,  and  ruining  the  vegetation,  goes  without  saying,  but  is  also 
proven  without  denial.  The  affidavits  annexed  to  the  bill  of  com- 
plaint, together  with  the  contents  of  a  bottle  containing  a  sample  of 
the  water  on  complainant's  lands,  offered  as  an  exhibit,  show  the 
condition  of  his  premises  immediately  before  the  filing  of  the  bill 
in  this  cause.  These  exhibit  a  foulness  which  is  wholly  impossible  in 
nature,  rendering  the  flowing  water  worse  than  useless  for  any  pur- 
pose. This  condition  is  shown  by  the  defendant's  letters  of  explana- 
tion and  denial,  and  substantially  by  the  affidavits  it  offers  to  be  at- 
tributable to  the  overflow  of  waste  oil  and  oil  water  from  defendant's 
premises  over  to  and  upon  the  complainant's  lands. 

The  defendant's  affidavits  do  not  deny  that  the  waste  oil  thus  came 
over  upon  complainant's  lands,  nor  that  it  fouled  the  waters  there  flow- 
ing. The  defendant  practically  admits  that  it  has  done  the  injury 
complained  of,  but  it  declares  that  it  has  so  arranged  its  use  of  the  oil 
that  since  July,  1900,  there  has  been  no  overflow  of  oil  waste.  It  does 
not  seem  to  be  possible  that  an  oil  so  volatile  and  difficult  to  retain  as 
kerosene  could  be  found,  just  before  the  filing  of  the  bill,  deposited 


918  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 

in  such  great  quantity,  when  there  had  been  no  overflow  for  more 
than  eight  months.  In  such  a  period  the  previous  deposit  lying  open 
to  the  weather  and  on  the  surface  of  the  earth,  would  either  have 
evaporated  or  percolated  out  of  sight. 

The  proof  is  that  it  is  presently  on  complainant's  lands  in  considera- 
ble quantities,  and  that  the  overflow  has  continued  up  to  the  filing  of 
the  bill,  and  that  it  could  come  from  no  other  source.  The  weight  of 
the  evidence  supports  this  view.  The  injury  to  the  complainant  is 
irreparable,  not  in  the  sense  that  no  amount  of  money  could  compen- 
sate him  for  it,  but  as  a  deprivation  of  the  enjoyment  of  his  property 
for  which  no  adequate  satisfaction  can  be  given.  It  is  a  continuing 
injury  to  his  property  right.  He  cannot  use  his  meadow  for  pasture, 
he  cannot  cultivate  his  lands,  his  stock  cannot  be  watered  in  the  ditch 
or  stream.  For  such  inconvenience,  vexation,  and  deprivation  no  dam- 
ages that  could  be  recovered  would  afford  any  adequate  satisfaction. 

There  is  the  less  reason  to  hesitate  to  allow  an  injunction  in  this 
case  because  there  is  no  denial  by  the  defendant  that  the  waste  ma- 
terial has  flowed  from  the  defendant's  lands  upon  the  complainant's 
premises,  nor  is  there  any  claim  of  any  right  to  maintain  such  an  over- 
flow. The  denial  is  limited  to  the  claim  that  the  defendant  has  now 
so  fixed  its  works  and  the  use  of  the  oil  that  the  injury  does  not  con- 
tinue. This  claim  is  not  sustained,  but,  if  it  be  true,  the  injunction 
cannot  harm  the  defendant,  as  it  will  only  prohibit  the  permittance  of 
future  foul  overflows,  and  this  the  defendant  contends  it  has  already 
arranged;  whereas,  if  it  be  false,  and  no  writ  is  allowed,  the  admitted 
injury  to  the  complainant's  premises  will  continue. 

I  will  advise  the  allowance  of  an  injunction. 


PRESTON  v.  PRESTON  et  al. 
(Court  of  Appeals  of  Kentucky,  1887.    So  Ky.  10,  2  S.  W.  501.) 

Appeal  from  circuit  court,  Johnson  county. 

Lewis,  J.32  Appellant  brought  this  action  in  equity,  and  in  his  peti- 
tion states  that  he  and  those  under  whom  he  claims  have  been  in  the 
actual  adverse  possession  of  a  tract  of  land  over  40  years,  which,  pre- 
vious to  the  acts  of  appellees  complained  of,  was  entered,  surveyed, 
and  patented;  that  recently  appellee  Preston,  without  his  knowl- 
edge, made  an  entry  of acres  within  his  boundary  and  inclosure, 

and  he  and  appellee  Fields,  who  is  county  surveyor,  and,  as  is  averred, 
knows  the  land  described  in  the  entry  is  not  vacant  and  unappropri- 
ated, have  fraudulently  colluded,  both  being  insolvent,  to  get  the  title 
and  possession  of  appellant's  land,  and,  against  his  objection,  have 
gone  inside  his  inclosure,  and  surveyed  the  land  described  in  the  entry 

32  Tart  of  the  opinion  is  omitted. 


Sec.  3)  trespass  919 

by  removing  old  and  making  new  lines  and  corners  inside  his  bound- 
ary, and  will,  unless  enjoined,  proceed  to  carry  said  survey  into  grant. 
He  says  that  appellee  Preston  is  setting  up  claim  to  his  land,  and  by  his 
acts  has  disturbed  him  in  the  use  and  enjoyment  of  it,  lessened  its 
vendible  value,  and  cast  a  cloud  upon  his  title.  He  therefore  prays 
the  judgment  of  the  court  enjoining  appellees  entering  on  or  surveying 
land  inside  his  boundary,  or  depositing  the  plat  and  certificate  of  such 
survey  in  the  register's  office  for  the  purpose  of  carrying  it  into  grant, 
and  that  he  be  quieted  in  the  title  and  possession  of  his  land.  To  the 
petition  both  a  general  demurrer  and  a  demurrer  to  the  jurisdiction  of 
the  court  were  filed.  By  the  judgment  the  demurrer  to  the  petition 
was  sustained,  but  whether  because  the  petition  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action,  or  upon  the  ground  set  out  in 
the  special  demurrer,  that  the  remedy  is  by  a  caveat  filed  in  the  regis- 
ter's office,  does  not  appear. 

It  seems  to  us  that  not  only  do  the  'facts  stated,  which  must  be  taken 
as  true,  constitute  a  cause  of  action,  but  make  this  a  case  clearly  within 
the  jurisdiction  of  a  court  of  chancery,  and  that  the  remedy  sought 
cannot  be  amply  afforded  elsewhere.  To  enter  upon  land  forcibly  and 
against  the  consent  of  the  person  having  the  title  and  actual  posses- 
sion, and  deface  his  landmarks,  or  make  new  ones,  is  as  much  a  tres- 
pass as  to  cut  and  carry  away  his  timber.  This  court  has  more  than 
once  held — the  latest  case  being  Hillman  v.  Hurley,  82  Ky.  626,  6  Ky. 
Law  Rep.  682 — that  an  injunction  will  lie  to  restrain  a  defendant 
from  continuing  to  trespass  on  land,  by  cutting  and  carrying  away 
timber,  when  the  plaintiff  is  the  owner  and  in  the  actual  possession, 
and  the  defendant  is  insolvent,  or  other  circumstances  exist  whereby 
complete  remedy  cannot  be  had  in  an  action  at  law.  There  is  equal 
reason  for  restraining  the  commission  of  trespass  by  marking  lines  and 
corners  upon  land  already  appropriated,  whereby  a  confusion  of  the 
boundary  may  be  produced ;  and,  if  such  survey  has  already  been 
made,  a  court  of  equity  certainly  has  jurisdiction  to  enjoin  the  sur- 
veyor from  making  out  and  recording  a  plat  and  certificate,  and  the 
defendant  from  depositing  a  copy  thereof  in  the  register's  office  with 
a  view  to  carry  the  survey  into  grant ;  for  not  only  do  such  acts  dis- 
turb the  owner  in  the  possession  of  his  land,  but  they  cast  a  cloud 
upon  the  title,  and  consequently  lessen  the  vendible  value.     *     *     * 

In  our  opinion,  the  court  had  jurisdiction  of  this  case,  and  upon  the 
facts  stated  in  the  petition  he  is  entitled  to  the  relief  asked,  and  the 
court  erred  in  sustaining  the  demurrer.  Wherefore  the  judgment  is 
reversed,  and  cause  remanded  for  further  proceedings  consistent  with 
this  opinion. 


1)20  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 


BOSTON  &  M.  R.  R.  v.  SULLIVAN  et  al. 

(Supreme  Judicial  Court  of  Massachusetts,  190O.     177  Mass.  230,  5S  N.  E.  G89, 

83  Am.  St.  Rep.  275.) 

Report  from  Supreme  Judicial  Court,  Essex  County. 

Plaintiff,  the  Boston  &  Maine  Railroad,  was  the  owner  in  fee  of 
premises  used  for  its  passenger  station  and  depot  grounds,  and  for  a 
long  time  had  permitted  defendants,  who  were  hackmen  and  baggage- 
men, to  enter  such  grounds  for  the  purpose  of  soliciting  passenger  and 
baggage  business.  Plaintiff  having  sold  the  exclusive  privilege  of 
soliciting  passengers  and  baggage  on  its  premises  to  another,  notified 
defendants  of  such  fact,  and  that  they  would  not  thereafter  be  per- 
mitted to  solicit  passengers  and  baggage  on  the  company's  premises. 
Defendants  ignored  such  notice  and  continued  to  enter  the  station  to 
solicit  passengers  and  baggage,  whereupon  plaintiff  brought  this  bill 
against  defendants  Michael  Sullivan  and  others  to  restrain  them  from 
further  trespassing  on  its  property  and  soliciting  business.  On  de- 
murrer to  the  bill.  Case  reported  to  the  supreme  judicial  court  for 
determination. 

Lathrop,  J.33  *  *  *  It  seems  to  us  clear  that  the  bill  in  this 
case  may  be  maintained.  If  the  plaintiff  were  to  sue  at  law,  the  amount 
recoverable  could  not  be  large,  in  comparison  with  the  amount  ex- 
pended in  litigation,  and  every  trespass  would  give  a  new  right  of 
action.  Hence  there  would  arise  a  great  multiplicity  of  suits.  At 
some  time  the  plaintiff  would  be  entitled  to  the  protection  of  a  court 
of  equity,  and  there  is  no  reason  why.  on  the  facts  of  this  case,  the 
remedy  by  injunction  should  not  be  granted  at  once.     * 

The  demurrer  should  be  overruled,  and  an  injunction  issued.  So 
ordered. 


CHAPMAN  et  al.  v.  TOY  LONG  et  al. 

(Circuit  Court  of  the  United  States.  D.  Oregou,  187G.  4  Sawy.  2S, 
Fed.  Cas.  No.  2,610.) 

Deady,  District  Judge.34  The  complainants,  Matthias  Chapman, 
Aaron  B.  Klise,  James  Herd,  Lorenzo  A.  Sturgis,  and  John  M.  Chap- 
man, allege  in  their  amended  complaint  that  they  are  citizens  of  the 
United  States,  and  that  Toy  Long  and  his  four  codefendants  are  "yel- 
low alien  Chinamen,  who  have  not  declared  their  intention  to  become 
citizens  of  the  United  States";  that  on  February  21,  1875,  the  miners 
of  Poorman  and  Jackass  creeks  district,  situate  in  Jackson  county,  state 
of  Oregon,  duly  established'  rules  and  regulations  for  the  mines  in  said 
district,  by  which  a  "claim   was   declared   to  be  one   hundred  yards 

33  Parts  of  the  opinion  are  omitted. 
3*  Parts  of  the  opinion  are  omitted. 


Sec.  3)  TREsrAss  921 

square,"  and  every  citizen  of  the  United  States  allowed  to  hold  one 
creek  and  one  bank  claim  by  location ;  that  said  rules  and  regulations 
were  duly  recorded  in  said  county  on  February  24,  1876 ;  that  on 
February  28,  1876,  the  complainants,  acting  under  said  rules  and  regu- 
lations, and  the  act  of  congress  of  May  10,  1872  [17  Stat.  91],  "to 
promote  the  development  of  the  mining  resources  of  the  United  States," 
duly  located  and  caused  to  be  surveyed  by  the  proper  United  States 
surveyor,  certain  mineral  lands  particularly  described  by  metes  and 
bounds  on  said  Poorman  creek ;  *  *  *  that  the  defendants,  on 
said  February  28,  and  divers  times  between  that  time  and  the  com- 
mencement of  this  suit — May  1,  1876 — trespassed  upon  said  premises 
by  mining  thereon  and  carrying  away  the  gold  from  the  same  under  a 
claim  of  right  to  do  so,  to  the  depreciation  of  the  value  of  said  prem- 
ises ;  that  the  defendants  are  prohibited,  by  the  act  of  congress  and 
the  mining  regulations  aforesaid,  from  mining  said  lands ;  that  they 
are  insolvent  and  of  "bad  reputation  for  truth  and  veracity" ;  that  the 
complainants  have  no  means  of  proving  the  amount  of  gold  taken  from 
the  premises  "by  these  untruthful  defendants"  except  their  own  testi- 
mony, and  that  said  defendants,  unless  restrained  by  the  order  of  this 
court,  will  do  irreparable  damage  to  the  premises.  The  complainants 
therefore  pray  for  an  account,  the  appointment  of  a  receiver,  a  decree 
that  the  pretended  claim  of  the  defendants  is  illegal  and  void,  and  that 
they  be  perpetually  enjoined  from  trespassing  upon  said  premises.  On 
June  6  amotion  for  a  provisional  injunction  was  argued  and  submitted 
by  counsel,  upon  the  complaint.     *     *     * 

The  complaint  describes  the  premises  by  metes  and  bounds,  show- 
ing them  to  be  in  form  a  parallelogram  of  about  one  hundred  and 
ninety-eight  yards  in  width  and  four  hundred  and  forty  yards  in  length, 
and  lying  on  the  right  or  west  bank  of  Poorman  creek.  But  it  contains 
no  allegation,  as  it  should,  concerning  the  character  of  the  claims  in- 
closed within  these  limits,  as  to  whether  they  are  all  creek  or  bank 
claims,  or  of  both  kinds,  and  if  so,  in  what  proportion.  Neither  does 
it  appear  that  the  plaintiffs  are  in  the  actual  possession  of  the  premises, 
but  rather  the  contrary.  Their  rights  then  are  merely  such  as  result 
from  having  located  the  premises  as  mineral  lands,  under  the  mining 
laws  and  regulations,  and  that,  too,  over  the  heads  of  others  already  in 
the  actual  occupation  of  them.  When  parties,  under  such  circum- 
stances, seek  the  aid  of  a  court  of  equity — even  if  the  alleged  trespass- 
ers are  Chinamen  and  not  expressly  authorized  to  occupy  or  enter  min- 
ing lands — they  must  bring  themselves  within  the  law  authorizing  the 
location  and  show  a  substantial  compliance  with  its  terms.     *     *     * 

The  complainants  being  each  entitled  to  locate  a  creek  and  bank 
claim,  together  they  might  have  included  a  tract  on  the  creek  two 
hundred  yards  wide  and  five  hundred  yards  long.  As  it  is,  they  have 
only  taken  about  ninety-seven  thousand  yards,  or  nine  and  one-half 
claims,  instead  of  the  one  hundred  thousand  yards,  or  ten  claims,  which 
the  law  in  its  wisdom  allowed  them. 


922  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

For  this  act  of  self-denial  "the  heathen  Chinee,"  who  appear  to  have 
no  rights  on  Poorman  creek  that  a  miner  is  bound  to  respect,  and  who 
had  probably  bought  this  ground  and  long  worked  it  as  their  own,  are 
doubtless  duly  thankful.     *     *     * 

It  is  also  insisted  that  the  complainants  must  first  obtain  possession 
of  the  premises  by  an  action  at  law  before  a  court  of  equity  will  inter- 
fere to  restrain  the  defendants  from  committing  the  threatened  tres- 
passes. The  remedy  by  injunction  was  once  confined  to  waste,  or  cases 
of  trespass  between  parties  who  were  privies  in  title,  such  as  landlord 
and  tenant,  mortgagor  and  mortgagee,  tenant  of  the  particular  estate 
and  remainder  man,  and  in  those  cases  the  complainant  was  of  course 
not  in  possession.  But  the  distinction  between  the  trespass  technically 
called  waste,  and  the  ordinary  trespass  between  parties  who  are  stran- 
gers or  claiming  adversely  to  one  another,  has  been  gradually  disre- 
garded by  courts  of  equity,  until  it  cannot  now  be  said  to  exist.  YVhere- 
ever  a  trespass  is  attended  with  irreparable  mischief  or  a  multiplicity 
of  suits  or  vexatious  litigation,  the  remedy  by  injunction  will  be  ap- 
plied the  same  as  if  it  were  technical  waste.  Story,  Eq.  Jur.  §§  918, 
928;  Adams'  Eq.  109.  An  injunction  is  now  allowed  in  all  cases  of 
trespass  upon  mines,  upon  the  ground  that  the  acts  complained  of  are, 
or  may  be,  an  irreparable  damage  to  this  particular  species  of  property. 
Id.  §  918;  Livingston  v.  Livingston,  6  Johns.  Ch.  (N.  Y.)  499,  10  Am. 
Dec.  353 ;  Mining  Co.  v.  Fremont,  7  Cal.  320,  68  Am.  Dec.  262.  And 
this  doctrine  is  particularly  applicable  to  the  case  of  a  continued  tres- 
pass upon  a  placer  gold  mine — the  value  of  which  consists  wholly  of 
auriferous  deposits,  that  may  be  worked  out  and  removed  without 
leaving  any  evidence  of  their  quantity  or  value  upon  which  to  base  an 
estimate  or  account,  as  in  the  case  of  coal,  stone,  and  other  minerals 
not  precious.  If,  then,  the  complainants,  by  their  location,  have  acquir- 
ed a  right  to  possess  the  premises  and  appropriate  the  minerals  con- 
tained therein,  the  defendants  can  have  no  such  right,  and  the  exercise 
of  it  by  them  is  an  irreparable  injury  to  the  interest  of  the  complain- 
ants, and  the  latter  are  entitled  to  the  injunction  asked  for.  Prior  to 
the  passage  of  the  acts  aforesaid  concerning  the  mineral  lands,  strictly 
speaking,  all  persons  who  occupied  them  for  the  purpose  of  mining, 
were  naked  trespassers,  at  least  as  against  the  United  States.     *     *     * 

Assuming  that  it  does  not,  I  am  constrained  to  hold  that  the  com- 
plainants, by  their  location,  have,  for  the  time  being,  become  entitled  to 
possession  of  the  premises,  and  the  right  to  appropriate  the  minerals 
therein  to  their  own  use ;  and  that,  therefore,  the  defendants,  although 
in  the  peaceable  possession  of  the  claims  when  located  by  the  complain- 
ants, are  now  in  law  trespassers  upon  the  legal  rights  of  the  latter.  Let 
an  injunction  issue  commanding  defendants  to  desist  from  working 
the  premises  until  the  further  order  of  this  court. 


Sec.  3)  trespass  923 

HALL  v.  ROOD. 

(Supreme  Court  of  Michigan,  1ST9.    40  Mich.  46,  29  Am.  Rep.  52S.) 

Marston,  J.  Complainants  and  defendant  are  the  owners  in  sev- 
eralty of  certain  adjoining  property  in  the  village  of  Kalamazoo,  upon 
which  buildings  have  been  erected,  and  in  the  rear  of  which  there  is, 
and  has  been  since  1848,  a  private  alley  twenty  feet  wide. 

More  than  twenty  years  previous  to  the  time  the  bill  was  filed  in  this 
cause,  a  wooden  building  was  erected  between  the  rear  of  defendant's 
building  and  this  private  way,  which  it  is  conceded  encroached  upon 
the  alley  some  six  inches. 

In  1878  defendant  desired  to  make  some  improvements  upon  this 
wooden  building.  He  tore  off  the  siding,  and  commenced  the  erection 
of  a  stone  foundation  thereunder,  with  the  design  of  veneering  the 
building  with  brick  and  building  a  stairway  in  the  alley  to  the  second 
story  thereof.  Complainants  objected  to  the  construction  of  the  stair- 
way which  would  have  extended  into  the  alley  some  four  feet,  and  also 
objected  to  any  encroachment  whatever.  The  defendant  desisted  from 
building  the  stairway,  but  proceeded  to  veneer  the  wooden  building 
with  a  four-inch  wall,  which  would  be  an  encroachment- of  three  inches 
into  the  alley  farther  than  the  wooden  building  was  before  the  siding 
thereon  was  taken  off. 

Complainants  thereupon  filed  their  bill  and  obtained  an  injunction 
restraining  defendant  from  completing  the  brick  wall,  then  nearly 
finished.  An  answer  was  filed,  proofs  taken,  and  on  the  hearing  a 
decree  was  granted,  making  the  injunction  perpetual,  and  commanding 
defendant  to  ''remove  the  brick  wall,  foundation  and  roof  covering  the 
same,  and  every  part  and  parcel  thereof,  which  is  situate  and  being  on 
the  private  alley  aforesaid."  After  the  injunction  was  served,  work 
upon  the  brick  wall  was  discontinued,  and  between  it  and  the  roof  the 
building  was  boarded  up  for  protection  against  storms,  and  the  roof 
put  on,  but  which  did  not  progress  farther  than  sufficient  to  cover  the 
brick  wall  when  completed. 

It  might  admit  of  some  question  whether  the  decree  was  not  broader 
than  really  intended.  It  would  seem  to  require  the  removal  of  not 
alone  the  three-inch  projection  but  the  entire  wall,  a  portion  of  which 
had  stood  and  encroached  upon  the  alley  for  over  twenty  years,  and 
had  ripened  into  a  right  by  adverse  use.  Under  the  recitals  in  the  de- 
cree, perhaps  no  serious  question  would  arise  as  to  the  extent  thereof, 
but  under  our  view  of  the  case,  this  becomes  a  matter  of  no  consequence. 
This  building  it  appears  stood  within  the  fire  limits,  but  whether  the 
defendant  was  thereby  prohibited  from  repairing  it  in  any  other  way 
than  by  brick  or  stone  does  not  appear. 

Admitting  that  defendant  is  encroaching  some  three  inches  upon  this 
private  way,  yet  it  would  seem  to  have  been  commenced  by  him  in  en- 
tire good  faith,  in  repairing  a  building  which  had  long  been  standing. 


924  INJUNCTION    IN   RELATION   TO   TORTS  (Ch.  4 

Tt  is  not  claimed  that  such  repairs  were  not  necessary  and  in  all  other 
respects  right,  proper,  and  indeed  beneficial  to  the  property  of  defend- 
ant, and  also  the  adjoining  property  of  complainants.  The  injury  to 
complainants  was  not  that  it  was  taking  a  portion  of  their  private  prop- 
erty, but  that  it  was  interfering  with  a  right  of  way  to  which  they  were 
entitled  of  right.  Nor  is  it  claimed,  nor  could  it  well  be,  that  this  pro- 
posed encroachment  seriously  interfered  with  their  right  of  way,  or 
that  it  materially  injured  them  in  any  way. 

Their  claim  is  that  they  are  of  right  entitled  to  the  full  width  of  the 
alley,  and  that  it  cannot  be  taken  from  them  by  piece-meal  this  way. 

It  may  admit  of  some  doubt  whether  a  party  is  ever  entitled  as  mat- 
ter of  right  to  a  remedy  by  injunction  to  restrain  the  commission  of  a 
threatened  injury.  If  the  injury  is  likely  to  be  irreparable  the  court 
will  interfere ;  so  it  will  for  other  reasons,  but  it  will  examine  into  all 
the  circumstances  of  the  case,  and  if  it  is  apparent  that  the  relief  sought 
is  disproportioned  to  the  nature  and  extent  of  the  injury  sustained,  or 
likely  to  be,  the  court  will  not  interfere  but  will  leave  the  parties  to  seek 
some  other  remedy.  Fox  v.  Holcomb,  32  Mich.  495  ;  Briggs  v.  Withey, 
24  Mich.  136;  Norris  v.  Hill,  1  Mich.  210;  White  v.  Forbes,  Walk. 
Ch.  114. 

Within  this  .rule  complainants  clearly  are  not  entitled  to  the  relief 
sought  as  the  case  now  stands,  and  they  need  not  anticipate  farther 
trouble  in  the  same  direction. 

The  decree  must  be  reversed  and  the  bill  dismissed  with  costs.  The 
other  Justices  concurred. 


WOODHOUSE  v.  NEWRY  NAVIGATION  CO. 

(Court  of  Appeal  in  Ireland,  [1S98].     1  Ir.  R.  161.) 

In  the  statement  of  claim,  the  plaintiff  stated  that  he  was  the  owner 
of  certain  oyster  beds  in  Carlingford  Lough,  situate  at  Omeath,  in  the 
county  of  Louth.  He  had  not  any  estate  or  interest  in  the  fore-shore, 
but  his  father,  John  Obins  Woodhouse,  had  obtained  a  license  for  the 
oyster  beds,  and  the  plaintiff  stated  that  he  was  entitled  to  his  father's 
rights  as  licensee. 

The  defendants  were  a  Company  incorporated  by  statute  10  Geo.  IV, 
c.  cxxvi.,  and  they  obtained  in  1884  a  further  Act,  47  &  48  Vict.  c. 
cxxxviii.  By  this  latter  Act  the  defendants  were  authorized  to  make 
and  maintain  the  works  mentioned  in  the  Act  for  improving  the  naviga- 
tion of  Carlingford  Lough  and  the  Newry  River  in  the  line,  and  accord- 
ing to  the  levels,  shown  on  the  deposited  plans.  The  works  authorised 
were  the  excavation  of  a  navigable  channel  in  the  Newry  River  and  in 
Carlingford  Lough. 

Section  7  of  the  Act  stated  that  Curran  Obins  Woodhouse  (the  plain- 
tiff), of  Omeath  Park,  is,  or  claims  to  be,  the  owner  of  certain  oyster 


Sec.  3)  trespass  925 

beds  in  Carlingford  Lough,  the  limits  of  which  were  defined  by  a  cer- 
tain license,  dated  the  4th  of  June,  1866,  granted  to  John  Obins  Wood- 
house,  deceased.    Subsect.  5  of  sect.  7  was  as  follows : 

"In  addition  to  tbe  foregoing  provisions  for  compensation  the  Company  shall, 
during  the  construction  of  the  said  works,  make  and  maintain  all  such  works, 
matters,  and  things  as  may  be  necessary  or  proper  for  effectually  protecting 
from  injury,  hurt,  or  damage,  all  and  every  part  of  the  Omeath  oyster  beds 
not  comprised  witbin  the  limits  aforesaid"  (i.  e.  within  the  limits  of  deviation). 

The  defendants  employed  steam  dredges  for  several  months  in  carry- 
ing out  their  works,  and  in  May,  1890,  and  for  some  months  after,  de- 
posited large  quantities  of  ballast,  stones,  and  rubbish,  upon  the  plain- 
tiff's oyster  beds  outside  the  limits  of  deviation.  The  last  act  of  tres- 
pass was  in  January,  1891.  The  plaintiff  had  let  a  portion  of  the  oyster 
beds  to  one  Mussen,  for  fifteen  years,  from  the  1st  January,  1888,  at 
£50  a  year.  In  or  about  the  months  of  November  and  December, 
1890,  the  plaintiff  and  Mussen  wrote  letters  to  the  defendants  call- 
ing attention  to  these  acts  of  trespass.  The  entire  area  of  the  oyster 
beds  comprised  in  the  license  amounted  to  about  60  acres,  and  the  por- 
tion upon  which  the  defendants  had  cast  the  ballast  extended  to  about 
ten  acres. 

In  June,  1895,  the  plaintiff  brought  an  action  against  the  defendants 
for  an  injunction  to  remove  and  clear  away  from  the  oyster  beds  the 
ballast  and  rubbish  so  deposited,  and  to  restore  them  to  the  condition 
and  levels  they  were  in  previously. 

The  defendants  filed  a  defence,  traversing  the  averments  in  the  state- 
ment of  claim. 

On  the  17th  June,  1896,  the  Vice-Chancellor  pronounced  judgment, 
and  gave  the  plaintiff  a  mandatory  injunction  against  the  defendants, 
directing  them  to  raise  and  remove  all  stones,  ballast,  and  other  rub- 
bish from  the  oyster  beds.  The  defendants  appealed  to  the  Court  of 
Appeal,  and  on  the  hearing  of  the  appeal,  produced  further  evidence, 
from  Mr.  Barton,  C.  E.,  and  other  witnesses,  in  addition  to  that  used  at 
the  hearing,  for  the  purpose  of  showing  that  damages  would  be  a  suffi- 
cient compensation  to  the  plaintiff,  and  that  it  would  be  practically 
impossible  to  remove  the  ballast.  On  the  hearing  of  the  appeal,  by  con- 
sent of  both  parties,  it  was  referred  to  FitzGibbon,  L.  J.,  to  ascertain 
the  amount  of  the  damage.  The  case  was  heard  before  FitzGibbon, 
L.  J.,  with  viva  voce  evidence,  and  on  the  1st  March,  1897,  his  Lord- 
ship gave  judgment  awarding  £600  to  the  plaintiff. 

It  transpired  subsequently  that  the  property  in  the  license  was  not 
vested  absolutely  in  the  plaintiff,  but  in  the  trustees  under  his  father's 
will.  The  trustees  then  applied  for  leave  to  appear  and  be  heard  in  the 
case.  The  order  of  FitzGibbon,  L.  J.,  awarding  damages  was  set  aside, 
and  the  case  was  re-heard  by  the  Court  of  Appeal,  on  the  30th  Novem- 
ber, and  1st  December,  1897.  The  trustees  refused  to  accept  dam- 
ages, and  insisted  on  a  mandatory  injunction. 


926  INJUNCTION   IN   RELATION  TO  TORTS  (Cll.  4 

Lord  Ashbourne,  C.35  *  *  *  It  appears  that  the  plaintiff  at 
an  early  point  served  notice  on  the  defendants  drawing  their  attention 
to  the  necessity  of  observing  everything  necessary  for  the  protection 
of  the  oyster  beds,  and  the  Commissioners  thinking  they  were  within 
their  rights,  or  that  they  might  run  the  risk,  thought  proper  to  ignore 
that  section  altogether.  These  facts  are  stated  in  the  10th  paragraph 
of  the  statement  of  claim,  which  states  that : 

"The  defendants  recently  employed  steam  dredges  for  several  months  and 
deposited  enormous  quantities  of  ballast  upon  the  oyster  beds  outside  the  lim- 
its of  deviation,  burying  acres  of  the  beds  lying  outside  the  said  limits  under 
mud  and  stones,  in  some  places  to  the  depth  of  four  or  five  feet." 

That  being  the  state  of  facts  the  plaintiff  brought  an  action  for  a 

mandatory  injunction  asking  for  an  order — 

"that  the  defendants  should  forthwith  raise,  remove,  and  clear  away  from  the 
aforesaid  oyster  beds  outside  the  said  limits  of  deviation  all  such  mud,  stones, 
ballast,  and  other  rubbish  as  have  been  at  any  time  deposited  by  the  defend- 
ants, their  agents,  or  servants  upon  the  Omeath  oyster  beds,  and  restore  the 
said  oyster  beds  to  the  condition  and  levels  they  were  in  previous  to  the  de- 
posit of  the  said  ballast,  mud,  stones,  and  rubbish." 

*  *  *  It  appears  that  the  10th  paragraph  of  the  statement  of 
claim  is  substantially  borne  out,  and  that  the  defendants  did  for  four 
months  deposit,  by  working  steam  dredges,  rubbish  and  stones  on  the 
oyster  beds  to  the  depth  of  4  or  5  feet.  Those  may  be  taken  to  be  the 
facts.  The  Vice-Chancellor  made  an  order  for  a  mandatory  injunction, 
that  being  the  remedy  asked  for  and  which  he  thought  he  could  not 
withhold. 

The  whole  case  must  be  taken  with  reference  to  the  Act  of  Parlia- 
ment which  the  defendants  were  bound  to  observe,  and  to  which  I  have 
already  referred : 

-"In  addition  to  the  foregoing  provisions  the  Company  shall  during  the  con- 
struction of  the  said  works  make  and  maintain  all  such  works,  matters  and 
things  as  may  be  necessary  or  proper  for  effectually  protecting  from  injury, 
hurt,  or  damage,  all  and  every  part  of  the  Omeath  oyster  beds  not  comprised 
within  the  limits  aforesaid." 

That  is  a  statutory  obligation  binding  on  them,  and  if  they  departed 
from  it  they  are  liable  to  a  mandatory  injunction  to  compel  them  to 
undo  the  acts  they  had  done.  I  think  the  order  of  the  Vice-Chancellor 
is  right,  and  should  be  affirmed.     *     *     * 

FitzGibbon,  L.  J.  *  *  *  The  only  question  now  is  whether  we 
can  withhold  the  remedy  of  a  mandatory  injunction  from  the  plain- 
tiff? The  cause  of  action  is  trespass,  both  wilful  and  reckless.  The 
acts  were  committed  upon  a  portion  of  the  foreshore  which,  though  not 
the  plaintiff's  private  property,  is  a  place  over  which  he  has  certain 
rights  of  occupation,  with  which  the  trespass  directly  interferes.  His 
rights  were  known  to  the  defendants;  the  statute  obtained  by  them- 
selves recites  those  rights,  and  binds  the  defendants  to  respect  and  pro- 
tect them;  it 'specifically  identifies  the  oyster  beds.     *     *     * 

35  Parts  of  the  opinions  of  Lord  Ashbourne,  C,  and  of  FitzGibbon  and 
Holmes,  L.  J  J.,  and  the  concurring  opinion  of  Walker,  L.  J.,  are  omitted. 


Sec.  3)  trespass  927 

Yet  the  engineer  of  the  defendants,  in  the  construction  of  the  works, 
did  the  acts  complained  of,  and  seriously  and  extensively  damaged  the 
defined  oyster  beds,  without  inquiring  or  knowing  whether  he  was  tres- 
passing or  not.  The  law,  which  protects  rights  as  well  as  property,  de- 
scribes such  conduct  as  wilful  and  reckless  trespass.  It  is  the  same  as 
if  a  man  blindfold  drove  a  horse  and  cart  headlong  through  his  neigh- 
bor's shop  windows,  with  the  additional  element  of  lawlessness  that  he 
was  forbidden  by  special  Act  of  Parliament  to  go  there  at  all !     *     *     * 

In  this  state  of  facts,  the  defendants  must  find  some  equitable  ground 
for  withholding  from  the  plaintiff  a  mandatory  injunction  to  compel 
them  to  desist  from  their  illegal  and  injurious  conduct.  Two  grounds 
have  been  suggested.  The  first  is  acquiescence.  I  cannot  answer  that 
in  better  words  than  were  used  by  Mr.  Meredith,  when  he  said — 
"Quiescence  is  not  acquiescence."     *     *     * 

The  next  ground  alleged  is  the  impossibility  of  complying  with  the 
order.  On  legal  principle,  this  defence  is  almost  impossible,  where  the 
wrong  complained  of  is  a  continuing  illegality  causing  damage,  some- 
times damages  are  given  in  place  of  an  injunction,  if  they  will  afford 
complete  relief.  In  this  case  I  go  further,  for  I  doubt  that  a  manda- 
tory injunction  can  give  relief  as  complete  as  damages,  for  many  rea- 
sons. Owing  to  the  nature  of  the  foreshore,  to  the  extent  of  the 
spoilbanks  thrown  upon  it,  to  the  action  of  time  and  tide,  and  to  the 
nature  of  the  oysters,  I  think  it  more  than  doubtful  whether  the  oyster 
beds  can  ever  be  restored  to  the  same  condition  in  which  they  were 
before  the  trespass.  But  physical  impossibility  is  not  pleaded,  and  the 
case  presented  before  the  Yice-Chancellor  made  out  no  great  diffi- 
culty, nor  any  very  inordinate  expense.  When  the  defendants  came 
here,  and  asked  to  substitute  damages  for  the  injunction,  their  allega- 
tion of  impossibility  was  rested  on  a  paragraph  of  Mr.  Barton's  affi- 
davit, in  which  he  estimated  the  quantity  of  stuff  deposited  by  the  de- 
fendants, and  now  remaining  on  the  plaintiff's  oyster  beds,  at  about 
15,000  cubic  yards,  and  the  cost  of  removing  it  at  £1200  or  there- 
abouts. This  is  not  proof  of  impossibility ;  the  expense  and  trouble 
are  only  in  direct  ratio  to  the  extent  of  the  trespass,  and  those  who 
wrongfully  put  the  stuff  there  can  and  must  take  it  away. 

The  Vice-Chancellor's  judgment  is  to  restore  the  oyster  beds  to 
the  same  condition  and  levels  as  before  the  deposit  of  stones  and 
ballast  by  the  defendants.  It  may  be  impossible  to  make  them  as 
good  as  they  were  before,  but  the  defendants  must  do  their  best,  and 
if  the  plaintiff  seeks  to  attach  them,  they  can  show  that  they  have 
done  their  best  to  obey  the  order.  We  cannot  deprive  the  plaintiff  of 
the  right,  to  which  he  is  entitled,  of  making  the  defendants  undo 
their  own  wrongful  act,  so  far  as  it  is  reasonably  possible  to  do  so. 
At  the  former  hearing  the  Court  pressed  on  the  plaintiff,  and  he  recog- 
nised, the  expediency  of  taking  compensation  in  preference  to  re- 
quiring the  defendants  to  expend  more  money  in  unprofitable  dredg- 
ing.    My  colleagues  took  advantage  of  my  absence  to  make  me  an 


928  INJUNCTION    IN   RELATION   TO   TORTS  (Ch.  4 

arbitrator.  By  action  on  the  part  of  the  reversioners,  which  the 
Court  could  neither  anticipate  nor  control,  it  has  become  impossible 
to  settle  the  action  on  the  basis  of  compensation.  I  am  sorry  for  this 
result.  I  believe  it  to  be  injurious  to  all  parties ;  but  the  Court  is  not 
responsible  for  it. 

The  Court  went  out  of  its  way  to  substitute  compensation  for  a  man- 
datory injunction.  We  cannot  do  so  again,  and  we  cannot  deprive  the 
owners  of  the  injured  oyster  beds  of  their  right  to  compel  the  de- 
fendants to  cease  from  violating  both  the  general  rights  of  the  plain- 
tiffs, and  the  special  provisions  of  the  defendants'  own  Act  of  Parlia- 
ment.    *     *     * 

Holmes,  L.  J.  *  *  *  The  plea  of  acquiescence  having  failed, 
the  defendants  urge  that  the  injunction  will  be  of  little  advantage  to 
the  plaintiffs,  and  that  the  cost  and  trouble  which  it  will  impose  on  the 
defendants  will  be  out  of  all  proportion  to  any  benefit  that  will  follow 
from  it.  In  this  I  am  disposed  to  agree ;  but  it  is  no  legal  ground  for 
refusing  the  relief  asked.  If  it  were,  persons  in  the  position  of  the 
defendants  would  be  able  to  acquire  rights  of  property  by  wrong- 
doing, and  to  carry  out  a  compulsory  purchase  not  only  without,  but 
in  opposition  to,  statutory  authority.  There  remains  the  allegation 
that  it  would  be  impossible  to  obey  the  injunction.  This  I  think  would 
be  a  reason  for  substituting  damages  for  the  other  remedy,  as  a  Court 
of  Justice  ought  not  to  order  an  impossibility.  But  there  is  no  evi- 
dence that  the  terms  of  the  judgment  cannot  be  complied  with.  Of 
course  in  one  point  of  view  the  foreshore  cannot  be  restored  to  the 
precise  state  in  which  it  was  before  the  acts  complained  of.  The  sur- 
face will  necessarily  be  a  different  surface ;  and  if  the  parties  are  not 
reasonable  there  may  ensue  much  unprofitable  discussion  and  perhaps 
litigation.  But  the  evidence  shows  that  substantial  compliance  with 
the  order  involves  nothing  more  than  a  certain  amount  of  expendi- 
ture.    *     *     * 


RILEYS  v.  MAYOR,  ALDERMEN,  AND  BURGESSES  OF 

HALIFAX. 

(Chancery  Division,  1907.     97  Law  T.  278.) 

Action. 

In  this  action  the  plaintiffs,  who  were  tenant  for  life  and  trustees 
of  certain  hereditaments  known  as  Alcomdean  Holmes,  situate  at  Al- 
comdean,  near  Hebden  Bridge,  in  the  county  of  York,  claimed  (1)  an 
order  to  the  defendants  forthwith  to  remove  so  much  of  an  embank- 
ment and  works  of  or  in  connection  with  a  reservoir  or  waterworks 
situate  at  Alcomdean  as  had  been  constructed  upon  the  land  of  the 
plaintiffs  without  their  consent ;  (2)  an  order  that  the  defendants 
should  restore  the  said  land  of  the  plaintiffs  and  make  good  the  same 


Sec.  3)  trespass  929 

as  it  was  before  the  commencement  of  the  defendants'  works  in  and 
upon  the  same ;  (3)  a  declaration  (if  and  so  far  as  might  be  neces- 
sary) establishing  the  title  of  the  plaintiffs  to  the  said  land ;  (4)  costs. 

The  plaintiffs  alleged  that,  in  connection  with  certain  recently  con- 
structed waterworks,  including  the  reservoirs  known  as  the  Walshaw 
Dean  reservoirs  at  Alcomdean,  the  defendants  had  for  the  purpose  of 
constructing  the  southern  embankment  and  puddle  trench  of  the 
lowest  of  the  said  reservoirs  entered  upon  land  of  the  plaintiffs  (part 
of  the  said  hereditaments  at  Alcomdean)  without  the  permission  of 
the  plaintiffs,  and  laid  and  constructed  in  and  upon  the  same  land  a 
portion  of  the  said  embankment  and  puddle  trench,  extending  the 
said  works  in  and  upon  the  plaintiffs'  said  land  for  a  distance  of  42 
ft.  6  in.  or  thereabouts  from  the  boundary  of  the  defendants'  own 
land.  Further,  that  the  plaintiffs  had  requested  the  defendants  to  re- 
move such  part  of  the  said  embankment  and  works  as  had  been  con- 
structed in  and  upon  the  plaintiffs'  said  land,  and  to  make  good  the 
plaintiffs'  said  land,  but  the  defendant,  although  so  requested,  had 
neglected  and  refused,  and  still  neglected  and  refused,  to  remove  the 
said  embankment  or  works  or^  to  restore  the  plaintiffs'  said  land  to 
its  original  condition. 

The  defendants  admitted  the  plaintiffs'  title,  but  alleged  that  in  the 
construction  of  the  said  reservoirs  the  defendants  while  engaged  in 
underground  workings  by  inadvertence  carried  into  the  land  of  the 
plaintiffs,  but  at  a  depth  of  123  ft.  below  the  surface  of  the  land,  a 
heading  18  ft.  in  height  and  6  ft.  in  width  to  the  extent  of  42  ft.  6  in. 
beyond  their  boundary ;  that  the  defendants  in  no  way  disturbed  or 
affected  the  surface  of  the  plaintiffs'  land,  and  had  wholly  filled  up  the 
said  heading  with  solid  concrete  and  brickwork,  and  there  was  no 
possibility  of  any  subsidence  or  movement  of  the  said  land  taking 
place  at  any  time  hereafter  in  consequence  of  the  said  heading;  that 
they  had  long  since  and  before  the  issue  of  the  writ  in  this  action,  and 
long  before  they  were  aware  that  the  heading  extended  under  the 
plaintiffs'  land,  filled  up  the  said  heading  and  so  far  as  it  was  physically 
possible  restored  the  plaintiffs'  said  land  to  its  original  condition. 
They  further  alleged  that  the  land  under  which  the  said  heading  was 
driven  was  open  moorland  of  little  value ;  that  the  fee  simple  of  the 
said  piece  of  land  in  which  the  heading  was  placed  did  not  exceed  in 
value  the  sum  of  10s. ;  that  the  said  land  had  not  been  injuriously 
affected,  nor  had  its  value  been  reduced  by  the  aforesaid  acts ;  that 
directly  their  attention  was  called  to  the  fact  that  they  had  trespassed 
upon  the  plaintiffs'  said  land  they  acknowledged  the  trespass,  and, 
although  they  knew  that  their  acts  aforesaid  had  caused  no  substantial 
damage  to  the  plaintiffs,  offered  them  the  sum  of  £100  as  compensa- 
tion therefor ;  that  the  plaintiffs  refused  such  offer  and  demanded  the 
sum  of  £1000  as  compensation,  and  the  defendants  refusing  to  accede 
to  such  a  demand  the  plaintiffs  commenced  this  action. 
Boke  Eq.— 09 


930  INJUNCTION    IN   RELATION   TO   TOUTS  (Ch.  4 

Evidence  was  given  to  the  effect  that  the  removal  of  the  heading 
would  cost  about  £1000. 

Joyce,  J.  The  Halifax  Corporation  in  the  course  of  constructing 
their  reservoir  for  the  purposes  of  which  they  had  under  their  statu- 
tory powers  purchased  certain  land  found  it  necessary  to  execute 
certain  work  in  concrete  to  prevent  the  escape  of  water.  This  work, 
which  was  described  as  a  heading  was  through  carelessness,  but  also 
by  inadvertence,  carried  into  the  plaintiffs'  property.  The  plaintiffs 
therefore  are  entitled  to  damages,  or  the  defendants  may  be  ordered 
to  restore  the  land  to  its  former  state.  But  in  order  to  do  the  latter 
the  sum  of  £1000  will  have  to  be  expended,  and  when  that  is  done  no 
benefit  will  accrue  to  anyone.  In  these  circumstances  I  hold  that 
there  is  ample  authority  for  saying  that  I  have  a  discretion  to  award  a 
sum  by  way  of  damages,  not  the  amount  of  what  it  will  cost  to  remove 
the  works,  but  a  sum  which  will  compensate  the  plaintiffs.  In  Shelfer 
v.  City  of  London  Electric  Lighting  Company,  72  L.  T.  Rep.  34, 
[1895]  1  Ch.  322,  the  late  Smith,  L.  J.,  laid  down  the  rule  that : 

"(1)  If  the  injury  to  the  plaintiff's  legal  rights  is  small ;  (2)  and  is  one 
which  is  capable  of  being  estimated  in  money ;  (3)  and  is  one  which  can  be 
adequately  compensated  by  a  small  money  payment ;  (41  and  the  case  is  one 
in  which  it  would  be  oppressive  to  the  defendant  to  grant  an  injunction ;  then 
damages  in  substitution  for  an  injunction  may  be  given." 

In  the  present  case  the  defendants  have  offered  £100.  and  having 
regard  to  the  dictum  of  A.  L.  Smith,  L.  J.  (sup.),  I  am  of  opinion  that 
judgment  for  that  amount  will  meet  the  case.  I  therefore  give  judg- 
ment for  the  plaintiffs  for  £100,  but  without  costs. 


SECTION  4.— NUISANCE 


SOLTAU  v.  DE  HELD. 

(In  Chancery  before  Sir  E.  T.  Kindersley,  1851.    2  Sim.  [N.  S.]  133, 
61  E.  R.  291.) 

Previously  to  181*7,  a  mansion-house  in  Park  Road,  Clapham,  was 
divided  into  two  messuages,  but  without  there  being  any  party-wall  be- 
tween them;  and,  on  the  25th  of  March,  1817,  the  plaintiff  took  a 
lease  of  one  of  the  messuages  for  sixty-nine  years :  and,  with  the  ex- 
ception of  two  intervals,  he  had  ever  since  resided  in  it  with  his  fam- 

1 1  V 

In  May,  1851,  a  Roman  Catholic  church  with  a  steeple,  was  erected 
on  the  ground  adjoining  the  chapel,  and  was  opened  on  the  14th  of  that 


Sec.  4)  nuisance  931 

month,  and,  on  that  occasion,  six  bells,  which  had  been  placed  in  the 
belfry  of  the  steeple,  were  rung  nearly  the  whole  day.  The  chapel  bell 
was  rung  at  five  o'clock  and  a  quarter  before  seven  every  morning; 
the  steeple  bell,  at  a  quarter  to  nine  every  morning,  and  a  quarter  be- 
fore and  a  quarter  past  seven  every  evening.  On  the  13th  May, 
1851,  a  peal  of  six  bells  was  rung  several  times;  on  the  14th,  the  peal 
continued  at  intervals  during  the  whole  day;  on  Sunday,  the  18th,  the 
chapel  bell  rang  at  five  o'clock,  the  steeple  bell  at  a  quarter  to  seven, 
and  again  at  a  quarter  to  nine.  The  chapel  bell  again  rang  at  half 
past  ten.  A  peal  of  chimes  was  rung  at  eleven,  and  again  at  a  quarter 
before  one ;  again  at  a  quarter  before  six,  and  again  at  a  quarter  be- 
fore eight.  On  Saturday,  the  24th  May,  the  chapel  bell  rang,  as  usual, 
the  three  times  above  mentioned,  and  the  steeple  bell  twice,  and,  in  ad- 
dition, a  peal  of  the  six  bells  was  rung  from  half  past  eight  till  a  quar- 
ter to  ten  at  night.  On  Sunday,  the  25th  May,  the  chapel  bell  was  rung 
at  two  different  times,  and  the  steeple  bell  seven  different  times.  On 
Monday  evening,  the  2d  of  June,  a  peal  of  the  bells  was  rung ;  and,  on 
Saturday  the  7th,  a  peal  was  rung  from  a  quarter  to  eight  to  a  quarter 
to  nine.  'On  Saturday,  the  8th  of  June,  in  addition  to  the  ordinary 
bells,  the  chimes  were  rung  several  times  up  to  nearly  nine  in  the  eve- 
ning. The  chapel  bell  and  church  bells  were,  subsequently  to  20th  of 
May,  rung,  daily,  upon  an  average,  as  great  a  number  of  times  as  they 
had  been  rung  upon  the  several  occasions  before  mentioned,  down  to 
the  time  when  the  plaintiff  obtained  a  verdict  in  the  action  after  men- 
tioned. 

The  bill  was  filed  on  the  20th  of  November,  1851,  and,  after  stating 
as  above,  it  alleged  that,  when  a  peal  of  the  church  bells  was  rung,  the 
noise  was  so  great  that  it  was  impossible  for  the  plaintiff,  or  the  mem- 
bers of  his  family,  to  read,  write  or  converse  in  his  house ;  that  the 
ringing  of  the  chapel  bell  and  church  bells  was  an  intolerable  nuisance 
to  the  plaintiff,  and  if  the  said  bell  or  bells  was  or  were  permitted  to 
be  rung  in  the  manner  in  which  the  same  were  so  rung  as  aforesaid, 
it  would  be  impossible  for  the  plaintiff  to  reside  any  longer  in  his 
house.     *     *     * 

The  bill  prayed  that  the  defendant  and  all  persons  acting  under  his 
directions,  or  by  his  authority,  might  be  restrained  from  tolling  or  ring- 
ing the  chapel  bell  and  the  church  bells,  or  any  of  such  bells,  and  from 
permitting  the  said  bell  and  bells,  or  any  of  them,  to  be  tolled  or  rung ; 
or  that  the  defendant  and  such  persons  as  aforesaid,  might,  in  like 
manner,  be  restrained  from  tolling  or  ringing  the  said  bell  or  bells,  or 
permitting  the  same  or  any  of  them  to  be  toiled  or  rung,  so  as  to  cause 
or  occasion  any  nuisance  or  annoyance  to  the  plaintiff  or  any  of  the 
members  of  his  family  residing  at  his  residence  in  Park  Road,  Clap- 
ham. 

On  the  day  after  the  bill  was  filed,  the  plaintiff  served  the  defendant 
with  notice  of  a  motion  that  the  defendant  and  all  persons  acting  under 
his  directions  or  by  his  authority,  might  be  restrained  from  tolling  or 


932  INJUNCTION   IN   RELATION   TO   TOUTS  (Ch.  4 

ringing  the  chapel  bell,  and  the  church  bells  or  any  of  them,  or  per- 
mitting them  or  any  of  them,  to  be  tolled  or  rung. 

The  defendants  put  in  a  general  demurrer  to  the  bill,  which  now 
came  on  to  be  argued. 

The  Vice-Chancellor.36  This  case  came  before  me,  in  the  first 
instance,  by  way  of  demurrer,  and  the  demurrer  having  been  overruled, 
a  motion  for  an  injunction  was  made.  I  abstained  from  expressing,  at 
the  time,  my  reasons  for  overruling  the  demurrer,  from  an  apprehen- 
sion that  I  might  .intimate  some  opinion  or  drop  some  expression  that 
might  prejudice  the  argument  on  the  motion.  I  shall  now  state  my  rea- 
sons for  overruling  the  demurrer,  and  then  I  shall  give  my  opinion  on 
the  motion. 

The  demurrer  is  a  general  demurrer  for  want  of  equity ;  and,  of 
course,  by  that  demurrer  the  defendant  undertakes  to  show  that,  upon 
the  statements  contained  in  the  bill,  the  plaintiff  would  not  be  entitled 
to  any  relief  at  the  hearing  of  the  cause. 

The  statements  of  the  bill  are  as  follows,  &c,  &c,  &c. 

The  first  ground  of  demurrer  to  this  bill  is  that  the  nuisance  com- 
plained of  is  a  public  nuisance;  and,  therefore,  the  suit  should  have 
been  instituted  by  the  attorney-general,  and  that  it  is  not  competent  to 
the  plaintiff  to  file  a  bill  respecting  it. 

With  that  ground  of  demurrer,  my  opinion  is  that  it  is  extremely 
questionable  (to  say  the  least)  whether  this  is  a  public  nuisance  at  all. 
But,  in  the  view  which  I  take  of  the  case,  it  is  scarcely,  if  at  all,  neces- 
sary to  consider  whether  it  be  or  be  not  a  public  nuisance.  I  enter- 
tain, however,  very  great  doubt  whether  it  be  a  public  nuisance.  I  con- 
ceive that,  to  constitute  a  public  nuisance,  the  thing  must  be  such  as, 
in  its  nature  or  its  consequence,  is  a  nuisance — an  injury  or  a  damage 
to  all  persons  who  come  within  the  sphere  of  its  operation,  though  it 
may  be  so  in  a  greater  degree  to  some  than  it  is  to  others.  *  *  * 
And  it  is  rather  curious  that  one  of  the  witnesses  who  was  examined 
on  the  trial  on  the  part  of  the  plaintiff,  and  who  deposed  strongly  to 
the  bells  being  an  intolerable  nuisance  when  he  was  in  Mr.  Soltau's 
house,  says : 

'But  where  I  live,  at  Clapham,  which  is  about  a  furlong  from  the  bells, 
and  with  the  intervention  of  trees,  so  far  from  their  being  a  nuisance  to  me, 
they  are  a  positive  gratification ;  and  I  confess  I  should  be  extremely  sorry 
if  they  were  done  away  with." 

I  mention  that  only  by  way  of  illustrating  that,  in  this  case,  to  some 
persons  who  live  within  the  sound  of  these  bells,  they  may  be  no  nui- 
sance at  all ;  and,  no  doubt,  are  none ;  and,  therefore,  I  very  much 
doubt,  indeed,  my  opinion  is  that  the  nuisance  complained  of  in  this 
case  could  not  be  indicted  as  a  public  nuisance.     *     *     * 

Under  those  circumstances,  the  question  that  I  have  to  determine  is 
a  question  which  I  cannot  do  better  than  state  in  the  language  of  Vice- 

36  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  4)  nuisance  933 

Chancellor  Knight  Bruce,  when  he  decided  the  case  of  Walter  v.  Selfe 

[15  Jurist  416].     He  says: 

"The  important  point  next  for  decision  may  properly,  I  conceive,  be  thus 
put:  Ought  this  inconvenience  to  be  considered,  in  fact,  as  more  than  fanci- 
ful, or  as  one  of  mere  delicacy  or  fastidiousness ;  as  an  inconvenience  ma- 
terially interfering  with  the  ordinary  comfort,  physically,  of  human  existence, 
not  merely  according  to  elegant  or  dainty  modes  and  habits  of  living;  but 
according  to  plain,  sober  and  simple  notions  among  tbe  English  people?" 

That,  I  think,  enunciates  distinctly  the  question  which  is  to  be  tried 

upon  such  an  occasion  as  this :    and  I  must  add,  in  the  very  words  of 

Vice-Chancellor  Knight  Bruce,  that  I  am  of  opinion  that  this  point  is 

against  the  defendant ;    that  this  is  such  an  inconvenience,  and  such 

invasion  of  the  domestic  comfort  and  enjoyment  of  a  man's  home,  that 

he  is  entitled  to  come  and  ask  this  court  to  interfere.     And,  upon  that 

point,  I  will  just  refer  to  the  language  of  Lord  Eldon,  in  the  case  of 

The  Attorney-General  v.  Nichol  [  16  Ves.  338] .     He  says  : 

"The  foundation  of  this  jurisdiction"  (that  is,  interfering  by  injunction)  "is 
that  head  of  mischief  alluded  to  by  Lord  Hardwieke ;  that  sort  of  material  in- 
jury to  the  comfort  or  the  existence  of  those  who  dwell  in  a  neighboring  house, 
requiring  the  application  of  power  to  prevent,  as  well  as  remedy,  an  evil  for 
which  damages,  more  or  less,  would  be  given  in  an  action  at  law." 

That  is  the  ground  for  interference  by  injunction,  and  that  is  the 
ground  upon  which  I  conceive  that  I  ought  to  grant  an  injunction  in 
this  case.     *     *     * 

There  has  been  no  acquiescence  in  this  case.  The  plaintiff  has  dili- 
gently asserted  his  rights;  and  I  think  that  he  is  entitled  to  an  injunc- 
tion, but  not  quite  in  the  terms  in  which  it  is  asked  by  the  notice  of  mo- 
tion. The  bill  asks  for  an  injunction  to  restrain  the  ringing  of  these 
bells  altogether ;  or,  in  the  alternative,  to  restrain  the  ringing  of  them 
so  as  to  cause  or  occasion  any  nuisance  or  annoyance  to  the  plaintiff 
or  any  of  the  members  of  his  family  residing  in  his  house ;  and  it  ap- 
pears to  me  that  the  latter  is  very  nearly  the  form  in  which  the  injunc- 
tion ought  to  be  granted.  Therefore  I  shall  order  an  injunction  to  is- 
sue to  restrain  the  defendant  and  all  persons  acting  under  his  direction 
or  by  his  authority,  from  tolling  or  ringing  the  bells  in  the  plaintiff's 
bill  mentioned,  or  any  of  them,  so  as  to  occasion  any  nuisance,  disturb- 
ance and  annoyance  to  the  plaintiff  and  his  family  residing  in  his  dwell- 
ing-house in  the  bill  mentioned.  In  thus  wording  the  injunction,  I  am 
following  what  was  done,  by  Vice-Chancellor  Knight  Bruce,  in  Walter 
v.  Selfe. 

I  cannot  say  that  it  is  absolutely  impossible  that  any  one  of  these 
bells  may  not  be  rung  so  as  not  to  occasion  any  nuisance  or  annoyance 
to  the  plaintiff.  It  is  possible:  and,  therefore,  I  do  not  think  it  right 
to  say  that  none  of  the  bells  shall  be  rung  again. 


934  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

GARDNER  v.  TRUSTEES  OF  VILLAGE  OF  NEWBURGH  et  al. 

(Court  of  Chancery  of  New  York,  1S16.    2  Johns.  Ch.  162,  7  Am.  Dec.  52G.) 

The  bill,  which  was  for  an  injunction,  stated,  that  the  plaintiff  is 
owner  of  a  farm,  in  the  village  of  Newburgh,  through  which  a  stream 
of  water  has,  from  time  immemorial,  run,  having  its  source  from  a 
spring  in  the  adjoining  farm  of  the  defendant,  Hasbrouck,  and  after 
entering  the  plaintiff's  land,  continues  its  whole  course  through  his 
farm  until  it  empties  into  the  Hudson  river.  That  this  stream  greatly 
fertilizes  his  fields,  and,  running  near  his  house,  serves  for  watering  his 
cattle,  and  for  various  domestic  and  economical  purposes.  That  it  sup- 
plies water  to  a  brick-yard  on  the  farm  of  the  plaintiff,  where  most  of 
the  bricks  used  in  Newburgh  are  made ;  it  also  supplies  a  large  distil- 
lery erected  by  him  at  great  expense,  and  a  churning  mill,  and  water 
for  a  mill-seat,  where  the  plaintiff  is  about  to  erect  a  mill  for  grinding 
plaster  of  paris.  That  the  trustees  of  the  village  of  Newburgh,  the 
defendants,  by  false  representations,  obtained  an  act  of  the  legislature, 
passed  the  27th  of  March,  1809,  to  enable  the  said  trustees  to  supply 
the  inhabitants  of  the  village  with  pure  and  wholesome  water.  That 
the  trustees  applied  to  the  plaintiff  for  leave  to  divert  the  stream,  offer- 
ing him  a  trifling  and  very  inadequate  compensation,  which  he  refused. 
That  the  said  trustees  having  obtained  leave  from  the  defendant,  Has- 
brouck, the  owner  of  the  spring,  to  use  and  divert  the  water,  or  a  part 
thereof,  that  is,  a  stream  one  inch  and  a  quarter  in  diameter,  taken  from 
a  great  elevation,  have  commenced  a  conduit,  and  threaten  to  divert 
the  stream,  or  a  great  part  thereof,  from  the  plaintiff's  farm.  That  the 
plaintiff  is  apprehensive  that  if  this  is  done,  there  will  not,  in  a  dry 
season,  be  water  sufficient  even  for  his  cattle,  &c.  The  plaintiff,  there- 
fore, prayed  an  injunction  to  prevent  the  defendants  from  diverting 
the  water,  &c.  The  bill  was  sworn  to,  and  the  plaintiff  produced  sev- 
eral affidavits,  which  stated  that  the  stream  was  not  more  than  suffi- 
cient for' the  distillery,  brick-yard,  &c,  of  the  plaintiff,  and  if  diverted 
through  a  pipe,  or  tube,  of  the  proposed  diameter,  would  greatly  in- 
jure, if  not  render  the  works  useless.  One  of  the  affidavits  stated,  that 
the  whole  stream  would  pass  through  a  tube  of  one  inch  diameter,  with 
a  head  of  five  feet. 

The  Chancellor  [James  Kent].37  The  statute  under  which  the 
trustees  of  the  village  of  Newburgh  are  proceeding  (Sess.  32,  ch.  119) 
makes  adequate  provision  for  the  party  injured  by  the  laying  of  the 
conduits  through  his  land,  and  also  affords  security  to  the  owner  of 
the  spring,  or  springs,  from  whence  the  water  is  to  be  taken.  But 
there  is  no  provision  for  making  compensation  to  the  plaintiff,  through 
whose  land  the  water  issuing  from  the  spring  has  been  accustomed  to 
flow.    The  bill  charges,  that  the  trustees  are  preparing  to  divert  from 

37  Part  of  the  opinion  is  omitted. 


Sec.  4)  nuisance  935 

the  plaintiff's  land,  the  whole,  or  the  most  part  of  the  stream,  for  the 
purpose  of  supplying  the  village.  The  plaintiff's  right  to  the  use  of  the 
water  is  as  valid  in  law,  and  as  useful  to  him  as  the  rights  of  others 
who  are  indemnified  or  protected  by  the  statute;  and  he  ought  not  to 
be  deprived  of  it,  and  we  cannot  suppose  it  was  intended  he  should  be 
deprived  of  it,  without  his  consent,  or  without  making  him  a  just  com- 
pensation. The  act  is,  unintentionally,  defective,  in  not  providing  for 
his  case,  and  it  ought  not  to  be  enforced,  and  it  was  not  intended  to  be 
enforced,  until  such  provision  should  be  made. 

It  is  a  clear  principle  in  law,  that  the  owner  of  land  is  entitled  to  the 
use  of  a  stream  of  water  which  has  been  accustomed,  from  time  imme- 
morial, to  flow  through  it,  and  the  law  gives  him  ample  remedy  for  the 
violation  of  this  right.  To  divert  or  obstruct  a  water  course  is  a  pri- 
vate nuisance;  and  the  books  are  full  of  cases  and  decisions  asserting 
the  right  and  affording  the  remedy.  F.  N.  B.  184;  Moore  v.  Browne, 
Dyer,  319,  b;  Lutterel's  Case,  4  Co.  86;  Glynne  v.  Nichols,  Comb.  43, 
2  Show.  507;   Prickman  v.  Trip,  Comb.  231. 

The  court  of  chancery  has  also  a  concurrent  jurisdiction,  by  injunc- 
tion, equally  clear  and  well  established  in  these  cases  of  private  nui- 
sance. Without  noticing  nuisances  arising  from  other  causes,  we  have 
many  cases  of  the  application  of  equity  powers  on  this  very  subject  of 
diverting  streams.  In  Finch  v.  Resbridger,  2  Vern.  390,  the  Lord 
Keeper  held,  that  after  a  long  enjoyment  of  a  water  course  running  to 
a  house  and  garden,  through  the  ground  of  another,  a  right  was  to  be 
presumed,  unless  disproved  by  the  other  side,  and  the  plaintiff  was 
quieted  in  his  enjoyment,  by  injunction.  So,  again,  in  Bush  v.  West- 
ern, Prec.  in  Ch.  530,  a  plaintiff  who  had  been  in  possession,  for  a  long 
time,  of  a  water  course,  was  quieted  by  injunction,  against  the  inter- 
ruption of  the  defendant,  who  had  diverted  it,  though  the  plaintiff  had 
not  established  his  right  at  law,  and  the  court  said  such  bills  were  usual. 
These  cases  show  the  ancient  and  established  jurisdiction  of  this  court ; 
and  the  foundation  of  that  jurisdiction  is  the  necessity  of  a  preventive 
remedy  when  great  and  immediate  mischief,  or  material  injury  would 
arise  to  the  comfort  and  useful  enjoyment  of  property.  The  interfer- 
ence rests  on  the  principle  of  a  clear  and  certain  right  to  the  enjoy- 
ment of  the  subject  in  question,  and  an  injurious  interruption  of  that 
right  which,  upon  just  and  equitable  grounds,  ought  to  be  pre- 
vented.    *     *     * 

I  shall,  accordingly,  upon  the  facts  charged  in  the  bill,  and  supported 
by  affidavits,  as  a  measure  immediately  necessary  to  prevent  impending 
injury,  allow  the  injunction,  and  wait  for  the  answer,  to  see  whether 
the  merits  of  the  case  will  be  varied. 

Injunction  granted. 


036  INJUNCTION    IN    RELATION  TO   TOUTS  (Ch.  4 

ROBINSON  et  al.  v.  BAUGH. 
(Supreme  Court  of  Michigan,  1S75.    31  Mich.  290.) 

Graves,  C.  J.38  The  complainants,  nineteen  in  number,  being  sepa- 
rate owners  and  occupants  of  valuable  residences  in  a  small  specified 
district  in  Detroit,  substantially  used  for  dwellings,  have  united  in  a 
complaint  against  the  defendant,  in  which  they  maintain  that  he  uses 
certain  premises  he  occupies,  not  far  off  on  Woodbridge  street,  in 
such  manner  as  to  be  a  nuisance,  and  specially  and  greatly  injurious  to 
them  in  property,  comfort  and  health. 

His  business  is  that  of  forging,  which  he  conducts  in  low,  wood  build- 
ings, and  on  a  large  scale.  He  employs  steam  and  consumes  a  large 
amount  of  bituminous  coal.  He  works  four  steam  hammers,  one  of 
which  weighs  thirty-five  hundred  pounds.  The  smoke  and  soot  from 
his  works  are  often  borne  by  the  wind  in  large  amounts  to  the  premises 
of  complainants,  and  sometimes  enter  their  dwellings  by  the  chimneys 
and  the  slight  cracks  by  the  doors  and  windows,  in  such  measure  as  to 
be  extremely  offensive  and  harmful,  and  the  noise  from  his  steam  ham- 
mers is  frequently  so  great  at  complainants'  places  as  to  be  disagree- 
able and  personally  hurtful,  whilst  the  jar  produced  by  the  largest 
greatly  annoys  complainants  and  their  families,  and  seriously  disturbs 
the  sick,  and  in  some  cases  causes  substantial  damage  to  dwellings. 

The  complainants  pray  that  defendant  may  be  enjoined  from  carry- 
ing on  his  works  in  a  way  thus  wrongful  and  injurious. 

Upon  answer  and  proofs,  the  court  below  made  a  decree  in  accord- 
ance with  the  prayer  of  the  bill,  and  the  defendant  appealed. 

He  objects  first,  that  the  case  is  not  rightly  constituted,  on  the  ground 
that  complainants  are  separate  owners  with  distinct  property  interests, 
and  the  attorney  general  is  not  a  party. 

Upon  the  circumstances  of  this  case,  we  think  the  objection  not  main- 
tainable. The  rights  asserted  by  complainants,  and  for  which  they  ask 
protection,  are  alike,  and  the  grievance  stated  in  the  bill  and  charged 
against  defendant  has  one  source,  and  operates  in  the  same  general 
manner  against  the  agreeing  and  equivalent  rights  of  all  the  complain- 
ants. If  his  works  as  conducted  are  a  nuisance  to  complainants,  they 
are  a  nuisance  to  all  in  the  same  way.  The  case  presents  no  diversity  to 
cause  embarrassment  in  dealing  with  it,  and  we  should  only  sacrifice 
substance  to  useless  form  by  giving  any  sanction  to  the  point,  if  there 
was  no  authority  to  favor  its  rejection.  But  without  going  far  we  are 
able  to  cite  such  authority.  Scofield  v.  Lansing,  17  Mich.  437;  Middle- 
ton  v.  Flat  River  Booming  Co.,  27  Mich.  533 ;  Peck  v.  Elder,  3  Sandf. 
(N.  Y.)  126,  and  opinion  of  the  chancellor  in  a  note;  Reid  v.  Gifford, 
Hopk.  Ch.  (N.  Y.)  416.     *     *     * 

A  further  objection  is,  that  a  trial  at  law  was  needful  before  seeking 
the  aid  of  equity. 

as  Parts  of  the  opinion  are  omitted. 


Sec.  4)  nuisance  937 

This  position  is,  not  maintainable.  The  legislature  have  expressly- 
declared  that  equity  shall  have  jurisdiction  "in  all  matters  concerning 
nuisances  where  there  is  not  a  plain,  adequate  and  complete  remedy  at 
law,  and  may  grant  injunctions  to  stay  or  prevent  nuisances."  Comp. 
L.  1871,  §  6377.  And  this  language  implies  that  the  jurisdiction  may 
not  be  merely  assistant,  but  is  independent  and  ample  in  those  cases 
where  a  remedy  at  law  would  not  be  plain,  adequate  and  complete. 
That  the  law  could  afford  no  such  remedy  here,  is  manifest.  Even  be- 
fore this  declaratory  provision  the  chancellor  asserted  the  jurisdiction 
fully.  White  v.  Forbes,  Walk.  Ch.  112.  See,  also,  Soltau  v.  De 
Held,  9  E.  L.  &  E.  104. 

When  the  cause  is  thus  within  the  jurisdiction,  the  authority  of  the 
court  is  plenary,  and  is  not  dependent  upon  steps  at  common  law.  If, 
on  a  view  of  the  circumstances,  the  court  feels  that  there  ought  to  be 
a  finding,  it  may  in  its  discretion  require  one,  but  is  not  bound  to  do> 
so.     *     *     * 

It  is  not  appropriate  to  say  that  the  injurious  work  is  fitly  and  rightly 
located,  and  that  the  business  is  lawful  in  itself,  when  the  ground  of 
complaint  is,  that  it  causes  a  real  and  serious  direct  injury  to  the  proper- 
ty of  another.  However  lawful  the  business  may  be  in  itself,  and  how- 
ever suitable  in  the  abstract  the  location  may  be,  they  cannot  avail  to 
authorize  the  conductor  of  the  business  to  continue  it  in  a  way  which 
directly,  palpably  and  substantially  damages  the  property  of  others ; 
unless,  indeed,  the  operator  is  able  to  plant  himself  on  some  peculiar 
ground  of  grant,  covenant,  license  or  privilege,  which  ought  to  avail 
against  complainants,  or  on  some  prescriptive  right,  and  which  in  this 
country  can  rarely  happen.    There  is  nothing  of  the  kind  here. 

In  the  present  case  the  proof  is  clear  that  the  defendant's  works  are 
so  situated  and  conducted  as  to  cause  wrong  and  injury  in  regard  to  both 
person  and  property,  and  to  an  extent  which  justifies  the  complainants 
in  objecting  as  they  do.  The  grievances  shown  are  not  such  in  their 
cause,  nature  and  objective  effects,  as  to  warrant  the  court  in  saying 
they  must  be  borne  in  deference  to  practical  exigencies.     *     *     * 

The  defendant's  works  have  been  going  but  a  short  time,  are  not  very 
very  expensive,  and  not  of  a  permanent  character.  They  are  placed 
on  leased  ground,  under  a  short  term,  and  are  practicably  removable 
without  very  great  inconvenience  or  cost.  Other  sites  reasonably  eligi- 
ble in  respect  to  the  profitable  prosecution  of  the  business  may  be  had* 
and  where  surrounding  proprietors  would  not  be  wronged. 

On  the  other  hand,  the  complainants'  dwellings  are  in  a  part  of  the 
city  appropriated  almost  wholly  to  residences,  and  the  place  is  among 
the  most  suitable  and  desirable  for  the  purpose.  The  buildings  are 
generally  costly  and  substantial,  and  some  of  them  have  grounds  ex- 
pensively improved.  The  total  value  is  very  large,  and  in  comparisons 
with  it  the  value  of  defendant's  establishment  proper  is  a  mere  trifle. 
The  case  of  Gilbert  v.  Showerman  [23  Mich.  448]  cannot  apply. 

On  the  whole,  as  already  stated,  we  think  the  complainants  have 


938  INJUNCTION"   IN    RELATION   TO   TORTS  (Cll.  4 

clearly  made  out  their  rights  to  the  relief  prayed,  and  that  the  decree 
below  must  be  affirmed,  with  costs. 

Cooley    and  Campbell,  J  J.,  concurred.     Christiancy,  J.,  did  not 
sit  in  this  case. 


GROTHLICH  v.  KLEIN  &  COHN. 

(Circuit  Court  of  Ohio,  First  Circuit,  1909.    32  Ohio  Cir.  Ct.  Rep.  665, 
22  O.  C.  D.  665.) 

Petition  of  plaintiff  to  enjoin  the  operation  of  hammers  and  heavy 
machinery  in  defendant's  factory  adjoining  her  residence  was  allowed 
in  the  court  below. 

Giffen,  P.  J.  It  appears  from  the  .testimony  and  a  view  of  the 
premises  including  the  power-shears  in  operation  that  the  chief  noise 
arises  from  the  cog-wheels  forming  a  part  of  the  gearing,  and  that 
there  is  no  substantial  vibration  affecting  the  plaintiff's  property.  The 
business  itself  is  lawful  and  conducted  in  an  ordinarily  prudent  man- 
ner. Such  annoyance  as  the  plaintiff  suffers  is  no  greater  than  is  en- 
dured in  any  populous  neighborhood  devoted,  as  this  is,  in  part  to  man- 
ufactures, and  to  grant  relief  by  injunction  would  practically  suspend 
manufacturing  within  the  city  limits. 

The  first  proposition  of  the  syllabus  in  the  case  of  Goodall  v.  Crofton, 
33  Ohio  St.  271  [31  Am.  Rep.' 535],  is  as  follows: 

"On  the  petition  of  a  landowner,  complaining  that  certain  steam  power  and 
machinery  operated  by  another  on  adjoining  land  is  a  nuisance,  an  injunc- 
tion should  not  be  granted  unless  a  clear  case  of  nuisance  and  irreparable  in- 
jury be  made  out." 

There  is  and  can  be  no  real  injury  to  the  property  itself,  and  while 
the  annoyance  to  the  plaintiff  and  her  tenants  is  substantial,  it  does  not 
amount  to  a  nuisance  for  which  an  injunction  should  be  granted. 

We  did  not  see  the  derrick  and  weight  for  crushing  iron  in  operation 
but  from  the  testimony  we  find  no  warrant  for  restraining  its  operation 
by  injunction. 

The  petition  will  be  dismissed  and  each  party  ordered  to  pay  his 
own  costs. 

Smith  and  Swing,  JJ.,  concur. 


CAMPBELL  v.  SEAMAN. 

(Court  of  Appeals  of  New  York,  1876.     63  N.  Y.  568,  20  Am.  Rep.  567.) 

Earl,  J.39  The  plaintiffs  owned  about  forty  acres  of  land,  situate 
in  the  village  of  Castleton,  on  the  east  bank  of  the  Hudson  river,  and 
had  owned  it  since  about  1849.  During  the  years  1857,  1858  and  1859 
they  built  upon  it  an  expensive  dwelling-house,  and  during  those  years, 
and  before  and  since,  they  improved  the  land  by  grading  and  terracing, 

sa  Parts  of  the  opinion  are  omitted. 


Sec.  4)  nuisance  939 

building  roads  and  walks  through  the  same,  and  planting  trees  and 
shrubs,  both  ornamental  and  useful. 

The  defendant  had  for  some  years  owned  adjoining  lands,  which  he 
had  used  as  a  brick-yard.  The  brick-yard  is  southerly  of  plaintiffs' 
dwelling-house  about  one  thousand  three  hundred  and  twenty  feet,  and 
southerly  of  their  woods  about  five  hundred  and  sixty-seven  feet.  In 
burning  bricks  defendant  had  made  use  of  anthracite  coal.  During 
the  burning  of  a  kiln  sulphuric  acid  gas  is  generated,  which  is  destruc- 
tive to  some  kinds  of  trees  and  vines.  The  evidence  shows,  and  the 
referee  found,  that  gas  coming  from  defendant's  kilns  had,  during  the 
years  1869  and  1870,  killed  the  foliage  on  plaintiffs'  white  and  yellow 
pines  and  Norway  spruce,  and  had,  after  repeated  attacks,  killed  and 
destroyed  from  one  hundred  to  one  hundred  and  fifty  valuable  pine 
and  spruce  trees,  and  had  injured  their  grape-vines  and  plum  trees,  and 
he  estimated  plaintiffs'  damages  from  the  gas  during  those  years  at 
$500. 

This  gas  did  not  continually  escape  during  the  burning  of  a  kiln,  but 
only  during  the  last  two  days,  and  was  carried  into  and  over  plaintiffs' 
land  only  when  the  wind  was  from  the  south. 

It  is  a  general  rule  that  every  person  may  exercise  exclusive  domin- 
ion over  his  own  property,  and  subject  it  to  such  uses  as  will  best  sub- 
serve his  private  interests.  Generally  no  other  person  can  say  how  he 
shall  use  or  what  he  shall  do  with  his  property.     *     *     * 

A  use  of  property  in  one  locality  and  under  some  circumstances  may 
be  lawful  and  reasonable,  which  under  other  circumstances  would  be 
unlawful,  unreasonable  and  a  nuisance.  To  constitute  a  nuisance,  the 
use  must  be  such  as  to  produce  a  tangible  and  appreciable  injury  to 
neighboring  property,  or  such  as  to  render  its  enjoyment  specially  un- 
comfortable or  inconvenient. 

Within  the  rules  thus  referred  to,  that  defendant's  brick  burning 
was  a  nuisance  to  plaintiffs  cannot  be  doubted.     *     *     * 

In  this  country  so  far  as  I  can  ascertain,  the  question  of  nuisance 

from  brick  burning  has  rarely  been  before  the  courts.    The  only  case  to 

which  our  attention  has  been  called  is  Huckenstine's  Appeal,  70  Pa. 

102,  10  Am.  Rep.  669.    In  that  case  Agnew,  J.,  says : 

"Brick  making  is  a  useful  and  necessary  employment  and  must  be  pursued 
near  to  towns  and  cities  where  bricks  are  chiefly  used.  Brick  burning,  an  es- 
sential part  of  the  business,  is  not  a  nuisance  per  se.  Attorney-Gen.  v.  Cleaver. 
IS  Ves.  219.  It  as  many  useful  employments  do,  may  produce  some  discom- 
fort and  even  some  injury  to  those  near  by,  but  it  does  not  follow  that  a 
chancellor  would  enjoin  therefor." 

He  then  goes  on  to  say  that  the  aid  of  an  injunction  is  not  matter  of 
right  but  of  grace,  and  concludes  that  there  were  so  many  similar  nui- 
sances in  the  locality  that  it  was  not  clear  that  this  nuisance  increased 
the  discomfort  from  them,  and  that  it  was  doubtful  whether  the  plain- 
tiff had  suffered  any  material  damage  from  the  acts,  and  therefore 
held  that  an  injunction  ought  not  to  issue  and  that  the  plaintiff  should 
be  left  to  his  remedy  at  law.     *     *     * 


1)40  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

But  the  claim  is  made  that  although  the  brick  burning  in  this  case  is 
a  nuisance,  a  court  of  equity  will  not  and  ought  not  to  restrain  it,  and 
the  plaintiffs  should  be  left  to  their  remedy  at  law  to  recover  damages, 
and  this  claim  must  now  be  examined. 

Prior  to  Lord  Eldon's  time  injunctions  were  rarely  issued  by  courts 
of  equity.  During  the  many  years  he  sat  upon  the  woolsack  this  remedy 
was  resorted  to  with  increasing  frequency,  and  with  the  development 
of  equity  jurisprudence  which  has  taken  place  since  his  time,  it  is  well 
said  that  the  writ  of  injunction  has  become  the  right  arm  of  the  court. 
It  was  formerly  rarely  issued  in  the  case  of  a  nuisance  until  plaintiff's 
right  had  been  established  at  law,  and  the  doctrine  which  seems  now  to 
prevail  in  Pennsylvania  that  this  writ  is  not  matter  of  right  but  of 
grace,  to  a  large  extent  prevailed.  But  now  a  suit  at  law  is  no  longer 
a  necessary  preliminary,  and  the  right  to  an  injunction  in  a  proper  case 
in  England  and  most  of  the  States  is  just  as  fixed  and  certain  as  the 
right  to  any  other  provisional  remedy.  The  writ  can  rightfully  be 
demanded  to  prevent  irreparable  injury,  interminable  litigation  and  a 
multiplicity  of  suits,  and  its  refusal  in  a  proper  case  would  be  error  to 
he  corrected  by  an  appellate  tribunal.  It  is  matter  of  grace  in  no  sense 
except  that  it  rests  in  the  sound  discretion  of  the  court,  and  that  discre- 
tion is  not  an  arbitrary  one.  If  improperly  exercised  in  any  case  either 
in  granting  or  refusing  it,  the  error  is  one  to  be  corrected  upon  appeal. 
Corning  v.  Troy  Iron  &  Nail  Factory,  40  N.  Y.  191 ;  Reid  v.  Gifford, 
Hopk.  Ch.  416;  Pollitt  v.  Long,  58  Barb.  20;  Mohawk  &  Hudson  R. 
Co.  v.  Archer,  6  Paige,  83 ;  Parker  v.  Winnipiseogee  Lake  Cotton  & 
Woolen  Co.,  2  Black,  545,  551,  17  L.  Ed.  333;  Webber  v.  Gage,  39  N. 
H.  182 ;  Dent  v.  Auction  Mart  Association,  35  L.  T.  Ch.  555  ;  Attorney- 
General  v.  United  Kingdom  Tel.  Co.,  30  Beav.  287 ;  Wood  v.  Sutcliffe, 
2  Sim.  (N.  S.)  165;  Clowes  v.  Staffordshire  Potteries  Co.,  L.  R.,  8  Ch. 
App.  125.  Here  the  remedy  at  law  was  not  adequate.  The  mischief 
was  substantial,  and  within  the  principle  laid  down  in  the  cases  above 
cited  and  others  to  which  our  attention  has  been  called,  irrepar- 
able.    *     *     * 

It  follows  from  these  views  that  the  judgment  should  be  affirmed. 
All  concur. 

Judgment  affirmed. 


WILMARTH  v.  WOODCOCK. 
(Supreme  Court  of  Michigan,  1885.    5S  Mich.  482,  25  N.  W.  475.) 

Appeal  from  Kent. 

Ciiamplin,  J.  This  is  a  general  demurrer  for  want  of  equity  to  a 
bill  of  complaint  filed  by  the  complainant  against  the  defendant  to 
abate  a  private  nuisance.  The  material  allegations  of  the  bill  are  that 
the  complainant  is  the  owner  of  lot  15,  in  block  10  of  Bostwick  &  Co.'s 
addition  to  the  city  of  Grand  Rapids,  except  a  strip  six  feet  in  w  idth, 


Sec.  4)  nuisance  941 

front  and  rear,  off  from  north  of  said  lot ;  that  her  lot  is  44  feet  in 
width,  fronting  on  Sheldon  street,  and  constitutes  her  homestead ;  that 
defendant  owns  the  land  next  to  and  adjoining  her  land  on  the  north; 
that  a  line  fence  marks  the  boundaries  of  their  respective  lands ;  that 
defendant  commenced  the  erection  of  a  barn  upon  his  premises  so  near 
the  line  that  she  feared  the  cornice  would  project  over  upon  her  premis- 
es ;  that  she  made  inquiries  of  defendant  as  to  whether  he  intended  to 
construct  a  cornice  over  her  premises  ;  could  obtain  no  information  from 
him  as  to  his  intention ;  that  she  warned  him  that  he  must  not  so  con- 
struct his  barn  as  to  cause  any  part  of  it  to  project  over  her  premises. 
Nevertheless  defendant  built  his  barn  near  the  line,  and  constructed  a 
cornice  which  projects  over  her  premises  a  distance  of  16  inches  at  the 
west  end,  and  6  inches  at  the  east  end,  and  covers  a  distance  of  21  feet 
in  length ;  that  the  cornice  is  built  upon  a  gable  of  the  barn,  and  at 
the  eaves  is  about  15  feet  above  the  ground,  and  at  the  peak  is  about 
28  feet  above  the  ground;  that  the  projection  of  said  cornice  over 
the  line  of  said  lot,  as  herein  set  forth,  materially  and  permanently  in- 
jures her  said  property ;  that  it  would  prevent  the  use  of  a  portion  of 
her  said  land  for  the  purposes  of  a  residence;  that  it  very  materially 
injures  the  looks  of  her  homestead,  and  would  very  much  depreciate 
the  market  value  thereof  and  render  it  unsalable ;  that  having  but  a 
limited  amount  of  land,  such  an  unjust  appropriation  is  an  irreparable 
injury  to  .her  homestead,  and  the  evident  intent,  as  your  oratrix  verily 
believes,  of  the  said  Robert  B.  Woodcock,  in  wrongfully  infringing 
upon  her  rights  in  this  regard,  is  to  ultimately  encroach  still  further 
upon  her  premises,  as  he  has  given  out  and  insisted  that  he  owns 
three  feet  in  width  off  from  the  north  side  of  your  oratrix's  said  land, 
which  he  intends,  as  your  oratrix  has  been  informed  and  believes,  to 
recover  unjustly  from  her.  And  your  oratrix  further  shows,  and 
charges  the  fact  upon  her  best  judgment  and  belief,  that  if  said  pro- 
jection is  permitted  to  remain,  her  said  homestead  will  be  thereby  de- 
preciated in  its  market  value,  and  in  value,  considering  the  injury  in  its 
looks  and  convenience  in  the  use  and  enjoyment  of  her  said  property, 
at  least  $500. 

The  defendant  claims  that  the  bill  states  no  case  for  equitable  relief, 
— First,  because  it  appears  by  the  bill  that  there  is  a  dispute  about  the 
boundary ;  and,  second,  complainant  has  an  adequate  and  complete 
remedy  at  law,  in  an  action  of  trespass  or  trespass  upon  the  case,  and 
because  the  injury  does  not  appear  to  be  irreparable,  since  she  states 
the  depreciation  in  the  market  value  of  her  homestead  will  be  at  least 
$500,  and  it  is  not  alleged  that  defendant  is  pecuniarily  irresponsible 
and  unable  to  respond  in  damages  at  least  to  that  amount. 

A  general  demurrer  challenges  the  equity  of  the  case  made  by  the 
bill,  and  must  be  overruled  if  a  case  for  equitable  relief  is  set  out,  how- 
ever imperfectly.  Glidden  v.  Norvell,  44  Mich.  202,  S.  C.  6  N.  W, 
195;  Hoffman  v.  Ross,  25  Mich.  175;  Clark  v.  Davis,  Har.  227.  The 
bill  states  a  case  for  equitable  relief.     The  continued  invasion  of  com- 


942  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

plainant's  rights  of  property  by  the  maintenance  of  the  projection  of 
the  cornice  over  her  north  line,  constituting  a  permanent  injury  to  and 
depreciation  of  her  property,  addresses  itself  to  and  calls  in  exercise 
the  equitable  jurisdiction  of  the  court.  No  remedy  at  law  is  adequate, 
owing  to  the  uncertainty  of  the  measure  of  damages  to  afford  complete 
compensation.  In  one  sense  it  is  taking  from  complainant  her  property 
without  condemnation  and  without  due  process  of  law.  No  person  can 
be  permitted  to  reach  out  and  appropriate  the  property  of  another,  and 
secure  to  himself  the  adverse  engagement  and  use  thereof,  which,  in  a 
few  years,  will  ripen  into  an  absolute  ownership  by  adverse  possession. 

Chapter  273,  How.  St.,  provides  a  remedy,  where  the  plaintiff  pre- 
vails in  an  action  on  the  case  for  a  private  nuisance,  for  the  abatement 
of  the  same.  It  is  quite  evident  that  there  may  be  cases  where  the 
present  injury  would  be  so  inconsiderable  to  the  mind  of  a  jury  that, 
although  the  nuisance  complained  of  might  be  of  the  most  annoying 
kind,  they  might  fail  to  give  the  plaintiff  a  verdict  for  damages.  This 
statute  does  not  take  away  the  jurisdiction  of  a  court  of  equity,  but 
affords  a  concurrent  remedy ;  and  we  can  see  no  good  reason  for  turn- 
ing the  complainant  out  of  a  court  having  full  and  complete  jurisdiction 
to  seek  her  remedy  in  a  court  having  not  greater  but  more  limited  pow- 
er to  afford  complete  and  adequate  relief.  Fraedrich  v.  Flieth,  64  Wis. 
184,  25  N.  W.  28,  Denner  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  57  Wis.  218, 
S.  C.  15  N.  W.  158.  The  statement  that  the  depreciation  of  her  prop- 
erty will  be  at  least  $500  does  not  deprive  the  party  from  relief  in  a 
court  of  equity.  The  object  of  the  pleader  in  making  the  averment 
was  doubtless  to  show  that  the  injury  exceeded  $100.  We  do  not  feel 
called  upon  to  say,  upon  this  record,  whether  an  averment  of  the  kind 
is  necessary  in  cases  of  nuisance,  nor  that  a  suit  in  equity  must  fail  if 
the  proofs  should  disclose  that  the  damage  was  less  than  $100. 

Irreparable  injury,  in  the  sense  in  which  it  is  used  in  conferring 
jurisdiction  upon  courts  of  equity,  does  not  mean  that  the  injury  com- 
plained of  is  incapable  of  being  measured  by  a  pecuniary  standard ; 
nor  does  it  appear  from  the  face  of  the  bill  that  the  injury  complained 
of,  for  which  relief  is  sought,  is  a  question  of  a  disputed  boundary 
between  the  parties.  The  bill  states  with  certainty  and  particularity 
the  boundary  line  between  her  and  the  defendant,  and  her  ownership 
in  fee  of  the  land  south  of  such  boundary.  Her  averment  that  she 
believes  that  defendant  intends  ultimately  to  encroach  still  further  upon 
her  premises,  and  stating  as  the  basis  for  such  belief  that  defendant  has 
given  out  and  insisted  that  he  owns  three  feet  in  width  of  the  north 
side  of  her  land  which  he  intends  unjustly  to  recover  from  her,  is  not 
such  a  statement  of  a  dispute  about  a  boundary  as  would  deprive  the 
court  of  jurisdiction.  The  defendant  urges  that  he  has  a  right  to  have 
his  title  to  the  three  feet,  which  he  insists  he  owns,  and  which  is  in  the 
possession  of  the  complainant,  tried  by  a  jury.  This  suit  does  not  de- 
prive him  of  that  right.    The  courts  of  law  are  open,  and  the  remedy 


Sec.  4)  nuisance  943 

by  ejectment  is  ample,  and  he  is  the  only  party  who  can  bring  the  ac- 
tion. 

The  decree  of  the  court  below  is  affirmed,  with  costs.  The  record 
will  be  remanded,  with  leave  for  defendant  to  answer  in  20  days  on 
complying  with  the  order  of  the  court  below  as  to  payment  of  costs. 
The  other  Justices  concurred. 


CHAMBERS  v.  CRAMER  et  al. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1901.    49  W.  Va.  395,  38  S.  E.  C91, 

54  L.  R.  A.  545.) 

Bill  by  S.  T.  Chambers  against  George  F.  Cramer  and  J.  W.  Mc- 
Cready.    Decree  for  plaintiff,  and  defendants  appeal. 

McWhorTEr,  J.40  S.  T.  Chambers  filed  his  bill. in  the  circuit  court 
of  Mingo  county  against  George  F.  Cramer  and  J.  W.  McCready,  alleg- 
ing: 

That  he  was  the  owner  of  certain  valuable  real  estate  in  the  town  of  Mate- 
wan,  in  said  county,  known  as  "Lot  14,"  upon  which  was  located  a  valuable 
house,  which  he,  with  his  family,  occupied  as  a  residence,  and  in  which  he 
had  been  keeping  a  hotel  for  several  years.  *  *  *  He  also  had  on  said 
lot  a  valuable  store  building,  costing  and  worth  at  least  $1,400.  *  *  *  That 
recently  defendants  claimed  to  have  purchased  a  lot  in  close  proximity  to 
plaintiff's  property,  there  being  only  a  small  alley  of  15  feet  width  intervening 
between  the  two  properties.  That  plaintiff  was  informed  that  defendants 
were  going  to  construct  a  building  on  their  said  lot  in  which  they  were  going 
to  locate  an  engine,  and  conduct  what  they  called  a  "machine  shop  and  black- 
smith shop."  That  soon  afterwards  plaintiff  served  notice  in  writing  upon 
defendants  that  they  should  not  construct  such  a  building,  nor  should  they 
be  permitted  to  keep  and  maintain  any  machine  shops  so  close  to  the  prop- 
erty of  plaintiff,  reciting  that  such  shops  and  engines  would  greatly  impair  the 
value  of  plaintiff's  property,  and  endanger  it  by  exposure  to  fire;  that  the 
same  would  constitute  a  nuisance,  which  plaintiff  would  enjoin.  That  defend- 
ants paid  no  attention  to  said  notice,  and  proceeded  to  the  full  construction 
of  said  building,  and  openly  proclaimed  their  purpose  of  locating  an  engine 
therein  and  conducting  a  blacksmith  and  machine  shop  thereon,  all  of  which 
would  greatly  reduce  the  value  of  plaintiff's  property.  That  its  location  would 
constitute  a  great  menace  and  danger  to  the  property  of  plaintiff  and  oth- 
ers. *  *  *  That  J.  W.  McCready  was  insolvent  and  Cramer  had  no  prop- 
erty in  this  state,  except  the  interest  mentioned,  worth,  perhaps,  not  over  $400, 
and,  besides,  was  a  nonresident  of  the  state.  And  he  prayed  that  defendants 
be  perpetually  inhibited  and  enjoined  from  conducting  or  maintaining  such 
blacksmith  shop,  machine  shop,  or  works  upon  such  premises,  and  from  lo- 
cating any  engine  thereon  calculated  to  endanger  life  or  property  of  plaintiff, 
and  for  general  relief.     *     *     * 

The  answer  denied  all  the  material  allegations  of  the  bill,  averring 
that  there  would  be  no  extraordinary  danger  from  fire,  that  the  machin- 
ery proposed  to  be  put  into  the  shops  was  of  the  most  approved  kind, 
and  almost  wholly  noiseless ;  denied  that  any  smoke,  effluvia,  or  cinders, 
or  anything  of  the  like  nature,  would  constitute  any  undesirable  ele- 
ment against  the  comfort  and  enjoyment  of  the  property  of  any  one, 
or  that  it  would  increase  the  insurance  on  any  building  in  the  town  of 

*o  Parts  of  the  opinion  are  omitted. 


944  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 

Matewan,  or  that  the  construction  and  operation  of  said  plant  would  in 
any  manner  constitute  a  nuisance  of  any  nature  whatever,  or  cause  any 
wrong  or  mischief  to  the  property  of  plaintiff  or  any  one  else ;  denied 
the  insolvency  of  either  of  the  defendants,  and  the  nonresidence  of  de- 
fendant Cramer ;  *  *  *  and  averred  that  they  had  purchased  and 
paid  for  over  $2,000  worth  of  machinery  to  go  in  said  plant,  which 
machinery  had  arrived  at  said  town  of  Matewan  before  the  injunction 
was  granted  in  this  cause,  and  that  the  continuance  in  favor  of  said 
injunction  was  absolutely  ruinous  to  defendants'  business  and  to  their 
property  rights.     *     *     * 

The  cause  was  heard  finally  on  the  12th  day  of  October,  1898,  when 
the  court  perpetuated  the  injunction  and  rendered  judgment  against 
defendants  for  the  costs  of  the  suit,  from  which  decree  the  defendants 
appealed  to  this  court,  and  say  the  court  erred  in  awarding  the  injunc- 
tion on  the  15th  of  March  1898,  and  in  not  sustaining  defendants' 
demurrer  to  the  bill,  and  in  refusing  to  pass  upon  the  said  demurrer, 
either  overruling  or  sustaining  the  same,  in  refusing  to  sustain  the 
motion  to  dissolve  the  injunction  made  on  the  1st  day  of  June,  1898, 
and  in  continuing  the  same  in  full  force  and  effect,  and  in  refusing  to 
dissolve  the  injunction  on  the  12th  day  of  October,  1898,  when  the  case 
was  submitted  for  final  decree,  and  in  entering  its  decree  perpetuating 
said  injunction  and  striking  said  cause  from  the  docket. 

Should  this  injunction  have  been  granted,  upon  the  case  made  out 
in  the  bill  ?  The  defendants  were  engaging  in  a  proper  and  legitimate 
business,  in  harmony  with  and  in  furtherance  of  the  material  interests 
of  the  town  and  community, — one  of  the  many  useful  industries  that 
mark  the  progress  of  that  rapidly  developing  section  of  our  state.  It 
would  seem  that  inducements  would  be  offered  to  encourage  the  build- 
ing up  of  industries  of  that  character.  "It  is  a  general  rule  that  when 
the  thing  complained  of  is  not  a  nuisance  per  se,  but  may  or  may  not 
become  so,  according  to  circumstances,  and  the  injury  apprehended  is 
eventual  or  contingent,  equity  will  not  interfere.  The  presumption  is 
that  a  person  entering  into  a  legitimate  business  will  conduct  it  in  a 
proper  way,  so  that  it  will  not  constitute  a  nuisance ;  and  so  when  a 
building  in  course  of  erection,  or  about  to  be  erected,  will  not  of  itself 
constitute  a  nuisance,  equity  will  not  enjoin  it  on  the  ground  that  it 
may  be  used  for  a  purpose  which  will  make  it  a  nuisance.  If  the 
building  is  in  fact  used  in  such  a  manner  as  to  create  a  nuisance,  its  use 
for  such  purpose  will  then  be  enjoined."  14  Enc.  PI.  &  Prac.  1129,  and 
cases  cited.  In  Hough  v.  Borough  of  Doylestown,  4  Brewst.  (Pa.)  333, 
it  was  held  that : 

"In  order  for  equity  to  enjoin  a  private  nuisance,  the  danger  must  be  im- 
pending and  imminent,  and  the  effect  certain,  not  resting  on  hypothesis  or  con- 
jecture, but  established  by  conclusive  evidence.  If  the  injury  be  doubtful, 
eventual,  or  contingent,  or  if  the  matter  complained  of  is  not  per  se  a  nuisance, 
an  injunction  will  not  be  granted.  In  cases  of  prospective  nuisance  a  court  of 
equity  will  not  interfere  unless  the  damages  to  be  apprehended  will  be  serious, 
nor  when,  upon  balancing  the  inconveniences  or  injuries,  greater  injury  will 
be  inflicted  by  granting  than  by  refusing  an  injunction." 


Sec.  4)  nuisance  045 

The  property  rights  of  defendants  as  well  as  plaintiff  must  be  con- 
sidered. The  defendants  had  purchased  this  ground  for  the  location 
and  conducting  of  a  legitimate  business  and  industry  in  the  line  of  the 
progress  and  growth  of  the  town  and  community,  and,  according  to  the 
evidence,  had  expended  over  $2,000  for  the  equipment  of  their  business 
with  machinery  and  appliances  of  the  latest  and  most  improved 
pattern  and  make.  The  testimony  taken  and  filed  in  the  cause  of  all 
who  pretend  to  know  anything  about  the  machinery  proposed  to  be 
used  by  defendants  is  to  the  effect  that  it  is  almost  noiseless  and  with- 
out danger  from  fire,  while  the  evidence  to  the  contrary  is  principally 
by  men  who  know  little  or  nothing  about  machinery,  and  base  their 
opinions  (and  their  evidence  is  almost  wholly  "opinional  evidence") 
upon  their  knowledge  or  observation  of  the  conduct  of  country  black- 
smith shops.     *     *     * 

The  evidence  is  not  in  relation  to  existing  facts  and  transactions  had, 
but  is  something  of  a  speculative  character, — as  to  whether  the  shops 
can  be  so  constructed  and  conducted  as  not  to  become  a  nuisance.  'If 
after  the  shops  are  opened  and  operated  they  prove  to  be  a  nuisance  to 
plaintiff  or  others  in  the  comfortable  enjoyment  of  their  property,  they 
will  be  entitled  to  relief  therefrom  by  the  abatement  of  the  nuisance, 
and  the  defendants  will  be  held  liable  for  damages.  For  the  reasons 
herein  given  the  decrees  of  June  1  and  October  12,  1898,  are  set  aside 
and  reversed,  and  the  bill  dismissed,  but  without  prejudice  to  another 
suit  or  action  in  case  the  shops,  when  completed  and  operated,  should 
become  a  nuisance  to  plaintiff. 


BERNARD  v.  WILLAMETTE  BOX  &  LUMBER  CO. 

(Supreme  Court  of  Oregon,  1913.     64  Or.  223,  129  Pac.  1039.) 

Appeal  from  Circuit  Court,  Multnomah  County;  J.  P.  Kavanaugh, 
Judge. 

Action  by  Charles  Bernard  against  the  Willamette  Box  &  Lumber 
Company.    Judgment  for  plaintiff,  and  defendant  appeals. 

This  is  a  suit  by  a  private  individual  to  prevent  and  remove  an  alleged 
public  nuisance  and  recover  damages  asserted  to  have  been  caused  by 
the  inconvenience.  The  complaint  charges  generally  that  the  defendant 
is  a  private  corporation  engaged  in  manufacturing  lumber  and  boxes 
at  Linnton,  Or. ;  that  on  June  3,  1893,  the  plaintiff  secured  the  legal 
title  to  and  is  now  the  owner  of  lots  3  and  4,  in  block  26,  as  indicated  on 
the  recorded  plat  of  that  town ;  that  these  lots  abut  upon  F  street 
which  is  a  public  highway  60  feet  wide;  that,  after  the  plaintiff  obtain- 
ed the  title  to  such  real  property,  the  defendant  constructed  an  elevated 
railroad  along  F  street  in  front  of  and  adjacent  to  these  lots,  and  also 
piled  lumber  in  that  street  thereby  obstructing  travel  thereon  and  pre- 
venting ingress  to  and  egress  from  such  premises,  greatly  reducing 
Hoke  Eq.— 60 


946  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

their  value  to  plaintiff's  damage  in  the  sum  of  $1,000.  A  demurrer  to 
the  complaint  on  the  ground  inter  alia  that  the  plaintiff  had  an  adequate 
remedy  at  law  was  overruled,  whereupon  the  answer  was  filed  denying 
the  material  allegations  of  the  complaint,  and  setting  forth  others  as  a 
defense.  A  reply  put  in  issue  the  averments  of  new  matter  in  the 
answer,  and  the  cause  having  been  tried  resulted  in  a  decree  as  prayed 
for  in  the  complaint,  except  that  the  plaintiff  was  awarded  only  $200 
as  damages,  and  the  defendant  appeals. 

Moore,  J.41  (after  stating  the  facts  as  above).  It  is  maintained  that 
for  the  redress  of  the  injuries  alleged  the  plaintiff  had  an  adequate 
remedy  at  law,  and,  such  being  the  case,  an  error  was  committed  in 
overruling  the  demurrer.  The  statute  declares  that  in  all  cases  where 
there  is  not  a  plain,  adequate,  and  complete  remedy  at  law  the  protec- 
tion of  a  private  right  or  the  prevention  of  or  redress  for  an  injury 
thereto  shall  be  by  a  suit  in  equity.     *     *     * 

Any  act  of  a  party  that  trenches  upon  the  rights  of  the  public  may  be 
redressed  by  a  suit  in  equity  instituted  by  or  in  the  name  of  the  state  as 
an  exercise  of  its  police  power  to  prevent  or  remove  a  common  nui- 
sance. *  *  *  It  will  therefore  be  taken  for  granted  that  the 
proper  officers  of  Linnton  were  authorized  to  maintain  a  suit,  and  by 
a  mandatory  injunction  could  have  caused  to  be  removed  an  obstruc- 
tion from  a  public  street  in  that  village,  and  what  the  persons  charged 
with  the  right  and  duty  of  exercising  certain  functions  were  empowered 
to  perform  a  private  party  who  sustained  a  special  injury,  differing  in 
kind  from  that  suffered  by  the  community  at  large  from  a  public  nui- 
sance, may  also  do.     *     *     * 

The  owner  of  a  town  lot  suffers  peculiar  and  special  damages,  differ- 
ing in  kind  from  that  to  which  the  public  is  subjected  by  the  obstruc- 
tion of  a  part  of  a  public  street  immediately  in  front  of  his  premises, 
whereby  ingress  and  egress  to  and  from  such  abutting  property  is  pre- 
vented, and  such  owner  may  maintain  a  suit  in  equity  to  prevent  or  re- 
move the  common  nuisance.     *     *     * 

In  suits  by  a  private  party  to  enjoin  a  public  nuisance,  it  is  generally 
held  that  he  must  not  only  suffer  an  injury  differing  in  kind  from 
that  sustained  by  the  community  at  large,  but  his  detriment  must  also 
be  irreparable,  or,  at  least,  not  capable  of  full  and  complete  compensa- 
tion in  damages.  Elliott,  Roads  &  Streets  (3d  Ed.)  §  850.  In  referring 
to  this  legal  principle  the  author  there  observes : 

"This  is  no  doubt  a  fair  statement  of  the  general  rule,  but  the  phrase  'ir- 
reparable injury'  is  apt  to  mislead.  It  does  not  necessarily  mean  as  used  in 
the  law  of  injunctions,  that  the  injury  is  beyond  the  possibility  of  compensa- 
tion in  damages,  nor  that  it  must  be  great.  And  the  fact  that  no  actual  dam- 
ages can  be  proved,  so  that  in  action  at  law  the  jury  could  award  nominal 
damages  only,  often  furnishes  the  very  best  reason  why  a  court  of  equity 
should  interfere  in  cases  where  the  nuisance  is  a  continuous  one." 

The  term  "irreparable  damages,"  to  prevent  which  injunction  may 
issue,  includes  wrongs  of  a  repeated  and  continuing  character,  or  which 

4i  Parts  of  the  opinion  are  omitted. 


Sec.  4)  NUISANCE 


947 


occasion  damages  that  are  estimable  only  by  conjecture,  and  not  by 
any  accurate  standard.  Commonwealth  v.  Pittsburgh,  etc.,  R.  R.  Co., 
24  Pa.  159,  62  Am.  Dec.  372.  See,  also,  upon  this  subject  the  notes  to 
the  case  of  Dudley  v.  Hurst,  67  Md.  44,  8  Atl.  901,  1  Am.  St.  Rep.  368. 

The  plaintiff's  right  to  ingress  and  egress  to  and  from  that  street 
to  his  lots  has  been  clearly  established,  and  as  the  invasion  of  that 
right,  by  the  construction  of  the  elevated  roadway,  has  also  been  sub- 
stantiated, he  is  entitled  to  the  relief  demanded  in  the  complaint.  This 
redress  cannot  be  defeated  by  the  defendant's  removal  of  the  obstruc- 
tion after  this  suit  was  instituted,  for  a  court  of  equity,  having  obtained 
jurisdiction  to  grant  injunctive  relief,  will  retain  the  right  to  hear  and 
determine  the  cause  upon  the  question  of  damages.  Whaley  v.  Wilson, 
112  Ala.  627,  20  South.  922;  Fleischner  v.  Citizens'  Investment  Co.,  25 
Or.  119,  35  Pac.  174. 

It  follows  from  these  considerations  that  the  decree  should  be  affirm- 
ed, and  it  is  so  ordered. 


COMMONWEALTH  ex  rel.  PRATT  v.  McGOVERN. 

(Court  of  Appeals  of  Kentucky,  1903.    116  Ky.  212,  75  S.  W.  261, 
66  L.  R.  A.  2S0.) 

SETTLE,  J.42  This  equitable  action  was  instituted  in  the  Jefferson 
circuit  court,  common  pleas  division,  by  the  appellant,  the  common- 
wealth of  Kentucky,  on  relation  of  the  Attorney  General,  against  the 
appellees,  Terry  McGovern  and  others,  to  prevent  the  holding  of  a 
prize-fight  advertised  to  take  place  on  the  22d  day  of  September,  1902, 
in  the  Auditorium,  a  large  theater  situated  in  the  city  of  Louisville. 
Terry  McGovern  and  Young  Corbett  were  to  be  the  combatants,  and 
their  managers  and  the  owner  of  the  Auditorium  were  made  parties  to 
the  action. 

It  is  averred  in  the  petition,  in  substance,  that  the  prize-fight  was  to 
be  given  under  the  auspices  of  the  Southern  Athletic  Club  of  which 
the  appellee  Robert  Gray  is  the  sole  stockholder  and  manager;  that 
the  Auditorium  has  a  seating  capacity  of  4,000,  and  that  the  prices 
of  tickets  for  admission  into  that  building  to  witness  the  prize-fight 
vary  from  $5  to  $20  a  seat ;  that  the  fight  was  to  take  place  accord- 
ing to  the  Marquis  of  Oueensbury  rules,  and  the  fighters  were  to  re- 
ceive $10,000  between  them.  It  is  further  averred  that  the  prize- 
fight, if  allowed  to  take  place,  would  bring  to  the  city  of  Louisville  a 
great  number  of  sporting  men,  disorderly  persons,  and  criminals,  and 
that  the  persons  so  drawn  to  the  city  would  constitute  a  lawless,  tur- 
bulent, and  dangerous  assembly  of  many  thousands  of  people,  and 
would  produce  breaches  of  the  peace  and  other  violations  of  the  law, 
which  would  have  a  demoralizing  effect  upon  the  good  order  and  well- 

42  Parts  of  the  opiniou  ;ire  omitted. 


948  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

being  of  the  community,  and  produce  a  public  nuisance.  It  is  also 
averred  that  a  criminal  prosecution  of  the  principals  and  others  con- 
nected with  them  would  not  prevent  the  great  injury  that  would  be 
done  to  the  people  of  the  state  by  holding  the  prize-fight  within  its 
bounds,  and,  finally,  that  the  commonwealth  has  no  adequate  remedy 
at  law  for  the  injury  which  would  result  to  the  public  welfare,  if  the 
prize-fight  were  allowed  to  be  held.  Answer  was  filed  by  the  appellees, 
traversing  the  allegations  of  the  petition. 

Thereafter,  upon  the  pleadings  and  proof,  in  the  form  of  affidavits 
and  depositions,  the  judge  of  the  court  in  which  the  action  was  then 
pending  issued  a  temporary  restraining  order  against  appellees,  and 
upon  the  day  following  its  issual  a  motion  was  made  by  the  appellees 
before  one  of  the  judges  of  this  court  to  dissolve  the  restraining  order, 
and  that  judge  and  five  of  his  associates,  members  of  this  court  whom 
he  called  in  consultation,  rendered  the  following  opinion : 

"This  motion  was  made  before  the  Chief  Justice,  who  by  consent  of  the  ap- 
plicants transferred  the  hearing  of  the  motion  to  Judge  White,  who  invited 
the  whole  court,  except  Judge  Paynter  (absent),  to  hear  the  application  with 
him.  The  majority  of  the  court  who  heard  the  application  to  dissolve  the  in- 
junction of  Judge  Field  are  of  the  opinion  that  the  contest  which  has  been  en- 
joined is  a  prize-fight,  and  that  it  is  not  material  whether  the  victor  in  the 
contest  is  to  receive  more  of  the  reward  offered  than  the  vanquished.  The 
court  is  divided  equally  upon  the  question  of  whether  the  chancellor  has  pre- 
ventive power  under  the  Kentucky  Statutes  to  restrain  the  holding  of  such 
contest;  Chief  Justice  Guffy  and  Judges  White  and  Burnam  holding  in  the 
negative,  and  Judges  Du  Relle,  Honson.  and  O'Rear  holding  the  affirmative. 
The  motion  to  dissolve  is  therefore  denied." 

After  the  foregoing  action  by  this  court,  the  case  was  submitted  upon 
the  pleadings  and  proof  to  the  judge  of  the  chancery  division.  No.  2, 
Jefferson  circuit  court,  for  trial,  who  rendered  judgment  dismissing 
the  petition.  Appellant  complains  of  that  judgment,  and  has  brought 
the  case  by  appeal  to  this  court  for  review. 

No  one  can  doubt  that  the  contest  between  appellees  McGovern  and 
Corbett,  if  it  had  taken  place  as  advertised,  would  have  been  a  fight. 
Indeed,  it  is  clear  from  the  evidence  furnished  by  the  record  that  the 
fight  between  these  men  was  to  be  one  of  unusual  endurance  and  ex- 
treme brutality,  a  very  feast  of  blood,  to  be  enjoyed  to  the  full  by  the 
thousands  who  were  expected  to  witness  it.     *     *     * 

We  find  *  *  *  that  the  jurisdiction  of  courts  of  equity  to  pre- 
vent and  suppress  nuisances,  especially  such  as  affect  the  public  health, 
morals,  or  safety,  is  of  ancient  date,  though  in  Kentucky  this  power 
has  been  somewhat  restricted  in  its  application.  While  the  writ  of 
injunction  may  not  be  employed  to  prevent  the  commission  of  crime, 
as  such,  we  see  no  reason  why  it  may  not  be  resorted  to  to  prevent  the 
use  of  real  property  for  the  holding  of  a  prize-fight.  Indeed,  we  think 
the  use  of  the  injunction  for  this  purpose  is  not  only  permissible,  but 
required  by  the  statute,  supra,  enacted  to  suppress  that  evil,  if  the 
means  at  the  command  of  the  criminal  courts  are  inadequate  to  its 
suppression.     *     *     * 


§ec.  4)  NUISANCE  949 

The  question  presented  for  the  consideration  of  the  judge  of  the 
Jefferson  circuit  court,  when  the  injunction  was  applied  for  in  this 
case,  was  whether  or  not  the  powers  that  might  be  invoked  under  the 
criminal  jurisdiction  of  the  courts  were  adequate  to  the  suppression  of 
the  prize-fight  about  to  come  off,  and,  if  not,  what  further  powers 
might  be  exercised  by  him?  As  the  statute  required  of  him  the  exer- 
cise of  all  the  powers  of  which  he  was  possessed,  and  the  right  to  em- 
ploy the  writ  of  injunction  being  one  of  those  powers,  it  was  his  duty 
to  grant  it  to  the  extent  of  preventing  the  use  of  the  Auditorium  for 
the  holding  of  the  prize-fight,  if  in  the  exercise  of  a  sound  discretion 
the  facts  before  him  justified  such  relief,  in  aid  of  the  jurisdiction  of 
the  criminal  courts  in  the  matter  of  the  arrest  and  prosecution  of  the 
guilty  participants  in  the  prize-fight.  In  granting  the  injunction  to 
the  extent  indicated,  the  chancellor  would  only  exercise  the  jurisdic- 
tion that  was  exercised  in  draining  the  pond,  and  in  suppressing  the 
distillery,  in  the  Massachusetts  and  Kansas  cases,  respectively,  above 
cited.* 

In  none  of  the  cases,  supra,  was  there  any  question  of  property  or 
pecuniary  right  involved  ;  nor  need  there  be  any  property  right  in- 
volved, so  far  as  the  state  is  concerned,  in  the  maintenance  of  the  pub- 
lic health,  morals,  or  safety.  These  are  all  valuable  rights,  though  not 
susceptible  of  a  pecuniary  estimate,  which  it  is  the  duty  of  the  state  to 
protect  by  every  means  at  its  command;  and,  if  a  court  of  equity  has 
the  power  to  enjoin  the  use  of  private  property  as  a  nuisance  which  is 
dangerous  to  the  public  health,  why  may  it  not  in  like  manner  enjoin 
it  where  it  constitutes  a  nuisance  dangerous  to  the  public  safety  or 
morals? 

Is  the  use  of  land  or  a  building  for  the  maintenance  of  prize-fighting 
a  public  nuisance?  In  Wood  on  Nuisances  (3d  Ed.)  §  68,  the  author 
says  : 

"A  public  exhibition  of  any  kind  that  tends  to  the  corruption  of  morals,  or 
to  a  disturbance  of  the  peace  or  of  the  general  good  order  or  welfare  of  society, 
is  a  public  nuisance,  ruder  this  head  are  included  all  puppet  shows,  leger- 
demain, and  obscene  pictures,  and  all  exhibitions,  the  natural  tendency  of 
\\iii<  h  is  to  pander  to  vicious  tastes,  and  to  draw  together  the  vicious  and  dis- 
solute members  of  society." 

That  a  prize-fight  is  an  exhibition  of  the  character  here  described, 
and  consequently  a  public  nuisance,  there  can  be  no  doubt ;  and,  if  so, 
the  use  of  a  theater  for  prize-fighting  is  such  a  nuisance.  Therefore 
the  Legislatures  of  many  of  the  states  have  enacted  laws  for  their  sup- 
pression, realizing,  no  doubt,  that  the  remedies  afforded  by  the  gen- 
eral laws  were  not  adequate  to  that  end ;  and  the  courts  have  been 
uniform  in  upholding  the  statutes  thus  enacted.     *     *     * 

We  conclude,  therefore,  that  while  a  court  of  equity  may  not  grant 

an  injunction  against  the  principals  who  were  expected  to  engage  in 

the  fight   in  question,  nor  those  connected   with  them  as   managers, 

'. 
•Cited  in  omitted  portions. 


950  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

trainers,  etc.,  because  the  processes  of  the  criminal  courts  and  the 
powers  of  conservators  of  the  peace  in  the  city  of  Louisville  are,  or 
ought  to  be,  adequate  to  the  prevention  of  the  prize-fight,  by  the  ar- 
rest and  prosecution  of  the  parties  concerned,  yet  it  was  proper  for 
the  lower  court  to  enjoin  the  owner,  proprietor,  and  managers  of  the 
Auditorium  theater  from  permitting  the  holding  of  a  prize-fight  there- 
in, and  from  allowing  therein  any  future  exhibitions  of  the  same  char- 
acter, upon  the  ground  that  such  a  use  of  the  building  would  consti- 
tute a  public  nuisance,  dangerous  to  the  public  morals  and  safe- 
ty.    *     *     * 

As  already  suggested,  not  the  least  of  the  evils  connected  with  the 
holding  of  the  prize-fight  would  be  the  presence  of  the  immense  crowds 
of  lawless  and  turbulent  men  from  all  quarters.  An  injunction  against 
the  use  of  the  building  advertised  as  the  place  of  the  fight  would  go  far 
toward  preventing  the  assembling  of  this  crowd,  and  thereby  avert 
incalculable  mischief,  which  could  not  well  be  averted  by  the  criminal 
courts,  or  their  ministerial  officers,  after  the  assembling  of  the  audi- 
ence at  the  place  of  the  combat,  or  in  the  act  of  assembling ;  for,  al- 
though every  person  who  attends  a  prize-fight  by  that  act  violates  the 
law,  it  would  be  impossible  for  the  officers  of  the  law  to  arrest  any 
considerable  number  of  them  under  such  circumstances.     *     *     * 

In  the  case  at  bar  the  complainant  is  the  state — the  sovereign — 
which  is  seeking  by  a  writ  of  injunction  to  prevent  a  great  evil,  affect- 
ing the  people  of  the  city  of  Louisville,  and  the  entire  state  as  well, 
and  which  threatens  irreparable  injury  to  the  public  morals  because  of 
its  cruelty,  inhumanity,  and  debasing  associations,  and  danger  to  the 
public  safety  because  of  its  bringing  together  the  Lawless  and  tur- 
bulent elements  of  society  from  all  quarters.  Upon  such  a  state  of 
facts,  and  with  the  commands  of  the  statute  directing  him  to  employ 
all  his  powers  to  avert  the  threatened  evil,  it  would,  in  our  opinion, 
be  no  stretch  of  authority  for  the  chancellor  to  employ  the  aid  of  the 
writ  of  injunction  in  such  an  emergency,  to  the  extent,  at  least,  of  pre- 
venting the  use  of  real  property  for  the  holding  of  the  prize-fight.  Xor 
do  we  think  that  the  right  of  the  chancellor  to  so  employ  the  writ  of 
injunction  in  this  case  is  dependent  upon  the  fact  that  a  property  right- 
be  involved.  It  may  be  justified  upon  the  higher  ground  that  the 
morals  and  safety  of  the  public  are  involved,  and  that  the  public  good 
is  of  the  first  consideration. 

If  the  element  of  continuity  were  needed  in  this  case  to  authorize 
the  injunction,  it  is  shown  by  the  record  to  exist;  for  several  wit- 
nesses testify  to  having  attended  contests  similar  to  this  in  the  Audi- 
torium. *  *  *  We  are  of  the  opinion,  however,  that  continuity 
is  not  a  necessary  element  in  this  case. 

In  order  to  constitute  a  public  nuisance,  in  the  meaning  of  the  law, 
it  is  not  always  necessary  that  the  acts  charged  should  have  been  habit- 
ual or  periodical.     Where  a  single  act  produces  a  continuing  result, 


Sec.  4)  nuisance  951 

the  offense  may  be  complete,  without  a  recurrence  of  the  act.  Thus 
one  act  upon  the  part  of  an  individual  in  befouling  a  spring  from 
which  the  public  are  accustomed  to  drink  is  a  public  nuisance.  So  is 
indecent  exposure  of  one's  person  in  a  public  place.  Wood  on  Nui- 
sances, §§  27,  57.  To  constitute  the  offense  denounced  by  the  statute 
as  a  prize-fight,  or  prize-fighting,  it  is  not  necessary  that  a  number  of 
such  combats,  or  that  more  than  one  combat,  should  take  place.  We 
think  one  such  offense  at  a  given  place  would  constitute  a  public  nui- 
sance, and  it  is  the  province  of  a  court  of  equity  to  prevent  nuisances 
that  are  threatened,  and  before  irreparable  mischief  ensues,  as  well 
as  to  arrest  or  abate  those  in  progress,  and  by  perpetual  injunction 
protect  the  public  against  them  in  the  future. 

Being  of  the  opinion  that  the  chancellor  erred  in  dismissing  the  pe- 
tition, and  in  refusing  to  perpetuate  the  injunction,  in  this  case,  to  the 
extent  of  restraining  the  owners  and  managers  of  the  Auditorium 
from  permitting  the  use  of  that  building  for  the  holding  of  the  prize- 
fight between  appellees  McGovern  and  Corbett,  the  judgment  is  re- 
versed, and  cause  remanded,  with  directions  to  set  aside  the  order  dis- 
missing the  petition,  and  to  enter  in  lieu  thereof  the  necessary  decree 
perpetuating  the  injunction  to  the  extent  herein  indicated. 

Paynter,  Barker,  and  Nunn,  JJ.,  dissent. 


POWERS  et  al.  v.  FLANSBURCx. 

(Supreme  Court  of  Nebraska,  1911.     90  Neb.  467,  133  N.  W.  844.) 

Sedgwick,  J.  Three  citizens  and  property  owners  in  the  village  of 
Trenton  began  this  action  in  the  district  court  for  Hitchcock  county 
to  enjoin  the  defendant  from  "conducting  or  in  any  manner  operating 
and  keeping  open"  a  pool  and  billiard  hall  in  the  village  of  Trenton. 
The  finding  and  judgment  were  for  the  defendant,  and  the  plaintiffs 
have  appealed. 

The  petition  alleges  that  the  defendant's  license  has  expired,  and  that 
he  conducts  the  business  complained  of  without  a  license,  that  he  keeps 
and  sells  intoxicating  liquors  in  his  place  of  business  without  any 
license  so  to  do,  and  allows  drinking  and  swearing  in  his  place  of 
business,  and  in  various  ways  keeps  and  maintains  a  disorderly  and  dis- 
reputable house,  which  has  become  and  is  a  public  nuisance.  A  large 
amount  of  evidence  was  taken,  many  citizens  were  called  as  witnesses, 
and  the  evidence  in  regard  to  the  manner  of  keeping  and  conducting 
the  business  is  somewhat  conflicting,  but  there  is  evidence  tending  to 
prove  that  the  defendant  is  keeping  and  selling  intoxicating  liquors 
contrary  to  law,  and  maintaining  a  disorderly  house,  and  doing  other 
illegal  and  improper  things  complained  of  in  the  petition. 

It  is  stated  in  the  brief  that  the  village  council  was  enjoined  by  the 
district  court  from  repealing  the  ordinance  which  provided  for  licens- 


952  INJUNCTION  IN  RELATION  TO  TORTS  (Ch.  4 

ing  billiard  halls,  and  that  prosecutions  were  begun  against  the  defend- 
ant for  keeping  and  selling  intoxicating  liquors  without  license,  and 
that  these  actions  have  been  allowed  to  remain  in  the  courts  without 
determination,  and  that  the  courts  and  the  officers  of  the  law  are  pre- 
venting the  good  people  of  the  village  of  Trenton  from  enforcing  the 
law,  and  from  putting  a  stop  to  the  unlawful  actions  and  conduct  of 
the  defendant.  The  evidence  shows  that  an  action  was  begun  by  this 
defendant  in  the  district  court  to  enjoin  the  village  council  from  enact- 
ing an  ordinance  repealing  the  ordinance  under  which  he  was  licensed, 
and  in  that  action  a  temporary  injunction  was  allowed  as  prayed,  but 
the  evidence  does  not  show  what  became  of  these  proceedings,  nor 
whether  the  action  was  promptly  tried  or  was  unduly  delayed.  The 
evidence  also  shows  that  a  complaint  was  made  against  this  defendant 
in  the  county  court  of  Hitchcock  county  charging  him  with  unlawfully 
keeping  intoxicating  liquors,  with  intention  to  sell  or  dispose  of  the 
same,  contrary  to  law,  and  that  a  warrant  was  issued  under  which  a 
search  was  made  of  the  premises  and  certain  liquors  found  and  the 
defendant  arrested,  and  that  a  hearing  was  had  before  the  county 
court,  and  that  the  defendant  was  held  to  the  district  court  for  trial, 
and  a  judgment  entered  by  the  county  court  ordering  the  liquors  to 
be  destroyed.  The  defendant  in  that  action  then  gave  bond  for  his  ap- 
pearance in  the  district  court,  and  for  an  appeal  to  the  district  court 
from  the  judgment  ordering  the  destruction  of  liquors.  The  evidence 
does  not  show  what  was  done  in  this  matter  in  the  district  court.  There 
is  no  evidence  tending  to  support  the  statements  of  the  brief  criticising 
the  courts  and  officers  of  Hitchcock  county. 

If  we  consider  only  the  allegations  of  plaintiffs'  petition  and  the 
evidence  which  they  introduce,  it  appears  that  the  defendant  has  been 
guilty  of  various  crimes  as  charged  in  the  petition,  and  that  he  is  vio- 
lating the  criminal  law  in  many  particulars.  There  seems  to  be  a  great 
diversity  of  opinion  in  regard  to  these  matters  as  disclosed  by  the  evi- 
dence, and  we  do  not  find  it  necessary  to  determine  the  preponderance 
of  the  evidence  under  the  issues  presented.  The  trial  court  made  no 
special  findings  of  fact.  There  is  nothing  in  the  petition  or  evidence  to 
indicate  that  the  criminal  laws  of  the  state  are  in  any  respect  insuffi- 
cient to  punish  the  defendant  and  put  a  stop  to  the  crimes  which  it  is 
alleged  he  has  committed,  if,  indeed,  the  defendant  is  guilty,  as  al- 
leged. The  petition  does  not  allege  any  special  interest  of  these  plain- 
tiffs in  these  proceedings  as  distinguished  from  the  interest  of  the 
general  public.  On  the  other  hand,  it  is  specifically  alleged  that  this 
action  was  brought  by  these  plaintiffs  in  their  own  behalf  and  in  be- 
half of  all  of  the  citizens  of  Trenton,  who,  it  is  alleged,  were  similarly 
situated.  Under  these  circumstances,  it  is  clear  that  this  action  cannot 
be  maintained.  If  the  defendant  persists  in  keeping  and  selling  liq- 
uors without  license  at  his  place  of  business  in  Trenton,  the  crim- 
inal law  is  amply  sufficient  to  punish  such  offenses.    If  the  proper  of- 


Sec.  4)  nuisance  953 

ficers  refuse  or  neglect  to  enforce  the  law  a  remedy  is  provided  other 
than  by  injunction.  If  a  public  nuisance  is  maintained  that  affects 
alike  all  the  members  of  the  community,  the  public  authorities  may 
deal  with  it,  but  these  plaintiffs  have  not  shown  such  an  interest  as  will 
enable  them  to  maintain  this  action.  If  the  village  authorities  were 
improperly  enjoined  by  the  district  court,  the  remedy  is  by  appeal,  and 
a  review  of  those  proceedings  cannot  be  had  in  another  and  inde- 
pendent action.  The  plaintiffs  have  failed  to  allege  or  prove  sufficient 
grounds,  or,  in  fact,  any  necessity  for  the  extraordinary  writ  of  in- 
junction; nor  have  they  shown  any  special  interest  as  distinguished 
from  the  interest  of  the  general  public. 

The  judgment  of  the  district  court  is  affirmed. 


STEAD  et  al.  v.  FORTXER  et  al. 
(Supreme  Court  of  Illinois,  1912.     255  111.  468.  00  X.  E.  680.) 

Appeal  from  Appellate  Court,  Third  District,  on  Appeal  from  Cir- 
cuit Court,  Shelby  County ;    J.  C.  McBride,  Judge. 

Proceedings  by  \Y.  H.  Stead,  Attorney  General,  and  others,  against 
Al.  C.  Fortner  and  others.  A  judgment  for  plaintiffs  was  modified 
and  affirmed  by  the  Appellate  Court,  and  defendants  appeal. 

Cartwright,  J.43  The  town  of  Shelbyville  is  a  township  of  the 
county  of  Shelby,  which  is  under  township  organization,  and  the  city 
of  Shelbyville  is  incorporated  under  the  general  laws  of  the  state,  sit- 
uated within  the  township  and  covering  only  a  part  of  its  territory. 
On  April  7,  1908,  the  proposition,  "Shall  the  town  of  Shelbyville  be- 
come anti-saloon  territory?"  was  submitted  to  the  legal  voters  of  the 
township  under  the  act  to  provide  for  the  creation  and  abolition  of 
anti-saloon  territory,  in  force  July  1,  1907  (Laws  of  1907,  p.  297),  and 
the  proposition  was  carried  by  an  affirmative  vote.  On  April  21,  1908, 
the  proposition,  "Shall  the  city  of  Shelbyville  become  anti-saloon  ter- 
ritory?" was  submitted  to  the  legal  voters  of  the  city,  and,  a  majority 
having  voted  in  favor  of  the  proposition,  the  city  became  anti-saloon 
territory.  On  April  7,  1910,  the  proposition,  "Shall  the  town  of  Shel- 
byville continue  to  be  anti-saloon  territory?"  was  submitted  and  the 
majority  voted  against  the  proposition,  so  that  the  township  ceased  to 
be  anti-saloon  territory.  Xo  proposition  on  the  question  has  been 
submitted  to  the  legal  voters  of  the  city  or  voted  upon  by  them  since 
the  election  when  the  city  was  made  anti-saloon  territory. 

On  May  9,  1910,  the  city  council  of  the  city  passed  an  ordinance 
granting  liquor  licenses  within  the  city.  The  ordinance  was  vetoed 
by  the  mayor,  but  was  passed  over  the  veto,  and  licenses  were  issued 
to  the  appellant  M.  C.  Fortner,  and  others.     On  May  1,  1911,  licenses 

43  Tarts  of  the  opinion  are  omitted. 


954  INJUNCTION    IN   RELATION   TO  TORTS  (Cll.  4 

were  again  issued,  and  one  of  them  was  to  Fortner,  purporting  to  au- 
thorize him  to  sell  intoxicating  liquors  at  retail  for  one  year.  Since 
May  9,  1910,  Fortner  has  openly,  continuously,  and  willfully  sold  in- 
toxicating liquor  at  retail  in  premises  owned  by  the  appellant  Ross 
Ward,  in  pursuance  of  the  ordinance  and  licenses.  The  city  author- 
ities have  not  taken  any  measures  to  prevent  such  sales,  and  on  July 
8,  1910,  informations,  were  filed  in  the  county  court  charging  Fortner 
and  others  with  selling  intoxicating  liquors  in  violation  of  law  and 
maintaining  common  nuisances,  but  the  county  judge  refused  to  issue 
warrants  on  the  informations.  At  the  November  term,  1910,  and  the 
March  term,  1911,  of  the  circuit  court  of  Shelby  county,  lists  of  wit- 
nesses who  would  testify  to  sales  of  intoxicating  liquors  by  Fortner 
and  others  were  presented  to  the  grand  juries  with  requests  that  the 
witnesses  be  called,  and,  if  the  evidence  was  sufficient,  indictments 
should  be  returned  against  persons  violating  the  law,  but  each  grand 
jury  refused  to  hear  the  witnesses  or  consider  the  evidence  or  return 
any  indictment. 

After  these  fruitless  endeavors  to  have  the  question  tried  and  the 
alleged  violators  of  the  law  punished  by  criminal  process,  the  Attorney 
General  and  state's  attorney  of  Shelby  county,  filed  the  bill  in  equity  in 
this  case  stating  the  above  facts,  alleging  that  the  sales  of  intoxicating 
liquors  were  illegal  and  in  open  and  flagrant  violation  of  the  law  and 
with  the  connivance  and  consent  of  the  city  and  county  authorities, 
and  praying  the  court  to  declare  the  premises  owned  by  Ward,  where 
the  business  was  carried  on  by  Fortner,  a  common  nuisance,  and  that 
such  nuisance  be  abated  by  the  order  and  injunction  of  the  court  re- 
straining the  appellants  from  using  the  premises  for  the  illegal  sale  of 
intoxicating  liquors.  The  appellants  demurred  to  the  bill,  and  the  de- 
murrer being  overruled  they  elected  to  stand  by  it,  whereupon  the  court 
heard  the  cause  and  entered  a  decree  finding  the  facts  in  accordance 
with  the  allegations  of  the  bill  and  adjudging  the  premises  in  question 
to  be  a  common  nuisance,  ordering  the  appellants  to  abate  the  same, 
and  perpetually  enjoining  them  from  permitting  the  building  to  be 
used  as  a  place  where  intoxicating  liquors  could  be  sold,  bartered,  or 
given  away.  On  appeal  to  the  Appellate  Court  for  the  Third  district 
that  court  ordered  the  decree  modified,  so  that  the  injunction,  instead 
of  being  perpetual,  should  continue  until  the  voters  of  the  city  of  Shel- 
byville  should,  if  ever,  vote  that  the  territory  should  not  remain  anti- 
saloon  territory,  and  in  all  other  respects  the  decree  was  affirmed. 
A  certificate  of  importance  was  granted,  and  an  appeal  to  this 
court.     *     *     * 

It  was  in  the  discretion  of  the  General  Assembly,  in  the  exercise 
of  the  police  power,  for  the  protection  of  the  health,  morals,  and 
safety  of  the  people  and  the  promotion  of  their  general  welfare,  to 
enact  the  statute,  and  our  only  function  is  to  apply  the  law  as  made. 

Section  38  of  the  act  in  question  (Hurd's  Rev.  St.  1911,  c.  43)  pro- 


Sec.  4)  nuisance  955 

vides  that  all  places  where  intoxicating  liquor  is  sold  in  violation  of 
any  provision  of  the  act  shall  be  taken  and  held  and  are  declared  to  be 
common  nuisances  and  may  be  abated  as  such,  but  it  is  contended  by 
counsel  for  appellants  that  the  provision  cannot  be  enforced  through 
a  court  of  equity  or  the  public  be  protected  against  the  nuisance  be- 
cause a  court  of  equity  will  not  restrain  the  violation  of  public  or 
penal  statutes  and  will  not  administer  the  criminal  laws  of  the  state. 
A  court  exercising  equitable  jurisdiction  will  not  restrain,  by  injunc- 
tion, the  commission  of  illegal  or  immoral  acts  and  will  not  enjoin  one 
engaged  in  the  sale  of  liquor  from  making  sales  which  are  punishable 
by  the  criminal  law.  But  that  is  not  the  object  of  this  suit.  The  law 
has  a  double  purpose — to  punish  the  person  committing  an  illegal  act 
and  to  prohibit  the  use  of  property  for  illegal  purposes — and  these 
are  separate  and  distinct.  Punishment  for  the  act  is  a  fine  or  impris- 
onment, or  both,  but  it  is  not  the  sale  or  keeping  for  sale  of  liquor  that 
constitutes  the  nuisance,  but  it  is  the  keeping  of  a  place  which  the  Gen- 
eral Assembly  has  determined  to  be  dangerous  to  the  health,  morals, 
safety,  and  welfare  of  the  public. 

The  jurisdiction  of  courts  of  equity  to  enjoin  nuisances  is  ancient 
and  extends  at  least  back  to  the  reign  of  Queen  Elizabeth,  and  in  cases 
of  public  nuisances  an  indictment  not  only  lies  to  abate  them  and  pun- 
ish the  offenders,  but  an  information  also  lies  in  equity  to  redress  the 
grievance  by  way  of  injunction,  on  the  ground  that  courts  of  equity 
have  ability  to  give  a  more  complete  and  perfect  remedy,  operating 
through  future  time,  than  is  attainable  by  law.  Story's  Eq.  Jur.  (13th 
Ed.)  §§  921-924;  Andrews  on  American  Law,  §  847.  It  was  very 
early  recognized  by  this  court  that  a  court  of  equity  may  grant  pre- 
ventive relief  where  a  threatened  act  would  be  a  public  nuisance  (Peo- 
ple v.  City  of  St.  Louis,  5  Gilm.  351,  48  Am.  Dec.  339),  and  that  has 
always  been  the  law  in  this  state.  It  is  a  well-recognized  branch  of 
equity  jurisprudence  to  restrain,  by  injunction,  public  nuisances.  Bar- 
rett v.  Mt.  Greenwood  Cemetery  Ass'n,  159  111.  385,  42  N.  E.  891, 
31  L.  R.  A.  109,  50  Am.  St.  Rep.  168.  The  same  rule  is  stated  in  5 
Pomeroy's  Eq.  Jur.  §  479,  Joyce  on  the  Law  of  Nuisance,  §  81,  21 
Am.  &  Eng.  Ency.  of  Law  (2d  Ed.)  705,  and  29  Cyc.  1218.  It  is  one 
of  the  most  useful  functions  of  a  court  of  equity  that  it  may  give 
complete  and  adequate  relief  against  acts  which  will  constitute  nui- 
sances, and  laws  such  as  the  one  in  question  do  not  deny  the  equal 
protection  of  the  laws.  Crowley  v.  Christensen,  137  U.  S.  86,  11  Sup. 
Ct.  13,  34  L.  Ed.  620.     *     *     * 

By  this  act  all  places  where  intoxicating  liquors  are  sold  in  violation 
of  its  provisions  are  placed  in  precisely  the  same  category  as  any  oth- 
er common  and  public  nuisance,  and  there  is  no  reason  why  the  same 
rule  should  not  apply  to  remedies.  The  law  extends  no  special  favor 
to  one  nuisance  not  allowed  to  all.  As  to  nuisances  generally,  not  only 
is  the  existence  of  the  method  provided  by  the  statute  for  their  abate- 


95G  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

ment  not  an  obstacle  to  relief  in  a  court  of  equity,  but  this  court,  in 
Minke  v.  Hopeman,  87  111.  450,  29  Am.  Rep.  63,  held  that  the  trial 
and  acquittal  of  one  indicted  for  nuisance  did  not  deprive  a  court 
of  equity  of  its  equitable  jurisdiction,  and  it  was  said  that  the  fact 
that  the  statute  gave  a  remedy  by  indictment  did  not  deprive  the  court 
of  jurisdiction  to  enjoin  the  nuisance.  It  was  considered  that  a  want 
of  jurisdiction  to  enjoin  a  nuisance  which  might  breed  a  pestilence  or 
be  dangerous  to  the  welfare  of  the  public  would  be  a  reproach  to  the 
law,  and  it  was  said  that  on  the  trial  of  the  indictment  the  defendant 
would  be  entitled  to  the  benefit  of  a  reasonable  doubt,  and,  although 
the  evidence  might  clearly  preponderate  against  him,  yet  the  jury  might 
acquit  him.  Whatever  the  degree  of  proof  that  would  be  required 
in  a  court  of  equity,  that  court  would  determine  and  apply  the  law, 
while  in  a  criminal  prosecution  the  jury  would  be  judges  of  the  law 
as  well  as  of  the  facts,  and  a  court,  upon  any  degree  of  proof,  might 
be  powerless  to  enforce  the  law.  This  has  been  repeatedly  demon- 
strated with  respect  to  prosecutions  relating  to  subjects  on  which 
there  is  a  division  of  opinion  among  people  who  may  serve  as  jurors. 
The  Supreme  Court  of  the  United  States  held  in  the  Debs  Case  that 
the  United  States  could  maintain  a  suit  in  the  federal  court  to  enjoin 
a  public  nuisance,  notwithstanding  the  fact  that  the  acts,  in  themselves, 
consisted  of  violations  of  the  criminal  law.  In  re  Debs,  158  U.  S. 
564,  15  Sup.  Ct.  900,  39  L.  Ed.  1092.  In  Walker  v.  McNelly,  121  Ga. 
114,  48  S.  E.  718,  it  was  held  that  the  Solicitor  General  of  the  circuit 
court  might  maintain  a  suit  for  an  injunction  to  abate  the  nuisance  of 
selling  intoxicating  liquors  illegally,  although  the  persons  engaged  in 
the  sale  could  be  punished. 

Counsel  for  appellants  also  say  that  injury  to  property  is  the  founda- 
tion upon  which  equity  jurisdiction  rests,  and  that  the  court  had  no 
jurisdiction  in  this  case  because  it  does  not  affect  rights  of  property 
or  the  maintenance  of  property  rights.  Necessarily  that  rule  applies 
only  when  the  complainant  is  an  individual  having  a  property  right, 
and  no  question  as  to  damage  to  property  is  involved  in. proceedings 
by  the  public  to  abate  a  public  nuisance.  The  question  simply  is  wheth- 
er there  has  been  an  invasion  of  public  rights,  irrespective  of  ques- 
tions of  pecuniary  damage.  Smith  v.  McDowell,  148  111.  51,  35  N.  E. 
141,  22  L.  R.  A.  393.  A  court  of  equity  has  jurisdiction  to  abate  a 
public  nuisance,  although  offenders  are  not  only  amenable  to  criminal 
laws,  but  also  where  no  property  rights  are  involved  in  the  litigation. 
State  of  Missouri  v.  Canty,  207  Mo.  439,  105  S.  W.  1078,  15  L.  R.  A. 
(N.  S.)  747,  123  Am.  St.  Rep.  393,  13  Ann.  Cas.  787.  In  Common- 
wealth v.  McGovern,  116  Ky.  237,  75  S.  W.  261,  66  L,  R.  A.  280,  the 
right  of  the  chancellor  to  enjoin  the  manager  of  a  theater  from  per- 
mitting a  prize  fight  was  sustained,  and  it  was  said  that  the  right  was 
not  dependent  upon  the  fact  that  property  was  involved,  but  was  justi- 
fied on  the  higher  ground  that  the  public  safety  and  morals  were  con- 


Sec.  4)  nuisance  957 

cerned,  and  that  the  public  good  was  of  the  first  consideration.  In 
State  v.  Crawford,  28  Kan.  726,  42  Am.  Rep.  182,  while  the  court  held 
that  an  injunction  should  not  be  granted  in  that  case  because  an  ade- 
quate remedy  was  provided  by  statute,  it  was  held  that  the  court  would 
enjoin  the  public  nuisance  unless  some  remedy  was  given  for  its  com- 
plete suppression  and  extirpation.     *     *     * 

In  a  general  way  it  may  be  said  that  the  court  might  properly  de- 
cline to  exercise  its  equitable  jurisdiction  where  public  officials  are 
discharging  their  duties  in  the  enforcement  of  the  laws  and  the  ordi- 
nary methods  are  effective  in  compelling  obedience  to  statutes  forbid- 
ding the  creation  and  maintenance  of  nuisances,  but,  if  ordinary  meth- 
ods are  ineffective  or  officials  disregard  their  duties  and  refuse  to 
perform  them,  the  court  ought  to  apply  the  strong  and  efficient  hand 
of  equity  and  uproot  the  evil.  The  remedy  should  be  confined  within 
legitimate  bounds,  but,  if  any  case  could  be  conceived  of  in  which 
equity  ought  to  take  jurisdiction  it  is  this  one,  where  the  use  of  the 
place  for  illegal  sales  of  liquor  has  been  continued  for  a  long  time 
openly  and  notoriously  and  with  the  connivance  and  express  consent 
of  the  city  authorities,  and  where  a  county  judge  has  refused  to  issue 
warrants  and  grand  juries  have  refused  to  hear  witnesses,  so  that  the 
laws  of  the  state  might  be  enforced  and  the  nuisance  abated  by  the 
ordinary  means. 

The  judgment  of  the  Appellate  Court  is  affirmed. 

Judgment  affirmed. 


COMMONWEALTH   OF   PENNSYLVANIA  ex   rel.  DIXON   v. 
EAST  WASHINGTON. 

(Court  of  Common  Pleas  of  Washington  County,  Pennsylvania,  1911. 
60  Pittsb.  Leg.  J.  300.) 

In  Equity. 

GalbrEaTh,  P.  J.44  (specially  presiding).  The  demurrer  filed  in  this 
case  raises  the  following  questions :  First.  Is  the  Commissioner  of 
Health  a  proper  party,  under  the  law,  to  maintain  the  pending  bill? 
Second.  Has  the  Commissioner  of  Health  any  power  or  authority, 
under  the  law7,  to  proceed  by  bill  in  equity  to  abate  the  nuisance  com- 
plained of?  Third.  If  the  Commissioner  of  Health  be  a  proper  party, 
possessed  of  the  proper  authority  in  the  premises,  does  he  not  have  an 
adequate  remedy  at  law?  Fourth.  Must  it  first  be  established  by  ac- 
tion at  law  that  the  things  complained  of  constitute  a  public  nuisance 
before  equity  can  take  jurisdiction?  Fifth.  Is  the  Act  of  Assembly  of 
April  27,  1905  (P.  L.  312),  creating  the  office  of  Commissioner  of 
Health  and  delegating  to  him  certain  authority  a  violation  of  article  3, 
§  20,  of  the  Constitution  of  Pennsylvania? 

As  to  the  first  of  these  questions  it  is  contended  on  the  part  of  the 

•>4  Parts  of  the  opinion  are  omitted. 


958  INJUNCTION   IX   RELATION  TO   TORTS  (Cll.  4 

defendant  that  a  proceeding  of  this  kind  when  maintainable  must  be  in- 
stituted by  the  Commonwealth  at  the  relation  of  the  Attorney  General. 

The  Attorney  General  is  a  constitutional  officer  appointed  by  the 
Governor  with  the  advice  and  consent  of  the  Senate.  The  Constitution, 
however,  does  not  undertake  to  define  his  authority,  its  character  or 
the  scope  of  its  exercise.  These,  we  may  therefore  assume,  remain 
the  same  as  they  existed  at  the  common  law  or  have  either  been  en- 
larged or  limited  by  legislative  enactment.  The  very  fact  that  these 
prerogatives  are  not  in  any  way  defined  by  the  Constitution  suggests 
that  these  may  be  created,  enlarged  or  limited  by  statute  just  as  any 
other  merely  common  law  or  statutory  power  or  prerogative.  From 
this  it  would  seem  to  result  that  the  authority  of  the  Attorney  General 
in  any  given  respect  is  not  necessarily  exclusive,  but  may  be  exercised 
in  whole  or  in  part  by  other  agents  of  the  Commonwealth  on  whom 
the  law-making  power  has  exclusively  or  by  clear  implication  conferred 
it.  The  authority  of  the  Attorney  General  to  proceed  in  a  proper  case 
in  a  court  of  equity  to  the  abatement  of  a  public  nuisance,  is,  we  think, 
undoubted,  but,  is  his  power  to  do  so  exclusive? 

It  is  undoubted  that  proceedings  in  equity  for  the  abatement  of  pub- 
lic nuisances  have  frequently  been  instituted  in  our  Courts  by  others 
than  the  Attorney  General  and  their  right  to  do  so  has  been  unchalleng- 
ed. In  the  case  of  City  of  Xew  Castle  v.  Raney,  130  Pa.  546,  a  bill 
was  filed  by  the  city  to  abate  what  was-  alleged  to  be  a  public  nuisance 
and  although  on  appeal  to  the  Supreme  Court  the  bill  was  dismissed, 
yet  it  was  on  the  ground  that  existence  of  the  nuisance  must  be  first 
established  by  action  at  law  before  a  court  of  equity  would  take  juris- 
diction to  abate  it.  So  to,  in  City  of  Scranton  v.  Steel  Works,  154  Pa. 
171,  26  Atl.  1,  the  proceeding  was  instituted  by  the  city  and  not  at  the 
relation  of  the  Attorney  General.  Again,  in  the  case  of  Commissioners 
of  Moyamensing  v.  Long,  1  Pars.  Eq.  Cas.  143,  the  right  of  the  proper 
officers  of  the  municipality  to  maintain  a  bill  in  equity  for  the  abate- 
ment of  a  public  nuisance  was  clearly  recognized. 

Without  multiplying  citations,  these  are  sufficient,  we  think,  to  es- 
tablish the  conclusion  that  other  than  the  Attorney  General  may  in 
a  proper  case  maintain  a  bill  in  equity  to  enjoin  or  abate  a  public  nui- 
sance, from  which  it  follows  that  his  authority  in  that  respect  is  not  ex- 
clusive. A  perusal  of  the  authorities  indicates  the  rule  to  be  that  where 
a  private  individual  suffers  a  species  of  injury,  distinct  in  character 
from  that  done  to  the  public  generally,  he  may  maintain  a  bill  in  his 
own  name.  So,  too,  where  a  municipality  has  or  is  likely  to  sustain 
an  injury7  peculiar  to  itself  resulting  from  an  existing  or  threatened 
public  nuisance,  the  proper  officers  of  the  municipality  may  by  bill 
proceed  to  its  abatement.  Where,  however,  it  is  wholly  the  public 
wrong  that  is  complained  of,  "that  must  be  done  by  the  proper  function- 
aries."   Mechling  v.  Kittanning  Bridge  Company,  1  Grant,  Cas.  416. 

The  plaintiff  in  the  pending  bill  avers  that  the  defendant  borough  is 
discharging  sewage  from  its  disposal  plant  into  Catfish  Run,  a  branch 


Sec.  4)  nuisance  959 

of  Chartiers  Creek ;  that  the  said  Catfish  Run  is  about  three  miles  in 
length,  pursuing  a  meandering  course  through  thickly  populated  sec- 
tions of  Washington  Borough,  emptying  into  said  Chartiers  Creek  near 
the  western  boundary  of  said  borough,  which  creek  from  said  point 
flows  northwardly,  passing  through  thickly  populated  districts  of  sev- 
eral towns  and  villages  on  its  way  to  the  Ohio  River;  that  the  sewage 
so  discharged  contains  large  numbers  of  organisms,  which  indicate  the 
presence  of  matter  injurious  to  the  health  of  both  man  and  beast;  that 
during  a  considerable  portion  of  the  year  said  stream  into  which  it  is 
discharged  is  nearly  dry,  which  results  in  stagnant  pools,  as  well  as 
deposits  along  the  banks  of  said  stream.  *  *  *  An  adequate  reme- 
dy would  therefore  seem  to  call  for  a  complainant  competent  to  repre- 
sent the  whole  public  involved  in  the  threatened  wrong.  That  the  At- 
torney General  would  be  a  proper  party  in  such  a  case  there  can  be  no 
doubt.  If,  however,  the  conclusion  already  arrived  at  be  correct,  his 
authority  is  not  necessarily  exclusive,  but  is  subject  to  be  enlarged  or 
diminished  by  the  law-making  power,  and  if  the  Legislature  in  the 
exercise  of  its  power  has  expressly  or  by  clear  implication  clothed  the 
Commissioner  of  Health  with  authority  to  proceed  to  the  abatement 
of  public  nuisances  threatening  or  affecting  the  public  health,  we  think 
such  a  delegation  of  power  must  prevail.  This  brings  us  to  the  con- 
sideration of  the  question  whether  the  Commissioner  of  Health 
has  authority  under  the  law  to  proceed  by  bill  in  equity  in  the  name  of 
the  Commonwealth  to  abate  the  alleged  nuisance.     *     *     * 

The  Commissioner  of  Health  may,  in  a  proper  case,  proceed  by  bill 
in  equity  in  the  name  of  the  Commonwealth  to  have  the  alleged  nui- 
sance removed.     *     *     * 

As  already  stated  the  defendant's  sewage  plant  constructed  and  oper- 
ated as  it  now  is  must  for  the  present  purposes  be  deemed  a  public 
nuisance  affecting  or  likely  to  affect  a  large  community.  We  are  deal- 
ing with  it  therefore  not  as  a  public  improvement  but  as  an  existing 
nuisance  and  it  is  in  that  character  alone  that  the  Commissioner  of 
Health  is  clothed  with  authority  and  power  to  abate  it.  It  will  scarcely 
be  contended  we  think  that  a  municipal  corporation  may  under  the  form 
of  a  municipal  improvement  create  and  maintain  a  public  nuisance 
without  interference  by  or  on  behalf  of  those  injuriously  affected.  The 
municipality  being  itself  the  offender,  it  can  scarcely  be  expected  to 
exercise  its  municipal  functions  in  order  to  abate  the  offense.  And, 
whilst  the  borough  alone  acting  through  its  proper  officers  has  the 
power  to  make,  manage  and  control  its  purely  municipal  improvements, 
yet  all  persons  affected  or  likely  to  be  affected  by  a  public  nuisance 
have  their  remedy  against  it  and  in  invoking  that  remedy  they  are  not 
in  any  way  exercising  any  purely  municipal  functions  or  interfering 
with  a  municipal  improvement  because  the  offender  happens  to  be  the 
municipality  itself  and  the  thing  complained  of  a  municipal  creation. 
To  hold  otherwise  would  be,  we  think,  to  wrest  the  constitutional  pro- 
vision from  its  true  meaning  and  intent.    The  Commissioner  of  Health, 


9G0  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 

proceeding  in  the  name  of  the  Commonwealth,  is  exercising,  as  their 
representative,  a  right  already  inherent  in  the  people  affected  or  likely  to 
be  affected  by  the  public  nuisance,  and  in  so  doing  he  is  not  exercising 
or  interfering  with  any  exclusively  municipal  functions,  but  is  exer- 
cising the  powers  conferred  upon  him  to  protect  the  community  from 
the  threatened  effects  of  a  public  nuisance.  Whether  or  not  the  Act 
of  April  27,  1905,  is  constitutional  in  all  its  provisions  it  is  unnecessary 
to  here  inquire.  In  so  far  as  it  is  involved  in  the  present  inquiry  we  are 
not  persuaded  that  it  offends  against  the  fundamental  law.  The  stat- 
ute as  a  whole  is  remedial  in  character  and  well  adapted  to  serve  a 
most  beneficent  purpose  and  should  not  be  turned  aside  unless  quite 
clearly  offending  against  the  Constitution. 

Thus  we  conclude  that  the  Commissioner  of  Health  under  the  Act  of 
Assembly  creating  his  office  is  made  the  representative  of  the  people  of 
the  state  in  matters  affecting  the  public  health  and  that  as  such  he  may 
proceed  in  the  name  of  the  Commonwealth  to  the  abatement  of  public 
nuisances  prejudicial  to  the  public  health ;  that  the  Act  of  Assembly 
aforesaid  has  clothed  him  with  power  to  proceed  not  only  in  the  sum- 
mary way  pointed  out  in  said  Act,  but  has  clothed  him  with  discretion 
to  choose  and  employ  such  other  remedy  as  the  law  provides  in  order 
to  accomplish  his  purpose  and  that  he  may  therefore  proceed  in  a 
proper  case  by  bill  in  equity ;  that  in  the  present  case  there  is  no  ade- 
quate remedy  at  law  for  the  suppression  of  the  nuisance  complained 
of.  which  must  for  the  present  purposes  be  assumed  to  be  a  public  nui- 
sance as  alleged  in  the  plaintiff's  bill,  and  that  the  Act  of  Assembly 
aforesaid,  in  so  far  as  it  is  involved  in  our  present  inquiry  is  not  in 
violation  of  the  Constitution  of  the  Commonwealth. 

For  the  reasons  herein  given,  the  demurrer  filed  by  the  defendant  is 
overruled  and  the  said  defendant  is  directed  to  answer  plaintiff's  bill 
of  complaint  within  thirty  days  from  the  filing  of  his  opinion.  Eo  die 
a  bill  of  exceptions  is  sealed  for  the  defendant  to  the  above  order  over- 
ruling the  demurrer  filed. 


Appeal  of  RICHARDS. 
(Supreme  Court  of  Pennsylvania,  1S6S.    57  Pa.  105,  98  Am.  Dec.  202.) 

The  opinion  of  the  court  was  delivered,  February  3,  1868,  by 
Thompson,  C.  J.45  The  complainant  in  this  case  is  the  owner  of  a 
dwelling-house  and  cotton  factory  in  the  village  of  Phcenixville,  Ches- 
ter county;  and  the  respondents  are  owners  of  very  extensive  iron 
works  in  the  same  village.  The  former  complains  that  by  reason  of 
the  kind  of  fuel  used  by  the  latter  in  their  works,  his  residence  is  ren- 
dered uncomfortable  and  unwholesome,  and  his  factory  materially  in- 
jured in  the  discoloration  of  his  fabrics  and  deterioration  of  his  machin- 
es The  statement  of  facts  is  omittc.l. 


Sec.  4)  nuisance  961 

ery.  Claiming  that  he  had  established  this,  he  asked  the  court  below 
for  a  perpetual  injunction  to  restrain  the  respondents  from  using  the 
fuel,  bituminous  and  semi-bituminous  coal  complained  of  as  the  cause 
of  the  injury  to  his  property  in  these  furnaces.  The  case  was  heard 
on  bill  and  answer,  and  the  court  decided  against  him.  He  was  then 
permitted  to  file  a  replication  and  take  testimony,  on  which  there  is  a 
report  of  a  master  also  against  him.  The  court  having  sustained  the  re- 
port, again  refused  to  enjoin  the  defendants,  and  the  case  is  before  us 
on  an  appeal,  and  we  are  asked  to  do  what  the  court  below  refused, 
namely,  perpetually  to  restrain  the  defendants  from  using  bituminous 
or  semi-bituminous  coal  in  their  furnaces. 

The  defendants'  works  are  very  extensive,  amongst  the  most  so,  it 
is  said,  of  any  of  the  kind  in  the  Commonwealth,  consisting  of  several 
blast  furnaces,  some  seventy  puddling  furnaces,  and  rolling-mills  and 
other  machinery.  They  began  on  a  small  scale  some  forty-nine  or 
fifty  years  ago,  and  up  to  1840  used  bituminous  coal  exclusively.  The 
original  works  were  not  precisely  on  the  spot  of  those  complained  of, 
but  so  near  it  as  to  entitle  the  latter  to  be  regarded  as  an  extension  of 
the  former.  The  extensions  made  in  the  works  in  1837,  1846  and 
1853,  constitute  the  present  works,  the  cost  of  which  alone  is  represent- 
ed as  exceeding  half  a  million  of  dollars,  and  which  at  the  time  of  taking 
the  testimony,  and  previously,  employed,  as  the  master  reports,  from 
eight  hundred  to  one  thousand  hands. 

The  plaintiff's  dwelling,  it  appears,  is  situated  on  a  bluff  or  hill 
northwardly  from  the  defendants'  works,  about  seventy  feet  above 
the  nearest  furnace  floor,  which  brings  its  first  story  about  on  a  level 
with  the  top  of  the  puddling-stacks,  and  when  the  wind  is  towards  the 
plaintiff's  house  and  from  the  furnace,  the  consequence  is,  that  it  is  at 
times  enveloped  in  a  coal-smoke  thrown  out  of  the  chimneys  of  the 
puddling  furnaces.  It  cannot  be  doubted,  I  think,  that  this  materially 
operates  to  injure  the  dwelling-house  as  a  dwelling,  and  consequently 
to  deteriorate  its  value.  The  alleged  injury  to  the  factory  is  mainly  that 
the  smoke  and  soot  of  the  furnace  blackens  the  stock  and  renders  the 
fabrics  less  salable.  This  I  can  readily  understand  and  believe.  The 
house  was  erected  in  1829,  and  the  factory  in  1834,  and  both  have 
been  generally  occupied  ever  since ;  the  factory  not  doing  full  work  for 
some  time  past,  as  the  master  reports. 

A  careful  consideration  of  the  testimony  satisfies  us  that  the  use  of 
semi-bituminous  coal,  the  fuel  complained  of,  is  necessary  to  the  suc- 
cessful manufacture  of  iron  fit  for  axles,  cannon  and  the  like,  in  the 
manufacture  of  which  the  defendants  are  largely  engaged;  that  the 
process  of  manufacture,  and  fuel  used,  are  generally  employed  in  sim- 
ilar establishments,  and  that  there  was  neither  a  negligent  nor  wilful 
infliction  of  injury  upon  the  plaintiff  or  his  property  in  the  defendants' 
mode  of  operating  their  works.  Whatever  of  injury  may  have,  or  shall 
result  to,  his  property  from  the  defendants'  works,  by  reason  of  the 
Boke  Eq.— 61 


962  INJUNCTION    IN   RELATION   TO   TORTS  (Cll.  4 

nuisance  complained  of,  is  such  only  as  is  incident  to  a  lawful  business 
conducted  in  the  ordinary  way,  and  by  no  unusual  means.  Still  there 
may  be  injury  to  the  plaintiff;  but  this  of  itself  may  not  entitle  him  to 
the  remedy  he  seeks.  It  may  not,  if  ever  so  clearly  established,  be 
a  case  in  which  equity  ought  to  enjoin  the  defendants  in  the  use  of 
a  material  necessary  to  the  successful  production  of  an  article  of  such 
prime  necessity  as  good  iron ;  especially  if  it  be  very  certain  that  a 
greater  injury  would  ensue  by  enjoining  than  would  result  from  a 
refusal  to  enjoin.  If  we  were  able  with  certainty  to  say  that  the  use 
of  semi-bituminous  coal,  in  the  process  of  making  good  iron  by  the 
puddling  process,  was  unnecessary,  and  other  fuel  was  equally  good 
and  available,  or  that  by  a  reasonable  expenditure  of  money  on  the 
works,  all  injury  might  be  avoided,  a  different  case  might  appear  to 
our  minds  as  chancellors,  and  we  might  then  say  that  the  cause  of  in- 
jury should  cease,  and  that  a  decree  in  terms  to  meet  such  a  contin- 
gency should  be  made  so  as  to  prevent  the  injury. 

But  we  have  not  such  case  before  us.  Bituminous,  or  at  least  semi- 
bituminous  coal,  we  think,  from  the  testimony,  is  necessary  in  the 
manufacture  of  iron,  such  as  the  business  of  the  defendants  require, 
and  whose  fabrics  the  public  require.  Nor  are  we  shown  by  testimony 
or  reliable  tests  of  any  kind,  that  the  smoke  produced  in  the  puddling 
process  can  be  consumed,  as  it  undoubtedly  may  be  in  ordinary  chim- 
neys, or  when  produced  in  furnaces  used  to  propel  machinery.  I  am  per- 
sonally cognisant  that  this  may  be  done,  from  observation  both  in  this 
country  and  in  England ;  and  I  have  therefore  read  with  satisfaction 
and  entire  conviction  of  the  truth,  the  article  from  the  London  Quar- 
terly of  1866,  so  largely  quoted  by  the  learned  counsel  for  the  appel- 
lants ;  but  I  would  be  very  unwilling  to  act  on  that  conviction  or  that 
theory  any  further  than  to  the  extent  to  which  experiment  has  gone. 
I  would  require  very  clear  proof  of  the  practicability  of  the  application 
of  the  principle  to  uses  dissimilar,  or  partially  so,  as  puddling  chimneys 
from  common  furnace  smoke-stacks. 

The  defendants  seem  willing  to  test  the  applicability  of  smoke  con- 
sumers to  puddling  furnaces,  and  at  the  same  time  express  their  doubts 
in  a  practical  shape  by  offering  $50,000  for  an  invention  which  will  con- 
sume the  smoke  of  their  puddling  stacks  without  impairing  the  effi- 
ciency of  the  process  of  manufacturing  iron.  However  this  may  be, 
certain  it  is,  we  are  not  able  to  say  from  anything  shown,  that  the  evil 
complained  of  can  be  remedied  by  the  application  of  smoke  consumers. 
We  do  not  know  what  effect  their  application  might  have  on  the  pro- 
cess; nor  do  we  think  we  should  visit  the  defendants,  because  they 
might  be  unwilling  to  add  to  the  height  of  their  chimneys  without  know- 
ing what  effect  it  would  have,  or  because  they  might  not  be  willing  to 
tear  down  their  establishment  and  re-erect  it  on  Seiman's  plan  or  pat- 
ent. What  effect  these  remedies,  or  either  of  them,  ought  to  have  on 
the  mind  of  a  chancellor,  if  feasible,  and  the  injury  complained  of  were 
absolutely  irreparable,  we  are  not  called  upon  to  say,  for  such  is  evi- 


Sec.  4)  nuisance  963 

dently  not  the  case  here  if  there  be  any  damage  at  all,  as  we  shall  pres- 
ently show. 

The  rule  on  this  subject  is  well  stated  in  Grey  v.  Ohio  &  Pennsylvania 
Railroad  Co.,  1  Grant,  Cas.  412,  thus : 

"Where  damages  will  compensate  either  the  benefits  derived  or  the  loss 
suffered  from  a  nuisance,  equity  will  not  interfere." 

See  also  Hilliard  on  Injunc.  271  ;  Adams'  Eq.  485  ;  Fonblanque's  Eq. 
51 ;  2  Story's  Eq.  §  925  et  seq. ;  Eden  on  Injunc.  269.  In  Coe  v.  Lake, 
37  X.  H.  254,  it  was  said,  where  the  bill  prayed  an  injunction  to  sup- 
press a  nuisance  to  the  plaintiff's  land,  it  might  be  dismissed  on  general 
demurrer  for  want  of  equity,  unless  it  appeared  from  the  subject- 
matter  affected  by  the  alleged  nuisance  that  there  was  danger  of  irrep- 
arable mischief,  or  of  an  injury  such  as  could  not  be  adequately  com- 
pensated in  a  suit  at  law.  These,  and  many  other  authorities  to  the 
same  effect,  some  of  which  are  on  the  paperbook  of  the  appellees,  prove 
conclusively  that,  as  a  general  rule,  mischief  or  damage  is  not  irrepar- 
able which  is  susceptible  of  being  compensated  in  damages.  We  have 
no  doubt  that  an  action  at  law  will  lie  for  an  injury  to  property  for 
causes  similar  to  those  mentioned  in  this  bill,  and  if  so,  why  will  not  the 
remedy  be  adequate  in  such  case,  and  thus  the  injury  be  repaired  in 
damages?  We  are  not  to  presume  that  it  will  not  be.  This  would  be 
to  impugn  the  justice  of  our  common-law  forms  without  a  reason. 
We  think,  under  the  circumstances  of  the  case,  that  the  injunction 
ought  to  be  refused,  and  the  plaintiff  left  to  his  action  at  law  for  the 
recovery  of  such  damages  as  he  may  have  sustained  or  may  sustain. 

An  error  seems  somewhat  prevalent  in  portions,  at  least,  of  this  Com- 
monwealth, in  regard  to  proceedings  in  equity  to  restrain  the  com- 
mission of  nuisances.  It  seems  to  be  supposed  that,  as  at  law,  when- 
ever a  case  is  made  out  of  wrongful  acts  on  the  one  side  and  consequent 
injury  on  the  other,  a  decree  to  restrain  the  act  complained  of,  must 
as  certainly  follow,  as  a  judgment  would  follow  a  verdict  in  a  common- 
law  court.  This  is  a  mistake.  It  is  elementary  law,  that  in  equity  a  de- 
cree is  never  of  right,  as  a  judgment  at  law  is,  but  of  grace.  Hence 
the  chancellor  will  consider  whether  he  would  not  do  a  greater  injury 
by  enjoining  than  would  result  from  refusing,  and  leaving  the  party 
to  his  redress  at  the  hands  of  a  court  and  jury.  If  in  conscience  the 
former  should  appear  he  will  refuse  to  enjoin.  Hiltio  v.  Earl  of  Gran- 
ville, 1  Craig  &  Ph.  Ch.  R.  292 ;  Grey  v.  Ohio  &  Penna.  Railroad  Co., 
supra.  We  think  this  is  a  safe  rule,  and  that  the  case  we  are  consider- 
ing is  within  it.  With  these  views,  and  on  full  consideration  of  all  the 
testimony  in  the  case,  we  are  of  opinion  the  injunction  was  properly  re- 
fused in  the  court  below,  and  that  the  decree  dismissing  the  plaintiff's 
bill  with  costs  must  be  affirmed. 

Appeal  dismissed  at  the  cost  of  the  appellant. 


964  INJUNCTION    IN    RELATION    TO   TOUTS  (Cll.  4 


HULBERT  v.  CALIFORNIA  PORTLAND  CEMENT  CO. 
GILBERT  v.  SAME. 

(Supreme  Court  of  California,  1011.     161  Cal.  239,  118  Pae.  928,  38  L. 
R.  A.  [N.  S.]  436.) 

Mei.yin,  J.  Petitioner  has  made  an  original  application  to  this  court 
to  suspend  the  operation  of  a  certain  injunction  until  the  decision 
of  the  appeals  in  two  cases,  in  each  of  which  the  California  Portland 
Cement  Company,  a  corporation,  is  the  defendant,  on  the  ground  that 
the  property  of  the  corporation  would  he  so  greatly  damaged  by  the 
operation  of  the  injunction  pending  the  appeals  that  a  judgment  in 
defendant's  favor  would  be  almost  fruitless ;  while  it  is  contended 
the  damage  to  plaintiffs  is  easily  susceptible  of  satisfaction  by  a  pay- 
ment of  money.  Petitioner  offers  to  furnish  any  bond  this  court  may 
require,  if  the  order  which  is  prayed  for  shall  be  granted.  As  this 
was  the  first  case  in  America,  so  far  as  this  court  knew,  in  which  the 
operation  of  a  cement  plant  had  been  enjoined  because  of  the  dust 
produced  in  the  processes  of  manufacture,  and  as  the  showing  which 
was  made  indicated  that  petitioner's  loss  would  be  very  great  if  the 
injunction  were  enforced  at  once,  an  order  was  entered,  temporarily 
staying  its  operation  until  both  sides  to  the  controversy  could  be 
heard.  The  court  was  moved  somewhat  to  such  action  also  because 
the  trial  court  had  made  an  order  staying  the  operation  of  the  injunc- 
tion for  60  days,  so  that  this  court  might  have  the  opportunity  of 
passing  upon  this  application.  Two  principal  questions  are  presented : 
(1)  Has  the  Supreme  Court  the  authority  in  aid  of  its  appellate  juris- 
diction, under  section  4  of  article  6  of  the  Constitution,  to  suspend 
the  operation  of  an  injunction  pending  appeal?  (2)  If  it  have  such 
power,  is  this  a  proper  case  for  the  exercise  thereof?  Owing  to  the 
conclusion  which  we  have  reached,  it  is  unnecessary  to  answer  the 
first  question  authoritatively,  because,  assuming  a  reply  to  it  in  the 
affirmative,  we  cannot  say  that  the  facts  of  this  case  warrant  any  other 
response  to  the  second  inquiry  than  a  negative  one. 

The  salient  facts  shown  by  the  petitioner  are  that  the  California 
Portland  Cement  Company  is  engaged  in  the  manufacture  of  cement 
on  property  situated  nearly  two  miles  from  the  center  of  the  city  of 
Colton,  in  the  county  of  San  Bernardino,  but  not  within  the  limits  of 
said  city;  that  said  manufactory  is  located  at  Slover  mountain,  where 
the  substances  necessary  to  the  production  of  Portland  cement  are 
quarried;  that  long  before  the  surrounding  country  had  been  general- 
ly devoted  to  the  production  of  citrus  fruits  Slover  mountain  had 
been  known  as  a  place  where  limestone  was  produced ;  that  quarries 
of  marble  and  limestone  had  been  established  there ;  that  lime  kilns 
had  been  operated  upon  said  mountain  for  many  years;  that  in  1891 
the  petitioner  obtained  title  to  said  premises,  and  commenced  there- 
on the  manufacture  of   Portland  cement;    that  the   said  corporation 


Sec.  4)  NUISANCE 


965 


has  expended  upon  said  property  more  than  $800,000;    that  at  the 
time  when  petitioner  began  the  erection  of  the  cement  plant  the  land 
surrounding  the  plant  was  vacant  and  unimproved,  except  some  land 
lying  to  the  north,  which  had  been  planted  to  young  citrus  trees;  that 
these  trees  were  first  planted  about  a  year  before  the  erection  of  the 
cement  plant  was  commenced  (but  long  after  the  lime  kilns  and  the 
marble  quarries  had  been  operated) ;    that  subsequently  other  orange 
groves  have  been  planted  in  the  neighborhood;    that  the  petitioner's 
plant  on  Slover  mountain  has  a  capacity  of  3,000  barrels  of  cement 
per  day;   but  that  by  the  judgment  of  the  superior  court  in  two  cer- 
tain actions  against  petitioner,  entitled  Lillie  A.  Hulbert,  Administra- 
trix, etc.,  v.  California  Portland  Cement  Company,  a  Corporation,  and 
Spencer   E.    Gilbert,   plaintiff,    v.    Same    Defendant,    the   corporation 
aforesaid  was  enjoined  from  operating  its  plant  in  such  manner  as  to 
produce  an  excess  of  88,706  barrels  of  finished  cement  per  annum; 
that  the  regular  pay  roll  of  the  company  includes  the  names  of  about 
500  men,  who  are  paid  about  $35,000  a  month ;    that  the  fixed,  con- 
stant monthly  expenses  for  supplies  and  materials  amount  to  $35,000 ; 
that  the  California  Portland  Cement  Company  employs  the  best,  most 
modern  methods  in  its  processes  of  manufacture,  but  that  nevertheless 
there  is  an  unavoidable  escape  into  the  air  of  certain  dust  and  smoke; 
that  petitioner  has  no  other  location  for  the  conduct  of  its  business 
at  a  profit;   that  the  land  of  the  Hulbert  estate  is  located  from  1,500 
to  2,500  feet   from  petitioner's  cement  works,   and  that   Spencer  E. 
Gilbert's  land  is  all  within   1,000  feet  therefrom;    that  petitioner  has 
diligently  sought  some  means  of  preventing  the  escape  of  dust  from 
its   factories ;    that  it  has  consulted  the  best  experts  and  sought  the 
best  information  obtainable,  and  that  it  is  now  and  has  been  for  a 
long  time  conducting  experiments  along  the  lines  suggested  by  the  most 
eminent  engineering  authorities  upon  this  subject,  and  that,  as  soon 
as  any  process  can  be  evolved  for  preventing  the  escape  of  the  dust, 
the  petitioner  will  adopt  such  process  in  its  works,  and  it  is  believed 
that  a  process  now  constructing  with  all  diligence  by  petitioner  will 
effectually  prevent  the  escape  of  dust.     Petitioner  also  alleges  that  it 
is  easily  possible  to  estimate  the  damages  of  the  plaintiffs  in  money, 
while  it  is  utterly  impracticable  to  estimate  the  damage  in  money  which 
will  be  caused  to  the  petitioner  by  the  closing  of  the  plant,  and  that 
stopping  the  plant  pending  the  appeals  will  cause  financial  ruin  to  the 
chief   stockholders  of  the  petitioner,    and   that  the   elements   of   loss 
averred  are  irreparable  on  account  of  the  disorganization  of  petition- 
er's working  force,  loss  of  market,  and  deterioration  of  machinery. 
The  learned  judge  of  the  superior  court,  in  deciding  the  cases  in 
which  petitioner  here  was  defendant,  described  the  method  of  manu- 
facturing cement  and  the  injury  to  the  trees.    He  said,  in  part: 

"The  output  from  these  two  mills  at  the  present  time  is  about  2,500  barrels 
of  cement  every  24  hours,  and  to  produce  this  there  is  fed  into  the  various 
kilns  of  the  defendant,  during  the  time  mentioned,  about  1,500,000  pounds  of 
raw  mix,  composed  of  limestone  and  clay,  ground  as  fine  as  flour  and  thor- 


0G6  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

oughly  mixed.  This  raw  mix  is  fed  into  the  tops  of  kilns,  wherein  the  tempera- 
ture varies  from  1,800  to  3,000  degrees  Fahrenheit,  and  through  which  kilns 
the  heated  air  and  combustion  gases  pass  at  the  rate  of  many  thousands  of  feet 
per  minute.  The  result  of  this  almost  inconceivable  draft  is  to  carry  out,  in 
addition  to  the  usual  products  of  combustion,  particles  of  the  raw  mix,  to 
the  extent  of  probably  20  tons  per  day  or  more,  the  greater  part  of  which, 
without  question,  is  carried  up  into  the  air  by  the  rising  gases,  and  thereafter, 
through  the  action  of  the  winds  and  force  of  gravity,  distributed  over  the  sur- 
rounding territory." 

Speaking  of  the  premises  of  the  plaintiffs,  he  said  that,  because  of 
prevailing  westerly  winds  and  on  account  of  the  proximity  of  the 
mills,  said  lands  were  almost  continually  subject  to  the  deposit  of  dust. 
In  this  regard  he  said : 

"It  is  the  fact  incontrovertibly  established  by  both  the  testimony  of  witnesses 
and  personal  inspections  made  by  the  court  that  a  well-nigh  continuous  shower 
of  cement  dust,  emanating  from  defendant's  cement  mills  and  caused  by  their 
operation,  is,  and  for  some  years  past  has  been,  falling  upon  the  properties  of 
the  plaintiffs,  covering  and  coating  the  ground,  filtering  through  their  homes, 
into  all  parts  thereof,  forming  an  opaque  semi-cemented  incrustation  upon  the 
upper  sides  of  all  exposed  flowers  and  foliage,  particularly  leaves  of  citrus 
trees,  and  leaving  ineradicable,  yet  withal  plainly  discernible,  marks  and 
evidence  of  dust,  dusty  deposits,  and  grayish  colorings  resulting  therefrom, 
upon  the  citrus  fruits.  The  incrustations  above  mentioned,  unlike  the  deposits 
occasionally  occurring  on  leaves  because  of  the  presence  of  undue  amounts  of 
road  dust  or  field  dust,  are  not  dissipated  by  the  strongest  winds,  nor  washed 
off  through  the  action  of  the  most  protracted  rains.  Their  presence,  from  re- 
peated observations,  seems  to  be  as  continuous  as  their  hold  upon  the  leaves 
seems  tenacious." 

The  court  further  found  that  the  deposit  of  dust  on  the  fruit  de- 
creased its  value;  that  the  constant  presence  of  dust  on  the  limbs  and 
leaves  of  the  trees  rendered  the  cultivation  of  the  ground  and  the  har- 
vesting of  the  crop  more  costly  than  it  would  have  been  under  ordi- 
nary conditions ;  and  that  said  dust  added  to  the  usual  and  ordinary 
discomforts  of  life  by  its  presence  in  the  homes  of  the  plaintiffs.  The 
court  also  found  that  the  operation  of  the  old  mill  of  the  defendant 
corporation  had  occurred  with  the  acquiescence  of  the  plaintiffs,  and 
that  the  defendant  had  acquired  a  prescriptive  right  to  manufacture 
the  maximum  quantity  of  cement  produced  annually  by  that  factory. 

In  view  of  such  facts  solemnly  found  by  the  court  after  trial,  we 
cannot  say  that  there  is  reason  for  a  suspension  by  this  court  of  the 
injunction,  even  conceding  that  we  have  power  under  proper  circum- 
stances thus  to  prevent  a  disturbance  of  existing  conditions,  pending 
an  appeal.  We  are  not  insensible  to  the  fact  that  petitioner's  business 
is  a  very  important  enterprise ;  that  its  location  is  peculiarly  adapted 
for  the  manufacture  of  cement;  and  that  great  loss  may  result  to  the 
corporation  by  the  enforcement  of  the  injunction.  Even  if  the  officers 
of  the  corporation  are  willing  to  furnish  a  bond  in  a  sum  equal  to  the 
value  of  the  properties  of  Gilbert  and  of  the  Hulbert  estate  here  in- 
volved, we  cannot,  under  plain  principles  of  equity,  compel  these  plain- 
tiffs to  have  recourse  to  their  action  at  law  only,  and  take  from  them 
the  benefit  of  the  injunctive  relief  accorded  them  by  the  chancellor 
below.    To  permit  the  cement  company  to  continue  its  operations,  even 


Sec.  4)  NUISANCE 


9G7 


to  the  extent  of  destroying  the  property  of  the  two  plaintiffs  and  re- 
quiring payment  of  the  full  value  thereof,  would  be,  in  effect,  allowing 
the  seizure  of  private  property  for  a  use  other  than  a  public  one — 
something  unheard  of  and  totally  unauthorized  in  the  law.  Hennessy 
v.  Carmony,  50  N.  J.  Eq.  616,  25  Atl.  374;  Sullivan  v.  Jones  &  Laugh- 
lin  Steel  Co.,  208  Pa.  540,  57  Atl.  1065,  66  L.  R.  A.  712. 

Nor  may  we  say,  as  petitioner  urges  us  to  declare,  that  cement  dust 
is  not  a  nuisance,  and  therefore  that  the  restraint  imposed  is  illegal, 
even  though  this  is  one  of  the  first  cases,  if  not  the  very  first,  of  its 
kind,  in  which  the  emission  of  cement  dust  from  a  factory  has  been 
enjoined,  for  we  are  bound  by  the  findings  of  the  court  in  this  proceed- 
ing, and  may  not  consider  their  sufficiency  or  lack  of  it  until  we  take 
up  the  appeals  on  their  merits.  The  court  has  found  that  the  plaintiffs 
in  the  action  tried  were  specially  damaged  by  a  nuisance  maintained 
by  the  cement  company.  This  entitles  the  plaintiffs,  not  only  to  dam- 
•ages,  but  to  such  relief  as  the  facts  warrant,  and  the  chancellor  has 
determined  that  limiting  the  production  in  the  manner  selected  is  a 
proper  form  of  protection  to  their  rights.  It  is  well  settled  in  Cal- 
ifornia that  a  nuisance  which  consists  in  pouring  soot  or  the  like  upon 
the  property  of  a  neighbor  in  such  manner  as  to  interfere  with  the 
comfortable  enjoyment  of  the  premises  is  a  private  nuisance,  which 
may  be  enjoined  or  abated,  and  for  which,  likewise,  the  persons  spe- 
cially injured  may  recover  pecuniary  damages.  Code  Civ.  Proc.  § 
731;    Fisher  v.  Zumwalt,  128  Cal.  493,  61  Pac.  82;    Melvin  v.  E.  B. 

6  A.  L.  Stone  Co.,  7  Cal.  App.  328,  94  Pac.  390;    Judson  v.  Los 

Angeles  Sub.  Gas  Co.,  157  Cal.  172,  106  Pac.  583,  26  L.  R.  A.  (N. 

S.)  183,  21  Ann.  Cas.  1247.     The  last-named  case  was  one  in  which 

the  operation  of  a  gas  factory  had  been  enjoined,  and  the  following 

language  was  used : 

"A  gas  factory  does  not  constitute  a  nuisance  per  se.  The  manufacture  in 
or  near  a  great  city  of  gas  for  illuminating  and  heating  is  not  only  legitimate, 
but  is  very  necessary  to  the  comfort  of  the  people.  But  in  this,  as  in  any 
other  sort  of  lawful  business,  the  person  conducting  it  is  subject  to  the  rule, 
'Sic  utere  tuo  ut  alienum  non  hedas,'  even  when  operating  under  municipal 
permission,  or  under  public  obligation  to  furnish  a  commodity.  Terre  Haute 
Gas  Co.  v.  Teel,  20  Ind.  131 ;    Attorney  General  v.  Gaslight  &  Coke  Co.,  L.  R. 

7  Chan.  Div.  217 ;  Sullivan  v.  Royer,  72  Cal.  248  [13  Pac.  655,  1  Am.  St.  Rep. 
51].  Nor  will  the  adoption  of  the  most  approved  appliances  and  methods  of 
production  justify  the  continuance  of  that  which,  in  spite  of  them,  remains  a 
nuisance.  Evans  v.  Fertilizing  Co.,  160  Pa.  223  [2S  Atl.  702] ;  Susquehanna 
Fer.  Co.  v.  Malone,  73  Md.  276  [20  Atl.  900,  9  L.  R.  A.  737,  25  Am.  St.  Rep. 
595] ;  Susquehanna  Fer.  Co.  v.  Spangler,  86  Md.  562  [39  Atl.  270,  63  Am.  St. 
Rep.  533]." 

Petitioner  contends  for  the  rule  that  the  resulting  injuries  must  be 
balanced  by  the  court,  and  that,  where  the  hardship  inflicted  upon  one 
party  by  the  granting  of  an  injunction  would  be  very  much  greater 
than  that  which  would  be  suffered  by  the  other  party  if  the  nuisance 
were  permitted  to  continue,  injunctive  relief  should  be  denied.  This 
doctrine  of  "the  balance  of  hardship"  and  the  associated  rule  that 
"an  injunction  is  not  of  right  but  of  grace"  are  the  bases  of  peti- 


968  INJUNCTION    IN    RELATION    TO   TOUTS  (Cll.  4 

tioner's  argument,  and  many  authorities  in  support  of  them  have  been 
called  to  our  attention.  In  petitioner's  behalf  are  cited  such  cases  as 
Richards'  Appeal,  57  Pa.  105,  98  Am.  Dec.  202,  where  an  injunction 
which  had  been  sought  to  restrain  defendant  from  using  large  quanti- 
ties of  bituminous  coal  to  plaintiff's  damage  was  refused,  and  the  plain- 
tiff was  remitted  to  his  action  at  law;  the  court  saying,  among  other 
things : 

"Whatever  of  injury  may  have  or  shall  result  to  his  (the  plaintiff's)  prop- 
erty from  the  defendant's  works,  by  reason  of  a  nuisance  complained  of,  is 
only  such  as  is  incident  to  a  lawful  business  conducted  in  the  ordinary  way, 
and  by  no  unusual  means.  Still,  there  may  be  injury  to  the  plaintiff,  but  this 
of  itself  may  not  entitle  him  to  the  remedy  he  seeks.  It  may  not,  if  ever  so 
clearly  established,  be  a  cause  in  which  equity  ought  to  enjoin  the  defendant  in 
the  use  of  a  material  necessary  to  the  successful  production  of  an  article  of 
such  prime  necessity  as  good  iron,  especially  if  it  be  very  certain  that  a 
greater  injury  would  ensue  by  enjoining  than  would  result  by  refusal  to  en- 
join." 

The  same  rule  was  announced  in  Dil worth's  Appeal,  91  Pa.  248, 
a  case  involving  the  building  of  a  powder  house  near  plaintiff,  and  in 
]  luckenstine's  Appeal,  70  Pa.  102,  10  Am.  Rep.  669.  Petitioner  ad- 
mits that  in  the  later  case  of  Sullivan  v.  Jones  &  Laughlin  Steel  Co., 
supra,  the  Supreme  Court  of  Pennsylvania  reached  a  different  con- 
clusion, but  contends  that  the  opinion  in  that  case  merely  defines  the 
word  "grace"  as  used  in  Huckenstine's  Appeal ;  the  real  meaning  of 
the  expression  "an  injunction  is  a  matter  of  grace"  being  that  a  high 
degree  of  discretion  is  exercised  by  a  chancellor  in  awarding  or  deny- 
ing an  injunction.  An  examination  of  the  case,  however,  shows  that 
the  court  went  very  much  further  than  a  mere  definition  of  the  phrase 
"of  grace."  In  that  case  the  defendant  had  erected  a  large  factory 
for  the  manufacture  of  steel  on  land  purchased  from  one  of  the  plain- 
tiffs, but  after  many  years  defendant  had  commenced  the  use  of 
"Mesaba"  ore,  which  caused  the  emission  of  great  quantities  of  fine 
dust  upon  the  property  of  plaintiffs.  The  Supreme  Court  of  Pennsyl- 
vania, in  reversing  the  decree  of  the  lower  court,  dismissing  the  bill, 
went  into  the  matter  of  "balancing  injuries"  and  "injunctions  of  grace" 
very  thoroughly,  and  we  may  with  propriety,  I  think,  quote  and  adopt 
some  of  its  language  upon  these  subjects  as  follows: 

"It  is  urged  that,  as  an  injunction  is  a  matter  of  grace,  and  not  of  right,  and 
more  injury  would  result  in  awarding  than  refusing  it,  it  ought  not  to  go  out 
in  this  case.  A  chancellor  does  act  as  of  grace,  hut  that  grace  sometimes  be- 
comes a  matter  of  right  to  the  suitor  in  its  court,  and.  when  it  is  clear  that  the 
law  cannot  give  protection  and  relief — to  which  the  complainant  in  equity 
is  admittedly  entitled — the  chancellor  can  no  more  withhold  his  grace  than 
the  law  can  deny  protection  and  relief,  if  able  to  give  them.  This  is  too  often 
overlooked  when  it  is  said  that  in  equity  a  decree  is  of  grace,  and  not  of  right, 
as  a  judgment  at  law.  In  Walters  v.  McElroy  et  al.  [151  Pa.  5491  25  Atl.  125, 
the  defendants  gave  as  one  of  the  reasons  why  the  plaintiff's  bill  should  be 
dismissed  that  his  land  was  worth  but  little,  while  they  were  engaged  in  a 
great  mining  industry,  which  would  be  paralyzed  if  they  should  be  enjoined 
from  a  continuance  of  the  .•:•;-■  complained  of;  and  the  principle  was  invoked 
that,  as  a  decree  in  equity  is  of  grace,  a  chancellor  will  never  enjoin  an  act 
where,  by  so  doing,  greater  injury  will  result  than  from  a  refusal  to  enjoin. 
To  this  we  said:    'The  phrase  "'of  grace,"  predicated  of  a  decree  in  equity, 


Sec.  4)  nuisance  9G9 

had  its  origin  in  an  age  when  kings  dispensed  their  royal  favors  by  the  hands 
of  their  chancellors;  but,  although  it  continues  to  be  repeated  occasionally, 
it  has  no  rightful  place  in  the  jurisprudence  of  a  free  commonwealth,  and  ought 
to  be  relegated  to  the  age  in  which  it  was  appropriate.  It  has  been  somewhere 
said  that  equity  has  its  laws,  as  law  has  its  equity.  This  is  but  another  form 
of  saying  that  equitable  remedies  are  administered  in  accordance  with  rules 
as  certain  as  human  wisdom  can  devise,  leaving  their  application  only  in 
doubtful  cases  to  the  discretion,  not  the  unmerited  favor  or  grace,  of  the 
chancellor.  Certainly  no  chancellor  in  any  English-speaking  country  will  at 
this  day  admit  that  he  dispenses  favors  or  refuses  rightful  demands,  or  deny 
that,  when  a  suitor  has  brought  his  cause  clearly  within  the  rules  of  equity 
jurisprudence  the  relief  he  asks  is  demandable  ex  debito  justitiie,  and  needs 
not  to  be  implored  ex  gratia.  And  as  to  the  principle  invoked,  that  a  chancel- 
lor will  refuse  to  enjoin  when  greater  injury  will  result  from  granting  than 
from  refusing  an  injunction,  it  is  enough  to  observe  that  it  has  no  application 
where  the  act  complained  of  is  in  itself,  as  well  as  in  its  incidents,  tortious.  In 
such  case  it  cannot  be  said  that  injury  would  result  from  an  injunction,  for 
no  man  can  complain  that  he  is  injured  by  being  prevented  from  doing  to  the 
hurt  of  another  that  which  he  has  no  right  to  do.  Nor  can  it  make  the  slight- 
est difference  that  the  plaintiff's  property  is  of  insignificant  value  to  him,  as 
compared  with  the  advantages  that  would  accrue  to  the  defendants  from  its 
occupation.'  There  can  be  no  balancing  of  conveniences  when  such  balancing 
involves  the  preservation  of  an  established  right,  though  possessed  by  a 
peasant  only  to  a  cottage  as  his  home,  and  which  will  be  extinguished  if  re- 
lief is  not  granted  against  one  who  would  destroy  it  in  artificially  using  his 
own  land.  Though  it  is  said  a  chancellor  will  consider  whether  he  would  not 
do  a  greater  injury  by  enjoining  than  would  result  from  refusal,  and  leaving 
the  party  to  his  redress  at  the  hands  of  a  court  and  jury,  and  if,  in  conscience, 
the  former  should  appear,  he  will  refuse  to  enjoin  (Richards'  Appeal,  supra), 
that  'it  often  becomes  a  grave  question  whether  so  great  an  injury  would  not 
be  done  to  the  community  by  enjoining  the  business  that  the  complaining 
party  should  be  left  to  his  remedy  at  law'  (Dilworth's  Appeal,  supra),  and 
similar  expressions  are  to  be  found  in  other  cases,  'none  of  them,  nor  all  of 
them,  can  be  authority  for  the  proposition  that  equity,  a  case  for  its  cogniz- 
ance being  otherwise  made  out,  will  refuse  to  protect  a  man  in  the  possession 
and  enjoyment  of  his  property,  because  that  right  is  less  valuable  to  him  than 
the  power  to  destroy  it  may  be  to  his  neighbor  or  to  the  public'  (Evans  v. 
Reading  Chem.  Fer.  Co.,  160  Pa.  209  L2S  Atl.  702]).  The  right  of  a  man  to 
use  and  enjoy  his  property  is  as  supreme  as  his  neighbor's,  and  no  artificial 
use  of  it  by  either  can  be  permitted  to  destroy  that  of  the  other." 

Petitioner  lays  great  stress  upon  North  Fork  Water  Co.  v.  Medland 

(C.  C.)  187  Fed.  169,  in  which,  in  the  opinion  by  Judge  Ross,  formerly 

a  member  of  this  court,  the  following  appears : 

'•Now,  in  the  first  place,  it  is  to  be  remembered  that  no  one  is  entitled  to 
an  injunction  as  a  matter  of  absolute  right.  When  a  contract  is  broken  and 
any  party  thereto  sustains  an  injury  by  reason  of  such  breach,  the  injured 
party  has  an  absolute  right  to  maintain  an  action  at  law  for  the  recovery  of 
such  damages  as  can  be  shown  to  have  been  sustained  by  him.  But  a  suit  in 
equity,  either  to  enjoin  the  continuance  of  such  a  breach  or  to  enforce  the 
specific  performance  of  the  contract,  appeals  to  the  sound  discretion  of  the 
chancellur — to  his  conscience— and  the  relief  so  sought  will  be  granted  or 
withheld  according  to  the  real  equity  of  the  case,  in  view  of  all  its  facts  and 
circumstances." 

Petitioner  also  cites  Mountain  Copper  Co.  v.  U.  S.,  142  Fed.  625, 
73  C.  C.  A.  621,  in  which  the  opinion  was  also  by  Judge  Ross.  In 
that  case  the  court  refused  to  enjoin  the  operation  of  defendant's 
smelter,  relying  largely  upon  the  early  cases  from  Pennsylvania,  which 
declare  the  "balance  of  hardship"  doctrine,  and  that  an  injunction  is 
ex  gratia,  and  not  ex  debito  justitioe,  and  citing  other  cases,  including 


070  INJUNCTION"    IN    RELATION   TO   TORTS  (Ch.  4 

the  well-known  Madison  v.  Ducktown  Sulphur,  Copper  &  Iron  Co., 
113  Tenn.  331,  83  S.  W.  658.  While  we  have  the  utmost  respect  for 
the  learned  author  of  these  opinions  and  for  the  decisions  of  the 
United  States  Circuit  Court  of  Appeals  for  the  Ninth  Circuit,  we 
cannot  agree  with  the  principles  announced  in  the  two  cases  decided 
by  that  court,  cited  above.  In  connection  with  the  case  of  Mountain 
Copper  Co.  v.  U.  S.,  supra,  it  is  interesting  to  note  that  in  his  dissent- 
ing opinion  therein  Judge  Hawley  quotes  from  Fisher  v.  Zumwalt, 
supra,  and  two  other  California  cases  (Daubenspeck  v.  Grear,  18  Cal. 
443.  447,  and  Natoma  Water  &  Min.  Co.  v.  Clarkin,  14  Cal.  544,  551), 
and  after  an  analysis  of  them  concludes  with  this  brief  but  excellent 
statement  of  the  rule  which  he  deduced  from  them  : 

"The  pith,  point,  and  substance  of  this  whole  matter  is  that,  where  the  acts 
of  a  party,  whether  individuals  or  corporations,  wealthy  or  poor,  destroy  the 
substance  of  complainant's  estate,  whether  it  be  of  great  or  of  but  little  value, 
an  injunction  should  be  issued.  This  is  the  underlying  principle,  the  essence, 
and  effect  of  all  the  decisions  upon  the  subject  which  distinguish  this  charac- 
ter of  cases  from  those  where  the  injury  is  slight  and  trivial,  and  the  damage 
not  irreparable,  and  not  absolutely  destructive  of  complainant's  estate." 

The  Mountain  Copper  Company  Case  has  also  been  criticized  by  the 

Supreme  Court  of  Arizona,  as  well  as  the  later  case  of  McCarthy  v. 

Bunker  Hill  &  Sullivan  Mining  &  Con.  Co.,  164  Fed.  927,  92  C.  C.  A. 

259.     In  Arizona  Copper  Co.  v.  Gillespie,  12  Ariz.  203,  100  Pac.  470, 

this  language  was  used: 

"Counsel  press  upon  us  the  proposition  that  we  should  consider  the  com- 
parative damage  that  will  be  done  by  granting  or  withholding  an  injunction 
in  this  case,  alleging  that  the  effect  of  an  injunction  will  be  to  stop  the  opera- 
tion of  extensive  works,  deprive  thousands  of  persons  of  employment,  and 
cause  loss  and  distress  to  other  thousands.  It  is  undoubtedly  true  that  a  court 
should  exercise  great  care  and  caution  in  acting  where  such  results  would 
follow.  It  should  very  clearly  appear  that  the  acts  of  the  defendant  are 
wrongful,  and  that  the  complainant  is  suffering  substantial  and  irreparable 
injury,  for  which  he  cannot  secure  adequate  compensation  at  law.  A  number 
of  eminent  courts  support  the  contention  of  appellant  that  the  comparative  in- 
jury to  the  parties  in  granting  or  withholding  relief  must  also  be  considered. 
Among  the  cases  so  holding  is  the  case  of  McCarthy  v.  Bunker  Hill  &  Sullivan 
Min.  &  Con.  Co.,  1G4  Fed.  927  [92  C.  C.  A.  259],  decided  by  the  Circuit  Court  of 
Appeals  for  this  circuit,  a  court  for  which  we  entertain  the  highest  respect 
(which  exercises  au  appellate  jurisdiction  over  this  court  in  certain  cases) ; 
and,  if  this  case  were  reviewable  there,  we  should  not  feel  at  liberty  to  express 
views  in  conflict  with  those  of  that  court.  But  this  case  is  reviewable  only 
by  the  Supreme  Court  of  the  United  States,  and  we  cannot  find,  as  suggested 
by  the  Circuit  Court  of  Appeals,  that  that  court  has  given  adherence  to  the 
doctrine.  It  seems  to  us  that  to  withhold  relief  where  irreparable  injury  is, 
and  will  continue  to  be,  suffered  by  persons  whose  financial  interests  are  small 
in  comparison  to  those  who  wrong  them  is  inconsistent  with  the  spirit  of  our 
jurisprudence.  It  is  in  effect  saying  to  the  wrongdoer,  'If  your  financial  in- 
terests are  large  enough  so  that  to  stop  you  will  cause  great  loss,  you  are  at 
liberty  t<>  invade  the  rights  of  your  smaller  and  less  fortunate  neighbors.'  We 
prefer  the  doctrine  adhered  to  by  Judge  Hawley,  in  his  dissenting  opinion  in 
Mt.  Copper  Co.  v.  U.  S.,  142  Fed.  625  [73  C.  C.  A.  621],  and  by  Judge  Sawyer 
in  Woodruff  v.  North  Bloomfield  Gravel  -Min.  Co.  [C.  CI  IS  Fed.  753.  In  the 
latter  case  it  is  said:  'Of  course,  .meat  interests  should  not  be  overthrown  on 
trifling  or  frivolous  grounds,  as  where  the  maxim,  "De  minimis  non  curat 
lex,"  is  applicable;  but  every  substantial,  material  right  of  person  or  proper- 
ty is  entitled  to  protection  against  all  the  world.  It  is  by  protecting  the 
most  humble  in  bis  small  estate  against  the  encroachments  of  large  capital 


Sec.  4)  NUISANCE  071 

and  large  interests  that  the  poor  man  is  ultimately  enabled  to  become  a  capi- 
talist himself.  If  the  smaller  interest  must  yield  to  the  larger,  all  small  prop- 
erty rights,  and  all  small  and  less  important  enterprises,  industries,  and  pur- 
suits would  sooner  or  later  be  absorbed  by  the  large,  more  powerful  few ;  and 
their  development  to  a  condition  of  great  value  and  importance,  both  to  the  in- 
dividual and  the  public,  would  be  arrested  in  its  incipiency.'  To  the  same 
effect  are  the  remarks  of  Judge  Marshall,  in  McCleery  v.  Highland  Boy  Gold 
Min.  Co.  [C.  C]  140  Fed.  951." 

Petitioner  cites,  among  others,  the  following  cases,  which,  although 
tending  for  the  most  part  to  support  the  rule  for  which  he  contends, 
are  not,  we  think,  in  accord  with  the  best  modern  ideas  upon  this  sub- 
ject and  with  the  current  of  Californian  authorities:  McBryde  v. 
Sayrer86  Ala.  458,  5  South.  791,  3  L.  R.  A.  861;  Chambers  v.  Iron 
Co.,  67  Ala.  358 ;  Clifton  Iron  Co.  v.  Dye,  87  Ala.  468,  6  South.  192 ; 
Riedeman  v.  Mt.  Morris  Elec.  Co.,  56  App.  Div.  23,  67  N.  Y.  Supp. 
391;  Barnard  v.  Sherley,  135  Ind.  547,  34  N.  E.  600,  35  N.  E.  117, 
24  L.  R.  A.  568,  41  Am.  St.  Rep.  454;  Gilbert  v.  Showerman,  23 
Mich.  449;  Lloyd  v.  Catlin  Coal  Co.,  210  111.  460,  71  N.  E.  335; 
Amelia  Mill  Co.  v.  Tenn.  Coal  &  Iron  Co.  (C.  C.)  123  Fed.  811;  Ed- 
wards v.  Allouez  Min.  Co.,  38  Mich.  46,  31  Am.  Rep.  301 ;  Atchison  v. 
Peterson,  20  Wall.  507,  22  L.  Ed.  414;  and  Stewart  Wire  Co.  v. 
Lehigh  C.  &  N.  Co.,  203  Pa.  474,  53  Atl,  352.  The  last-named  case 
was  really  decided  upon  the  doctrine  of  laches,  and  not  that  of  "bal- 
ance of  detriment."  Many  of  the  cases  to  which  our  attention  is  called 
by  petitioner  are  not  strictly  in  point.  For  example,  in  New  York 
City  v.  Pine,  185  U.  S.  93,  22  Sup.  Ct.  592,  46  L.  Ed.  820,  the  Supreme 
Court  of  the  United  States  recognized  the  principle  that,  where  the 
defendant  in  an  injunction  suit  has  "the  ultimate  right" — that  is  to 
say,  where  it  is  entitled  to  continue  with  its  work  by  eminent  domain 
proceedings — a  permanent  injunction  will  be  denied,  but  a  temporary 
injunction  may  be  granted  to  compel  the  defendant  to  make  compen- 
sation. 

In  Georgia  v.  Tenn.  Copper  Co.,  206  U.  S.  230,  27  Sup.  Ct.  618,  51 

L.  Ed.  1038,  11  Ann.  Cas.  488,  there  is  a  dictum  to  the  effect  that  if 

the  plaintiff  were  a  private  individual  the  court  might  consider  the 

balance  of  hardship,  but  from  this  Harlan,  J.,  dissented.     One  of  the 

most  instructive  cases  upon  this  subject  is  American  Smelting  &  Ref. 

Co.  v.  Godfrey,  158  Fed.  225,  89  C.  C.  A.  139,  14  Ann.  Cas.  8.    In  that 

case  Judge  Riner  says : 

"The  fact,  urged  by  counsel,  that  these  smelters  are  located  at  a  place  where, 
by  reason  of  its  relation  to  the  railroads  and  mines,  it  is  most  convenient  for 
smelting  purposes  does  not,  in  our  judgment,  constitute  any  defense  to  a  bill 
to  abate  a  nuisance ;  neither  can  a  court  take  into  consideration  the  fact  that 
the  husiness  is  conducted  in  a  proper  and  reasonable  manner,  employing  the 
latest  and  best  devices  and  instrumentalities,  where  the  evidence  shows,  as  in 
this  case,  that  when  so  operated  and  conducted  it  still  results  in  very  great 
damage  to,  if  not  the  total  destruction  of,  complainant's  property  and  is  a 
menace  to  health.  'The  rights  of  habitation  are  superior  to  the  rights  of  trade, 
and  whenever  they  conflict  the  rights  of  trade  must  yield  to  the  primary  or 
natural  right.'  1  Wood  on  Nuisances,  §§  514-517,  and  523.  It  is  also  insisted 
that  the  injury  to  the  appellants  and  to  the  public,  if  an  injunction  issues, 
so  greatly  exceeds  the  injury  to  the  aiu>ellees,  if  denied,  that  an  injunction 


\)7'2  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

should  not  have  been  granted.     We  think  it  may  well  be  doubted  whether 

this  statement  is  supported  by  the  record.  The  parties  to  this  suit,  upon  both 
sides,  have  important  aud  very  valuable  interests  affected  by  the  decree,  and 
it  would  indeed  be  difficult  to  say  upon  the  farts  disclosed  by  the  record  which 
side  would  suffer  the  greater  injury.  However  that  may  be,  we  do  not  think 
the  fact  that  an  actual  injury  resulting  from  the  violation  of  a  right  is 
small,  and  the  interest  to  be  affected  by  an  injunction  is  large,  should  weigh 
against  the  interposition  of  preventative  power  in  equity,  wheu  it  is  clear 
that,  on  one  hand,  a  right  is  violated  and,  on  the  other,  a  wrong  is  committed." 

He  then  discusses  the  leading  eases.  This,  and  the  appended  opin- 
ion of  Marshall,  District  Judge,  rendered  in  the  Circuit  Court,  are 
very  illuminating. 

Our  attention  has  been  directed  to  certain  Californian  cases  which, 
according  to  petitioner's  belief,  support  the  rule  with  reference  to  the 
"balancing  of  injury."  These  are  Peterson  v.  City  of  Santa  Rosa, 
119  Cal.  387,  51  Pac.  557,  and  Williams  v.  Los  Angeles  Railway  Co., 
150  Cal.  593,  89  Pac.  330.  In  the  latter  case  the  court  was  con- 
sidering the  refusal  by  the  superior  court  of  an  injunction  pendente 
lite.  While  it  contains  some  language  perhaps  susceptible  of  the  mean- 
ing for  which  petitioner  contends,  the  court  was  really  considering 
the  principle  announced  in  Hicks  v.  Michael,  15  Cal.  116,  that  an  in- 
junction should  not  be  issued  before  a  hearing  on  the  merits,  except 
in  cases  of  urgent  necessity.  In  Peterson  v.  Santa  Rosa,  supra,  the 
following  language  is  found : 

"In  Attorney  General  v.  Council  of  Birmingham,  4  Kay  &  J.  528,  the  court 
indicated  that  in  such  cases  only  the  right  of  plaintiff  to  relief,  rather  than 
the  question  of  inconvenience  to  defendants,  was  to  be  considered,  although 
the  latter  represented  a  large  population.  We  regard  the  foregoing  as  an  ex- 
treme statement,  and  deem  it  more  proper  to  adopt  the  language  of  Swayne, 
J.,  in  Parker  v.  Winnipiseogee,  etc.,  Co.,  2  Black,  545  LIT  L.  Ed.  833]:  'After 
the  right  has  been  established  at  law,  a  court  of  chancery  will  not,  as  of 
course,  interpose  by  injunction.  It  will  consider  all  the  circumstances,  the 
consequences  of  such  action,  and  the  real  equity  of  the  case.'  In  Curtis  v. 
TV inslow,  88  Vt.  GfX>,  it  was  said:  'In  determining  the  right  of  a  party  to  an 
injunction  after  a  verdict  in  his  favor  by  a  court  of  law,  the  court  will  consider 
the  relative  loss  to  either  party,  the  character  of  the  property  for  which  pro- 
tection is  sought,  the  character  of  the  locality  in  which  the  nuisance  exists, 
and  whether  the  injury  is  properly  compensable  in  damages.'  If  the  injury  is 
only  occasional,  and  the  damages  small,  accidental,  rather  than  a  probable 
and  necessary  consequence,  an  injunction  will  be  denied.  Wood  v.  Sutaliff,  8 
Eng.  L.  &  Eq.  217.  In  short,  each  case  must  be  governed  by  the  circumstances 
that  surround  it  and  by  relative  equities.     Wood  on  Nuisances,  §  550." 

Nevertheless  the  department  sustained  the  judgment  granting  an 
injunction,  by  which  defendant,  a  large  city,  was  restrained  from  pol- 
luting the  waters  of  Santa  Rosa  creek,  although  plaintiff's  damages 
were  found  by  the  jury  to  amount  merely  to  one  dollar.  The  case  is 
really  in  exact  accord  with  the  views  which  we  have  expressed  above, 
for  this  language  is  used  with  reference  to  plaintiff : 

"Her  right  as  a  riparian  owner  was.  not  only  to  have  the  water  of  the 
stream  flow  over  her  land  in  its  usual  volume,  but  to  have  it  flow  in  its 
natural  purity,  and  such  pollution  of  the  stream  by  the  defendant  as  si1 
tially  impaired  its  value  for  the  ordinary  purposes  of  life,  and  render  it  mea- 
surably unlit  for  domestic  purposes,  is  an  actionable  nuisance,  and  the  fact 
that  the  defendant  is  a  municipal  corporation  does  not  enhance  its  rights  or 


Sec.  4)  nuisance  973 

palliate  its  wrongs  in  this  respect.     Wood  on  Nuisances,  §  427;    High  on  In- 
junc.  (3d  Ed.)  §  810." 

We  are  convinced  that  upon  reason  and  upon  great  weight  of  au- 
thority we  should  deny  petitioner's  prayer,  considering  the  subject 
upon  the  assumption  that  we  have  power  under  the  Constitution,  in 
aid  of  our  appellate  jurisdiction  in  a  proper  case,  to  suspend  the  oper- 
ation of  a  prohibitory  injunction  pending  an  appeal. 

Let  the  temporary  order  staying  the  operation  of  the  injunction  be 
dismissed,  and  the  petition  be  denied.* 

I  concur:   Lorigan,  J. 

Henshaw,  J.,  deems  himself  disqualified  to  participate  herein,  and 
therefore  declines  to  act. 

Sloss,  J.  I  concur  in  the  order.  It  seems  to  me,  however,  that  the 
discussion  concerning  the  right  of  a  court  of  equity  to  refuse  an  in- 

*In  Bliss  v.  Anaconda  Copper  Mining  Co.  (1909)  167  Fed.  342,  365,  366,  371, 
the  Circuit  Court  refused  to  enjoin  a  great  copper  smelter  built  at  a  cost  of 
$9,500,000  and  smelting  7,000  tons  of  ore  per  day.  There  was  no  question  of 
the  injury  to  complainant's  farm  from  the  poisonous  fumes  of  the  smelter,  but 
the  court  held  he  must  seek  his  damages  at  law,  applying  the  "balance  of 
equities'*  rule;  Hunt,  District  Judge,  saying  in  his  opinion:  "I  need  not  dwell 
on  the  question  of  power,  for  it  is  too  well  established  that,  from  an  ancient 
date,  with  regard  to  nuisance,  courts  of  equity  have  jurisdiction,  based  upon 
the  reasonable  certainty  of  irreparable  mischief,  that  sort  of  material  injury  by 
one  to  the  comfort  of  another,  which  requires  the  application  of  a  power  to  pre- 
vent, as  well  as  to  remedy,  the  evil  (Jeremy's  Equity  Jurisdiction,  §  310 : 
Daniell's  Chancery  Pleading  &  Practice  [6th  Ed.]  §  1636),  but  will  pass  to  the 
point  of  close  bearing  upon  the  original  question,  that  of  discretion  where  in- 
jury of  the  character  proved  in  this  case  is  threatened  to  be  continued.  In 
my  opinion,  where  there  is  presented  a  conflict  of  rights,  it  is  the  duty  of  a 
court  of  equity,  in  protecting  those  of  the  complainant,  to  consider  those  of 
the  defendant,  and  in  doing  so  it  may  consider  also  the  injuries  that  may  re- 
sult to  others  by  issuing  the  writ  of  injunction.  Put  broadly,  then,  the  propo- 
sition is  this:  The  writ  of  injunction  is  not  ex  debito  justitise  for  any  injury 
threatened  or  done  to  land  or  rights  of  a  person;  but  the  granting  of  it  must 
always  rest  in  sound  discretion,  governed  by  the  nature  of  the  case.  To 
sustain  this  rule  I  need  refer  to  but  a  few  cases.  In  Parker  v.  Winnipiseogee 
Lake  Cotton  &  Woolen  Company  (1862)  67  U.  S.  545,  17  L.  Ed.  333,  the  Su- 
preme Court  held  that,  although  the  right  of  a  complainant  has  been  estab- 
lished at  law,  a  court  of  chancery  will  not  'as  of  course'  interpose  by  injunc- 
tion, but  will  consider  all  the  circumstances,  the  consequences  of  such  action, 
and  the  real  equity  of  the  case.  A  comparison  of  injury  with  the  damage 
which  would  result  by  injunction  was  made  by  the  eourt  in  Atchison  v.  Peter- 
son (1874)  87  U.  S.  507,  22  L.  Ed.  414.  The  Supreme  Court  there  held  that 
injury  sustained  by  accumulation  of  sand  in  water  used  for  mining  by  one 
of  the  parties  to  the  litigation  was  hardly  appreciable  in  comparison  with 
the  damage  which  would  result  to  the  other  parties  from  an  indefinite  sus- 
pension of  work  on  their  valuable  mining  claims,  and  that  it  was  right  for  the 
court  not  to  interfere  by  injunction  to  restrain  their  operations,  and  to  leave 
plaintiffs  to  their  remedy  at  law.  And  again,  in  Osborne  v.  Missouri  Pacific 
Railway  Co.  (1898)  147  D.  S.  248,  13  Sup.  Ct.  299,  37  L.  Ed.  155,  the  court 
recognized  a  distinction  between  the  instance  of  an  actual  invasion  of  private 
rights  which  might  be  assumed  to  be  essentially  irremediable,  and  one  where 
there  is  no  direct  physical  taking  of  the  estate  itself,  in  whole  or  in  part,  but 
the  infliction  of  damage  in  respect  to  the  complete  enjoyment  of  the  estate, 
and  implied  that  probably  injunctive  relief  would  be  awarded  ex  debito  justi- 
ti;e  in  the  one  case,  while  the  court  would  decline  to  interfere  in  the  other. 
And  again,  in  the  Debs  Case  (1895)  158  U.  S.  564,  15  Sup.  Ct.  900,  39  L.  Ed. 
L092,  the  court  refers  to  the  frequency  of  suits  where  the  necessity  for  the 


974  INJUNCTION    IN    RELATION   TO   TORTS  (Cll.  4 

junction  where  the  injury  resulting  to  the  plaintiff  from  a  denial  of 
the  relief  would  be  far  less  than  that  sustained  by  the  defendant,  if 
the  injunction  were  granted,  is  applicable  to  a  consideration  of  ap- 
peals on  their  merits,  rather  than  to  the  question  here  involved.  If 
the  court  may  balance  the  extent  of  the  losses  to  be  suffered  by  the 
respective  parties,  it  exercises  its  discretion  in  this  behalf  when  it 
grants  or  refuses  the  injunction.  In  this  case  the  lower  court  has 
determined  that  it  was  essential,  or  at  least  proper,  for  the  protection 
of  the  plaintiffs'  rights  that  the  defendant  should  be  restrained.  We  are 
not  now  reviewing  the  correctness  of  that  determination.  The  petition- 
exercise  of  equity  jurisdiction  of  public  nuisance  has  depended  upon  the  cir- 
cumstances of  the  particular  case,  and,  speaking  through  Justice  Brewer, 
remarks:  'Of  course,  circumstances  may  exist  in  one  case,  which  do  not  in 
another,  to  induce  the  court  to  interfere  or  refuse  to  interfere  by  injunction, 
but  the  jurisdiction,  the  power  to  interfere,  exists  in  all  cases  of  nuisance.'  In 
New  York  City  v.  Pine  (1902)  185  U.  S.  93,  22  Sup.  Ct.  592,  46  L.  Ed.  820,  the 
Supreme  Court  held  that  there  was  no  absolute  right  to  an  injunction ;  and 
they  so  held  in  Kansas  v.  Colorado  (1906)  206  U.  S.  46,  27  Sup.  Ct.  655,  51  L. 
Ed.  936,  notwithstanding  the  finding  that  'perceptible  injury'  was  done  by 
diminution  of  streams  in  Colorado  to  portions  of  the  lands  belonging  to  the 
state  of  Kansas.  'It  cannot  be  denied,'  said  the  court,  In  view  of  all  the 
testimony,  that  the  diminution  of  the  flow  of  water  in  the  river  by  the  irri- 
gation of  Colorado  has  worked  some  detriment  to  the  southwestern  part  of 
Kansas,  and  yet  when  we  compare  the  amount  of  this  detriment  with  the 
great  benefit  which  has  obviously  resulted  to  the  counties  in  Colorado,  it 
would  seem  that  equality  of  right  and  equity  between  the  two  states  forbids 
any  interference  with  the  present  withdrawal  of  water  in  Colorado  for  pur- 
poses of  irrigation.'  *  *  *  Finally,  in  the  last  analysis,  when,  in  connec- 
tion with  the  attitude  of  Mr.  Bliss,  direct  and  vicarious,  we  weigh  the  un- 
certainty of  his  proof  as  to  the  amount  of  past  damages  done  to  his  land,  or 
of  future  damages  to  be  done  to  his  pastures  by  the  acts  of  these  defendants, 
together  with  the  fact  that  he  has  not  resorted  to  a  court  of  law  to  recover 
any  damages  at  all,  and  balance  'these  matters  against  the  stern  fact  that, 
if  defendants  are  enjoined  as  prayed  for,  they  must  either  buy  the  lands  of 
the  farmers  at  their  own  prices,  or  sacrifice  their  property ;  that,  if  enjoined 
as  prayed  for,  their  smelter  must  close ;  that,  if  it  does  close,  their  business 
and  great  property  will  be  practically  ruined ;  that  a  major  part  of  the  sul- 
phide copper  ores  of  Butte  cannot  be  treated  elsewhere  within  this  state ;  that 
thousands  of  defendants'  employes  will  have  to  be  discharged ;  that  the  cities 
of  Anaconda  and  Butte  will  be  injured  irreparably  by  the  general  effect  upon 
internal  commerce  and  business  of  all  kinds;  that  professional  men,  banks, 
business  men,  working  people,  hotels,  stores,  and  railroads  will  be  so  vitally 
affected  as  to  cause  unprecedented  depression  in  the  most  populous  part  of 
the  state;  that  the  county  government  of  one  county  of  the  state  may  not 
be  able  to  exist;  that  the  farmers  of  the  valleys  adjacent  to  Butte  and 
Anaconda  will  not  have  nearly  as  good  markets  as  they  have  enjoyed;  that 
the  industry  of  smelting  copper  sulphide  ores  will  be  driven  from  the  state ; 
and  that  values  of  many  kinds  of  property  will  either  be  practically  destroyed 
or  seriously  affected — remembering,  always,  that  the  courts  of  law  are  open 
to  Mr.  Bliss,  I  hold  that,  under  the  evidence,  as  he  has  submitted  his  ease, 
discretion,  wisely,  imperatively  guided  by  the  spirit  of  justice,  does  not  de- 
mand that  injunction,  as  prayed  for,  should  issue." 

See  Cowper  v.  Laidler,  [1903]  2  Ch.  Div.  333,  341,  where  Buckley,  J.,  express- 
es the  English  view  against  the  "balance  of  equities  or  convenience"  rule 
(even  under  the  statutory  authority  of  Lord  Caines'  Act  to  give  damages  in 
lieu  of  an  injunction  at  its  discretion),  saying:  "The  Court  has  affirmed  over 
and  over  again  that  the  jurisdiction  to  give  damages  where  it  exists  is  not  so 
to  be  used  as  in  fact  to  enable  the  defendant  to  purchase  from  the  plaintiff 
against  his  will  his  legal  right  to  the  easement." 


Sec.  4)  nuisance  975 

er  cannot,  of  course,  ask  us  in  this  proceeding  to  stay  the  force  of  the 
injunction,  on  the  ground  that  the  trial  court  abused  its  discretion,  or 
that  it  erred  otherwise  in  granting  the  injunction.  What  is  claimed 
is  that  a  suspension  of  the  judgment  "is  necessary  or  proper  to  the 
complete  exercise"  of  our  appellate  jurisdiction  (Const,  art.  6,  §  4); 
it  is  claimed  that  a  refusal  to  stay  the  injunction  will  so  affect  the 
subject  of  the  controversy  that,  if  the  judgment  should  ultimately 
be  reversed,  the  appellant  will  in  large  measure  be  deprived  of  the 
fruits  of  its  successful  appeal. 

But  we  must  consider  the  rights  of  the  respondents,  as  well  as  those 
of  the  plaintiffs.  If  the  judgment  of  the  court  below  is  right,  the 
plaintiffs  are  absolutely  entitled  to  have  the  wrongful  acts  stopped, 
not  only  after  the  determination  of  the  appeal,  but  pending  the  ap- 
peal. Under  the  findings,  the  acts  complained  of  are  inflicting  a  con- 
tinuing injury  upon  the  plaintiffs  and  their  lands,  an  injury  of  a  kind 
which  has  always  been  regarded  by  courts  of  chancery  as  irremedia- 
ble, and  not  capable  of  adequate  redress  by  damages.  If  the  appel- 
lant may  ask  that  it  shall  not  lose  the  fruits  of  an  appeal  which  may 
turn  out  to  be  meritorious,  the  respondents  are  in  at  least  as  good  a 
position  to  demand  that  the  appellate  court  shall  not  irrevocably  take 
away  from  them  the  benefit  which  they  have  already  won,  and  which 
will  be  confirmed  to  them  if  the  judgment  should  be  sustained.  The 
exercise  of  the  appellate  jurisdiction  must  contemplate  the  possibility 
of  affirmances,  as  well  as  reversals.  I  do  not  think  a  stay  of  execution 
can  be  said  to  be  necessary  or  proper  to  the  complete  exercise  of  ap- 
pellate jurisdiction  when  such  stay  can  be  granted  only  at  the  risk  of 
destroying  rights  which  will  unquestionably  belong  to  the  respondent, 
if  the  judgment  of  the  lower  court  shall  be  confirmed.  This  will  al- 
ways be  the  situation  in  the  case  of  an  appeal  from  a  judgment  en- 
joining acts  which  are  found  to  be  destructive  of  the  plaintiff's  real 
property.  I  think,  therefore,  that  in  such  cases,  at  any  rate,  this  court 
should  not  undertake  to  suspend  the  force  of  a  prohibitory  injunction 
pending  appeal.  Swift  v.  Shepard,  64  Cal.  423,  1  Pac.  493.  The  stat- 
utory law  gives  no  stay,  and  there  should  be  none,  unless  the  trial 
court,  which  is  in  the  best  position  to  weigh  the  respective  equities, 
concludes  to  exercise  its  power  (Pasadena  v.  Superior  Court,  157  Cal. 
781,  109  Pac.  620.  21  Ann.  Cas.  1355)  to  suspend  the  injunction  until 
the  merits  are  finally  determined. 

It  may  be  suggested,  further,  that  the  effect  of  an  order  by  this 
court,  suspending  the  operation  of  a  prohibitory  injunction,  is  to  re- 
verse, pro  tanto,  the  judgment  granting  the  injunction,  and  that  in 
advance  of  a  hearing  on  the  merits.  That  this  is  so  will  appear  more 
clearly  if  we  suppose  the  case  of  an  appeal  from  an  order  of  the  su- 
perior court,  granting  an  injunction  pendente  lite.  In  such  case,  an 
application  for  a  suspension  of  the  injunction  pending  the  appeal  could 
be  urged  upon  precisely  the  same  grounds  as  those  here  presented  by 
petitioner.     The  thing  decided  by  the  trial  court,  in  the  case  supposed, 


976  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 

was  that  the  defendant  should  be  restrained  until  a  trial  on  the  merits, 
or  until  that  court  should  order  otherwise.  That  conclusion  is  re- 
viewable on  appeal ;  but  to  suspend  the  order  before  a  hearing  of 
the  appeal  would  clearly  be  to  set  aside  the  very  thing  decided  below, 
viz.,  that  the  defendant  should  be  enjoined  until  a  trial  or  a  further 
order.  The  situation  does  not  differ  where  the  injunction  is  embraced 
in  a  final  judgment.  There,  too,  it  is  a  part  of  the  adjudication  that 
the  defendant  should  be  enjoined  at  once,  and  this  adjudication  should 
not  be  set  aside  on  appeal  before  a  hearing  on  the  merits  of  the  appeal. 
We  concur  :   Angi-llotti,  J. ;    Shaw,  J. 


HENNESSY  v.  CARMONY  et  ux. 
(Court  of  Chancery  of  New  Jersey,  1S92.     50  N.  J.  Eq.  616,  25  Atl.  374.) 

Pitney,  V.  C.46  The  object  of  the  bill  is  to  restrain  a  private  nui- 
sance. The  complainant  is  the  owner  of  a  small  lot  of  land,  about  18 
feet  front  and  rear  by  about  96  feet  deep,  in  the  city  of  Camden, 
fronting  on  the  west  side  of  South  Eighth  street,  about  midway  be- 
tween Spruce  street  on  the  north  and  Cherry  street  on  the  south. 
Upon  this  lot  is  situated  a  small  dwelling  house,  composed  of  a  main 
or  front  part  of  brick,  about  15  feet  front  by  30  feet  deep,  two  stories 
high,  leaving  a  passageway  of  3  feet  on  the  northerly  side,  and  having 
a  wooden  extension  or  kitchen  about  10  by  35  feet,  two  stories  high, 
in  the  rear.  The  rear  of  this  structure  is  31^2  feet  from  the  rear  line 
of  the  lot.  The  ground  lying  to  the  north  and  west  of  this  lot  is  own- 
ed by  the  defendants,  or  one  of  them,  and  is  used  for  a  dye  works  for 
coloring  cotton  and  other  materials.  In  the  process  of  dyeing,  it,  of 
course,  becomes  necessary  to  dry  those  materials,  and  in  order  to 
hasten  this  process  use  is  made  of  two  machines,  called  in  the  evidence 
"whizzers,"  into  which  the  wet  material  is  placed,  and  which,  by  be- 
ing revolved  at  great  speed,  drive  out  the  water  by  centrifugal  force. 
These  machines  are  driven  by  two  small  engines  attached  to  them 
directly,  without  intermediate  gearing,  so  that  the  engines  must  make 
the  same  number  of  revolutions  as  do  the  whizzers,  and  the  more 
rapid  the  revolution,  the  more  rapid  the  process  of  drying. 

The  principal  subject  of  litigation  was  as  to  the  effect  upon  the  com- 
plainant's premises  of  these  machines.  There  were  other  matters  com- 
plained of,  some  of  which  were  remedied  about  the  time  the  bill  was 
filed,  and  such  as  were  not  remedied  are  capable  of  being  remedied 
without  serious  inconvenience  to  the  defendants.     I  will  state  them : 

First.  The  defendants,  shortly  before  the  bill  was  filed,  had  occa- 
sion to  place  a  wire  stay  rope  to  support  an  iron  smokestack  for  their 
steam   boiler,   and  in   so   doing   fastened  the   lower   end  of   it   to   an 

*8  Parts  of  the  opinion  are  omitted. 


Sec.  4)  nuisance  977 

object  on  their  own  land,  so  situate,  as  to  the  smokestack,  that  the 
wire  rope  crossed  and  overhung  the  rear  of  the  lot  of  the  complain- 
ant. This  was  removed  after  complaint  made,  but  whether  just  be- 
fore or  just  after  the  bill  was  filed  was  a  disputed  question. 

Second.  Some  time  previous  to  the  filing  of  the  bill— months  or 
years — the  defendants  placed  on  their  land,  a  few  feet  only  from  the 
side  line  of  complainant's  lot,  and  near  his  back  or  kitchen  door,  a 
privyhouse,  which  was  used  by  their  employes.  This  privy  was  placed 
immediately  over  a  small  brick  sewer  which  led  from  defendants' 
works  across  their  land  to  the  public  sewer  in  the  street,  and  a  small 
hole  was  made  in  this  sewer  under  the  privy.  The  defendants,  ac 
stated  times,  blew  off  their  steam  boiler  into  this  sewer,  with  the  re- 
sult that  the  hot  steam  there  introduced  drove  out  the  offensive  odors 
of  the  privy  into  complainant's  kitchen.  Upon  complaint  being  made 
of  this  practice,  it  was  also  discontinued,  and  the  hole  in  the  sewer 
closed,  but  whether  before  or  after  bill  filed  was  also  a  matter  of  dis- 
pute. 

Third.  The  engines  and  the  machines  (whizzers)  above  mentioned 
stand  near  each  other  in  a  low,  one-story  building,  immediately  in  the 
rear  of  complainant's  lot,  and  the  steam  is  exhausted  from  the  engines 
upon  the  roof.  The  complainant  charges  that  hot  water,  vapor,  and 
spray  from  these  exhausts,  when  the  wind  blows  from  the  dyehouse 
towards  complainant's  house,  come  over  onto  his  lot,  laden  with  cin- 
ders from  the  smokestack,  and  greasy  filth  from  the  engines,  and 
interfere  with  the  use  of  the  yard  for  drying  clothes,  etc. 

Fourth.  Complainant  contends  that  the  running  of  the  centrifugal 
machines  before  mentioned  has  the  effect  of  making  a  disagreeable 
noise,  and  also  of  jarring  and  shaking  the  house,  so  that  the  windows 
and  doors  rattle,  the  pieces  of  table  crockery  rattle,  and  move  upon 
one  another  on  the  shelves,  and  the  walls  are  more  or  less  cracked. 

Upon  the  two  latter  branches  of  the  case  (especially  the  last  one) 
more  than  twenty  witnesses  were  sworn  on  the  one  side  and  the  other. 
With  regard  to  the  charge  that  dirty  water,  vapor,  and  spray  come 
onto  complainant's  premises  from  the  engine  exhausts,  the  proof  is 
that  the  summer  before  the  bill  was  filed  defendants  made  certain  re- 
pairs to  and  changes  in  their  works,  and  when,  after  these  repairs,  the 
small  engines  were  started  up,  shortly  before  the  bill  was  filed,  the 
steam  exhausts  led  out  to  a  point  on  the  roof  quite  near  the  com- 
plainant's lot,  with  the  result  above  stated,  and  that,  upon  complaint 
being  made,  the  exhaust  pipes  were  cut  off,  and  made  to  lead  directly 
to  the  roof,  and  to  exhaust  only  some  six  inches  above  it.  The  point 
where  they  now  exhaust  is  about  25  feet  from  the  rear  of  complain- 
ant's lot,  and  it  was  contended  by  the  defendants  that  this  change 
rendered  it  impossible  for  anything  proceeding  from  the  exhaust  to 
reach  the  complainant's  lot.  Notwithstanding  this  change,  however, 
complainant's  witnesses,  himself,  wife,  and  children,  swear  that  the 
Boke  Eq.— 62 


978  INJUNCTION   IN   RELATION  TO   TORTS  (Cll.  4 

filthy  spray  continued  to  come  onto  their  lot  whenever  the  wind  was 
blowing  from  the  factory  in  that  direction.  In  this  they  are  supported 
by  a  Mrs.  Cheeseman,  a  witness  called  by  the  defendants,  who  had 
been  a  tenant  in  complainant's  house  after  bill  filed.  She  swears  to 
the  fouling  of  her  washed  clothing  from  the  spray  from  these  ex- 
hausts. It  was  proved  that  oil  was  constantly  fed  into  these  steam 
cylinders  while  in  motion,  and,  of  course,  as  is  well  known,  it  is  taken 
up  by  the  steam,  passes  out  with  it  through  the  exhaust,  rendering 
the  water,  spray,  and  vapor  resulting  from  the  condensation  of  the 
steam  greasy,  and  sometimes  slightly  discolored  by  the  result  of  the 
wear  of  the  piston.  I  think  complainant  made  out  his  case  in  this 
regard,  and  is  entitled  to  relief  on  that  part  of  his  bill.  There  is  not 
the  least  difficulty  in  remedying  the  nuisance  by  simply  extending  the 
exhaust  pipes  by  a  bend  down  to  one  of  the  leaders  which  carry  the 
rain  water  from  the  roof  of  the  factory. 

With  regard  to  the  alleged  noise  and  vibration,  and  the  right  of  the 
complainant  to  relief  on  that  score  if  the  vibrations  be  established, 
more  troublesome  questions  arise.  The  proof  is  clear  that  when  these 
machines,  called  in  the  evidence  "whizzers,"  were  first  put  in,  some 
years  ago,  they  did  produce  a  serious  vibration  in  the  neighboring 
buildings.  The  factory  is  situate  in  the  easterly  center  of  the  block, 
which  is  oblong,  and  bounded  north  by  Spruce  street,  east  by  Eighth 
street  and  south  by  Cherry  street,  and  the  engines  are  about  equidis- 
tant— say  110  feet  to  120  feet — from  each  of  these  streets,  and  about 
30  feet  from  the  rear  of  complainant's  lot.  On  the  west  of  the  factory 
is  a  church  and  a  public  schoolhouse,  and  the  latter  is  more  than  150 
feet  distant  from  the  machines.  So  great  was  the  vibration  they  pro- 
duced at  the  schoolhouse  that  complaint  was  made  by  the  school  au- 
thorities, and  the  defendants  attempted  to  remedy  the  nuisance  by 
constructing  a  solid  foundation  of  masonry,  extending  some  six  feet 
below  the  surface,  and  placing  the  machines  upon  it.  It  is  also  proven 
by  one  of  the  defendants'  witnesses,  who  lived  in  the  complainant's 
house  at  and  before  the  construction  of  this  foundation,  that  com- 
plainant's house  was  seriously  shaken  by  the  machines.  This  solid 
foundation,  put  in  about  three  years  before  bill  filed,  seems  to  have 
remedied  the  difficulty  so  far  as  the  schoolhouse  was  concerned,  and, 
under  ordinary  circumstances,  one  would  suppose  that  the  result  would 
be  general,  and  include  buildings  as  near  as  complainant's  dwelling. 

But  the  evidence  compels  me  to  come  to  a  contrary  conclusion. 
Numerous  witnesses  living  in  the  neighborhood — most  of  them  much 
further  away  from  the  machines  than  complainant's  house — swear 
to  a  sensible  vibration  when  the  machines,  as  now  placed,  are  going 
at  full  speed.  Capt.  Ward,  an  intelligent,  impartial,  and,  I  think,  reli- 
able, witness,  lived  in  a  house  over  300  feet  away,  and  testifies  to  a 
distinct  vibration  felt  at  his  house  whenever  the  machines  were  in 
full  motion,  causing  the  windows  to  rattle,  and  dishes  to  move  on  the 
shelves.     He  testifies   further  that,  according  to  his  observation,  the 


Sec.  4)  nuisance  979 

vibration  is  generally  greater  in  the  morning  and  evening,  before  and 
after  school  hours,  a  circumstance  which,  if  true,  is  significant,  in 
connection  with  the  complaint  of  the  school  authorities,  and  the  fact 
that  the  more  rapid  the  revolution  the  greater  the  vibration.  Capt. 
Ward  also  accounts  for  the  vibration  being  felt  so  far  in  a  manner 
satisfactory  to  me.  He  has  been  a  contractor  for  building  sewers,  and 
thus  had  occasion  to  excavate  extensively  in  different  parts  of  the 
citv,  and  he  says  that  whenever  you  excavate  in  that  neighborhood 
seven  or  eight  feet  below  the  surface  you  come  to  a  sort  of  quicksand, 
wet,  of  course,  as  all  quicksand  is,  spread  to  a  depth  of  from  two 
to  four  feet  above  the  solid  bottom.  This  quicksand  resembles  in  its 
character  a  body  of  water  under  pressure,  and  forms  at  once  a  con- 
ductor of  the  vibratory  force.  It  is  a  well-known  fact  that  the  jar 
of  a  steam  pump  may  be  carried  through  the  water  in  an  iron  main 
and  felt  at  a  great  distance  from  its  source. 

The  evidence  of  the  complainant  and  his  family  is  strong  as  to  the 
noise  and  vibration  in  his  house,  and  its  effect,  as  above  stated,  in 
causing  the  windows  to  rattle,  and  the  dishes  to  rattle  and  move  upon 
their  shelves,  the  doors  to  swing  open,  and  the  walls  to  crack ;  and 
it  is  corroborated  not  only  by  the  evidence  of  the  numerous  witnesses 
who  have  felt  it  further  away,  but,  in  a  measure,  by  that  of  Mrs. 
Cheeseman,  who,  as  before  stated,  occupied  the  house  as  a  tenant  of 
the  complainant  after  the  bill  was  filed,  and  was  called  by  the  de- 
fendants. This  evidence  is  not  overcome  or  seriously  shaken  by  the 
evidence  of  the  witnesses  of  defendants  who  swear  that  in  some  of 
the  dwellings  in  the  neighborhood  little,  if  any,  vibration  is  felt.  The 
schoolhouse  is  a  large,  heavy  building,  built  of  brick,  and  the  same  is 
true  of  some  of  the  dwellings,  and  such  buildings  would  not  feel  the  jar 
as  readily  as  would  a  light  structure  like  complainant's  dwelling  and 
many  others  in  the  neighborhood.  Then,  again,  if  I  am  right  in  my  be- 
lief that  the  real  secret  of  the  far-reaching  effect  of  these  little  machines 
is  that  they  rest  upon  a  layer  of  wet  quicksand,  which  extends  with 
more  or  less  uniformity  throughout  that  neighborhood,  that  fact  fur- 
nishes an  explanation  of  the  inequality  of  the  effect  of  the  same  cause, 
viz.,  a  variation  in  the  thickness,  and  a  possible  break  in  places  in  the 
continuity,  of  this  layer. 

The  serious  and  troublesome  question  in  the  case  is  as  to  whether 
the  vibration  established  is  of  such  a  degree  as  to  entitle  the  com- 
plainant to  the  aid  of  this  court.  Upon  reason  and  authority  I  think 
there  is  a  clear  distinction  between  that  class  of  nuisances  which  affect 
air  and  light  merely,  by  way  of  noises  and  disagreeable  gases,  and 
obstruction  of  light,  and  those  which  directly  affect  the  land  itself,  or 
structures  upon  it.  Light  and  air  are  elements  which  mankind  en- 
joy in  common,  and  no  one  person  can  have  an  exclusive  right  in  any 
particular  portions  of  either;  and,  as  men  are  social  beings,  and  by 
common  consent  congregate,  and  need  fires  to  make  them  comfortable 
and  to  cook  their  food,  it  follows  that  we  cannot  expect  to  be  able  to 


9S0  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

breathe  air  entirely  free  from  contamination,  or  that  our  ears  shall 
not  be  invaded  by  unwelcome  sounds.  Thus,  my  neighbor  may  breathe 
upon,  my  land  from  his,  and  the  smoke  from  his  house  fire  and  the 
vapor  from  his  kitchen  may  come  onto  my  land,  or  he  may  converse 
in  audible  tones  while  standing  near  the  dividing  line,  and  all  without 
giving  me  any  right  to  complain.  So  my  neighbor  and  I  may  build 
our  houses  on  the  line  between  our  properties,  or  have  a  party  wall 
in  common,  so  that  we  are  each  liable  to  hear  and  be  more  or  less 
disturbed  by  the  noise  of  each  other's  family,  and  cannot  complain 
of  it. 

In  all  these  matters  of  the  use  of  the  common  element  air  we  give 
and  take  something  of  injury  and  annoyance,  and  it  is  not  easy  to 
draw  the  line  between  reasonable  and  unreasonable  use  in  such  cases, 
affecting,  as  they  do,  mainly  the  comfort,  and,  in  a  small  degree  only, 
the  health,  of  mankind.  In  attempting  to  draw  this  line,  we  must 
take  into  consideration  the  character  which  has  been  impressed  upon 
the  neighborhood  by  what  may  be  called  the  "common  consent"  of  its 
inhabitants.  But  when  we  come  to  deal  with  what  is  individual  prop- 
erty, in  which  the  owner  has  an  exclusive  right,  the  case  is  different. 
While  my  neighbor  may  stand  by  mv  fence  on  his  own  lot,  and  breathe 
across  it  over  my  land,  and  may  permit  the  smoke  and  smell  of  his 
kitchen  to  pass  over  it,  and  may  talk,  laugh,  and  sing  or  cry,  so  that 
his  conversation  and  hilarity  or  grief  is  heard  in  my  yard,  he  has  no 
right  to  shake  my  fence  ever  so  little,  or  to  throw  sand,  earth,  or 
water  upon  my  land  in  ever  so  small  a  quantity.  To  do  so  is  an  inva- 
sion of  property,  and  a  trespass,  and*  to  continue  to  do  so  constitutes 
a  nuisance ;  and,  if  he  may  not  shake  my  fence  or  my  house  by  force 
directed  immediately  against  them,  I  know  of  no  principle  by  which 
he  may  be  entitled  to  do  it  by  indirect  means.  I  think  the  distinction 
between  the  two  classes  of  injury  is  clear.  At  the  same  time  it  would 
seem  that  it  has,  in  appearance  at  least,  been  frequently  overlooked 
by  able  and  careful  judges,  and  the  same  rules  as  to  the  degree  of  the 
injury  which  will  justify  judicial  interference  applied  to  each  class. 
The  distinction  between  the  two  classes  of  injuries  was  pointed  out 
by  Lord  Westbury  in  Smelting  Co.  v.  Tipping,  11  IL.  L.  Cas.  642,  11 
fur.  (X.  S.)  785,  116  E.  C.  L.  1093.     *     *     * 

The  familiar  ground  on  which  the  extraordinary  power  of  the 
court  is  invoked  in  such  cases  is  that  it  is  inequitable  and  unjust  that 
the  injured  party  should  be  compelled  to  resort  to  repeated  actions 
at  law  to  recover  damages  for  his  injury,  which,  after  all,  in  this  class 
of  cases,  are  incapable  of  measurement ;  and  I  presume  to  add  the 
further  ground  that  in  this  country  such  recovery  must  result  in 
giving  the  wrongdoer  a  power  not  permitted  by  our  system  of  consti- 
tutional government,  viz.,  to  take  the  injured  party's  property  for 
his  private  purposes  upon  making,  from  time  to  time,  such  compen- 
sation as  the  whims  of  a  jury  may  give.  This  ground  of  equitable 
action  is  of  itself  sufficient  in  those  cases  where  the  injury,  though 


Sec.  4)  nuisance  981 

not  irreparable,  promises  to  be  repeated  for  an  indefinite  period,  and 
so  is  continuous  in  the  sense  that  it  will  be  persevered  in  indefinitely. 
See  Ross  v.  Butler,  19  N.  J.  Eq.  302,  97  Am.  Dec.  654. 

Several  matters  have  at  various  times  and  on  various  occasions  been 
held  to  stand  in  the  way  of  granting  an  injunction  in  this  class  of 
cases.  The  principal  one  is  what  may  be  called  the  "de  minibus," 
"balance  of  injury,"  and  "discretion"  doctrine.  It  has  been  said  and 
held  on  some  occasions  that,  where  the  injury  to  the  complainant  by 
the  continuance  of  the  nuisance  is  small,  and  the  injury  to  the  de- 
fendant by  it's  discontinuance  is  great,  the  court  will  consider  that  cir- 
cumstance, and,  if  the  balance  is  greatly  against  the  complainant,  will, 
in  the  exercise  of  a  sound  discretion,  refuse  the  injunction,  and  leave 
the  complainant  to  his  remedy  at  law.  As  instances  in  which  this 
notion  has  been  advanced  in  this  state  may  be  cited  Ouackenbush  v. 
Van  Riper.  3  N.  T-  Eq.  350,  29  Am.  Dec.  716 ;  Vanwinkle  v.  Curtis, 
3  X.  J.  Eq.  422;  Railroad  Co.  v.  Prudden,  20  N.  J.  Eq.  530— in 
the  court  of  errors  and  appeals ;  and  in  the  later  case  of  Demarest 
v.  Hardham,  34  N.  J.  Eq.  469.     *     *     * 

With  regard  to  the  insignificancy  of  the  injury  to  the  complainant, 
it  seems  to  me  it  cannot  be  taken  into  account  if  it  be  appreciable, 
and  such  as  would  clearly  entitle  him  to  damages  at  law.  That  con- 
sideration was  urged  and  overruled,  and  with  it,  as  I  think,  the  "bal- 
ance of  injury  and  convenience"  notion  above  stated,  by  the  court  of 
errors  and  appeals  in  Higgins  v.  Water  Co.,  36  N.  J.  Eq.  538,  at  541, 
which  is  the  latest  expression  by  that  court  on  this  subject.     *     *     * 

I  have  taken  the  trouble  to  examine  many  of  the  cases  which  seem 
to  hold  more  or  less  the  contrary  of  what  I  understand  to  be  the 
rule  laid  down  by  the  court  of  errors  and  appeals  in  Higgins  v.  Wa- 
ter Co.,  and  find  most  of  them  distinguishable.  The  majority  of  them 
are  rulings  upon  preliminary  injunctions,  where  the  right  was  not 
yet  settled,  or  where  the  injury  was  not  a  continuing  one,  and  the 
remedy  at  law  ample,  or,  if  on  final  hearing,  there  was  something 
inequitable  in  the  complainant's  conduct  or  case  which  would  amount 
to  a  defense  in  equity  to  an  action  at  law.  And  of  the  English  cases 
it  is  proper  further  to  observe  that  some  of  them  gave  damages  in- 
stead of  an  injunction,  under  the  authority  of  the  acts  of  Parliament 
for  that  purpose,  called  Lord  Cairns'  and  Sir  John  Rolt's  Acts.  The 
giving  of  damages  for  continuing  nuisances  is  quite  within  the  om- 
nipotent power  of  parliament,  which  is  competent  to  take  private 
property  for  private  purposes.  In  this  country,  under  our  constitu- 
tional system,  as  before  remarked,  that  course  is  forbidden.  I  think 
the  language  of  Lord  Cranworth,  quoted  by  the  learned  chief  justice 
in  Higgins  v.  Water  Co.,  applies  with  increased  force  in  this  country. 

While  the  "balance  of  injury"  notion  has  found  frequent  place  in 
many  English  cases,  the  later  and  best-considered  of  them  put  the 
rules  governing  courts  of  equity  in  such  cases  upon  their  true  ground. 
Clowes  v.  Staffordshire  Potteries  Water  Works  Co.,  L.  R.  8  Ch.  App. 


982  INJUNCTION   IN   RELATION   TO  TOUTS  (Ch    4 

125,  at  pages  142,  143;  Wilts,  etc.,  Co.  v.  Water  Works  Co.,  L.  R. 
9  Ch.  App.  451 ;  Goodson  v.  Richardson,  Id.  221, — are  ex- 
amples.    *     *     :;: 

The  result  of  a  careful  review  of  the  evidence  upon  my  mind  is 
to  lead  me  to  the  conclusion  that  the  degree  of  injury  is  such  as  to 
entitle  the  complainant  to  damages  in  an  action  at  law,  with  the  result 
that  he  is  entitled  to  an  injunction  in  this  court.  The  injury,  to  be 
actionable,  must  be  sensible  and  appreciable,  as  distinguished  from  one 
merely  fanciful,  and  in  a  case  like  this  I  assume,  for  present  pur- 
poses, that  it  must  have  the  effect  of  rendering  tbe  premises  less  de- 
sirable, and  so  less  valuable  for  ordinary  use  and  occupation.  Now, 
it  seems  to  me  that  a  vibration  that  causes  the  windows  and  doors  of 
a  house  to  rattle  in  their  casings,  and  dishes  on  the  shelves  to  rattle 
and  move  on  one  another,  and  the  walls  to  crack,  and  is  distinctly  felt 
by  persons  in  the  house,  would  have  such  effect,  and  is  therefore 
actionable ;  while  smoke  and  noise  might  have  a  similar  effect  in 
rendering  the  house  less  desirable  without  being  actionable,  because 
the  degree  of  discomfort  would  not  be  sufficiently  great  to  reach  the 
standard  (if,  indeed,  any  standard  has  been  established)  applied  to 
that  class  of  injuries.  See  Walter  v.  Selfe,  4  De  Gex  &  S.  318,  20 
Law  J.  Ch.  434,  15  Jur.  416;  Ross  v.  Butler,  19  N.  J.  Eq.  294,  299, 
306,  97  Am.  Dec.  654. 

There  is  evidence  tending  to  show  that  complainant  made  little  or 
no  complaint  with  regard  to  this  vibration  until  about  the  time  the 
bill  was  filed,  when  the  invasion  of  his  property  rights  by  hanging  the 
stay  wire  over  his  land,  by  driving  the  filthy  steam  from  the  sewer 
into  his  kitchen,  and  the  sprinkling  of  spray  over  his  back  yard,  seem- 
ed to  combine  to  exasperate  him.  This  apparent  acquiescence  can 
only  be  used  as  evidence  that  the  complainant  did  not  consider  the 
vibration  as  serious,  but  I  think  that  is  not  sufficient  in  that  regard 
to  overcome  the  weight  of  the  evidence  that  his  house  is  injured.  I 
will  advise  a  decree  that  the  defendant  be  restrained  from  so  using 
his  machines  as  to  cause  the  complainant's  house  to  vibrate,  and  also 
from  allowing  the  water  and  spray  from  the  exhaust  of  his  engines  to 
come  onto  the  complainant's  lands. 


Sec.  4)  nuisance  983 

AMSTERDAM  v.  CITY  OF  CHICAGO. 
(Appellate  Court  of  Illinois,  First  District,  1911.    160  111.  App.  100.) 

Mr.  Justice:  Brown47  delivered  the  opinion  of  the  court. 

The  appellee  in  this  case,  Philip  Amsterdam,  complainant  and  cross 
defendant  below,  is  the  owner  of  two  three  story  brick  flat  buildings 
of  ordinary  construction,  from  the  flat  roofs  of  which  people  can 
overlook  the  West  Side  National  Ball  Park.  One  of  them,  at  451 
South  Wood  street,  had  on  the  roof  when  he  bought  it  "a  grand  stand," 
as  the  same  is  defined  in  section  656  of  the  Municipal  Code  of  Chi- 
cago; that  is  tiers  of  wooden  seats  rising  one  above  the  other.  Seats 
on  these  stands  were  presumably  rented  by  the  former  owners,  as 
they  were  by  appellee  in  1905  and  1906  and  1907,  to  persons  desirous 
of  seeing  the  base  ball  games  in  the  park  without  paying  therefor  as 
much  as  was  demanded  for  admission  to  the  park  for  equally  good 
seats.  The  other  building  is  at  805  West  Taylor  street,  and  was  built 
by  the  appellee  in  1907.  On  it  he  built  a  grand  stand  similar  to  that 
on  the  building  at  451  South  Wood  street,  but  larger,  and  used  it  for 
the  same  purposes. 

Permits  to  Amsterdam   "to   use  roof"  of  451    South  Wood  street 

as  a  "grand  stand"  were  issued  to  him  by  a  deputy  commissioner  of 

buildings  for  the  city  in  the  spring  of  1905  and  of  1906,  and  one  for  the 

"erection  of  a  grand  stand  on  the  roof"  of  said  building  in  April,  1907. 

The  permits  were  on  blank  forms  used  for  permits  for  the  erection  of 

buildings,  and  all  contained  the  clause: 

"This  permit  is  granted  on  the  express  condition  that  the  said  P.  Amsterdam 
in  the  erection  of  said  building  shall  conform  in  all  respects  to  the  ordinances 
of  the  city  of  Chicago  regulating  the  construction  of  buildings  in  the  city  lim- 
its, and  may  be  revoked  at  any  time  upon  the  violation  of  any  of  the  provi- 
sions of  said  ordinances." 

A  permit  apparently  was  issued  for  the  building  at  805  West  Tay- 
lor street,  including  a  grand  stand  on  the  roof,  on  July  19,  1907.  At 
all  events  the  evidence  shows  that  on  that  date  plans  for  the  building, 
showing  the  proposed  grand  stand  on  the  roof,  were  approved  by  a 
deputy  building  commissioner,  and  the  court  below  in  its  decree  here- 
inafter described  so  found. 

It  is,  however,  not  disputed  that  the  permits  for  the  erection  or 
use  of  "grand  stands"  on  both  buildings  were  revoked  in  the  fall  of 
1907,  and  notice  given  to  the  appellee  by  the  city  of  Chicago  through 
a  deputy  commissioner  of  buildings.  This  the  court  below  also  found 
in  its  decree,  and  counsel  for  appellee  in  their  argument  concede  that 
no  question  is  raised  by  the  record  as  to  the  estoppel  of  the  city  be- 
cause of  the  issuance  of  said  permits. 

But  after  that  revocation  the  police  made  objection  to  people  going 
upon  these  roofs,  and  the  appellee  Amsterdam  thereupon  filed  a  bill 

*i  Parts  of  the  opinion  arc  omitted. 


984  INJUNCTION"   IN    RELATION   TO   TOUTS  (Cll.  4 

in  chancery  making  the  city  of  Chicago,  its  chief  of  police  and  its 
commissioner  of  buildings  defendants,  setting  forth  his  ownership  of 
the  buildings,  the  construction  of  the  grand  stands  upon  the  roofs, 
and  the  profitable  use  by  him  for  four  years  of  the  one  on  South 
Wood  street.  He  alleged  further  by  his  bill  that  he  had  complied 
with  all  the  regulations  of  the  building  department  of  the  city  and 
with  all  suggestions,  additions  and  improvements  required  by  the  city 
for  the  purpose  of  rendering  the  roofs  safe,  and  that  they  and  the 
stands  were  safe;  that  the  building  department  of  Chicago,  though 
admitting  the  fact  that  the  stands  and  roofs  were  safe,  were  threaten- 
ing to  stop  the  use  of  the  roofs  on  the  ground  that  "the  corporation 
counsel  had  ordered  no  permits  to  be  issued  for  stands  in  the  future 
near  the  base  ball  park;"  that  the  police  were  interfering  to  prevent 
persons  from  going  up  on  the  roofs  and  threatening  to  arrest  the 
complainant;  and  "that  in  the  construction  of  said  stands  on  the 
roofs  and  each  of  them"  the  complainant  had  strictly  followed  the 
laws  and  city  ordinances.  He  therefore  prayed  the  court  to  enjoin 
the  defendants  from  in  any  manner  interfering  with  his  premises  or 
with  the  use  of  the  roofs  of  said  premises  for  the  purpose  of  placing 
and  seating  persons  thereon. 

A  temporary  injunction  in  accordance  with  the  prayer  of  the  bill 
was  granted.  The  defendants  then  answered,  denying  that  the  build- 
ings and  constructions  thereon  were  safe  or  that  the  grand  stands 
were  erected  in  accordance  with  the  ordinances  and  regulations  of 
the  city  of  Chicago,  and  denying  any  admission  to  the  contrary  by  said 
city  or  its  officers.  They  denied  also  that  the  reason  for  the  refusal 
for  the  permit  for  the  building  at  805  Taylor  street  was  that  the  cor- 
poration counsel  had  ordered  that  no  permit  be  issued  for  stands  in 
the  future  near  base  ball  parks,  and  alleged  that  the  true  reason  was 
that  to  issue  such  a  permit  would  be  in  violation  of  certain  ordinances 
of  the  city  of  Chicago,  and  especially  section  656  of  the  Revised  Mu- 
nicipal Code  of  Chicago  of  1905.     *     *     * 

We  think  the  court  below  erred  as  well  in  the  ordering  part  of  its 
decree.  It  is  found  by  the  court  below  in  its  decree,  and  the  finding 
is  acquiesced  in  by  appellee,  that  the  grand  stands  are  within  less  than 
sixty  feet  of  another  building  and  are  within  the  fire  limits  of  the  city, 
and  that  the  appellee  did  not  obtain  the  consent  in  writing  of  the  owners 
of  a  majority  of  the  frontage  on  both  sides  of  the  street  on  each  side 
of  the  block  or  square  in  which  said  stands  are  respectively  located. 

It  therefore  is  plain  that  if  section  656  applies  to  them  both,  the 
grand  stands  in  question  are  in  violation  of  the  ordinance  and  the  ap- 
pellants should  not  be  enjoined  under  any  condition  from  enforcing 
the  ordinance.     *     *     * 

Our  conclusion  is,  therefore,  that  this  decree  should  be  reversed 
and  the  cause  remanded  with  instructions  to  the  court  below  to  dis- 
miss the  bill  of  the  complainant,  and  inasmuch  as  the  complainant 
chose   the  equity  forum  in   which  to  assert  his  supposed  rights   and 


Sec.  4)  NUISANCE 


985 


litigate  the  entire  question,  to  grant  the  relief  prayed  by  the  appel- 
lants in  their  cross  bill.  Had  their  bill  been  an  original  one  there 
might  have  been  doubt  of  the  jurisdiction  of  the  court  to  make  such 
a  decree  as  is  therein  prayed  for.  The  chancellor,  however,  in  his 
decree  made  a  finding  which  is  not  questioned  that  the  grand  stand  on 
the  Wood  street  house  was  a  continuing  nuisance  as  then  used,  and 
that  the  grand  stand  on  the  Taylor  street  house  needed  changes  to 
make  it  safe  for  the  purposes  for  which  it  was  used,  which  must  be 
considered  as  tantamount  to  the  same  finding  in  relation  to  it.  As  the 
stands  cannot  be  made  legal  or  in  compliance  with  the  ordinances  by 
any  changes,  we  think  the  court  should  order  their  removal  as  con- 
tinuing nuisances  in  accordance  with  the  prayer  of  the  cross  bill. 
Reversed  and  remanded  with  instructions. 


REINMAN  v.  CITY  OF  LITTLE  ROCK  et  al. 

(Supreme  Court  of  United  States,  1915.    237  U.  S.  171,  35  Sup.  Ct.  511, 

59  L.  Ed.  .) 

In  error  to  the  Supreme  Court  of  the  state  of  Arkansas  to  review  a 
decree  which  reversed,  with  directions  to  dismiss  the  complaint  for 
want  of  equity,  a  decree  of  the  chancery  court  of  Pulaski  county  in 
that  state,  enjoining  the  enforcement  of  a  municipal  ordinance  forbid- 
ding the  conduct  of  a  livery  stable  business  within  a  designated  area. 
Affirmed. 

See  same  case  below,  107  Ark.  174,  155  S.  W.  105. 

Statement  by  Mr.  Justice  Pitney  : 

Plaintiffs  in  error  filed  their  bill  of  complaint  in  the  Pulaski  county 
chancery  court,  a  state  court  of  general  chancery  jurisdiction,  praying 
an  injunction  against  the  city  of  Little  Rock,  its  mayor  and  other  offi- 
cers, to  restrain  them  from  enforcing  an  ordinance  passed  by  the  city 
council  to  regulate  livery  stables.  The  ordinance  recites' that  "the  con- 
ducting of  a  livery  stable  business  within  certain  parts  of  the  city  of 
Little  Rock,  Arkansas,  is  detrimental  to  the  health,  interest,  and  pros- 
perity of  the  city ;"  and  it  is  ordained  that  it  shall  be  unlawful  to  con- 
duct or  carry  on  that  business  within  the  area  bounded  by  Center, 
Markham,  Main,  and  Fifth  streets,  under  penalties  prescribed.  Plain- 
tiffs include  a  firm  that  conducts  a  livery  and  sale  stable  business,  and 
a  corporation  that  carries  on  a  general  livery  stable  business,  within 
the  defined  area.  It  is  averred  that  the  businesses  are  and  have  been 
for  many  years  conducted  in  brick  buildings,  in  a  proper  and  careful 
manner,  and  without  complaint  as  to  sanitary  conditions ;  that  plain- 
tiffs, during  the  progress  of  their  business,  have  been  compelled  to 
enter  into  leases  for  the  grounds  and  improvements,  and  to  construct 
brick  buildings  at  great  cost,   useful   for  no  other  purpose,  and  that 


OSG  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

these  and  other  large  expenditures  made  for  improvements  will  be  lost 
if  they  are  compelled  to  cease  to  do  business  there;  that  there  is  no 
other  available  site  in  the  -city  where  such  business  can  be  profitably 
carried  on  and  where  plaintiffs  have  assurance  that  they  may  remain 
without  molestation ;  that  these  matters  are  matters  of  public  notori- 
ety, and  the  establishment  of  the  business  in  that  locality  has  been  en- 
couraged by  the  city,  and  upon  the  strength  of  such  encouragement 
the  buildings  were  constructed  and  expenditures  made ;  that  the  pas- 
sage of  the  ordinance  was  procured  by  named  parties  (not  made  de- 
fendants) who  desired  to  purchase  the  property  of  plaintiffs ;  that 
plaintiffs  have  tried  to  obtain  another  location  for  their  business  out- 
side of  the  prohibited  district,  but  are  unable  to  do  so  except  with  ex- 
travagant outlay  which  they  are  unable  to  make ;  and  that  the  action 
of  city  council  in  prohibiting  the  carrying  on  of  any  livery  stable  busi- 
ness in  the  locality  mentioned  is  unreasonable,  discriminatory,  not  war- 
ranted by  law  or  the  charter  of  the  city,  and  in  contravention  of  those 
provisions  of  the  14th  Amendment  respecting  due  process  of  law  and 
the  equal  protection  of  the  laws.  A  verifying  affidavit  and  a  copy  of 
the  ordinance  were  attached  as  exhibits. 

Defendants  demurred,  upon  the  ground  that  the  complaint  did  not 
state  facts  sufficient  to  constitute  a  cause  of  action.  The  trial  court 
overruled  the  demurrer  and  granted  a  temporary  restraining  order. 
Defendants  answered,  denying  the  material  averments  of  the  bill,  and 
asserting  that  the  ordinance  was  passed  in  good  faith  for  the  purpose 
of  promoting  the  health  and  prosperity  of  the  citizens,  and  in  the  belief 
that  said  livery  stables  in  said  district  were  conducive  to  sickness  and 
inconvenience  and  ill  health  to  the  citizens,  and  were  damaging  to  the 
property  in  that  vicinity ;   also  : 

"That  said  district  composes  the  greatest  shopping  district  in  the  entire 
state  of  Arkansas ;  that  it  contains  the  largest  and  best  hotels  in  the  state, 
and  the  district  encompasses  the  most  valuable  real  estate  in  the  entire  state; 
and  said  stable  business  is  conducted  in  a  careless  manner,  and  that  it  is 
nothing  unusual  in  connection  with  said  sale  stables  to  have  from  fifty  to  one 
hundred  head  of  horses  and  mules  driven  through  the  principal  streets  to 
said  stables ;  that  there  is  always  an  offensive  odor  coming  from  said  stables, 
to  the  great  detriment  of  the  tenants  in  the  property  adjoining  and  the  shop- 
pers who  go  within  this  district,  and  hotel  guests ;  that  said  stables  being  in 
such  densely  populated  part  of  the  city  produce  disease,  making  that  section 
extremely  unwholesome,"  etc. 

Plaintiffs  excepted  and  also  demurred  to  the  answer  as  insufficient 
in  law  to  raise  an  issue  of  fact  upon  the  authority  assumed  by  the 
city  to  pass  the  ordinance,  and  as  stating  no  facts  sufficient  to  consti- 
tute a  defense.  The  cause  was  then  heard  upon  the  complaint  and 
exhibits,  the  answer  and  the  demurrer;  the  demurrer  was  sustained, 
and,  defendants  declining  to  plead  further,  it  was  decreed  that  the  tem- 
porary restraining  order  be  made  perpetual. 

Defendants  appealed  to  the  Supreme  Court  of  Arkansas,  which 
court,  on  February  24,  1913,  made  a  decree  reversing  the  decree  of  the 
lower  court,  with  costs,  and  remanding  the  cause  with  directions  to 


Sec.  4)  nuisance]  987 

dismiss  the  complaint  for  want  of  equity.     The  decree  of  reversal  re- 
cited : 

'"This  cause  came  on  to  be  heard  upon  the  transcript  of  the  record  of  the  chan- 
cery court  of  Pulaski  county,  and  was  argued  by  solicitors,  on  consideration 
whereof  it  is  the  opinion  of  the  court  that  there  is  error  in  the  proceedings 
and  decree  of  said  chancery  court  in  this  cause,  in  this:  Said  court  erred  in 
granting  the  relief  prayed  for  in  the  complaint,  whereas  the  same  is  without 
equity  and  should  have  been  dismissed." 

It  was  therefore  ordered  and  decreed  that  the  decree  of  the  chan- 
cery court  be  reversed,  "and  that  this  cause  be  remanded  to  said  chan- 
cery court  with  directions  to  dismiss  the  complaint  of  the  appellees  for 
want  of  equity."  Upon  the  same  day  an  opinion  was  filed  in  the  Su- 
preme Court,  expressing  the  grounds  of  the  decision.  107  Ark.  174, 
155  S.  W.  105. 

Thereafter,  a  petition  for  rehearing  was  filed,  and  by  leave  of  the 

court  was  submitted  at  a  later  date  with  a  supporting  brief.     Among 

the  averments  of  the  petition  were  the  following : 

"That  the  effect  of  the  ruling  of  this  honorable  court  is  to  deprive  the  ap- 
pellees of  the  opportunity  of  presenting  evidence  to  sustain  those  of  the  al- 
legations of  the  complaint  as  are  denied  by  the  said  answer,  for  the  said  rul- 
ing orders  the  dismissal  of  the  said  complaint,  and  does  not  remand  the  cause 
so  that  appellees  may  present  evidence  to  sustain  the  allegations  of  their  bill 
of  complaint  bearing  on  the  question  vhether  said  ordinance  and  permit  sys- 
tem does  or  does  not  amount  to  a  deprivation  of  property  and  a  denial  of  the 
equal  protection  of  the  laws,  within  the  provisions  of  the  fourteenth  amend- 
ment to  the  Constitution  of  the  United  States,  as  well  as  the  provisions  of  the 
Constitution  of  the  state  of  Arkansas.  That  unless  the  appellees  are  given  an 
opportunity  to  introduce  evidence  as  aforesaid,  the  said  answer  may  be  taken 
as  conclusive  against  them ;  that  upon  the  finding  that  said  demurrer  was  im- 
properly sustained  the  cause  should  have  been  remanded  to  take  evidence  as 
to  the  said  constitutional  questions,  including  the  use  and  abuse  of  the  said 
permit  system  by  said  city." 

The  petition  for  rehearing  was  taken  under  advisement,  and  at  a 
later  date  overruled,  without  opinion.  The  present  writ  of  error  was 
then  sued  out. 

Mr.  Justice  Pitney,  after  making  the  foregoing  statement,  deliv- 
ered the  opinion  of  the  court : 

The  decision  of  the  state  court  of  last  resort  is  conclusive  upon  the 
point  that  the  ordinance  under  consideration  is  within  the  scope  of  the 
powers  conferred  by  the  state  legislature  upon  the  city  council  of  Lit- 
tle Rock.  It  must  therefore  be  treated,  for  the  purposes  of  our  juris- 
diction, as  an  act  of  legislation  proceeding  from  the  lawmaking  power 
of  the  state;  for  a  municipal  ordinance  passed  under  authority  dele- 
gated by  the  legislature  is  a  state  law  within  the  meaning  of  the  fed- 
eral Constitution;  and  any  enactment,  from  whatever  source  originat- 
ing, to  which  a  state  gives  the  force  of  law,  is  a  statute  of  the  state 
within  the  meaning  of  Judicial  Code,  §  237  (36  Stat.  1156,  c.  231, 
Comp.  Stat.  1913,  §  1214),  which  confers  jurisdiction  upon  this  court. 
Atlantic  Coast  Line  R.  Co.  v.  Goldsboro,  232  U.  S.  548,  555,  58  L. 
Ed.  721,  725,  34  Sup.  Ct.  364,  and  cases  cited. 

Therefore  the  argument  that  a  livery  stable  is  not  a  nuisance  per  se, 


988  INJUNCTION    IN   RELATION  TO   TORTS  (Ch.  4 

which  is  much  insisted  upon  by  plaintiffs  in  error,  is  beside  the  ques- 
tion. Granting  that  it  is  not  a  nuisance  per  se,  it  is  clearly  within  the 
police  power  of  the  state  to  regulate  the  business,  and  to  that  end  to 
declare  that  in  particular  circumstances  and  in  particular  localities  a 
livery  stable  shall  be  deemed  a  nuisance  in  fact  and  in  law.  provided 
this  power  is  not  exerted  arbitrarily,  or  with  unjust  discrimination,  so 
as  to  infringe  upon  rights  guaranteed  by  the  fourteenth  amendment. 
For  no  question  is  made,  and  we  think  none  could  reasonably  be  made, 
but  that  the  general  subject  of  the  regulation  of  livery  stables,  with 
respect  to  their  location  and  the  manner  in  which  they  are  to  be  con- 
ducted in  a  thickly  populated  city,  is  well  within  the  range  of  the  pow- 
er of  the  state  to  legislate  for  the  health  and  general  welfare  of  the 
people.  While  such  regulations  are  subject  to  judicial  scrutiny  upon 
fundamental  grounds,  yet  a  considerable  latitude  of  discretion  must  be 
accorded  to  the  lawmaking  power ;  and  so  long  as  the  regulation  in 
question  is  not  shown  to  be  clearly  unreasonable  and  arbitrary,  and  op- 
erates uniformly  upon  all  persons  similarly  situated  in  the  particular 
district,  the  district  itself  not  appearing  to  have  been  arbitrarily  se- 
lected, it  cannot  be  judicially  declared  that  there  is  a  deprivation  of 
property  without  due  process  of  law,  or  a  denial  of  the  equal  protec- 
tion of  the  laws,  within  the  meaning  of  the  fourteenth  amendment. 
Slaughter-House  Cases,  16  Wall.  36,  62,  21  L.  Ed.  394,  404;  North- 
western Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659,  667,  24  L.  Ed. 
1036.  1038;  Barbier  v.  Connolly,  113  U.  S.  27,  30,  28  L.  Ed.  923,  924. 
5  Sup.  Ct.  357:  Soon  Hing  v.  Crowley,  113  U.  S.  703,  708,  28  L.  Ed. 
1145,  1146,  5  Sup.  Ct.  730;  Lawton  v.  Steele,  152  U.  S.  133,  136,  38 
L.  Ed.  385,  388,  14  Sup.  Ct.  499;  Gundling  v.  Chicago,  177  U.  S.  183, 
188,  44  L.  Ed.  725,  728.  20  Sup.  Ct.  633;  Williams  v.  Arkansas,  217 
U.  S.  79,  87,  54  L.  Ed.  673,  676,  30  Sup.  Ct.  493,  18  Ann.  Cas.  865 ; 
Cronin  v.  People,  82  N.  Y.  318,  321,  37  Am.  Rep.  564;  Re  Wilson, 
32  Minn.  145,  148.  19  X.  W.  723:  St.  Louis  v.  Russell,  116  Mo.  248, 
253,  20  L.  R.  A.  721,  22  S.  W.  470. 

The  only  debatable  question  arises  from  the  contention  that  under 
the  particular  circumstances  alleged  in  the  complaint,  viz.,  that  plain- 
tiffs in  error  have  conducted  the  livery  stable  business  for  a  long  time 
in  the  same  location,  and  at  large  expense  for  permanent  structures, 
and  the  removal  to  another  location  would  be  very  costly,  and  since 
(as  the  complaint  alleges)  their  stables  are  in  all  respects  properly  con- 
ducted, this  particular  ordinance  must  be  deemed  an  unreasonable  and 
arbitrary  exercise  of  the  power  of  regulation.  But  these  averments 
of  fact  are  contradicted  by  the  answer,  and  so  we  are  confronted  with 
the  question :  Upon  what  basis  of  fact  is  this  matter  to  be  determined  ? 
Plaintiffs  in  error  insist  that  it  is  to  be  decided  upon  the  basis  of  the 
averments  contained  in  their  complaint,  because  the  supreme  court 
ordered  the  complaint  to  be  dismissed  for  want  of  equity.  But  it 
seems  that  in  the  practice  of  the  courts  of  Arkansas,  as  elsewhere,  the 
expression  "dismissed  for  want  of  equity"  is  employed  to  indicate  a 


Sec.  4)  nuisance  989 

decision  upon  the  merits,  as  distinguished  from  one  based  upon  a  for- 
mal defect  or  default ;  and  that  it  applies  as  well  where  on  final  hear- 
ing it  is  found  that  the  averments  of  the  complaint  are  not  true  in  fact, 
as  where  those  averments  do  not  upon  their  face  show  a  sufficient 
basis  of  fact  for  the  granting  of  the  relief  sought.  Meux  v.  Anthony, 
11  Ark.  411,  422,  424,  52  Am.  Dec.  274;  Smith  v.  Carrigan,  23  Ark. 
555  :   McRae  v.  Rogers,  30  Ark.  272. 

Upon  the  face  of  this  record  it  appears  that  all  the  material  aver- 
ments of  the  bill  were  denied  by  the  answer,  and  that  the  latter  plead- 
ing also  showed  particular  reasons  why  it  was  proper  for  the  city 
council  to  prohibit  the  further  maintenance  of  livery  stables  within  the 
limited  district  described  in  the  ordinance.  It  was  averred  that  that 
district  is  in  a  densely  populated  and  busy  part  of  the  city  of  Little 
Rock,  and  that  the  stables  are  conducted  in  a  careless  manner,  with 
offensive  odors,  and  so  as  to  be  productive  of  disease.  Plaintiffs  did 
not  contradict  this,  but  demurred  to  the  answer  as  insufficient  in  law, 
and  the  cause  was  heard  in  the  trial  court  upon  the  complaint  and  ex- 
hibits, the  answer,  and  the  demurrer.  The  demurrer  being  sustained, 
and  defendants  declining  to  plead  further,  a  perpetual  restraining  or- 
der followed  in  due  course.  Upon  the  removal  of  the  cause  to  the 
Supreme  Court  on  defendants'  appeal,  it  was  heard  there,  as  appears 
from  the  decree  rendered  by  that  court,  "upon  the  transcript  of  the 
record  of  the  chancery  court  of  Pulaski  county."  That  record  in- 
cludes not  only  the  complaint,  but  the  answer  and  demurrer.  The  su- 
preme court  in  its  opinion  made  no  statement  of  the  facts  upon  which 
it  proceeded  to  judgment,  and  did  not  intimate  that  it  ignored  the  ef- 
fect of  the  answer  and  confined  itself  to  the  averments  of  the  bill 
alone.  It  is  true  that  broad  reasoning  was  employed ;  but,  upon  fa- 
miliar principles,  the  opinion  is  to  be  interpreted  in  the  light  of  the 
issue  as  framed  by  the  pleadings.  Besides,  the  petition  for  rehearing 
especially  set  up  that  the  effect  of  the  ruling  of  the  supreme  court  was 
to  deprive  plaintiffs  of  the  opportunity  of  presenting  evidence  to  sus- 
tain those  allegations  of  the  complaint  that  were  denied  by  the  answer, 
that  unless  they  were  given  an  opportunity  to  introduce  evidence  the 
answer  might  be  taken  as  conclusive  against  them,  and  that  the  cause 
ought  to  have  been  remanded  to  take  evidence,  etc.  The  fact  that  the 
Supreme  Court  denied  the  rehearing  without  giving  reasons  is  at  least 
consistent  with  the  theory  that  plaintiffs  had  properly  interpreted  the 
meaning  of  the  decree  as  entered,  and  that  it  correctly  expressed  the 
intent  and  the  purpose  of  the  court. 

By  section  25  of  the  Judiciary  Act  of  1-789  (1  Stat.  86,  c.  20)  it  was 
provided : 

"No  other  error   shall   be  assigned   or   regarded  as   a   ground  of  reversal 
*     *     *     than  such  as  appears  on  the  face  of  the  record." 

Under  this  act,  it  was  uniformly  held  that  in  reviewing  the  judg- 
ments of  state  courts  (in  states  other  than  Louisiana,  where  the  opin- 


990  INJUNCTION    IN   RELATION   TO   TORTS  (Ch.  4 

ion  formed  a  part  of  the  record),  this  court  could  not  look  into  the 
opinion  to  ascertain  what  was  decided.  In  the  amendatory  act  of  Feb- 
ruary 5,  1867  (14  Stat.  386,  c.  28,  §  2),  the  words  above  quoted  were 
omitted,  and  because  of  this  it  has  since  been  held  that  this  court  is 
not  so  closely  restricted  as  before  to  the  face  of  the  record  to  ascertain 
what  was  decided  in  the  state  court,  and  may  examine  the  opinion, 
when  properly  authenticated,  so  far  as  may  be  useful  in  determining 
that  question.  This  is  recognized  in  paragraph  2  of  our  eighth  rule. 
"But,  after  all,"  said  Mr.  Justice  Miller,  speaking  for  the  court  in 
A I  unlock  v.  Memphis,  20  Wall.  590,  633,  634,  22  L.  Ed.  429,  443,  444, 
"the  record  of  the  case,  its  pleadings,  bills  of  exceptions,  judgment, 
evidence — in  short,  its  record,  whether  it  be  a  case  in  law  or  equity — 
must  be  the  chief  foundation  of  the  inquiry ;  and  while  we  are  Hot 
prepared  to  fix  any  absolute  limit  to  the  sources  of  the  inquiry  under 
the  new  act,  we  feel  quite  sure  it  was  not  intended  to  open  the  scope 
of  it  to  any  loose  range  of  investigation." 

If  the  record,  including  the  opinion,  leaves  it  a  matter  of  doubtful 
inference  upon  what  basis  of  fact  the  state  court  rested  its  decision  of 
the  federal  question,  it  seems  to  us  very  plain,  upon  general  principles, 
that  we  ought  to  assume,  so  far  as  the  state  of  the  record  permits,  that 
it  adopted  such  a  basis  of  fact  as  would  most  clearly  sustain  its  judg- 
ment. Hence,  in  the  present  case,  we  ought  to  and  do  assume  that  the 
Arkansas  Supreme  Court  acted  upon  the  basis  of  the  facts  set  up  in 
the  answer  of  the  city,  treating  them  as  sufficiently  substantiated  by 
the  effect  of  the  demurrer  in  admitting  them  to  be  true  so  far  as  prop- 
erly pleaded.  This  being  so  there  is,  as  we  have  already  remarked, 
no  reasonable  question  of  the  validity  of  the  ordinance,  and  the  judg- 
ment of  the  Supreme  Court  is  affirmed. 


FESSLER  v.  TOWN  OF  UNION. 

(Court  of  Chancery  of  New  Jersey,  1903.    67  N.  J.  Eq.  14,  56  Atl.  272.) 

Bill  by  Fannie  Fessler  against  the  town  of  Union.  Final  hearing  on 
bill,  answer,  and  proofs.    Decree  for  complainant. 

The  object  of  this  bill  is  to  restrain  a  nuisance  in  the  nature  of  a 
purpresture.  It  is  also,  in  effect,  a  bill  by  a  cestui  que  trust  to  restrain 
a  breach  of  trust  by  a  trustee.  The  complainant  is  the  owner  of  10 
lots,  each  25  feet  by  100  feet,  and  each  facing  on  Franklin  street,  in 
the  town  of  Union,  in  the  county  of  Hudson.  The  rear  of  six  of  which 
lots,  and  also  the  rear  of  two  other  lots  of  the  same  size  which  do 
not  face  on  Franklin  street,  she  alleges  bound  upon  a  public  square 
which  was  dedicated  to  the  public  by  the  owners  of  a  tract  of  laud 
which  comprised  the  complainant's  lots,  and  many  others  in  the  neigh- 
borhood, by  the  usual  mode  of  laying  the  plot  out  in  streets  and  lots, 
filing  the  same  in  the  county  clerk's  office,  and  selling  and  conveying 


Sec.  4) 


NUISANCE 


991 


lots  by  reference  to  the  map.  On  that  map  appears  a  plot  of  land  not 
laid  out  in  streets,  but  so  marked  as  to  dedicate  it  to  the  public.  A 
copy  of  so  much  of  that  map  as  comprises  the  plot  in  question  and 
complainant's  holdings  is  annexed  : 

i   i : i 


FRANKLIN 


STREET 


COMPLAINANT'S  LOTS  ARe  IMCLOSEIT 
BY  DOUBLE  Lines, 


The  nuisance  of  which  she  complains  is  the  erection  of  a  fire-bell 
tower  on  that  square,  and  within  about  30  feet  of  her  premises.  The 
structure  is  composed  of  iron  posts,  beams,  and  braces.  The  defend- 
ant claims  no  legal  title  to  the  premises  on  which  the  fire-bell  tower 
is  erected,  except  such  as  is  derived  from  the  same  acts  of  dedication 
upon  which  the  complainant  relies,  and  a  sort  of  adverse  possession  or 
user  of  some  part  of  the  square,  which,  however,  does  not  include  the 
locus  of  the  tower.     *     *     * 

There  is  no  proof  that  complainant  had  the  least  notice  that  defend- 
ant intended  to  erect  this  building  until  her  son-in-law  saw  the  ma- 
terial (mainly  iron  beams  ready  to  be  assembled)  brought  upon  the 
ground.  The  exact  date  is  not  given,  but  the  contract  was  accepted 
February  19,  1902.  He  immediately  protested  to  one  or  more  of 
defendant's  officers,  threatened  a  suit,  and  called  on  and  attempted  to 
employ  Mr.  Russ,  who  was  not  then  town  counsel.  Failing  in  this,  he 
applied  to  and  retained  Messrs.  Crouse  and  Perkins.     They,  as  soon 


1)92  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

as  practicable,  prepared  a  bill  and  affidavits,  and  applied  to  this  court 
for  an  injunction;  but,  as  the  building  was  partly  constructed  before 
the  application  was  made,  the  court  declined  to  impose  an  interim 
restraint,  and  the  case  was  brought  to  final  hearing.     *     *     * 

Pitney,  V.  C.4S  Upon  these  facts  the  following  questions  arise: 
*  *  *  Third.  Is  or  was  the  complainant  at  any  time,  as  the  owner 
of  lands  abutting  on  the  square,  entitled  to  relief  against  the  proposed 
erection?  Fourth.  If  so,  has  she  in  any  manner  lost  or  waived  that 
right  ?  Upon  most  of  the  foregoing  questions  it  seems  to  me  that  the 
law  is  so  well  settled  in  New  Jersey  as  not  to  admit  of  doubt.  The 
leading  authority  is,  of  course,  the  case  of  Methodist  Church,  etc.,  v. 
Mayor,  etc.,  of  Hoboken,  33  N.  J.  Law.  13.  97  Am.  Dec.  696.  and 
the  numerous  cases  which  have  followed  it.  It  is  impossible  to  dis- 
tinguish that  case  from  the  present,  so  far  as  the  dedication  goes.  It 
is  laid  down  as  a  general  rule  that  the  bare  legal  title  remains  in  the 
dedicator.  In  this  case  it  appears  that  it  remains  in  the  three  men 
who  bought  in  the  properly,  including  the  square,  at  a  sheriff's  sale 
on  a  common-law  execution.  They  have  made  no  conveyance  of  the 
title  to  the  Indian  Pond  lot.  The  rule  is  generally  stated  to  be  that, 
while  the  bare  legal  title  remains  in  the  original  dedicator  in  trust  for 
the  uses  expressly  or  impliedly  declared  in  the  dedication,  in  case  of 
the  dedication  of  a  street  or  public  square  the  right  of  possession  vests 
in  the  municipality,  which  holds  a  sort  of  secondary  title  in  trust  for 
the  purposes  of  the  dedication ;  and  that  is  the  precise  position  of  the 
defendant  here.     *     *     * 

The  case  of  Methodist  Church  v.  Hoboken,  19  X.  J.  Eq.  355,  arose 
in  this  wise :  After  the  decision  by  the  Supreme  Court  of  the  case  of 
Methodist  Church  v.  Hoboken.  above  referred  to,  parties  interested 
procured  an  act  of  the  Legislature  authorizing  the  city  of  Hoboken  to 
purchase  from  the  church  the  premises  in  question  at  a  price  not  ex- 
ceeding $10,000.  Not  being  able  to  agree,  the  city  sued  out  a  writ 
of  habere  facias  possessionem,  and  the  church  applied  for  an  injunc- 
tion. Chancellor  Zabriskie  lays  down  the  precise  rights  and  estate 
of  the  original  dedicator,  the  city,  and  the  public  as  follows : 

"The  title  or  fee  of  the  land  is  in  the  complainants.  That  title  is  suhject 
to  an  easement  which  belongs  to  the  public,  which  is  the  right  to  have  it  kept 
open  and  enjoyed  as  a  public  square.  The  defendants  have  no  estate  in  it. 
Their  only  right  is  the  power  and  duty,  as  representatives  of  the  public,  to 
see  to  it  that  the  public  are  not  hindered  in  the  enjoyment  of  their  rights 
there;  and,  to  effect  this,  they  may  maintain  ejectment  against  any  one  who 
takes  possession  of  and  occupies  it  to  the  exclusion  of  the  public.  The  Leg- 
islature may  have  the  right,  so  far  as  the  public  is  concerned,  to  annul  the 
dedication  and  yield  up  the  right  of  the  public;  but  they  have  no  power,  if 
the  owners  of  the  surrounding  lots  have  the  right,  as  appurtenant  to  their  lots. 
to  have  this  square  kept  open  as  a  public  square,  to  permit  its  occupation,  as 
against  them,  for  a  town  hall,  nor  to  subject  the  title  or  fee  which  is  owned 
by  the  complainants  to  a  different  easement  from  that  which  encumbered  it 
when  they  acquired  title.    If  the  act  of  1868  (P.  L.  p.  S38)  had  unconditionally 

*8  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  4)  nuisance  993 

and  immediately  authorized  the  occupation  of  the  tract  for  a  city  hall,  it  would 
have  destroyed' the  easement  of  the  public,  and  with  it  the  right  of  the  de- 
fendants to  take  the  possession  for  the  public." 

I  think  this  statement  of  the  law  governing  the  subject  is  entirely 
accurate,  and  I  desire  to  emphasize  the  distinction  made  by  Chancellor 
Zabriskie,  and  which  seems  to  me  clearly  to  exist,  between  the  right 
of  the  public  at  large,  including  all  persons  who  do  not  have  land 
bounding  upon  the  square  in  question  and  the  owners  of  lots  bounding 
thereon.  I  am  of  the'  opinion,  although,  perhaps,  it  is  not  necessary 
to  the  decision  of  the  present  case,  that  the  owners  of  the  lots  bound- 
ing on  the  square  have  a  private  right,  over  and  above  that  of  the  pub- 
lic at  large,  to  have  the  square  kept  open.  That  right  is  of  the  same 
nature  as  it  would  be  if  the  original  dedicator,  in  making  conveyance 
to  the  owners  of  those  lots  bounding  on  the  square,  had  covenanted 
that  the  square  should  be  for  public  use,  and  that  no  buildings  should 
be  erected  thereon.  In  other  words,  they  occupy  the  same  position 
that  the  co-complainant  White  occupied  in  the  case  of  Watertown  v. 
Cowen  &  Bagg,  reported  in  4  Paige  (N.  Y.)  510,  at  page  514,  bottom, 
and  page  515,  top,  27  Am.  Dec.  80. 

Upon  principle,  as  well  as  upon  the  dicta  just  cited,  I  am  of  the  opin- 
ion that  the  dedication  in  this  case  was  for  the  purpose  of  use  by  the 
public  as  an  open  pleasure  ground — a  ground  with  trees  and  a  small 
lake,  if  the  latter  was  found  desirable  and  practicable  ;  that  the  dedica- 
tion did  not  include  the  use  of  it  for  a  public  building;  and  that  the 
defendant  had  no  right,  under  the  original  dedication,  to  erect  any 
building  upon  it.     *     *     * 

We  come  then  to  the  question  of  the  complainant's  standing  in  this 
court.  The  general  rule  is  that  any  encroachment  on  a  public  highway 
or  public  square  is  an  offense  against  the  public,  punishable  by  indict- 
ment only,  and  that  one  or  more  of  the  public  cannot  maintain  an  ac- 
tion at  law  or  in  equity  therefor  unless  he  is  so  situated  as  to  be  in- 
jured thereby  in  a  manner  and  to  an  extent  peculiar  to  himself  as  an 
individual,  as  distinguished  from  himself  as  a  member  of  the  public 
at  large.  The  complainant  is  the  owner  of  10  lots  comprising  a 
boundary  on  the  square  in  question  of  150  feet  in  the  immediate  neigh- 
borhood of  the  tower  in  question.  It  is  within  30  feet  of  her  house 
lot,  and  the  existence  in  that  place  of  the  tower,  and  the  ringing  of 
the  bell  in  case  of  fire,  will,  in  my  judgment,  produce  an  effect  in- 
jurious to  the  enjoyment  of  her  property,  different  in  a  marked 
degree  to  that  of  the  inhabitants  generally  of  the  town  of  Union, 
which  is  a  closely  built  town  of  from  15,000  to  20,000  inhabitants. 
There  may  be  a  few  other  lot  owners  in  the  immediate  vicinity  who 
are  interested  in  the  same  degree,  or  nearly  so,  as  the  complain- 
ant, and  they  may  have  the  same  standing  as  the  complainant ; 
but  the  fact  that  they  have  not  joined  in  this  suit,  or  brought  a 
suit  on  their  own  account,  cannot  prejudice  the  rights  of  the  com- 
BokeEq.— 63 


994  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

plainant,  if  those  rights  are,  as  I  suppose  them  to  be,  peculiar  to  her 
by  reason  of  her  vicinity  to  the  square.  But,  of  course,  if  I  am  right 
in  my  conclusion  that  she  has,  by  reason  of  her  owning  lands  bounding 
on  the  square,  a  right  in  the  nature  of  a  private  right,  then  she  has  a 
right  in  addition  to  her  being  a  member  of  the  public,  which  dis- 
penses with  the  necessity  of  resorting  to  the  doctrine  of  peculiar  in- 
jury.    *     *     * 

The  prayer  is  that  the  materials  of  the  tower  may  be  removed  from 
the  ground,  and  for  other  relief.  It  appears  that  the  structure  is  not 
an  expensive  one,  and  that  it  may  be  taken  down  without  serious  in- 
jury to  its  parts,  and  removed  and  re-erected  in  another  place.  I 
think  that  the  complainant  is  entitled  to  a  decree  against  the  mu- 
nicipality providing  for  the  removal  of  the  tower  and  of  all  its  con- 
stituent parts,  and  that  she  is  entitled  to  recover  her  costs,  besides  a 
reasonable  counsel  fee,  which  I  shall  fix  upon  hearing  parties. 


PEOPLE  ex  rel.  TESCHEMACHER  v.  DAVIDSON. 
(Supreme  Court  of  California,  1866.    30  Cal.  379.) 

By  the  Court,  Shatter,  J.19 

This  is  a  bill  to  restrain  the  defendants  from  erecting  a  wharf  from 
the  north  line  of  Chestnut  street,  in  the  City  of  San  Francisco,  toward 
and  into  the  deep  waters  of  the  bay.  It  is  alleged  that  the  wharf, 
should  it  be  erected,  will  greatly  interfere  with  and  hinder  the  trade 
and  commerce  of  the  State  at  the  harbor  of  said  city,  and  greatly 
diminish  its  value ;  wherefore  the  plaintiffs  pray  that  the  erection  of 
the  wharf  may  be  enjoined. 

The   Court  has  found,  among   other  things,  that   the  defendants 

were  engaged  at  the  commencement  of  the  action  in  constructing  a 

wharf  at  the  point  mentioned,  but  has  also  found : 

"That  said  wharf,  so  being  built  and  proposed  to  be  built  by  defendants,  was 
not  and  would  not  be  a  nuisance,  and  was  not  injuring  and  would  not  injure 
the  harbor  of  San  Francisco,  or  the  shipping  or  commercial  interests  thereof, 
or  the  people  of  the  State  of  California." 

On  the  findings  the  Court  below  dismissed  the  action. 

First — We  cannot  go  behind  the  findings,  for  the  testimony  is  not 
before  us ;  and  the  only  question  for  us  to  consider  is,  whether,  as- 
suming the  findings,  the  judgment  is  to  be  regarded  as  erroneous. 

The  gist  of  the  action  in  one  aspect  of  the  case  is  a  threatened  injury 
to  commerce  and  navigation  resulting  or  to  result  from  the  erection 
of  a  wharf  in  a  public  harbor.  The  wharf  may  be  an  intrusion  or  en- 
croachment upon  tide  waters  or  the  soil  thereunder  belonging  to 
the   State,  but   the   encroachment   would   not   therefore   be  a   public 

4  3  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


Sec.  4)  nuisance  995 

nuisance  nor  an  injury  to  the  harbor  by  legal  conclusion.     Lord  Hale 

says  (De  Jure  Maris,  11): 

"It  is  not  every  building  below  tbe  high  water  mark  tbat  is  ipso  facto,  in 
law,  a  nuisance.  For  tbat  would  destroy  all  tbe  keys  that  are  in  all  tbe  ports 
in  England,  for  tbey  are  all  built  below  tbe  bigb  water  mark." 

All  the  authorities  concur  in  holding  that  whether  any  given  en- 
croachment upon  a  public  or  private  right  is  a  nuisance  or  not,  is  a 
question  of  fact,  and  there  have  been  at  least  two  decisions  to  that 
effect  in  this  State.  Gunter  v.  Geary,  1  Cal.  466;  Middleton  v.  Frank- 
lin, 3  Cal.  241.  Where  the  Court  is  satisfied  that  the  encroachment 
or  other  matter  complained  of  is  not  a  nuisance,  an  injunction  is 
necessarily  refused,  or  dissolved  if  one  has  temporarily  been  granted. 
2  Eden  on  Inj.  272. 

Second — The  complaint,  in  addition  to  the  aspect  under  which  we 
have  thus  far  considered  it,  was  doubtless  intended  also  as  a  bill  to 
enjoin  or  abate  a  purpresture — that  is,  an  intrusion  or  encroachment 
upon  tide  waters  and  the  soil  thereunder — without  any  reference  to 
the  effect  of  the  encroachment  upon  public  interests  whether  to  injure 
or  promote  them. 

Assuming  the  complaint  to  bear  the  double  aspect  of  a  bill  to  abate 
a  nuisance  and,  as  distinct  therefrom,  to  enjoin  or  abate  a  mere  pur- 
presture, two  questions  are  presented  for  consideration :  First,  does 
the  block  in  question  belong  to  the  appellants ;  and  second,  if  it  be- 
longs to  the  State,  as  alleged  in  the  complaint,  can  the  further  erection 
of  the  wharf  be  enjoined,  and  can  it  be  abated  in  equity  in  so  far  as  it 
has  been  proceeded  with.     *     *     * 

The  result  is  that  the  block,  in  so  far  as  it  lies  below  the  line  of  low 
water,  belongs  to  the  State ;  and  the  wharf,  in  so  far  as  it  has  been 
built,  is  a  purpresture.  We  shall  now  proceed  to  the  second  branch 
of  the  inquiry. 

The  District  Courts  have  no  power  as  Courts  of  equity  to  decree 
the  destruction  of  a  naked  purpresture,  nor  to  restrain  one  if  threat- 
ened. The  intrusion,  whether  perfected  or  threatened,  is  not  dis- 
tinguishable, so  far  as  the  question  of  equitable  cognizance  is  con- 
cerned, from  intrusions  upon  uplands  belonging  to  the  public  or  to  in- 
dividuals. In  all  such  cases,  parties  are  left  to  their  strictly  legal 
remedies,  unless  they  can  make  out  a  case  of  damage  irreparable  at 
law. 

Though  it  is  now  settled  that  a  Court  of  equity  may  take  jurisdic- 
tion in  cases  of  public  nuisance  by  an  information  filed  by  the  Attor- 
ney-General, the  jurisdiction  seems  to  have  been  acted  on  with  great 
hesitancy  and  caution.     Thus  it  is  said  by  Lord  Eldon : 

"That  instances  of  the  interposition  of  a  court  of  equity  in  England  in  such 
cases  are  confined  and  rare;  and  more  information  on  the  subject  is  to  be 
collected  from  what  has  been  done  in  the  Court  of  Exchequer  upon  discussion 
of  the  right  of  the  Attorney-General,  by  some  species  of  information,  to  seek 
on  tbe  equitable  side  of  the  Court  relief  as  to  nuisance,  than  from  any  other 
quarter."     Attorney-General  v.  Cleaver,  18  Ves.  R.  216. 


996  INJUNCTION    IN    RELATION   TO   TORTS  (Cll.  4 

Chancellor  Kent,  in  Attorney-General  v.  Utica  Insurance   Co.,  2 

Johns.  Ch.  (N.  Y.)  382,  remarks: 

"That  the  equity  jurisdiction  in  eases  of  public  nuisance  in  the  only  cases  in 
which  it  had  been  exercised — that  is,  in  cases  of  encroachment  on  the  King's 
soil — had  lain  dormant  for  a  century  and  a  half — that  is,  from  Charles  I  flown 
to  1795.  But  the  jurisdiction  has  been  sustained,  upon  the  principle  that  equity 
can  give  more  adequate  and  complete  relief  than  can  be  obtained  at  law. 
Whilst,  therefore,  it  is  admitted  by  all  that  it  is  one  of  delicacy,  and,  accord- 
ingly, the  instances  of  its  exercise  are  rare,  yet  it  may  be  exercised  in  those 
cases  in  which  there  is  imminent  danger  of  irreparable  mischief  before  the 
tardiness  of  the  law  could  reach  it."     *     *     * 

It  is  thought  that  there  is  no  case  in  the  books  in  which  a  Court 
of  equity,  as  such,  has  ever  abated  or  enjoined  a  purpresture  simply 
on  the  ground  that  it  was  one.     *     *     * 

All  that  we  intend  to  decide  is  that  the  District  Courts  have  no 
power  to  decree  the  destruction  or  to  enjoin  the  erection  of  a  wharf, 
unless  it  is  or  will  be  a  nuisance,  or  is  or  will  be  followed  by  some 
form  of  irreparable  damage,  or  unless  it  is  or  will  be  an  appreciable 
hindrance  to  the  execution  of  some  legislative  Act  relating  to  fishery 
or  to  commerce  or  navigation. 

The  order  appealed  from  is  reversed,  and  the  judgment  is  affirmed. 


PEOPLE  v.  MOULD. 

(Supreme  Court  of  New  York,  Appellate  Division,  Third  Department,  1899. 
37  App.  Div.  35,  55  N.  Y.  Supp.  453.) 

Appeal  by  the  defendant,  Horatio  D.  Mould,  from  a  judgment  of 
the  Supreme  Court  in  favor  of  the  plaintiff,  entered  in  the  office  of 
the  clerk  of  the  county  of  Columbia  on  the  22d  day  of  September, 
1898,  upon  the  decision  of  the  court  rendered  after  a  trial  before  the 
court  without  a  jury  at  the  Columbia  Trial  Term. 

This  action  was  brought  by  the  plaintiff  to  compel  the  defendant 
to  remove  a  wharf  constructed  by  him  on  the  easterly  side  of  the 
Hudson  river  at  Germantown  in  Columbia  county,  extending  between 
high-water  mark  and  the  navigable  part  of  the  stream  in  front  of 
his  uplands,  on  the  ground  that  the  same  was  a  purpresture. 

Putnam,  J.50  The  defendant  has  constructed  his  wharf  in  the  Hud- 
son river  between  high-water  mark  and  the  navigable  part  of  the 
stream,  without  having  obtained  a  .grant  from  the  commissioners  of 
the  land  office  of  a  portion  of  the  land  under  water  on  which  the  struc- 
ture is  placed.  It  is  conceded  that  the  title  of  lands  under  the  tide  wa- 
ter of  the  Hudson  river  is  vested  in  the  state  as  trustee  of  a  public 
trust,  and  that  the  defendant's  ownership  of  the  uplands  adjoining  the 
slip  in  question  gave  him  no  title  to  the  land  under  water  in  front  of 
his  premises.    People  v.  New  York  &  S.  I.  F.  Co.,  68  N.  Y.  71,  76,  77; 

so  Parts  of  the  opinion  are  omitted. 


Sec.  4)  nuisance  997 

Langdon  v.  Mayor,  etc.,  93  X.  Y.  129;  Sage  v.  City  of  New  York,  154 
N.  Y.  61-73,  47  X.  E.  1096,  38  L.  R.  A.  606,  61  Am.  St.  Rep.  5(U. 
The  act  of  the  defendant  in  erecting  a  structure  on  the  lands  of  the 
plaintiff,  and  appropriating  such  land  to  his  own  use,  has  been  called 
a  purpresture,  which  might  in  a  proper  case  be  abated  by  an  action  in 
the  name  of  the  people.  People  v.  Vanderbilt,  26  X.  Y.  287,  293.  28 
X.  Y.  396;  Ice  Co.  v.  Shultz,  116  X.  Y.  382,  387.  22  X.  E.  564.  The 
ris^ht  which  the  defendant  had  as  a  riparian  owner  in  the  Hudson  river 
at  the  place  where  he  erected  his  wharf  is  stated  in  the  opinion  in  Sage 
v.  City  of  Xew  York,  supra,  as  follows : 

"While  the  title  of  such  owners  did  not  extend  beyond  the  dry  land,  they 
were  entitled,  as  against  all  but  the  crown  as  trustee  for  the  people  at  large, 
to  certain  valuable  privileges  or  easements,  including  the  right  of  access  to 
the  navigable  part  of  the  river  in  front  for  the  purpose  of  loading  and  unload- 
ing boats,  drawing  nets,  and  the  like.  Rumsey  v.  Railroad  Co.,  133  N.  Y.  79, 
30^  X.  E.  654  [15  L.  R.  A.  61S.  2S  Am.  St.  Rep.  600] ;  Saunders  v.  Railroad  Co., 
144  X.  Y.  75,  87,  38  X.  E.  992  [26  L.  R.  A.  378,  43  Am.  St.  Rep.  729] ;  Ang. 
Tide  Water,  22.  64.  These  riparian  rights  were  property  belonging  to  the  ri- 
parian owner,  who  could  not  be  deprived  of  them  without  his  consent,  or  by 
due  process  of  law,  although  he  could  only  use  them  subject  to  the  rights  of 
the  public." 

In  the  same  opinion,  also,  the  following  language  is  used : 

"Although,  as  against  individuals  or  the  unorganized  public,  riparian  own- 
ers have  special  rights  to  the  tideway  that  are  recognized  and  protected  by  law, 
as  against  the  general  public,  as  organized  and  represented  by  government, 
they  have  no  rights  that  do  not  yield  to  commercial  necessities." 

And  in  Saunders  v.  Railroad  Co.,  144  X.  Y.  75,  87,  38  X.  E.  995, 

26  L.  R.  A.  378,  43  Am.  St.  Rep.  729,  O'Brien,  J.,  uses  the  following 

language : 

"What  these  rights  are  has  been  decided  in  the  Rumsey  Case,  133  X.  Y.  79. 
30  X.  E.  654  [15  L.  R.  A.  618,  2S  Am.  St.  Rep.  600],  and  since  that  decision 
reaffirmed  in  the  case  of  Illinois  Cent.  R.  Co.  v.  Illinois,  146  U.  S.  387,  13  Sup. 
Ct.  110  [36  L.  Ed.  1018].  They  embrace  the  right  of  access  to  the  channel  or 
navigable  part  of  the  river  for  navigation,  fishing,  and  such  other  uses  as  com- 
monly belong  to  riparian  ownership,  the  right  to  make  a  landing  wharf  or  pier 
for  his  own  use  or  for  that  of  the  public,  with  the  right  of  passage  to  and 
from  the  same  with  reasonable  safety  and  convenience." 

The  same  doctrine  is  stated  in  Rumsey  v.  Railroad  Co.,  133  X.  Y.  79, 
87,  30  X.  E.  654,  15  L.  R.  A.  618,  28  Am.  St.  Rep.  600;  Yates  v.  Mil- 
waukee, 10  Wall.  497,  19  L.  Ed.  984 ;  Illinois  Cent.  R.  Co.  v.  Illinois, 
146  U.  S.  387-445,  13  Sup.  Ct.  110,  36  L.  Ed.  1018;  City  of  St.  Louis 
v.  Rutz,  138  U.  S.  226,  246,  11  Sup.  Ct.  337,  34  L.  Ed.  941;  Black, 
Pom.  Water  Rights,  §  250.  It  is  said,  however,  in  the  authorities  re- 
ferred to,  that  the  right  of  a  riparian  owner  whose  land  is  bounded  by 
a  navigable  river,  of  access  to  the  channel  thereof,  and  to  make  a  land- 
ing pier  or  wharf  for  his  own  use  or  that  of  the  public,  is  subject  to 
the  superior  right  of  the  state,  as  trustee  for  the  people  at  large.  In 
vSage  v.  City  of  Xew  York,  supra,  the  riparian  right  is  spoken  of  as  ex- 
isting "as  against  all  but  the  crown  [the  state],  as  trustee  for  the  peo- 
ple at  large."  So,  in  other  authorities,  this  riparian  right  is  spoken  of 
as  a  valuable  property  right,  but  one  that  must  be  held  subject  to  the 


998  INJUNCTION    IN   RELATION   TO   TORTS  (Ch.  4 

superior  right  of  the  state.  Under  the  authorities  above  cited,  it  will 
not  be  denied  that  had  the  state  required  the  use  of  that  portion  of  the 
Hudson  river  where  the  defendant  erected  his  pier  for  a  legitimate 
public  purpose,  or,  if  the  pier  interfered  with  navigation,  or  with  any 
public  right  or  interest,  or  if  shown  to  be  an  actual  nuisance,  that  an 
action  to  compel  its  removal  could  have  been  maintained.  In  this  case, 
however,  the  court  found  that  the  pier  "extends  only  to  the  channel  or 
navigable  part  of  the  river,  and  there  is  no  proof  that  it  is  an  obstruc- 
tion to  the  navigation  of  the  stream"  ;  nor  is  it  shown  that  it  interferes 
with  any  right  of  fishery,  or  any  other  public  use;  hence  it  was  not 
shown  to  be  an  actual  nuisance,  unless  the  mere  fact  of  its  being  a 
purpresture  makes  it  such.  The  defendant,  in  erecting  it,  under  the 
authorities  to  which  we  have  referred,  was  not  doing  an  unlawful  act. 
As  riparian  owner,  although  not  the  owner  of  the  soil  under  the  water, 
he  possessed  an  easement  in  the  stream  opposite  to  and  adjoining  his 
premises,  a  right  of  access  to  the  navigable  part  of  it,  and,  as  the  water 
near  the  shore  was  shallow,  a  right  to  erect  a  pier  in  order  to  reach 
such  navigable  portion.    As  said  in  Yates  v.  Milwaukee,  supra : 

"This  riparian  right  is  property,  and  is  valuable,  and,  though  it  must  be 
enjoyed  in  due  subjection  to  the  rights  of  the  public,  it  cannot  be  arbitrarily  or 
capriciously  destroyed  or  impaired." 

But,  as  the  defendant  had  not  obtained  a  grant  from  the  commission- 
ers of  the  land  office  in  erecting  his  landing,  he  exercised  this  riparian 
right  subject  to  the  power  of  the  state,  in  a  proper  case,  to  interfere. 

Under  the  facts  appearing  in  this  case,  can  the  state  by  action  com- 
pel the  defendant  to  remove  his  landing?  As  above  suggested,  the 
structure  does  not  affect  navigation,  or  any  public  right  or  interest.  It 
was  not  shown  to  be  an  actual  nuisance.  The  fact  that  it  prevents  the 
landing  of  vessels  on  the  south  side  of  the  town  dock  is  no  ground  for 
its  removal.  The  grant  of  the  commissioners  of  the  land  office  to  the 
highway  commissioner  of  the  town  of  Germantown  of  land  under  wa- 
ter, opposite  a  certain  highway  leading  down  to  the  shore  of  the  river, 
only  gave  the  grantee  a  right  in  the  river  opposite  the  road.  The  com- 
missioners of  the  land  office  could  give  him  no  other  right.  They  could 
not  confer  upon  such  grantee  a  right  in  the  river  at  the  place  where 
the  defendant  erected  his  pier,  adjoining  and  in  front  of  his  uplands. 
Ice  Co.  v.  Shultz,  116  N.  Y.  382,  388,  22  N.  E.  564;  Jenks  v.  Miller, 
14  App.  Div.  474,  480,  481,  43  N.  Y.  Supp.  927.  The  question  pre- 
sented to  us,  then,  is  whether,  when  a  riparian  proprietor  has  exercised 
the  right,  which  the  authorities  hold  he  possesses,  of  building  a  pier  in 
the  shoal  waters  adjoining  and  in  front  of  his  premises,  for  the  lawful 
purpose  of  being  able  to  reach  the  navigable  part  of  the  stream,  such 
pier  not  obstructing  navigation,  or  interfering  with  any  right  of  fishery 
or  other  public  use,  and  it  is  not  claimed  that  the  place  where  the  pier 
is  erected  is  required  for  any  public  purpose,  the  state  can,  without 
showing  a  public  necessity  therefor,  interfere,  and  maintain  an  action 
for  the  removal  of  the  structure.    We  are  not  referred  to  any  author- 


Sec.  4)  nuisance  999 

ity  where,  under  such  a  state  of  facts,  an  action  like  this  has  been  sus- 
tained.    *     *     * 

The  structure  erected  by  the  defendant  was  not  in  a  harbor  or  navi- 
gable portion  of  the  river ;  it  was  built  in  the  shoal  water  near  the 
shore,  to  enable  the  defendant  to  reach  the  navigable  part  of  the  river. 
In  building  it  he  took  the  risk  of  the  interference  of  the  state.  His 
right  to  build  the  pier  was  subject  to  the  superior  right  of  the  state. 
If  the  state  required  the  land  for  any  legitimate  public  purpose,  it  was 
entitled  to  its  possession.  But  the  state  was  not  shown  to  require  the 
land  under  the  water  where  the  defendant  erected  his  pier.  The  de- 
fendant also  took  the  risk  of  the  interference  on  the  part  of  the  state 
if  his  pier  in  any  way  should  interfere  with  or  endanger  the  rights  or 
interests  of  the  general  public.  But  no  such  injury  or  interference  was 
proved.  The  state,  therefore,  in  this  action  arbitrarily  asks  to  have  the 
defendant's  pier  removed  without  claiming  any  injury  whatever  there- 
from. How  has  the  defendant  interfered  with  the  rights  of  the  state? 
He  had  an  easement  in  the  river,  a  right  to  reach  the  navigable  part  of 
it  over  land  under  the  water  owned  by  the  state,  and  he  has  only  done 
what  was  necessary  to  obtain  the  benefit  of  that  right.  The  state  con- 
tinues to  be  the  owner  of  the  land  subject  to  defendant's  easement.  If 
ever  required  for  any  public  purpose,  it  can  obtain  possession  thereof. 
The  state  at  any  time  hereafter,  if  the  defendant's  pier  shall  prove  an 
injury  to  any. public  right  or  interest,  and  hence  a  nuisance,  can  cause 
its  removal.  The  erection  of  the  structure  by  the  defendant  has  not 
interfered  with  any  actual  right  or  interest  of  the  state.     *     *     * 

It  has  been  held  that  where  the  state,  as  a  plaintiff,  invokes  the  aid 

of  a  court  of  equity,  it  is  subject  to  the  rules  applicable  to  ordinary 

suitors.    And  the  principle  has  been  established  that  an  injunction  will 

not  be  granted  unless  injury,  actual  and  material,  and  not   fanciful, 

shall  be  shown.     People  v.  Canal  Board  of  State  of  New  York,  55  N. 

Y.  390;   Genet  v.  Canal  Co.,  122  N.  Y.  505,  529,  25  N.  E.  922;   Gray 

v.  Railroad  Co.,  128  N.  Y.  499,  509,  28  N.  E.  498 ;   10  Am.  &  Eng.  Enc. 

Lav/  (1st  Ed.)  p.  786;  Beach,  Inj.  §  1067;   People  v.  Metropolitan  Tel. 

Co.,  31  Hun,  596,  604.     In  the  case  last  cited,  brought  by  the  people 

to  compel  the  removal  of  telegraph  poles  from  a  public  street,  claimed 

to  be  an  unlawful  purpresture,  the  following  language  was  used  by 

Daniels,  J. : 

"For  the  damages  resulting  from  the  injury  were  so  trifling  in  their  amount 
as  to  deprive  the  action  of  every  serious  attribute  which  could  be  made  the 
subject  of  equitable  complaint ;  and  'equity  will  not  interfere  *  *  *  to 
remedy  a  mere  technical  or  theoretical  injury  to  land.'  2  Story,  Eq.  Jur.  (12th 
Ed.)  §  925.  To  secure  its  interposition  there  must  be  some  gravity  to  the  com- 
plaint presented  as  the  subject-matter  of  the  action,  for  equity  will  only  inter- 
vene to  prevent  irreparable  injuries,  or  to  avoid  multiplicity  of  suits.  Hil.  Inj. 
270  Ti-l;  Attorney  General  v.  Gas  Co.,  19  Eng.  Law  &  Eq.  639;  3  Wait,  Act. 
&  Dcf.  707." 

As  we  have  endeavored  to  show,  in  this  case  no  damage  or  injury 
to  the  state,  or  the  public  represented  by  it,  was  shown  on  the  trial  of 
the  complaint,  in  consequence  of  the  erection  of  the  landing  by  the 


1000  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

defendant,  and  hence  the  plaintiff  was  not  entitled  to  the  relief  de- 
manded in  the  complaint.  From  the  complaint  and  evidence  offered  by 
the  plaintiff,  it  is  to  be  inferred  that  the  action  was  brought  for  the 
benefit  of  the  owners  of  the  town  dock,  to  preserve  to  them  the  use 
of  the  water  of  the  Hudson  river  south  of  said  dock  and  in  front  of  de- 
fendant's uplands, — a  right  which,  under  the  statute,  the  commission- 
ers of  the  land  office  could  not  transfer  to  such  owners,  and  which 
should  not  be  awarded  to  them  by  the  judgment  of  this  court. 

Our  conclusion  is  that  the  judgment  should  be  reversed,  and  a  new 
trial  granted,  costs  to  abide  the  event.  All  concur,  except  Merwin,  J., 
dissenting. 

ATTORNEY-GENERAL  ex  rel.  ROTHSCHILD  v.  UNITED 
KINGDOM  ELECTRIC  TELEGRAPH  CO. 

(In  Chancery  before  Sir  John  Romilly,  1S61.     30  Bear.  287,  54  E.  R.  899.) 

This  was  an  information  and  bill  by  the  Attorney-General  at  the  re- 
lation of  the  Baron  de  Rothschild,  and  by  the  baron  himself  as  Plain- 
tiff, against  this  company,  to  prevent  it  interfering  with  the  public  high- 
ways in  the  construction  of  their  lines  of  telegraph. 

The  company  was  incorporated  in  1860,  pursuant  to  the  Joint  Stock 
Companies  Act,  1856,  by  registration  in  the  Joint  Stock  Companies 
Registry  Office. 

The  company  proposed  to  establish  a  system  of  electric  communica- 
tion, based  on  the  principle  of  the  penny  postage,  to  convey  the  mes- 
sages throughout  the  United  Kingdom,  at  a  low  and  uniform  rate  (as 
a  shilling  for  a  short  message)  irrespective  of  distance.  The  system  it 
proposed  to  adopt  was  to  effect  an  electric  communication  by  means  of 
overground  wires  suspended  from  poles  along  turnpike  and  other 
roads,  and  the  banks  of  the  canal ;  and  they  expected,  by  a  much  small- 
er expenditure,  successfully  to  compete  with  the  existing  telegraph 
companies. 

The  company,  without  any  Parliamentary  powers  (though  they  pro- 
fessed to  have  them),  had  commenced  constructing  their  line  of  com- 
munication along  many  of  the  public  roads,  and  amongst  them,  along 
the  public  highway  at  Acton,  opposite  to  property  of  which  Baron 
Rothschild  was  the  owner  in  fee.  They  effected  their  purpose,  first,  by 
erecting  posts  from  fifteen  to  forty  feet  high  along  the  footpath  ;  but 
they  removed  them,  and  had  then  placed  their  wires  in  troughs  under- 
neath the  surface  of  the  roads.  The  information  also  stated  that  the 
company  had,  within  the  last  few  days,  dug  a  trench  of  about  a  foot  and 
three-quarters  in  depth,  and  a  foot  and  a  quarter  in  width,  along  the 
whole  or  greater  part  of  the  frontage  of  the  Plaintiff's  land,  and  about 
five  feet  from  the  Plaintiff's  boundary  fence,  in  the  footpath  adjoining 
the  same,  along  which  Plaintiff  and  Her  Majesty's  subjects  in  general 
were  entitled  and  accustomed  to  travel  and  pass,  and  that  they  had  laid 
underneath  the  surface  of  the  footpath,  at  the  bottom  of  the  trench, 


Sec.  4)  NUISANCE  1001 

a  trough  of  wood,  metal  or  other  material,  with  wires  or  other  appara- 
tus to  form  part  of  the  electric  telegraph  which  the  company  were  en- 
gaged in  constructing ;  and  that  the  company  were  proceeding  to  com- 
plete such  works  along  the  whole  frontage  of  the  Plaintiff's  land ;  and 
the  Road  Commissioners  had,  illegally  and  without  authority,  given  or 
affected  or  assumed  to  give  their  consent  or  authority  to  the  execution 
of  such  works,  and  would  take  no  proceedings  to  stop  or  prevent  the 
execution  thereof.  The  effect  of  this  was  stated  to  be  to  produce  an 
obstruction  to  the  highways  and  to  create  a  public  nuisance. 

The  baron  stated  that  he  was  the  owner  of  the  soil  of  the  footpath 
opposite  his  lands,  that  the  company  were  executing  their  works  con- 
trary to  his  will  and  in  spite  of  his  remonstrances,  and  were  asserting 
and  attempting  to  obtain  proprietary  rights  and  easements  in  the  soil 
of  the  footpath,  in  derogation  of  his  proprietary  right  in  such  soil. 

It  was  also  stated  that  the  company  were  executing  similar  works 
for  a  permanent  object  along  various  other  highways  and  roads,  and 
paths  and  strips  of  land  adjoining  thereto,  in,  through,  along  and  over 
which  the  public  had  a  right  to  pass  and  travel,  and  in  which  other 
owners  had  a  right  of  soil,  subject  to  such  right-of-way  and  passage  on 
the  part  of  the  public,  and  so  to  disturb  such  right-of-way  and  passage 
and  thereby  to  create  nuisances  to  the  public,  and  to  obtain  and  create 
rights  and  easements  in  the  soil  of  such  highways  and  roads,  and  paths 
and  strips  of  land,  contrary  to  the  wishes  and  in  defiance  of  the  re- 
monstrances of  such  owners,  and  to  the  great  prejudice  and  damage  of 
the  public,  and  the  proprietary  rights  of  such  owners,  and  owing  to  the 
supineness,  connivance  or  indifference  of  the  Commissioners  and  their 
refusal  or  unwillingness  to  enforce,  as  against  the  company,  the  pow- 
ers which  by  law  were  vested  in  them  for  preventing  the  occurrence  or 
continuance  and  repetition  of  such  acts. 

The  information  prayed: 

First,  an  injunction  to  restrain  the  company  "from  breaking,  digging 
up  or  disturbing  the  public  road  or  highway,  or  the  footpath  abutting 
upon  and  adjoining  to  Plaintiff's  land,  in  the  parish  of  Acton,  for  the 
purpose  of  placing  upon,  over,  in  or  under  the  same,  any  posts,  troughs, 
wires,  materials  or  apparatus  to  be  used  for  the  purposes  of  an  electric 
telegraph,"  and  from  continuing  such  posts,  &c,  and  from  preventing 
the  removal  thereof  by  the  Plaintiff. 

(2)  A  similar  injunction  in  regard  to  all  other  "public  roads  or  high- 
ways, or  footpaths  or  strips  of  land  adjoining  thereto." 

(3)  An  injunction  against  the  company  to  restrain  them  from  mak- 
ing, issuing  or  circulating  any  statements  or  representations  that  the 
company  had  Parliamentary  powers  for  executing  their  works. 

(4)  An  injunction  against  the  Commissioners.     *     *     * 

Tin-;  Master  of  the  Rolls  "  (without  hearing  the  defence).  I 
cannot  grant  an  injunction  in  the  present  state  of  the  cause. 

"  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


1002  INJUNCTION   IN   RELATION    TO   TORTS  (Ch.  4 

This  is  an  information  and  bill,  by  which  the  Plaintiff  complains  of 
an  injury  done  to  his  own  property,  and  the  Attorney-General  com- 
plains of  an  injury  done  to  the  public.  It  is  necessary  to  consider  these 
matters  of  complaint  separately. 

With  respect  to  the  private  property  of  the  Plaintiff,  the  evidence 
does  not  shew  that  it  is  injuriously  affected.  Assuming  the  fact  to  be 
as  argued,  that  the  soil  in  the  road  belongs  to  the  Plaintiff,  there  is 
nothing  at  present  which  affects  him  with  any  injury  whatever.  There 
might  have  been  originally  some  inconvenience  produced  by  the  erection 
of  the  posts  in  December,  1860,  but  these  have  been  taken  down,  and 
nothing  has  been  done  except  that  some  pipes  or  mains  have  been  placed 
in  the  soil  underneath  the  public  highway.  I  do  not,  at  this  moment, 
intend  to  express  any  opinion  whether  it  is  an  invasion  of  his  private 
rights  or  not,  but  I  am  clear  that  there  is  no  irreparable  injury  to  him 
which  requires  the  interposition  of  this  Court  prior  to  the  hearing  of 
the  cause.  Whether  the  Court  will  then  do  anything  is  another  mat- 
ter, but  this  Court  only  interferes  by  interlocutory  injunction  to  pro- 
tect property  from  injury  about  to  be  done  to  it,  and  even  where  the 
injury  is  unquestionable,  as  was  laid  down  in  Deere  v.  Guest,  1  Myl. 
&  Cr.  516,  if  it  has  been  already  completed,  as  it  is  in  this  case,  the 
Court  does  not  interfere  by  way  of  interlocutory  injunction,  but  waits 
until  after  some  proceedings  at  law  have  been  taken  before  it  will  in- 
terfere. 

In  this  case  there  is  nothing  in  the  evidence  to  shew  that  the  property 
of  Baron  Rothschild  is  in  danger  of  any  injury  whatever  from  what 
the  company  is  about  to  do,  and  it  does  not  appear  that  what  the  com- 
pany has  actually  done  interferes  with  the  beneficial  enjoyment  of  his 
property.     *     *     * 

As  regards  the  public,  the  case  resolves  itself  into  a  question  of  nui- 
sance, and  upon  the  evidence  of  the  Plaintiff  it  seems  very  doubtful 
whether  there  is  any  nuisance  or  not.  There  may  be  to  a  private  person 
damnum  absque  injuria,  which  will  support  an  action  and  get  nominal 
damages,  without  entitling  the  Plaintiff  to  any  injunction:  but  with 
respect  to  nuisance,  there  must  be  some  injury  to  the  public  shewn  to 
exist  before  any  injunction  can  be  granted.  Whether  it  be  shewn  here, 
I  express  no  opinion  further  than  this :  That  the  Court  does  not  inter- 
fere to  abate  or  to  prevent  the  continuance  of  a  nuisance,  unless  it  is 
clearly  shewn  that  there  is  an  injury  to  the  public,  which  is  not  done 
here,  and  in  that  case  the  Court  leaves  the  party  complaining  to  estab- 
lish the  fact  that  the  act  done  is  a  nuisance  at  law  before  it  gives  its  aid 
by  way  of  injunction. 

I  cannot,  therefore,  make  any  other  order  than  this :  That  I  give  the 
Plaintiff  and  the  informant  leave  to  take  such  proceedings  at  law  as 
they  may  be  advised,  and  I  allow  the  rest  to  stand  over. 

The  motion  was  afterward  carried  by  appeal  to  the  Lords  Justices, 
but  it  was  merely  arranged  that  the  motion  should  be  converted  into 
a  motion  for  a  decree  and  be  remitted  back  to  the  Court  for  hearing. 


Sec.  4)  nuisance  1003 

The  cause  now  came  on  upon  a  motion  for  a  decree,  supported  by- 
photographic  pictures  shewing  the  obstructions  raised  upon  the  lands, 
and  upon  affidavits  specifying  the  obstructions  laid  in  the  soil.     *     * 

The  Master  of  the  Rolls  [Sir  John  Rom  illy].  This  case  de- 
pends upon  a  legal  right,  which  must  be  established  to  the  satisfaction 
of  the  Court  before  the  equity  can  be  administered  ;  without  it.  it  would 
be  impossible  to  say  that  either  the  acts  of  the  company  or  the  works 
amounted  to  a  nuisance.  The  one  side  insists  that  the  works  cause  an 
obstruction,  and,  on  the  other  side,  persons  are  found  to  say  they  do 
not;  but  no  tribunal  is  so  fit  to  try  this  question  of  fact  as  a  jury,  who 
will  have  the  assistance  of  a  Judge  to  direct  them  as  to  the  law. 

It  is  necessary  to  keep  the  questions  raised  by  the  information  and 
by  the  bill  distinct,  the  one  is  whether  a  public  nuisance  has  been  com- 
mitted, and  which  may  be  tried  either  by  indictment  or  by  information, 
as  the  Attorney-General  may  think  fit ;  the  other  is  whether  a  private 
wrong  has  been  done,  whether  in  fact  there  had  been  a  trespass  either 
upon  the  land  or  the  rights  of  Baron  Rothschild,  and  that  question 
must  be  tried  by  an  action.  I  am,  however,  not  prepared  to  say  that 
the  bill  must  be  at  once  dismissed,  because  the  acts  complained  of  have 
been  completed.  The  information  and  bill  must,  therefore,  stand 
over,  in  order  that  the  Attorney-General  as  the  informant  may  take 
such  proceedings  at  law  as  shall  be  thought  fit,  and  also  in  order  to 
enable  the  Plaintiff  to  bring  such  action  as  he  may  be  advised. 

I  shall,  therefore,  retain  the  information  and  bill  for  a  year,  and  re- 
serve the  costs  until  the  result  of  the  proceedings  at  law  be  known. 


NEW  YORK,  N.  H.  &  H.  R.  CO.  v.  LONG  et  al. 
(Supreme  Court  of  Errors  of  Connecticut,  1S99.    72  Conn.  10,  43  Atl.  559.) 

Appeal  from  superior  court,  New  London  county ;  Alberto  T.  Rora- 
back,  Judge. 

Petition  for  injunction  by  the  New  York,  New  Haven  &  Hartford 
Railroad  Company  against  George  M.  Long  and  others  to  restrain 
defendants  from  extending  a  wharf  so  as  to  prevent  access  to  plain- 
tiff's pier.    There  was  a  judgment  for  plaintiff,  and  defendants  appeal. 

The  plaintiff  owns  a  piece  of  upland  on  the  Thames  river  or  New 
London  Harbor,  with  a  wharf  extending  therefrom  within  the  lines 
of  its  riparian  easement  easterly  towards  the  channel.  The  easterly 
end  or  front  of  the  wharf  is  upon  the  channel ;  the  southerly  side  of 
the  wharf  is  upon  the  open  water ;  and  the  northerly  side  of  the  wharf 
is  within  about  a  foot  of  the  wharfing  easement,  and  is  bounded  for 
about  78  feet  from  the  upland  by  an  adjoining  wharf,  the  fee  of  which 
is  owned  by  the  city  of  New  London,  and  bounded  beyond  that  by  the 
waters  of  a  basin  or  dock.  Northerly  of  the  wharf  of  the  city  is  a 
ferry  slip  used  for  the  Groton  Ferry,  under  authority  of  the  city  of 


1004 


INJUNCTION   IN    RELATION   TO   TORTS 


(Ch.  4 


New  London.  The  dock  bounding  the  northerly  side  of  the  plaintiffs 
wharf  is  formed  by  that  wharf  and  the  southerly  fence  of  the  ferry 
slip.     *     *     :;: 


f**jU.-«,rwat 


'^f-f^SSBr^, 


A  Ulharf of plaintiff. 

B,  Doc/?  formed  by  plaintiff's  wharf  and  ferry  slip. 

C,  Wharf  built  by  ferry  company,  under  authority 

of  city  in  I89P-. 

D,  Wharf  built  by  city  in  1894.  and  lea  J  ed  to 
defendants  in  1893. 


OP£/i  WATER. 


The  complaint  alleges  that  the  plaintiff  uses  its  wharf  for  the 
mooring  of  vessels  belonging  to  itself  and  others,  and  in  connection 
with  its  business  as  a  common  carrier  of  goods  and  passengers,  and 
that  the  northerly  side  of  the  wharf  bounded  on  said  dock  is  of  great 
value  to  the  plaintiff  in  its  business.  Paragraph  5  of  the  complaint 
alleges  that  the  defendants  threaten  to  build  and  have  begun  to  build, 
by  driving  piles  and  by  covering  the  same  with  planks  and  timbers,  a 
permanent  structure  over  and  across  said  basin,  in  such  a  manner  as 
to  appropriate  the  same  to  their  own  private  use,  in  connection  with 
their  private  business  as  dealers  in  fish,  and  so  as  to  obstruct  the  plain- 
tiff in  its  use  of  said  basin,  and  such  other  persons  as  may  have  occa- 
sion to  reach  the  plaintiff's  said  pier  in  vessels,  and  in  such  manner  as 
to  obstruct  and  prevent  the  access  of  such  vessels  to  the  northerly  face 
of  said  pier,  and  to  deprive  the  plaintiff  of  its  rights  as  an  abutting 
owner  upon  such  navigable  waters.  Paragraph  6  alleges  that  such 
use  of  said  basin  will  interfere  with  the  business  of  the  plaintiff  at  its 
said  pier,  and  reduce  its  value  to  the  plaintiff,  as  well  as  its  market 
value.    The  prayer  for  relief  is : 

'•An  injunction  restraining  the  defendants  from  placing  any  piles,  planks, 
or  timbers  in  said  basin,  and  from  filling  in  said  basin  in  whole  of  in  part,  and 
from  making  any  erection  or  structure  therein,  and  from  covering  over  said 
basin,  and.  from  in  any  way  obstructing  the  use  of  the  same  for  the  purposes 
of  navigation,  or  so  as  to  prevent  the  access  of  vessels  to  the  northerly  part 
of  the  hind  or  pier  of  the  plaintiff."     *     *     * 


Sec.  4)  nuisance  1005 

HamHRSLEY,  J.52  *  *  *  The  material  issues  in  this  action  are 
clearly  defined  and  limited  by  the  complaint  and  answer.  They  are : 
(1)  A  threat  by  the  defendants  to  create  a  public  nuisance  by  erecting 
in  navigable  waters  a  structure  which  will  be  an  unlawful  obstruction 
to  navigation.  (2)  Injury  resulting  from  the  nuisance  to  the  plaintiff 
of  a  kind  peculiar  to  him,  and  different  from  that  suffered  in  common 
with  the  public.  The  court  has  found  the  second  issue  for  the  plaintiff, 
but  has  not,  unless  by  implication,  made  a  finding  in  respect  to  the  first 
issue.  The  claim  of  the  defendants  is  that  the  facts  which  the  court 
has  found  as  the  basis  of  its  judgment  justify  and  legally  require  a 
finding  of  the  first  issue  for  the  defendants. 

The  alleged  nuisance  consists  in  the  extension  of  an  existing  wharf 
within  the  lines  of  the  wharfing  easement.  This  easement  is  owned 
by  the  city  of  New  London,  and  the  fee  of  the  upland  to  which  the 
easement  is  incident  is  in  the  city  of  New  London.  So  far  as  public 
rights  in  navigable  waters  are  affected,  it  is  immaterial  whether  the 
city  owns  this  upland  solely  in  its  corporate  capacity,  or  as  trustee  for 
the  inhabitants  of  Xew  London,  or  in  part  as  legal  custodian  of  the 
highways  and  public  places  established  for  the  use  of  those  inhabitants, 
— in  any  event,  the  full  ownership  and  control,  with  all  the  riparian 
rights  attached  to  that  ownership,  are  in  the  city.  The  city  therefore 
has  the  right  to  build  the  wharf  structure.  The  lease  which  the  court 
finds  the  city  has  given  to  the  defendants  confers  upon  them  all  the 
powers  of  the  city  in  respect  to  this  wharf  and  its  extension  for  a  term 
of  10  years.  The  defendants,  therefore,  in  building  the  threatened 
wharf,  act  under  authority  of  the  city,  the  owner  of  the  wharfing  ease- 
ment. We  do  not  understand  these  conclusions  to  be  seriously  ques- 
tioned, we  do  not  doubt  that  they  result  from  the  facts  found  by  the 
court,  and  we  think  they  are  inconsistent  with  the  judgment  rendered. 
The  conclusions  of  the  court  that  a  public  highway  has  been  laid  out 
to  navigable  waters,  that  the  existing  wharf  at  the  foot  of  this  highway 
and  any  extension  of  the  same  must  be  a  public  wharf  or  landing  place, 
and  that  the  defendants  threaten  to  obstruct  the  use  of  such  public 
wharf  or  landing,  so  as  to  create  a  public  nuisance,  are  without  the 
issues  raised  by  the  allegations  of  the  complaint  and  the  denials  of  the 
answer^  and  cannot  affect  the  judgment  in  this  action. 

The  court  has  failed  to  distinguish  between  a  public  nuisance  con- 
sisting in  an  unlawful  structure  in  navigable  waters  and  a  public  nui- 
sance consisting  in  an  unlawful  use  of  a  lawful  structure  in  such  wa- 
ters. The  two  are  clearly  distinct.  They  depend  on  different  con- 
ditions, and  affect  different  interests.  Any  structure  in  navigable  wa- 
ters affecting  the  free  passage  of  vessels  is  a  public  nuisance,  unless 
erected  in  the  exercise  of  rights  of  private  property,  or  in  pursuance  of 
public  authority.  The  owner  of  land  abutting  on  navigable  water  has 
authority,  in  the  exercise  of  rights  of  property,  to  build  a  wharf  to  the 

sa  Tile  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


1006  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

channel,  unless  restrained  by  peculiar  conditions  of  navigation  or  pub- 
lic regulations  (such  restraints  do  not  affect  the  present  case).  A 
riparian  proprietor  whose  land  is  bounded  by  a  navigable  steam  has 
certain  rights,  as  such,  among  which,  in  the  language  of  Mr.  Justice 
Miller,  are : 

"Access  to  the  navigable  part  of  the  river  from  the  front  of  his  lot,  the  right 
to  make  a  landing,  wharf,  or  pier  for  his  own  use,  or  for  the  use  of  the  public, 
subject  to  such  general  rules  or  regulations  as  the  legislature  may  see  proper 
to  impose  for  the  protection  of  the  rights  of  the  public,  whatever  those  rights 
may  be."     Yates  v.  Milwaukee,  10  Wall.  497,  501,  19  L.  Ed.  9S4. 

The  right  is  to  build  a  structure  in  the  water  for  more  convenient 
access  to  and  from  the  channel.  This  structure  is  a  wharf,  pier,  or 
landing.  Its  use  may  be  confined  to  the  owner,  or  shared  with  the 
public ;  but  its  use,  whether  public  or  private,  has  no  relation  to  the 
fact  of  its  being  a  legal  structure.  That  depends  on  the  ownership  of 
the  upland,  and  is  in  no  way  affected  by  the  character  of  its  use  as  a 
wharf.  The  status  of  the  wharf  as  a  legal  structure  is  controlled  by 
the  ownership  of  the  upland ;  the  right  of  the  owner  to  exclude  the 
public  from  its  use  is  controlled  by  other  and  different  considerations. 

"Piers  or  landing  places,  and  even  wharves,  may  be  private,  *  *  *  or,  in 
other  words,  the  owner  may  have  the  right  to  the  exclusive  enjoyment  of  the 
structure,  and  to  exclude  all  other  persons  from  its  use ;"  the  question  whether 
they  are  so,  or  are  open  to  public  use  on  payment  of  reasonable  compensation 
as  wharfage,  depending  in  such  cases  "upon  several  considerations,  involving 
the  purpose  for  which  they  were  built,  the  uses  to  which  they  have  been  ap- 
plied, the  place  where  located,  and  the  nature  and  character  of  the  structure." 
Dutton  v.  Strong,  1  Black,  1,  32,  17  L.  Ed.  29. 

But,  whether  the  wharf  be  public  or  private,  the  structure  is  legal  if 
built  in  pursuance  of  riparian  right.  It  cannot  be  abated  as  a  nuisance 
interfering  with  free  navigation  because  of  conflicting  claims  as  to  its 
use.  Being  a  public  wharf,  the  owner  or  other  person  may,  by  placing 
upon  it  buildings,  or  in  other  ways,  so  appropriate  it  to  his  exclusive 
use  as  to  obstruct  its  use  by  the  public ;  and  these  acts  may  constitute 
a  public  nuisance,  which  may  be  abated  or  restrained  on  application 
of  the  state,  or  of  an  individual  who  suffers  a  special  or  peculiar  injury 
by  this  exclusion  of  the  public  from  the  use  of  the  wharf.  But  such 
nuisance  is  not  an  obstruction  to  the  free  use  of  navigable  waters. 
The  wharf  structure  cannot  be  abated  because  of  such  nuisance,  and 
the  actual  nuisance  cannot  be  restrained  at  the  suit  of  an  individual 
whose  special  injury  results  wholly  from  the  existence  of  the  wharf 
structure,  and  not  at  all  from  its  misuse. 

So,  in  this  case  the  public  who  may  be  entitled  to  compel  these  de- 
fendants to  remove  the  house  now  on  their  wharf,  and  to  have  them 
enjoined  from  obstructing  the  public  in  the  use  of  the  existing  wharf 
or  any  extension  thereof,  must  found  the  right  to  such  remedy  upon 
the  legality  of  the  existing  wharf  and  its  extension  and  its  beneficial 
use  to  the  public ;  while  the  public  who  may  be  entitled  to  have  the 
existing  wharf  abated  as  a  nuisance  in  navigable  water  and  the  de- 
fendants enjoined  against  its  extension  must  found  the  right  to  such 


SeC.  5)  DISTURBANCE   OF   EASEMENT  1007 

remedy  on  the  illegality  of  the  existing  wharf,  and  the  injury  to  the 
public  of  its  use  and  extension.  It  is  difficult  to  fancy  two  public  nui- 
sances more  distinct  and  even  antagonistic  in  their  nature  than  these 
two,  i.  e.  the  one  which  the  plaintiff  has  alleged  in  its  complaint,  and 
the  one  which  the  court  has  found  as  the  basis  of  its  judgment.  The 
fact  that  the  defendants  are  guilty  of  a  nuisance  as  found  in  the  use 
of  their  wharf,  and  intend  to  use  its  extension  in  the  same  manner, 
does  not  authorize  the  court  to  abate  the  existing  wharf,  nor  to  enjoin 
its  extension;  and  the  fact  that  this  plaintiff  may  suffer  a  special  in- 
jury from  the  existence  and  extension  of  the  present  wharf  does  not 
entitle  it  to  apply  for  an  injunction  against  a  nuisance  consisting  in 
obstructing  the  public  use  of  the  wharf,  when  he  neither  alleges  nor 
proves  special  damage  by  reason  of  such  nuisance. 

These  considerations  dispose  of  the  case,  and  render  it  unnecessary 
to  discuss  other  questions  that  have  been  argued.  The  defendants 
claim  that  the  conclusions  of  the  court  as  to  the  public  highway  and 
landing  are  not  supported  by  the  facts  found,  and  that  admitted  and 
undisputed  facts  have  been  improperly  omitted  from  the  finding  as 
drawn.  These  claims  may  or  may  not  be  true.  Some  of  the  deductions 
of  the  court  may  invite  argument ;  and  the  law  in  respect  to  the  con- 
trolling principle  affecting  the  riparian  rights  of  the  owner  of  the  fee 
and  of  the  public  when  a  highway  adjoins  navigable  water  is  neither 
clearly  defined  nor  well  settled.  These  questions  may  affect  important 
interests  of  the  public  and  of  the  city  of  New  London,  which  should 
not  be  passed  upon  incidentally.  It  is  sufficient  for  the  determination 
of  this  case  that,  whether  the  conclusions  of  the  court  as  to  a  highway 
and  public  landing  be  right  or  wrong,  the  facts  found  by  the  court 
demand  a  denial  of  the  injunction. 

There  is  error,  and  the  judgment  of  the  superior  court  is  reversed. 
The  other  Judges  concurred. 


SECTION  5.— DISTURBANCE  OF  EASEMENT 


DURELL  v.  PRITCHARD. 

(In  Chancery,  1S65.     1  Ch.  App.  244.) 

The  Plaintiffs  in  this  case  were  the  owners,  as  devisees  in  trust  under 
the  will  of  John  Stables,  of  two  houses,  Nos.  32  and  33,  on  the  west, 
side  of  Rathbone  Place,  Oxford  Street.  The  back  premises  of  these 
houses,  which  were  used  as  workshops,  looked  down  upon  a  Mews 
called  Glanville  Mews,  running  from  north  to  south  between  Rath- 
bone  Place  and  Newman  Street.  The  Plaintiffs  were  also  the  owners 
of  the  premises  at  the  southern  extremity  of  the  Mews. 


1008  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

The  buildings  forming  the  west  side  of  CTlanville  Mews,  opposite 
to  the  backs  of  Nos.  32  and  33,  Rathbone  Place,  and  also  the  ground 
and  soil  of  the  Mews  itself,  subject  to  a  right  of  way  for  the  Plaintiffs 
through  the  Mews,  belonged  to  the  Defendant,  Henry  Pritchard,  and 
the  buildings  were  used  by  him  as  livery  stables. 

The  whole  of  these  premises  formerly  belonged  to  Deborah  Robson 
and  John  Stables,  as  tenants  in  common  in  fee,  but  by  a  deed  of  parti- 
tion dated  the  24th  February,  1853,  the  part  now  the  property  of  the 
Plaintiffs,  was  conveyed  in  severalty  to  John  Stables ;  and  the  part 
now  the  property  of  the  Defendant,  was  conveyed  to  Deborah  Robson, 
subject  to  a  right  of  way  for  John  Stables,  his  heirs  and  assigns,  with 
and  without  horses,  carts,  and  carriages,  through  and  along  the  Mews. 

At  the  date  of  the  partition  deed,  and  for  some  years  before,  the 
surface  of  the  Mews,  which  was  about  twenty  feet  in  width,  was  partial- 
ly covered  by  a  lean-to  or  shed  projecting  from  the  stables  about  half- 
way across  the  Mews,  opposite  to  the  back  of  the  houses  in  Rathbone 
Place,  and  supported  by  wooden  posts.  The  roof  of  this  shed  sloped 
downwards  from  the  stables,  and  was  of  the  height  of  about  18  feet 
at  the  back  nearest  the  stables,  and  about  13  feet  6  inches  at  the  front, 
or  lowest  part.  The  shed  did  not  extend  along  the  whole  length  of  the 
Mews,  but  between  its  southern  end  and  the  southern  extremity  of  the 
Mews  was  an  open  space,  part  of  which  was  occupied  by  a  dung-pit, 
about  ten  feet  square. 

In  July,  1863,  the  Defendant  commenced  building  on  the  premises 
belonging  to  him,  and  on  the  site  of  the  shed,  and  on  the  ground  a 
foot  or  two  in  advance  of  it,  he  erected  a  new  brick  building  of  greater 
height  and  length  than  the  old  shed.  The  height  of  the  front  of  the 
new  building,  facing  the  back  of  Plaintiffs'  houses,  was  about  20  feet, 
and  the  height  of  the  middle  of  the  roof  about  25  feet,  and  it  extended 
southwards  so  as  to  cover  over  the  space  formerly  left  open.  The 
new  building  was  begun  on  the  18th  July,  1863,  but  no  complaint  was 
made  of  it  until  the  5th  September,  when  Mr.  Loaden,  the  solicitor  of 
the  Plaintiffs,  wrote  to  the  Defendant,  complaining  of  the  new  building 
as  obstructing  the  light  coming  to  the  rear  of  the  houses,  Xos.  32  and 
33,  Rathbone  Place,  and  requesting  that  the  building  might  be  stopped. 
At  that  time  the  walls  had  been  carried  to  their  full  height,  but  the 
building  was  not  completed. 

Some  further  applications  to  the  same  effect  were  afterwards  made 
by  Mr.  Loaden,  but  nothing  was  done  upon  them;  and  on  the  11th 
October,  1863,  Mr.  Loaden  died. 

On  the  30th  October,  Messrs.  Parker,  the  Plaintiffs'  solicitors,  who 
had  succeeded  Mr.  Loaden,  called  on  the  Defendant's  solicitor  and 
renewed  the  complaints  on  the  subject  of  the  building,  and  a  further 
correspondence  took  place,  which  continued  till  the  end  of  November, 
but  without  inducing  the  Defendant  to  desist  from  his  building,  which 
was  completed  before  the  26th  of  that  month.  The  Plaintiffs  accord- 
ingly filed  their  bill  on  the  8th  January,  1864. 


Sec.  5)  DISTURBANCE   OF   EASEMENT 


1000 


The  complaint  of  the  Plaintiffs  was  not  confined  to  the  loss  by  the 
tenants  of  light  and  air,  but  they  also  alleged  that  the  Plaintiffs'  right 
of  way  along  the  Mews  had  been  injured  by  the  new  building,  which 
prevented  carts  and  waggons  from  turning  round  in  the  Mews  ;  and 
that  it  had  been  further  obstructed  by  the  Defendant  having  allowed 
vans  and  carriages  to  stand  in  the  Mews.  The  bill  (as  amended)  pray- 
ed that  the  Defendant  might  be  restrained  from  permitting  the  new 
building  to  continue  or  remain  in  its  present  state,  and  that  he  might 
be  ordered  to  pull  down  and  remove  or  alter  the  same,  and  to  restore 
the  Mews  and  buildings  to  the  state  they  were  in  prior  to  the  erection 
of  the  new  building.  It  also  prayed  that  the  Defendant  might  be  re- 
strained from  erecting  any  building  in  such  a  manner  as  to  obstruct  or 
interfere  with  the  right  of  way  of  the  Plaintiffs,  or  the  free  access  and 
circulation  of  light  and  air  to  any  of  the  Plaintiffs'  houses ;  and  that 
the  Defendant  might  be  restrained  from  blocking  up  or  obstructing 
the  right  of  way  by  keeping  or  placing  in  the  Mews  any  flys,  horses,  or 
carriages,  or  by  any  other  means.  The  bill  also  prayed  that  damages 
might  be  awarded  to  the  Plaintiffs  for  the  injury  and  expense  they  had 
sustained. 

The  Defendant  by  his  answer  admitted  the  main  facts  stated  in  the 
bill,  but  he  denied  that  he  had  caused  any  material  obstruction  either  to 
the  free  access  of  air  and  light  or  to  the  Plaintiffs'  right  of  way.  Both 
parties  entered  into  evidence,  the  effect  of  which  is  stated  in  the  judg- 
ment of  Lord  Justice  Turner. 

The  Master  of  the  Rolls,  before  whom  the  cause  was  heard,  was  of 
opinion  that,  admitting  that  the  Plaintiffs  had  proved  that  they  had  re- 
ceived material  injury  from  the  Defendant's  building,  they  were  not 
entitled  to  an  injunction,  by  reason  of  the  works  having  been  entirely 
completed  before  the  bill  was  filed :  and  that,  as  they  were  entitled  to 
no  substantial  relief  in  equity,  their  claim  for  damages  failed  also. 

The  case  is  reported  in  13  W.  R.  981. 

From  this  decree  the  Plaintiffs  appealed. 

Dec.  22.  Sir  G.  J.  Turner,  L.  J.,  after  stating  the  facts  of  the  case, 
and  referring  to  the  pleadings  in  the  cause,  continued : 

There  is  evidence  in  the  cause,  both  on  the  part  of  the  Plaintiffs  and 
of  the  Defendant.  The  witnesses  on  the  part  of  the  Plaintiffs  speak 
generally  to  obstruction  arising  from  the  Defendant  placing  vans  and 
carriages  in  the  Mews,  or  allowing  them  to  stand  there,  and  to  incon- 
venience arising  from  waggons  and  carts  being  unable  to  turn  in  the 
Mews  in  consequence  of  the  Defendant's  buildings ;  but  it  is  evident 
from  the  testimonv  of  these  witnesses  that  there  has  always  been  diffi- 
culty in  turning  carts  and  carriages  in  the  Mews.  Some  of  the  Plain- 
tiffs' witnesses  also  speak  to  the  diminution  of  light  and  air  coming  to 
the  back  of  the  Plaintiffs'  houses ;  but  most  of  the  witnesses  speak  of 
this  in  general  terms,  that  the  light  and  air  is  considerably,  or  material- 
ly, or  seriously,  diminished.  It  is  said,  however,  in  the  affidavit  of  one 
BokeEq.— 64 


1010  INJUNCTION    IN    RELATION   TO   TORTS  (Cll.  4 

or  two  of  them,  that  in  the  winter  months  there  is  a  loss  of  an  hour's 

daylight  in  the  afternoon.     On  the  other  hand,  R.  Wheeler,  one  of  the 

witnesses  on  the  part  of  the  Defendant,  states : 

"I  say  that  there  is  not  now  more  difficulty  or  inconvenience  of  turning 
round  carts  and  carriages  in  the  said  Mews  than  there  was  before  the  erection 
by  the  Defendant  of  the  said  new  buildings." 

And  again : 

"During  the  progress  of  the  said  new  buildings,  or  at  any  time  since.  I 
never  heard  of  any  complaint  on  the  part  of  any  of  the  tenants  or  occupiers  of 
the  houses  at  the  back  of  Rathbone  Place,  that  the  erection  of  the  said  new 
buildings  would  obstruct  the  light  or  air  at  any  of  the  back  windows  of  these 
houses,  or  any  other  complaint  of  the  said  new  buildings ;  but  on  the  con- 
trary, some  of  the  tenants  of  the  houses  in  Rathbone  Place,  abutting  on  the 
Mews,  have  expressed  themselves  as  pleased  with  the  alterations  of  the  De- 
fendant's premises,  observing  that  the  new  erection  looked  much  nicer  than 
the  old  shed,  or  to  that  effect." 

And  another  of  them,  Louis  Boura,  who  is  the  occupier  of  No.  31, 

says : 

"The  wall  of  the  said  Henry  Pritchard's  new  buildings  was  raised  at  the 
time  of  the  alteration  about  five  or  six  feet.  There  is  not  any  material  or  per- 
ceptible diminution  of  light  or  air  to  my  back  premises  arising  from  the  afore- 
said alteration." 

The  Master  of  the  Rolls,  upon  the  hearing  of  the  cause,  dismissed 
the  bill  with  costs,  upon  the  grounds,  as  appearing  in  the  report,  that  as 
to  ancient  lights — and  from  another  part  of  the  report  it  is  to  be  collect- 
ed that  his  Honour  meant  as  to  other  easements  also — the  Court  could 
not  entertain  the  matter,  as  the  damage  had  been  actually  completed 
before  the  bill  was  filed ;  in  support  of  which  view  his  Honour  referred 
to  the  case  of  Deere  v.  Guest.  The  Plaintiffs  have  appealed  from  this 
decree.  Three  points  have  been  insisted  on  upon  their  behalf  in  support 
of  this  appeal.  First,  that  notwithstanding  the  damage  was  completed 
before  the  bill  was  filed,  it  was  competent  to  this  Court  to  grant  the 
relief  by  way  of  injunction  prayed  for  by  the  bill;  secondly,  that  under 
the  circumstances  of  the  case,  that  relief  ought  to  have  been  granted ; 
and,  thirdly,  that  assuming  that  relief  by  way  of  injunction  was  prop- 
erly refused,  damages  ought  to  have  been  awarded  to  the  Plaintiffs. 

As  to  the  first  of  these  points,  the  course  of  the  Court  in  granting 
mandatory  injunctions,  such  as  are  prayed  for  by  this  bill,  was  gone 
into  much  at  large  on  the  part  of  the  Plaintiffs,  and  a  great  number 
of  cases  upon  the  subject  were  cited.  I  have  looked  into  these  cases 
with  as  much  attention  as  I  have  been  able,  and  I  do  not  find  that 
any  distinction  has  been  taken  in  them  as  to  the  granting  of  such  in- 
junctions in  cases  of  easements,  and  in  other  cases,  and  certainly  they 
do  not  seem  to  me  to  warrant  any  such  general  rule  as  the  Master  of 
the  Rolls  has  laid  down  being  adopted  in  all  cases.  The  case  of  Deere 
v.  Guest,  on  which  his  Honour  seems  mainly  to  have  relied  in  support 
of  the  rule  laid  down  by  him,  does  not  seem  to  me  to  support  it.  It 
certainly  does  not  in  terms  lay  down  any  such  general  rule  as  his 
Honour  has  pronounced,  and  it  does  not  seem  to  me  to  prove  anything 


Sec.  5)  DISTURBANCE   OF    EASEMENT  1011 

more  than  that  the  facts  alleged  in  that  particular  case  were  not  con- 
sidered by  the  Court  to  be  such  as  to  warrant  the  granting  of  the  man- 
datory injunction  which  was  asked  by  the  bill.  It  would  certainly  not 
be  consistent  with  the  authorities  to  lay  down  any  such  general  rule  as 
applicable  to  all  cases;  and  I  can  see  no  principle  which  can  warrant 
its  being  laid  down  as  applicable  to  cases  of  easements  and  not  to  other 
cases,  for  in  many  cases  the  damage  occasioned  by  interfering  with  an 
easement  is  as  great,  if  not  greater,  than  would  be  occasioned  by  inter- 
fering with  other  rights. 

I  cannot,  therefore,  venture  to  go  so  far  as  the  Master  of  the  Rolls 
appears  to  have  gone  in  this  case,  or  to  say  that  relief  by  way  of  in- 
junction ought  to  have  been  refused  in  this  case  upon  the  mere  ground 
that  the  damage  had  been  completed  before  the  bill  was  filed.  The 
authorities  upon  this  subject  lead,  I  think,  to  these  conclusions — that 
every  case  of  this  nature  must  depend  upon  its  own  circumstances, 
and  that  this  Court  will  not  interfere  by  way  of  mandatory  injunction, 
except  in  cases  in  which  extreme,  or  at  all  events  very  serious,  damage 
will  ensue  from  its  interference  being  withheld. 

Such,  then,  being  the  principles  by  which  we  ought  to  be  guided  in 
determining  this  case,  I  proceed  to  consider  the  second  question,  wheth- 
er, under  the  circumstances  of  this  case  the  relief  by  way  of  injunction 
prayed  by  this  bill  ought  to  have  been  granted,  and  I  am  of  opinion  that 
it  ought  not.  There  are  three  matters  in  respect  of  which  the  relief  is 
asked.  The  obstruction  to  the  right  of  way  occasioned  by  the  extension 
of  the  new  buildings  beyond  the  limits  of  the  shed ;  the  obstruction  to 
the  right  of  way  by  carriages  being  allowed  to  stand  in  the  roadway ; 
and  the  impediment  to  the  access  of  light  and  air  occasioned  by  the 
new  buildings.  As  to  none  of  these  grounds  does  it  seem  to  me  that 
there  is  any  such  extreme  or  serious  damage  as  could  justify  the  man- 
datory injunction  which  is  asked. 

As  to  the  first  ground,  the  right  of  way  is  not  wholly  stopped.  The 
question  is  one  merely  of  the  comparative  convenience  of  the  right  of 
way  as  it  formerly  existed,  and  as  it  now  exists.  As  to  the  second 
ground,  the  case  is  one  merely  of  temporary  and  occasional  inconven- 
ience ;  and  as  to  the  third  ground,  I  think  that  the  diminution  of  light 
and  air  to  the  Plaintiffs'  houses  is  not  such  as  would  warrant  us  in 
granting  the  relief  which  is  asked.  I  fully  agree  in  the  observations  of 
the  Lord  Chancellor  in  the  late  case  of  Clarke  v.  Clark  (1865)  1  Ch. 
App.  16,  which  seem  to  me  to  go  far  towards  disposing  of  this  part  of 
the  case. 

The  remaining  question  is  as  to  the  damages.  This  question  depends 
upon  Mr.  Rolt's  Act  (25  &  26  Vict.  c.  42) ;  and  Sir  H.  Cairns's  Act  (21 
&  22  Vict.  c.  27).  As  to  Mr.  Rolt's  Act,  independently  of  the  doubt 
which  I  suggested  in  Johnson  v.  Wyatt,  12  W.  R.  234,  33  L.  J.  Ch.  394 ; 
and  which  I  continue  to  feel,  I  am  of  opinion  that  there  is  nothing  in 
that  Act  which  renders  it  necessary  for  us  to  give  this  relief ;    for  I 


1012  INJUNCTION   IN    RELATION   TO   TOUTS  (Ch.  4 

think  that  the  question  of  damages  is — within  the  meaning  of  the  Act 
■ — a  question  as  to  which  a  Court  of  common  law  has  concurrent  juris- 
diction ;  and  I  think  that  the  Plaintiffs  had  not  at  the  time  of  the  filing 
of  this  bill  any  case  entitling  them  to  relief  in  equity,  and  that  the  mat- 
ter therefore  has  been  improperly  brought  into  equity,  and  ought  to 
have  been  left  to  the  sole  determination  of  a  Court  of  law.  It  is 
obvious,  that  if  we  were  to  entertain  the  question  of  damages  when 
the  case  in  other  respects  fails  in  equity,  the  consequence  would  be  to 
put  an  end  to  all  actions  in  cases  of  this  nature,  and  bring  all  such  cases 
under  the  jurisdiction  of  this  Court. 

Then,  as  to  Sir  H.  Cairns's  Act,  independently  of  the  question  wheth- 
er it  empowers  the  Court  to  give  damages  in  cases  in  which  there  is  no 
sufficient  ground  for  an  injunction,  I  think  it  clear  that  the  Act  leaves 
it  in  the  discretion  of  the  Court  whether  it  will  award  damages  or  not ; 
and  I  am  of  opinion  that  in  this  case  the  question  of  damages  will  be 
much  more  satisfactorily  tried  at  law  than  in  this  Court.  In  the  result, 
therefore,  although  I  differ  from  the  reasons  given  by  the  Master  of 
the  Rolls,  I  agree  in  the  conclusion  at  which  he  arrived,  and  am  of 
opinion  that  this  bill  was  properly  dismissed  with  costs.  The  appeal, 
therefore,  must  be  dismissed;  but,  under  the  circumstances,  I  think 
there  should  be  no  costs  beyond  the  deposit,  which  must  be  paid  to  the 
Respondent. 

Sir  J.  L.  Knight  Bruce,  L.  J.  I  assent  to  each  of  my  learned 
Brother's  conclusions,  and  for  the  reasons  which  he  has  stated. 


CALCRAFT  v.  THOMPSON. 

(In  Chancery,  1S67.     15  Wkly.  Rep.  387.) 

The  bill  prayed  a  mandatory  injunction  against  the  defendants,  who 
had  raised  the  height  of  their  house,  thereby,  as  the  plaintiffs  charged, 
obstructing  the  access  of  light  and  air  to  the  plaintiffs'  house,  Xo.  2, 
Dunstercourt,  Mincing-lane,  in  which  they  carried  on  the  business 
of  colonial  brokers.  The  plaintiffs  produced  evidence  to  show  the 
amount  of  light  required  for  this  business  as  well  as  affidavits  respect- 
ing actual  light-interruption.  The  bill  was  not  filed  until  after  the 
defendants  had  completed  their  work  (viz.,  in  August,  1863),  and  it 
was  proved  that  during  the  progress  of  the  work  the  plaintiffs  had  re- 
fused to  allow  the  defendants'  surveyors  to  enter  their  house. 

The  cause  did  not  come  on  for  hearing  until  July,  1865,  when  the 
Master  of  the  Rolls,  remarking  that  the  bill  was  not  filed  until  the 
alleged  obstruction  had  been  completed,  ordered  the  cause  to  stand 
over  until  the  Lords  Justices  should  have  given  judgment  in  the  case 
of  Durell  v.  Pritchard,  14  W.  R.  212,  a  similar  case.  The  Lords  Jus- 
tices in  that  case  were  of  opinion  that  the  Court  might  interfere  by 
mandatory  injunction,  but  not  unless  "extreme"  or  "very  serious" 
damage  would  otherwise  ensue.     The  present  cause  subsequently  be- 


Sec.  5)  DISTURBANCE   OF   EASEMENT  1013 

ing  again  brought  before  the  Master  of  the  Rolls,  he  dismissed  the 
bill  with  costs. 

The  plaintiffs  appealed. 

Lord  Chelmsford,  C,  after  referring  to  the  previous  proceedings 
in  the  case,  said  that  Durell  v.  Pritchard  had  decided  that  the  plain- 
tiff might  have  a  mandatory  injunction,  notwithstanding  the  comple- 
tion of  the  building;  and  this  right  not  having  been  lost  through  laches 
or  acquiescence ;  the  remaining  question  was  whether  the  plaintiffs 
proved  sufficient  diminution  of  right  to  entitle  them  to  the  special  in- 
terposition of  the  court.  Many  attempts  had  been  made  (not  very  suc- 
cessfully) to  define  the  quantum  of  diminution  generally  necessary  in 
light-and-air  cases.  He  agreed  with  Lord  Westbury's  criticism,  in 
Jackson  v.  Duke  of  Newcastle,  12  W.  R.  at  p.  1066.  Back  v.  Stacey, 
had  been  approved  by  eminent  judges,  and  so  lifted  out  of  the  sphere 
of  a  mere  Nisi  Prius  decision.  But  what  was  the  meaning  of  the  words 
'"uncomfortable"  and  "preventing  the  occupant  from  carrying  on  his 
business  as  beneficially"  as  he  had  done — in  that  case?  If  the  emenda- 
tion proposed  by  Wood,  V.  C,  in  Dent  v.  The  Auction  Mart  Company 
were  correct,  the  language  of  Best,  C.  J.,  in  Back  v.  Stacey,  was  great- 
ly wanting  in  precision. 

[His  Lordship  then  proceeded:]  Lord  Justice  Turner,  in  the  case 
of  Durell  v.  Pritchard  (as  we  have  seen),  thought  that,  in  order  to 
justify  the  Court  in  issuing  a  mandatory  injunction,  proof  must  be 
given  of  "extreme,  or  at  least  very  serious,  damage."  This  appears 
to  me  to  have  gone  very  much  beyond  the  description  given,  in  previ- 
ous cases,  of  the  extent  of  damage  necessary  to  found  a  claim  to  the 
interposition  of  the  Court.  Two  of  these  are  referred  to  by  Lord 
Westbury  in  the  case  of  Jackson  v.  The  Duke  of  Newcastle,  but  his 
Lordship,  in  dissolving  the  injunction  granted  by  the  Master  of  the 
Rolls  in  that  case,  seems  to  have  thought  that  he  could  only  consider 
the  obstruction  of  light  with  reference  to  the  requirements  of  the  busi- 
ness which  was  then  carrying  on  in  the  plaintiffs'  house,  and  asked  for 
some  authority  that  would  warrant  him  in  looking  to  the  possible 
future  use  that  might  be  made  of  the  premises.  I  cannot  think  that 
the  right  of  the  owner  of  a  house  to  complain  of  the  interruption  of 
light,  which  had  been  accustomed  to  enter  through  an  ancient  window, 
can  be  limited  to  the  use  which  is  made  of  the  premises  at  the  time  of 
the  obstruction  complained  of.  I  agree  with  what  Lord  Cranworth 
held,  in  Yates  v.  Jack,  that  the  right  conferred  by  the  statute  of  2  &  3 
Will.  IV,  c.  71,  is  an  absolute  and  indefeasible  right  to  the  light,  with- 
out reference  to  the  purpose  for  which  it  is  used.  Vice-Chancellor 
Wood  says  that  this  perhaps  is  going  a  step  beyond  the  previous  case; 
but  a  very  short  consideration  will  show  that  the  Lord  Chancellor  was 
perfectly  correct.  The  right  which  is  gradually  ripening — and  which, 
after  twenty  years  enjoyment,  is  absolutely  acquired — is  a  right  to 
have  the  light  freely   admitted  to  the  house  through  an  aperture  of 


1014  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

certain  dimensions.  The  particular  use  to  which  the  house  is  applied 
during  the  period  in  which  the  right  is  thus  growing  never  enters  at  all 
into  consideration.  When  the  full  statutory  time  is  accomplished,  the 
measure  of  the  right  is  exactly  that  (neither  more  nor  less)  which  has 
been  uniformly  enjoyed  previously.  If,  when  an  invasion  of  this  sort 
occurs,  you  are  to  consider  to  what  use  the  house  is  applied  at  the 
time,  this  strange  consequence  would  follow : — Suppose  that,  during 
the  whole  course  of  the  twenty  years,  a  business  had  been  carried  on 
which  required  all  the  light  that  could  be  obtained,  but  that,  at  the 
end  of  that  time,  when  the  right  had  become  absolute  or  indefeasi- 
ble, the  house  were  to  be  used  for  a  purpose  to  which  the  whole  of 
the  light  was  not  essential — according  to  the  doctrine  that  you  must 
judge  of  the  extent  of  the  damage  occasioned  by  an  obstruction — with 
reference  to  the  amount  of  light  actually  required  at  the  time,  the 
wrongdoer  would  be  allowed  to  measure  out  exactly  the  quantity 
wanted  for  the  particular  use  of  the  premises,  and  to  deprive  the  owner 
of  the  excess  to  which  he  had  acquired  an  absolute  right  under  the 
Prescription  Act. 

The  cases  which  I  have  been  considering  will  show  how  impossible 
it  is  to  find  any  precise  standard  by  which  to  determine  the  amount  of 
injury  necessary  in  cases  of  this  description  to  induce  the  Court  to 
exercise  its  protective  jurisdiction.  Each  case  must  depend  upon  evi- 
dence whether  there  has  been  a  substantial  reduction  of  the  quantity 
of  light  which  the  owners  of  the  house  had  a  right  to  enjoy,  and  which 
must  be  determined  on  each  occasion  by  the  judge  or  jury  before  whom 
the  question  is  brought. 

As  the  defendants  were  entitled  to  build  as  they  pleased  upon  their 
own  premises,  doing  thereby  no  injury  to  their  neighbors,  the  burden 
of  proof  is  upon  the  plaintiffs  to  show  that  the  raising  of  the  defend- 
ants' building  had  given  them  a  legal  ground  of  complaint. 

[His  Lordship  then  remarked  that  the  plaintiffs'  "practical"  evi- 
dence respecting  deprivation  of  light,  was  very  vague,  and  that  the 
plaintiffs'  refusal  to  allow  the  defendants'  surveyors  to  enter  the  house, 
would  have  removed  any  doubt  from  his  mind,  had  he  entertained  any 
doubt  of  the  plaintiffs'  not  being  entitled  to  the  relief  they  asked.] 

The  appeal  must  be  dismissed  with  costs.53 

53  This  was  an  issue  directed  by  the  Lord  Chancellor  to  try,  First,  whether 
the  ancient  lights  of  the  plaintiff  in  his  dwelling-house  in  the  city  of  Norwich 
had  been  illegally  obstructed  by  a  certain  building  of  the  defendant.  And, 
Secondly,  If  the  hist  issue  should  be  found  in  the  affirmative,  what  damage 
the  plaintiff  had  sustained  in  respect  of  the  injury.  A  great  many  witnesses, 
including  several  surveyors  of  eminence,  were  examined  on  both  sides;  and 
it  was  evident,  that  the  quantity  of  light  previously  enjoyed  by  the  plaintiff, 
had  been  diminished  by  the  building  in  question.  Under  these  circumstances, 
it  was  contended  for  the  plaintiff,  that  he  was  at  all  events  entitled  to  a  ver- 
dict on  the  first  issue,  any  obstruction  of  ancient  lights  being  wrongful  and  il- 
legal. Best,  C.  J.,  told  the  jury,  who  had  viewed  the  premises,  that  they  were 
to  judge  rather  from  their  own  ocular  observation,  than  from  the  testimony 
of  any  witnesses,  however  respectable,  of  the  degree  of  diminution  which  the 


SeC.  5)  DISTURBANCE   OF   EASEMENT  1015 

HOME  &  COLONIAL  STORES,  Limited,  v.  'COLLS. 
(Court  of  Apical.     [1902]  1  Ch.  Div.  :)n-2.) 

The  plaintiffs  were  the  occupiers  of  a  large  corner  block  of  prem- 
ises situate  on  the  north  side  of  Worship  Street  and  the  east  side  of 
Paul  Street,  in  the  City  of  London,  held  by  them  for  a  term  of  years 
of  which  about  seventeen  years  were  unexpired.  The  windows  in  the 
Worship  Street  front  of  the  block  were  all  ancient  lights.  The  de- 
fendant was  the  owner  of  No.  44,  Worship  Street,  on  the  south  side 
of  that  street,  and  immediately  opposite  that  part  of  the  plaintiffs' 
premises  furthest  from  Paul  Street.  The  defendant  had  recently 
pulled  down  an  old  building  that  had  stood  upon  the  site  of  No.  44, 
that  old  building  having  been  36  ft.  wide  along  the  front  and  19  ft. 
6  in.  high.  The  buildings  on  each  side  of  No.  44,  to  the  east  and  west, 
were  33  ft.  high,  or  13  ft.  6  in.  higher  than  the  old  building.  Wor- 
ship Street  itself  was  41  ft.  wide.  The  defendant  proposed  to  erect 
on  No.  44  a  building  which  would,  when  completed,  be  36  ft.  wide 
and  42  ft.  high  from  the  street  level. 

The  ground-floor  of  the  plaintiffs'  premises  consisted  of  a  large  room 
or  office  about  12  ft.  high  and  extending  back  from  the  Worship  Street 
front  to  a  depth  of  about  50  ft.     This  room  was  occupied  by  some 

plaintiff's  ancient  lights  had  undergone.  It  was  not  sufficient,  to  constitute 
an  illegal  obstruction,  that  the  plaintiff  had,  in  fact,  less  light  than  before: 
nor  that  his  warehouse,  the  part  of  his  house  principally  affected,  could  not 
be  used  for  all  the  purposes  to  which  it  might  otherwise  have  been  applied. 
In  order  to  give  a  right  of  action,  and  sustain  the  issue,  there  must  be  a  sub- 
stantial privation  of  light,  sufficient  to  render  the  occupation  of  the  house  un- 
comfortable, and  to  prevent  the  plaintiff  from  carrying  on  his  accustomed  busi- 
ness (that  of  a  grocer)  on  the  premises,  as  beneficially  as  he  had  formerly  done. 
His  Lordship  added,  that  it  might  be  difficult  to  draw  the  line,  but  the  Jury 
must  distinguish  between  a  partial  inconvenience  and  a  real  injury  to  the 
plaintiff  in  the  enjoyment  of  the  premises.  The  Jury  found  for  the  defend- 
ant on  both  issues."    Back  v.  Stacey  (1826)  2  Car.  &  P.  465. 

In  Birmingham,  Dudley  &  District  Banking  Co.  v.  Ross  (1S8S)  38  Ch.  Div. 
295,  312,  et  seq.,  Bowen,  L.  J.,  said:  "Coming  to  the  amount  of  enjoyment  of 
light  that  is  supposed  by  the  law  to  accompany  in  an  ordinary  case  the  lease 
or  the  grant  of  a  house  which  is  erected  with  window-lights,  where  the  grantor 
of  the  house  is  also  the  owner  of  premises  either  adjoining  or  neighboring,  then 
this  presumption  arises,  that  the  grantor  intends  the  grantee  to  enjoy  so  much 
light  unobstructed  as  must  under  the  circumstances  have  been  assumed  by  both 
parties  to  be  reasonably  necessary  for  the  fair  and  comfortable  use  of  the 
premises  which  are  the  subject  of  the  grant.  That  seems  to  me  to  be  the  real 
definition  and  measure"  of  the  ordinary  implication  that  arises.  Sir  Horace 
Davey  asked  us  to  consider  that  the  measure  of  this  right,  which  in  ordinary 
cases  of  a  grant  arose,  was  the  same  as  the  measure  of  enjoyment  of  ancient 
lights.  I  confess  I  do  not  at  the  present  moment  assent  to  that  view.  The  ex- 
tent of  the  right  in  the  case  of  ancient  lights  is  measured,  not  by  what  is  as- 
sumed between  the  parties  to  be  reasonably  necessary,  but  by  what  has  been 
in  fact  enjoyed ;  and  although  it  is  perfectly  true  that  a  Court  of  Equity  will 
not  interfere  by  injunction,  and  the  common  law  will  not  interfere  by  giving 
damages,  by  way  of  relief  for  a  nominal  interruption  of  light  which  is  not  at- 
tended with  a  material  diminution  of  convenience,  still  the  measure  of  the 
right  in  the  case  of  ancient  lights  seems  to  me  to  be  different  from  the  meas- 
ure of  the  right  which  accompanies,  in  ordinary  cases,  a  grant  by  a  grantor." 


101G  INJUNCTION    IN    RELATION   TO   TOUTS  (Cll.  4 

ninety  clerks,  who  sat  at  desks  arranged  there  for  the  purposes  of 
the  business.  The  only  windows  lighting  it  were  in  the  Worship 
Street  front.  There  were  five  of  these  windows  in  a  row,  all  of  large 
dimensions,  being  10  ft.  high  and  6  ft.  wide,  and  the  sill  of  each  was 
3  ft.  from  the  street  level.  The  defendant's  proposed  new  building, 
though  it  threatened  to  affect  the  whole  of  the  plaintiffs'  ancient  lights, 
would,  it  was  said,  most  seriously  affect  two  of  them  in  particular, 
namely,  the  two  ground-floor  windows  numbered  4  and  5  from  the 
corner  of  Paul  Street.  The  ground-floor  room  was  fitted  with  electric 
light,  there  being  five  rows  of  lamps  near  the  ceiling.  Through  the 
absence  of  windows  except  at  the  front  the  back  part  of  the  room  had 
always  required  the  electric  light  except  on  very  bright  days. 

As  the  defendant  had  commenced  and  was  proceeding  with  his  new 
building  the  plaintiffs,  on  August  17.  1900,  issued  the  writ  in  this  ac- 
tion, claiming  an  injunction  to  restrain  him  from  erecting  on  the  site 
of  No.  44,  Worship  Street,  any  building  or  erection  so  as  to  darken, 
injure,  or  obstruct  any  of  the  plaintiffs'  ancient  lights  as  the  same  had 
been  enjoyed  previously  to  the  taking  down  of  the  defendant's  old 
building ;  and  for  damages.  On  August  20,  1900.  the  plaintiffs  served 
the  defendant  with  notice  of  motion  lor  an  interim  injunction  in  the 
same  terms. 

Upon  the  motion  coming  on  for  hearing  on  October  26,  1(>00,  it 
being  admitted  that  the  case  was  one  to  be  tried  on  viva  voce  evidence, 
it  was  ordered  that  the  action  should  immediately  be  set  down  in  the 
list  of  witness  actions  for  trial,  without  pleadings.  The  action  was 
accordingly  set  down  for  trial,  and  was  eventually  tried  before  Joyce, 
J.,  on  December  19  and  20,  1900.  The  only  question  seriously  argued 
was  as  to  the  amount  of  obstruction  to  the  plaintiffs'  two  ground- 
floor  windows,  numbered  4  and  5  from  Paul  Street,  these  windows 
being  directly  opposite  No.  44,  Worship  Street.  Several  London  archi- 
tects and  surveyors  were  called  on  both  sides.  A  scale  plan  of  the 
plaintiffs'  premises  and  of  the  defendant's  proposed  new  building  was 
put  in.  From  this  plan,  and  also  from  a  model  produced,  it  appeared 
that  the  angle  of  incidence  of  light  over  the  highest  part  of  the  de- 
fendant's proposed  new  building  to  the  sill  of  each  of  the  two  windows 
in  question  would  be  at  least  45  degrees  from  the  perpendicular  above 
the  point  of  incidence.  The  defendant's  witnesses  admitted  that  there 
would  be  some,  though  they  said  not  a  material,  diminution  of  light, 
but  they  expressed  the  opinion  that  the  angle  of  45  degrees  would 
leave  the  plaintiffs  a  sufficient  amount  of  light  for  all  practical  pur- 
poses. One  of  the  defendant's  expert  witnesses  further  expressed 
the  opinion  that  the  defendant's  new  building  would  not  cause  any 
damage  to  the  plaintiffs'  property,  and  would  not  in  the  least  affect 
its  letting  or  selling  value.  On  the  other  hand,  the  plaintiffs'  witnesses 
stated  that  the  light  would  be  substantially  and  materially  diminished, 
and  that,  although  the  plaintiffs  might  still  have  sufficient  light   for 


Sec.  5)  DISTURBANCE   OF   BASEMENT  1017 

ordinary   business   purposes,   they   would   probably   have  to   use  arti- 
ficial light  in  the  ground-floor  room  to  a  greater  extent  than  at  present. 
In  giving  judgment  Joyce,  J.,  said: 

"Various  expert  witnesses  were  examined,  and  as  the  result  of  their  evi- 
dence I  am  of  opinion  that  the  proposed  new  building  of  the  defendant  would 
not  affect  the  selling  or  letting  value  of  the  plaintiffs'  premises." 

And  he  concluded  his  judgment  as  follows: 

•Apart  from  any  question  with  respect  to  the  back  part  of  the  office  on  the 
ground-floor  of  the  plaintiffs'  premises  and  to  the  extraordinary  light  re- 
quired, if  it  be  possible  to  be  obtained  so  far  back  in  the  absence  of  illumina- 
tion by  electric  light,  the  plaintiffs'  premises  would  still  in  my  opinion,  after 
the  erection  of  the  defendant's  building,  be  well  and  sufficiently  lighted  for  all 
ordinary  purposes  of  occupancy  as  a  place  of  business.  For  all  ordinary  days 
they  have  amply  sufficient  light ;  at  present  they  have  abundance  of  light  and 
are,  in  my  opinion,  unusually  well  lighted.  If,  as  it  is  contended  on  behalf  of 
the  plaintiffs,  they  are  entitled  to  the  full  amount  of  light  now  enjoyed,  with- 
out appreciable  diminution,  the  plaintiffs  would  have  a  good  cause  of  action 
upon  the  erection  of  the  defendant's  building,  though  it  might  perhaps  be 
doubted  whether  the  diminution  that  would  be  caused  by  the  defendant's 
building,  if  and  when  erected,  is  sufficiently  serious  to  entitle  the  plaintiffs  to 
an  injunction.  A  great  number  of  authorities  have  been  cited  before  me:  in 
my  opinion  it  is  not  possible  to  reconcile  them  satisfactorily ;  but  the  defend- 
ant relies  upon  the  most  recent  decision,  that  of  Wright,  J.,  in  Warren  v. 
Brown,  [1900]  2  Q.  B.  722.  After  considerable  hesitation,  I  have  come  to  the 
conclusion  that  this  decision,  if  it  remains  unreversed  by  the  Court  of  Appeal, 
ought  to  govern  the  present  case;  and  I  think,  sitting  as  a  judge  of  first  in- 
stance, I  must  follow  it.  Assuming,  therefore,  that  I  am  right  in  this,  I  am 
of  opinion  that  this  action  fails  and  must  be  dismissed,  and  with  costs." 

On  December  21,  1900,  that  is,  the  day  following  his  Lordship's 
judgment,  the  plaintiffs  served  the  defendant  with  notice  of  appeal, 
but  the  defendant  nevertheless  proceeded  with  and  completed  his 
building. 

On  November  13,  1901,  the  decision  in  Warren  v.  Brown,  [1900] 
2  Q.  B.  722,  was  reversed  by  the  Court  of  Appeal.  [1902]  1  K.  B. 
15.  The  appeal  in  the  present  case  was  heard  on  December  2  and  3. 
1901.     *     *     * 

Cozexs-Hardy,  L.  J.54  This  appeal  raises  a  question  as  to  the  na- 
ture and  amount  of  evidence  required  to  entitle  a  plaintiff  to  relief 
by  way  of  injunction  for  the  protection  of  ancient  lights.  The  action 
was  tried  by  Joyce,  J.,  in  December,  1900.  This  is  important,  be- 
cause at  that  date  it  had  been  laid  down  by  Wright,  J.,  in  Warren  v. 
Brown,  [1900]  2  Q.  B.  722,  that  the  owner  or  occupier  of  a  house  has 
no  legal  right  of  action  so  long  as  he  has  left  to  him  as  much  light  as 
is  ordinarily  required  for  habitation  or  business,  even  though  he  has 
been  deprived  of  a  substantial  amount  of  light  and  has  thereby  suf- 
fered substantial  damage.  This  view  of  the  law  was  accepted  by  the 
'  defendant's  counsel  in  the  cross-examination  of  the  plaintiffs'  wit- 
nesses and  in  the  examination  of  the  defendant's  witnesses,  and,  as  we 
read  the  judgment,  was  adopted  by  Joyce,  J. 

\\  right,    J.'s,   decision   has    recently   been    reversed   by   this    Court 

6  4  Tarts  of  the  opinion  of  Cozens-Hardy,  L.  J.,  are  omitted. 


1018  INJUNCTION    IN    RELATION   TO   TORTS  (Cll.  4 

([1902]  1  K.  B.  15,  22),  and  the  true  rule  of  law  with  reference  to 
the  interference  with  ancient  lights  has  been  authoritatively  laid  down 
thus : 

"If  ancient  lights  are  interfered  with  substantially,  and  real  damage  thereby 
ensues  to  tenant  or  owner,  tlien  that  tenant  or  owuer  is  entitled  to  relief." 

In  this  sentence  "substantial"  does  not  indicate  any  particular  per- 
centage. 

In  Back  v.  Stacey,  [1826]  2  C.  &  P.  465,  466,  31  R.  R.  679,  an  is- 
sue was  directed  by  the  Lord  Chancellor  whether  the  ancient  lights  of 
the  plaintiff  in  his  dwelling-house  had  been  illegally  obstructed  by  the 
defendant's  building.  Evidence  having  been  given  that  the  quantity 
of  light  previously  enjoyed  had  been  diminished,  it  was  contended  that 
the  plaintiff  was  entitled  to  a  verdict;  but  Best,  C.  J.,  directed  the 
jury,  in  language  which  has  been  often  cited  with  approval,  thus : 

"It  was  not  sufficient,  to  constitute  an  illegal  obstruction,  that  the  plaintiff 
had,  in  fact,  less  light  than  before;  nor  that  his  warehouse,  the  part  of  his 
house  principally  affected,  could  not  be  used  for  all  the  purposes  to  which  it 
might  otherwise  have  been  applied.  In  order  to  give  a  right  of  action,  and 
sustain  the  issue,  there  must  be  a  substantial  privation  of  light,  sufficient  to 
render  the  occupation  of  the  house  uncomfortable,  and  to  prevent  the  plain- 
tiff from  carrying  on  his  accustomed  business  (that  of  a  grocer)  on  the  prem- 
ises, as  beneficially  as  he  had  formerly  done." 

And  in  Parker  v.  Smith,  [1832]  5  C.  &  P.  438,  439,  38  R.  R.  828, 
Tindal,  C.  J.,  directed  the  jury  as  follows: 

"It  is  not  every  possible,  every  speculative  exclusion  of  light  which  is  the 
ground  of  an  action ;  but  that  which  the  law  recognizes,  is  such  a  diminution 
of  light  as  really  makes  the  premises  to  a  sensible  degree  less  fit  for  the  pur- 
poses of  business." 

Without  substantial  interference,  there  is  no  right  of  action ;  and  in 
addition,  in  order  to  obtain  an  injunction,  the  plaintiff  must  establish 
substantial  injury  suffered  or  threatened.  There  is  no  standard  or 
fixed  amount  of  light  to  which  alone  a  plaintiff  is  entitled.  He  must 
not  be  fanciful  or  fastidious ;  he  must  recognize  the  necessity  of  give 
and  take  in  matters  of  this  nature.  But  there  may  be  real  damage  to 
the  owner  or  occupier  of  a  building  used  for  particular  purposes,  or 
reasonably  adapted  for  particular  purposes,  although  there  would  be 
no  real  damage  if  the  building  were  not  used  or  reasonably  adapted 
for  such  purposes.  The  application  of  these  principles  is  far  more 
easy  when  the  building  which  is  complained  of  has  been  erected  and 
damages  only  are  claimed ;  but  they  have  to  be  applied  when  the 
plaintiff  comes  for  an  injunction  before  the  building  has  been  erected. 
It  is  the  duty  of  the  Court  to  arrive  at  the  best  conclusion  it  can  upon 
the  effect  which  the  proposed  building,  if  erected,  would  produce ;  and 
if  the  Court  is  satisfied  that  in  that  event  the  plaintiff  would  have  a 
good  cause  of  action,  the  plaintiff  is  entitled,  as  a  matter  of  right,  to  an 
injunction  to  prevent  the  defendant  from  interfering  with  his  ancient 
light ;  or,  in  other  words,  to  restrain  the  defendant  from  committing 
a  wrongful  act.     *     *     * 


Sec.  5)  DISTURBANCE   OF    EASEMENT  1019 

As  we  read  the  judgment,  it  is  a  finding  in  favor  of  the  plaintiffs  that 
real  damage  would  result,  though  light  enough  would  be  left  for  ordi- 
nary purposes  of  occupancy  as  a  place  of  business,  and  there  is  no 
finding  that  the  interference  is  not  substantial.  Now  there  was,  im- 
mediately opposite  the  windows  in  question,  what  may  be  called  "a 
gap,"  in  width  36  ft.  and  in  height  13  ft.  6  in.  The  direct  light  which 
passed  through  this  gap  penetrated  to  a  considerable  depth  into  the 
plaintiffs'  room.  The  interference  with  this  light  is  "substantial" 
within  the  meaning  in  which  the  word  is  used.     *     *     * 

In  our  opinion,  on  the  balance  of  the  evidence,  substantial  inter- 
ference and  "real  damage"  will  result;  and  the  proper  judgment 
would  have  been  to  grant  an  injunction  in  the  settled  form  known  as 
the  Yates  v.  Jack,  L.  R.  1  Ch.  295,  298,  form.  But  immediately  after 
the  action  was  dismissed  with  costs,  the  plaintiffs  gave  notice  of  their 
intention  to  appeal.  Notwithstanding  this,  the  defendant  has  pro- 
ceeded with  and  completed  the  erection  of  his  building.  Under  these 
circumstances  there  is  only  one  course  open  to  us.  We  must  reverse 
Joyce,  J.'s,  judgment  and  give  the  plaintiffs  the  judgment  to  which, 
according  to  our  view,  they  were  entitled.  And  we  must  grant  a  man- 
datory injunction  requiring  the  defendant  to  pull  down  anything  erect- 
ed in  breach  of  the  terms  of  our  injunction.  This  point  was  really 
decided  by  the  Court  of  Appeal  in  Parker  v.  First  Avenue  Hotel  Co., 
24  Ch.  D.  287.     The  defendant  must  pay  the  costs  here  and  below. 

Vaughan  Williams,  L.  J.  The  judgment  which  has  just  been  read 
is  the  judgment  of  the  Court;  but  I  wish  to  add  for  myself  that,  so 
far  as  the  rule  of  45  degrees  is  concerned,  I  doubt  very  much  whether 
that  rule,  as  the  law  is  now  settled,  can  be  regarded  even  as  a  rough 
measure  of  the  right  of  the  owner  or  occupier  of  ancient  lights. 


STALLARD  v.  CUSHING  et  al. 

(Supreme  Court  of  California,  1888.     76  Cal.  472,  18  Pac.  427.) 

FooTE,  C.  This  action  is  to  compel  the  removal  of  an  obstruction, 
in  the  shape  of  a  stairway,  placed  by  the  defendants  in  an  alley  through 
and  over  which  the  plaintiff  has  the  right  of  way  as  an  appurtenance 
to  the  lot  upon  which  stands  his  dwelling-house.  The  plaintiff  had 
judgment  as  prayed  for,  and  from  that,  and  an  order  denying  a  new 
trial,  the  defendants  have  appealed.  The  alley  over  which  the  right 
of  way  is  alleged  to  exist  in  favor  of  the  plaintiff  is  10  feet  wide,  and 
is  a  cul-de-sac,  running  easterly  87  feet  from  Taylor  street,  near  Sut- 
ter. The  land  on  which  the  alley  is  laid  out  was  originally  a  50-vara 
lot  belonging  to  a  single  individual.  He  sold  the  easterly  50  feet  of 
this  lot  to  a  man  named  Hagerman,  and  divided  the  other  part  of  it 
into  six  lots  in  such  a  way  as  that  they  all  abutted  on  this  alley.  As 
these  six  lots  were  sold  to  different  parties,  the  right  of  way  over  this 


1020  INJUNCTION    IN    RELATION   TO   TOUTS  (Cll.  4 

alley  was  reserved  to  each  of  the  purchasers  in  the  several  deeds  of 
conveyance  made  thereto.  Stallard,  the  plaintiff,  by  and  through 
mesne  conveyances  from  the  original  owner  of  all  the  lots,  became  the 
possessor  of  one  of  them  so  abutting  on  the  alley,  and  the  defendants 
also  of  another  such  lot.  The  plaintiff's  lot  is  further  down  in  the 
alley  from  Taylor  street,  where  the  alley  debouches,  than  is  that  of 
the  defendants,  so  that  the  stairway  of  the  defendants  very  materially 
obstructs  the  ingress  and  egress  of  the  plaintiff  to  and  from  his  lot  and 
Taylor  street. 

From  the  evidence  it  is  very  clear  to  us  that  the  alley  was  never  dedi- 
cated to  the  use  of  the  public  as  a  highway.  There  is  an  absence  of 
all  appearance  of  any  intention  so  to  dedicate  it  on  the  part  of  the  man 
who  first  laid  it  out  and  opened  it,  and  there  does  not  appear  to  have 
been  any  acceptance  of  it  as  a  street  or  public  highway  for  the  general 
public.  To  the  contrary,  it  seems  to  have  been  intended  for  and  used 
as  a  means  of  approach  to  the  lots  and  houses  there  situate  for  the 
private  use  only  of  those  few  persons  who  might  dwell  there,  and  those 
who  approached  them  to  minister  to  their  wants.  Being  a  private  way, 
to  the  unobstructed  use  of  which  the  plaintiff  was  entitled,  and  which 
use  was  peculiarly  his  own,  and  that  of  the  few  persons  only  who  dwelt 
on  the  lots  which  had  formerly  comprised  the  50-vara  lot,  the  injury 
which  the  plaintiff  suffered  was  not  one  in  any  way  common  to  the  gen- 
eral public,  and  he  was  entitled  to  have  it  abated  as  a  nuisance,  as  its 
existence  violated  his  legal  rights,  which  could  only  be  maintained  by 
an  injunction  ordering  its  discontinuance,  or  a  resort  to  a  multiplicity 
of  suits  for  damages,  which  last  alternative  action,  rather  than  the  first, 
the  law  does  not  force  him  to  take.  Wood,  Xuis,  §§  782,  783.  There 
is  no  prejudicial  error  shown  by  the  record,  and  the  judgment  and  order 
should  be  affirmed. 

We  concur:    Belcher,  C.  C. ;    Hayne,  C. 

Per  Curiam.  For  the  reasons  given  in  the  foregoing  opinion  the 
judgment  and  order  are  affirmed. 


HODGE  v.  GIESE. 

(Court  of  Chancery  of  New  Jersey,  1SS7.    43  N.  J.  Eq.  342,  11  Atl.  4S4.) 

On  application  by  James  Hodge  for  injunction  against  Albin  Giese. 
Heard  on  bill  and  affidavit,  order  to  show  cause,  and  answer  and  affi- 
davit. 

Van  Fleet,  V.  C.55  This  is  an  application  for  an  injunction.  The 
complainant  and  defendant  occupy  parts  of  the  same  building  as  ten- 
ants, under  the  same  landlord.  The  defendant  occupies  the  basement 
as  a  barber  shop,  and  the  complainant  occupies  the  two  floors  immcdi- 

55  Part  of  the  opinion  is  omitted. 


Sec.  5)  DISTURBANCE   OF    EASEMENT 


1021 


ately  above.  The  complainant  is  a  clothier.  He  uses  the  first  floor  as 
a  store  for  the  sale  of  clothing,  and  the  second  for  cutting  garments. 
The  defendant  has  occupied  the  basement  continuously  for  over  25 
years,  and  the  complainant  has  held  the  two  floors  now  occupied  by 
him  since  April,  1879.  Prior  to  the  commencement  of  the  complain- 
ant's tenancy,  the  owner  of  the  building  put  a  heater  in  the  cellar,  in 
the  rear  of  the  basement  occupied  by  the  defendant.  Pipes  were  at- 
tached to  conduct  the  heat  from  the  heater  to  the  first  floor,  and  subse- 
quently others  were  attached  to  conduct  it  to  the  second  floor.  There 
are  registers  on  both  floors  by  which  the  volume  of  heat  transmitted  to 
each  is  regulated.  This  connection  existed  in  January,  1887,  when  the 
last  lease  to  the  complainant  was  made.  The  heater  is  an  appurtenance 
or  adjunct  to  the  part  of  the  building  occupied  by  the  complainant.  It 
transmits  heat  to  no  other.  Both  parties,  now  hold  under  leases  made 
in  1887.  That  to  the  complainant  was  executed  on  the  fifth  of  January, 
1887,  and  grants  a  term  of  five  years  from  the  first  day  of  April,  1887, 
and  that  to  the  defendant  was  made  in  March,  1887.  The  complainant's 
lease  grants  him  the  use  of  the  heater,  with  right  of  access  to  it. 

The  defendant,  by  his  answer,  admits  that  the  complainant  has  no 
means  of  access  to  the  heater  except  through  his  shop,  and,  also,  that 
the  complainant  has,  every  fall  and  winter  since  1879,  passed  through 
his  shop,  with  his  knowledge,  and  without  objection,  to  give  such  at- 
tention to  the  heater  as  it  required.  Whether  there  is  a  door  opening 
from  the  defendant's  shop  into  the  cellar  where  the  heater  is,  the  plead- 
ings do  not  expressly  state;  but  the  defendant's  admission  that  there 
is  no  way  of  approach  to  the  heater  except  through  his  shop,  makes  it 
certain  that  there  is  either  a  door  there,  or  some  other  means  of  access 
from  his  shop  to  the  heater.  The  defendant  notified  the  complainant  on 
the  nineteenth  of  November,  1887,  that  he  would  not  thereafter  be 
permitted  to  pass  through  his  shop  to  the  heater.  The  complainant 
thereupon  filed  his  bill  asking  for  an  injunction  restraining  the  defend- 
ant from  preventing  him  from  passing  through  the  defendant's  shop 
to  give  such  attention  to  the  heater  as  may  be  necessary  to  enable  him 
to  have  the  use  of  the  heater. 

It  cannot  be  denied  that,  unless  the  complainant  can  have  access  to 
the  heater  through  the  defendant's  shop,  that  clause  of  his  lease  which 
grants  him  the  use  of  the  heater  will  be  rendered  nugatory,  and  that  he 
will  be  deprived  of  that  part  of  the  demised  premises  which,  just  at  this 
season  of  the  year,  is  absolutely  essential  to  the  safe  and  comfortable 
enjoyment  of  the  other  parts.  No  complaint  is  made  that  the  com- 
plainant has  exercised  the  right  which  he  claims  in  an  oppressive  or 
improper  manner.  The  dispute  is  as  to  his  right,  not  as  to  the  manner 
in  which  he  has  exercised  it.     *     *     * 

On  the  admitted  facts  of  the  case,  and  according  to  well-established 
legal  principles,  the  legal  right  on  which  the  complainant  rests  his  claim 
to  an  injunction  is,  in  my  judgment,  free  from  the  least  doubt.     This 


1022  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

being  so,  the  duty  of  the  court  is  plain.  It  is  bound  to  give  to  the  com- 
plainant the  protection  he  asks,  if  the  injury  against  which  he  seeks  pro- 
tection belongs  to  the  class  which  this  court  may  rightfully  restrain  by 
injunction.  A  court  of  equity  may  protect  and  enforce  legal  rights  in 
real  estate,  where  the  right,  though  formally  denied,  is  yet  clear  on  facts 
which  are  not  denied,  and  according  to  legal  rules  which  are  well  set- 
tled, and  the  injury  against  which  protection  is  asked  is  of  an  irrepar- 
able nature.    Hart  v.  Leonard,  42  N.  J.  Eq.  416,  7  Atl.  865. 

It  is  obvious  that  no  remedy  will  be  adequate  in  this  case  which  does 
not  prevent  a  repetition  of  the  injury.  The  injury  consists  in  depriv- 
ing the  complainant  of  an  essential  part  of  the  demised  premises.  It  is 
continuous  in  its  character,  and,  so  long  as  it  shall  be  persisted  in,  will 
necessarily  result  in  the  complete  destruction  of  the  safe  and  comfort- 
able use  of  the  demised  premises  for  the  purposes  for  which  they  were 
rented,  for  nearly  one-half  of  the  complainant's  whole  term.  The  law 
gives  no  adequate  remedy  for  such  a  wrong.  Successive  suits  at  law, 
in  which  only  pecuniary  damages  could  be  awarded,  would  give  the 
complainant  neither  the  full  measure  of  his  rights,  nor  justice,  but 
would  permit  the  defendant  to  deprive  the  complainant  of  his  rights 
for  such  compensation  as  a  jury  might  see  fit  to  award.  The  complain- 
ant's case  presents  a  strong  instance  of  irreparable  injury.  All  that  is 
meant  by  that  phrase  is  that  the  injury  shall  be  a  material  one,  and  of 
such  a  nature  as  cannot  be  adequately  redressed  by  pecuniary  damages. 
Mere  inconvenience,  resulting  in  but  slight  damage,  may,  in  consequence 
of  its  peculiar  character,  constitute  an  injury  so  irreparable  in  its  na- 
ture as  to  be  the  proper  subject  of  redress  by  injunction.  Kerr,  Inj. 
199,  200. 

The  right  involved  here  is  an  easement.  The  complainant,  on  the  un- 
disputed facts  of  the  case,  has  a  right  to  pass  through  the  defendant's 
shop  to  and  from  the  heater.  Courts  of  equity  exercise  a  very  liberal 
jurisdiction  in  the  protection  of  such  rights.  Mandatory  injunctions 
may,  contrary  to  the  general  rule,  be  issued  at  the  very  inception  of  the 
suit  for  the  protection  of  such  rights.  Locomotive  Works  v.  Railway 
Co.,  20  N.  J.  Eq.  379.  An  inspection  of  the  record  in  Shivers  v.  Shiv- 
ers, reported  in  32  N.  J.  Eq.  578,  shows  that  a  mandatory  injunction 
was  granted  on  filing  the  bill,  and  without  hearing  the  defendant,  com- 
manding the  defendant  forthwith  to  take  down  and  remove  a  gate 
which  he  had  erected  across  a  private  way  running  through  his  land. 
Like  injunctions  have  recently  been  granted  in  several  similar  cases. 
The  true  rule  on  this  subject,  in  my  judgment,  is  that  declared  in  White- 
car  v.  Michenor,  37  N.  J.  Eq.  14.    Chancellor  Runyon  there  said : 

"The  court  is  always  very  reluctant  to  grant  a  mandatory  injunction  on  an 
interlocutory  application,  but  where  extreme  or  very  serious  damage  would 
ensue  from  withholding  it,  as  in  cases  of  interference  with  easements,  or  other 
cases  demanding  immediate  relief,  it  will  be  granted." 

The  complainant  is  entitled  to  the  writ  he  asks,  but  it  must  be  so 
framed  as  to  limit  the  exercise  of  his  right  of  passage  to  such  use  of  it 


SeC.  5)  DISTURBANCE   OF   EASEMENT  1023 

as  may  be  necessary  to  give  such  care  and  attention  to  the  heater  as 
shall  be  required  to  enable  him  to  have  the  use  of  the  heater  for  the 
purpose  of  heating  the  two  floors  covered  by  his  lease. 


SHIVERS  v.  SHIVERS  et  al. 
(Court  of  Chancery  of  New  Jersey,  1SS0.    32  N.  J.  Eq.  57S.) 

The  Chancellor.  Isaac  Shivers,  in  1848,  was  the  owner  of  a  tract 
of  land,  a  farm,  in  Delaware  township,  in  Camden  county,  fronting 
on  the  Marlton  turnpike.  There  were  two  sets  of  buildings  upon  it, 
one  near,  and  the  other  back,  from  the  turnpike.  In  that  year  he  sold 
and  conveyed  part  of  the  farm  (the  front),  with  one  set  of  the  build- 
ings, to  his  son  Richard,  and  the  rear,  with  the  other  set  of  buildings, 
to  his  son  Jehu.  The  latter  occupied  his  property  until  1866,  when  he 
sold  and  conveyed  it  to  his  brother  Charles,  the  complainant.  From 
the  time  of  the  conveyances  by  the  father  to  Jehu  and  Richard  (1848), 
Jehu  and  Charles,  as  successive  owners  of  the  rear  property,  used,  for 
a  way  between  those  premises  and  the  turnpike,  a  lane  which,  before 
then,  was  used  for  that  purpose  by  their  father,  who,  when  he  sold 
to  Jehu,  occupied  the  rear  set  of  buildings.  That  lane  was,  as  it  still  is, 
the  only  way  between  the  complainant's  property  and  the  turnpike. 
From  the  division  line  between  the  two  properties  to  the  turnpike,  it  is 
on  Richard's  property.  At  the  division  line  Jehu  erected  a  gate,  as  he 
says,  somewhere  between  1857  and  1860.  While  the  father  occupied 
the  property,  there  was,  and  ever  since  has  been,  a  gate  at  the  mouth 
of  the  lane  at  the  turnpike,  but,  until  September,  1876,  there  was  no 
gate  or  other  obstruction  in  the  lane  between  that  gate  and  the  gate 
at  the  division  line.  At  that  date,  Richard  L.  Shivers  (son  of  Richard), 
who  occupied  his  father's  property,  placed  a  gate  across  the  lane  at  the 
barn  on  that  property,  and  about  one-third  of  the  distance  between  the 
two  gates  just  mentioned.  The  reason  given  for  putting  the  gate  there 
is,  that  thus  the  driving  of  cattle  through  the  lane  into  Richard  Shivers' 
barn-yard  was  facilitated.  The  complainant  being  unable,  without  a 
breach  of  the  peace,  to  remove  that  gate,  filed  his  bill  for  an  injunction 
to  protect  him  in  the  enjoyment  of  his  easement. 

The  existence  of  the  easement  is  not  denied,  and  it  is  proved  by  the 
testimony  on  the  part  of  the  defendants,  as  well  as  that  adduced  by  the 
complainant.  The  bill  states  that  the  lane  or  road  has  been,  for  up- 
wards of  twenty  years,  used  by  the  complainant  and  the  former  owners 
and  occupants  of  his  farm  and  premises,  to  pass  and  repass  to  and 
from  his  farm  with  carriages,  horses,  cattle,  &c,  and  that  he  ought 
now,  and  at  all  times,  to  have  the  free  use  of  the  lane  for  himself,  his 
tenants,  carriages,  horses  &c.  The  answer  admits  the  existence  of  the 
lane,  and  that  the  complainant  has  been  accustomed  for  many  years  to 
pass  by  it  from  his  property  to  the  turnpike. 


1024:  INJUNCTION    IN   RELATION   TO   TORTS  (Ch.  4 

It  appears,  clearly  and  unquestionably,  that,  from  August,  1848,  to 
September,  1876,  a  period  of  over  twenty-eight  years,  the  complainant 
and  his  grantor  enjoyed  the  free  and  unobstructed  use  of  the  lane  be- 
tween the  division  line  and  the  gate,  at  the  junction  of  the  lane  with 
the  turnpike,  as  appurtenant  to  the  complainant's  farm,  and  that  it  was 
their  only  way  to  the  turnpike.  It  also  appears  that,  at  the  latter  date, 
the  defendants,  without  the  complainant's  consent,  and  against  his  will, 
erected  the  gate  complained  of,  and  subsequently  maintained  it  by  an 
exhibition  of  forcible  and  violent  resistance  of  the  complainant  when 
he  attempted  to  remove  it.  The  gate  is,  manifestly,  from  the  evidence, 
a  nuisance.  It  is  at  the  top  of  a  hill  which  descends  to  the  turnpike, 
and  it  is  especially  annoying  to  be  compelled  to  stop,  with  a  loaded 
wagon,  to  open  it  in  going  up,  and,  in  such  case,  it  causes  a  special  strain 
on  the  horses  to  start  the  wagon  again.  William  A.  Shivers,  a  son  of 
the  complainant,  testifies  that,  at  times,  although  the  gate  was  open 
when  the  complainant's  people  entered  the  lane  to  go  up,  some  one 
would  come  out  and  shut  it,  so  as  to  compel  them  to  stop  and  open  it. 

The  complainant's  title,  by  prescription,  to  the  free  and  unobstructed 
use  of  the  way  (except  as  to  the  gate  at  the  turnpike)  at  the  time  of  the 
erection  of  the  gate  complained  of,  is  established  beyond  a  peradven- 
ture.  A  right  of  way,  acquired  by  prescription,  is  commensurate  with 
and  measured  by  the  use,  and  the  owner  of  the  land  has  no  right  to  do 
anything  which  will  hinder  or  obstruct  such  use.  The  complainant, 
therefore,  is  entitled  to  the  aid  of  this  court  in  the  premises,  to  secure  to 
him  lawful  enjoyment  of  the  easement,  free  from  the  obstruction  of 
any  gate  between  the  gate  at  the  division  line  and  that  at  the  turnpike. 

The  injunction  will  be  made  perpetual,  with  costs. 


SECTION  6.— INTERFERENCE  WITH  CONTRACT  AND 
BUSINESS  RELATIONS 


HAILE  v.  LILLINGSTONE. 

(Chancery  Division,  1S91.    35  Sol.  Jour.  792.) 

This  was  a  motion  to  continue  an  interim  injunction  restraining  the 
defendants  from  printing,  distributing,  or  exhibiting  any  bill  or  bills,  or 
other  notice  or  advertising,  appealing  to  the  public,  trade  unionists,  or 
any  persons  to  refuse  their  custom  to,  or  boycott  the  plaintiff,  or  his 
shop  or  shops,  or  requesting  the  public,  trade  unionists,  or  any  person  to 
do  any  act  injurious  to  the  plaintiff  in  his  trade  or  business.  The  plain- 
tiff carried  on  business  at  No.  288,  Harrow-road,  and  elsewhere  in 
London,  as  a  cheesemonger.    The  bill  complained  of  was  headed  "Boy- 


Sec.  6)  CONTRACT    RIGHTS  ll>2o 

cott  the  Sweater. — An  Appeal  to  the  Public  and  Trade  Unionists,"  and 

continued : 

"Boycott  Haile,  cheesemonger,  28S  Harrow-road,  the  blackleg  tradesman, 
who  has  acted  the  part  of  Pecksniff  right  through  the  agitation,  and  let  every 
self-respecting  man  and  woman  with  a  sense  of  duty  towards  others  resent 
the  contemptible  part  played  by  Haile,  and  support  the  shop  assistants  in  the 
rigorous  measures  taken  against  those  who,  by  their  refusal  to  co-operate  with 
their  fellow-tradesmen  in  shortening  the  hours  of  labour,  are  making  our  lives 
one  weary  long  round  of  toilsome,  monotonous  labour,  working  as  we  are  four- 
teen tp  sixteen  hours  a  day.  The  boycott  is  the  only  weapon  now  left  for  us 
to  use,  having  tried  moral  pressure  and  Acts  of  Parliament  without  avail,  and 
all  hope  in  that  direction  has  been  crushed  out,  therefore  boycott  the  above  and 
deal  exclusively  with  those  who,  by  giving  a  few  hours'  leisure  to  their  as- 
sistants, shew  they  are  worthy  of  support." 

The  notice  was  signed  by  the  defendant,  L.  W.  Lillingstone,  the 
Honorary  Secretary  of  the  Paddington  and  Harrow-road  Branch  of 
the  Shop  Assistants'  Union.  An  argument  very  similar  to  that  in  Peto 
v.  Apperley,  35  Sol.  Jour.  792,  was  now  addressed  to  the  court,  and  it 
was  stated  that  the  plaintiff's  business  was  being  very  seriously  dam- 
aged by  what  was  being  done. 

JEunE,  J.,  said  that  after  the  Plymouth  Intimidation  Case,  7  Times 
L.  R.  650,  it  was  impossible  to  say  that  what  was  being  done  amounted 
to  intimidation.  The  dispute  seemed  to  be  a  trade  dispute  merely. 
Clearly  no  cause  of  action  had  been  shewn,  and  no  authority  had  been 
produced  supporting  the  plaintiff's  contention.  The  reasons  had  been 
more  fully  stated  in  Peto  v.  Apperley,  and  he  did  not  intend  to  recapit- 
ulate them  in  the  present  case.  The  injunction  must  be  refused.  Costs 
would  be  reserved. 


GEORGE  JONAS  GLASS  CO.  v.  GLASS  BOTTLE  BLOWERS' 

ASS'N. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1911.    77  N.  J.  Eq.  210, 
79  Atl.  2<>2,  41  L.  R.  A.  [N.  S.]  445.) 

PitnSy,  Ch.56  The  facts  of  the  case  are  sufficiently  outlined  in  the 
opinion  of  the  learned  Vice  Chancellor.  His  findings  are,  in  our 
judgment,  fully  sustained  by  the  evidence. 

The  defendants  comprise  three  classes  of  persons :  First,  the  Glass 
Bottle  Blowers'  Association  of  the  United  States  and  Canada,  a 
voluntary  association,  including  in  its  membership  nearly  all  the  jour- 
neymen green  glass  bottle  blowers  of  the  United  States'  and  Canada ; 
secondly,  the  officers  of  this  association,  who,  as  individuals,  are  made 
parties  defendant;  and,  thirdly,  90  or  more  individuals  who  were 
formerly  in  the  employ  of  the  complainant  corporation  at  its  glass 
works  in  Minotola,  in  this  state,  and  who  on  April  9,  1902,  went  upon 
strike.    It  is  undisputed  that  in  the  year  1901  the  Glass  Bottle  Blow- 

5«  Parts  of  the  opinion  are  omitted, 
Boke  Eq. — 65 


1026  INJUNCTION   IN   RELATION   TO   TORTS  (Cll.  4 

ers'  Association  instituted  a  boycott  of  the  complainant's  wares  in 
the  effort  to  coerce  complainant  to  conform  its  business  to  regula- 
tions prescribed  by  the  association.  The  evidence  renders  it  clear 
that  this  boycott  was  still  in  force  and  was  being  actively  prosecuted 
by  the  association  down  to  the  time  of  the  strike  of  1902  and  there- 
after, and,  indeed,  after  the  filing  of  the  bill  of  complaint  herein. 
Whether  the  defendant  association  or  its  officers  directly  instigated 
this  strike  possibly  admits  of  doubt ;  but  it  is  entirely  clear  that  im- 
mediately after  the  strike  began  the  association,  through  its  executive 
committee  and  officers,  took  charge  of  it,  organized,  and  directed  the 
strikers,  and  guided  them  in  the  subsequent  proceedings.  There  is 
abundant  evidence  that  at  the  time  the  bill  of  complaint  was  filed  and 
thereafter  the  association,  its  officers,  and  the  strikers  who  are  joined 
as  defendants  made  common  cause  in  a  war  of  subjugation  against 
the  complainant  corporation.  While  there  are  individual  defendants 
who  are  not  shown  by  the  evidence  to  have  been  personally  implicated 
in  certain  of  the  specific  acts  of  violence  and  coercion  that  ensued, 
they  were  all  acting  in  concert  in  the  general  plan  of  campaign,  and 
are  equally  subject  to  injunction  with  respect  to  the  unlawful  acts  that 
were  done  and  threatened. 

The  final  decree  that  is  now  under  review  awards  an  injunction  re- 
straining the  defendants  as  follows  : 

(1)  From  knowingly  and  intentionally  causing  or  attempting  to  cause,  by 
threats,  offers  of  money,  payments  of  money,  offering  to  pay  expenses,  or  by 
inducement  or  persuasion,  any  employe  of  the  complainant  under  contract  to 
render  service  to  it  to  break  such  contract  by  quitting  such  service. 

(2)  From  personal  molestation  of  persons  willing  to  be  employed  by  com- 
plainant with  intent  to  coerce  such  persons  to  refrain  from  entering  such  em- 
1  iloyment. 

(3)  From  addressing  persons  willing  to  be  employed  by  complainant,  against 
their  will,  and  thereby  causing  them  personal  annoyance,  with  a  view  to  per- 
suade them  to  refrain  from  such  employment. 

(4)  From  loitering  or  picketing  in  the  streets  or  on  the  highways  or  public 
places  near  the  premises  of  complainant  with  intent  to  procure  the  personal 
molestation  and  annoyance  of  persons  employed  or  willing  to  be  employed  by 
complainant,  and  with  a  view  to  cause  persons  so  employed  to  refrain  from 
such  employment. 

(5)  From  entering  the  premises  of  the  complainant  against  its  will  with  in- 
tent to  interfere  with  its  business. 

(6)  From  violence,  threats  of  violence,  insults,  indecent  talk,  indecent  abusive 
epithets,  annoying  language,  acts,  or  conduct  practiced  upon  any  person  with- 
out their  consent,  with  intent  to  coerce  them  to  refrain  from  entering  the  em- 
ployment of  complainant  or  to  leave  its  employment. 

(7)  From  attempting  to  cause  any  persons  employed  by  complainant  to  leave 
such  employment  by  intimidating  or  annoying  such  employes  by  annoying  lan- 
guage, acts,  or  conduct. 

(8)  From  causing  persons  willing  to  be  employed  by  complainant  to  refrain 
from  so  doing  by  annoying  language,  acts,  or  conduct. 

(9)  From  inducing,  persuading,  or  causing,  or  attempting  to  induce,  per- 
suade, or  cause,  the  employes  of  complainant  to  break  their  contracts  of  serv- 
ice with  complainant  or  quit  their  employment. 

(10)  From  threatening  to  injure  the  business  of  any  corporation,  customer, 
or  person  dealing  or  transacting  business  and  willing  to  deal  and  transact  busi- 
ness with  the  complainant  by  making  threats  in  writing  or  by  words  for  the 
purpose  of  coercing  such  corporation,  customer,  or  person  against  his  or  its 
will  so  as  not  to  deal  with  or  transact  business  with  the  comulaiuant. 


Sec.  G)  CONTRACT   RIGHTS  1027 

Each  portion  of  the  injunctive  relief  thus  granted  is  directed  to  some 
manifestation  of  the  strife  that  was  carried  on  by  the  combined  de- 
fendants against  the  complainant.  And  in  each  respect  the  injunction 
is  justified  by  the  evidence  in  the  case.     *     *     * 

So  much  of  the  decree  as  awards  an  injunction  to  restrain  the  de- 
fendants from  using  coercive  measures  to  prevent  the  flow  of  labor  to 
complainant's  works  is  likewise  proper.  In  Jersey  City  Printing  Co. 
v.  Cassidy,  63  N.  J.  Eq.  759,  765,  53  Atl.  230,  Stevenson,  V.  C,  recog- 
nized and  enforced  the  right  of  an  employer  to  an  injunction  to  pre- 
vent undue  interference  with  those  who  wish  to  come  to  him  for  em- 
ployment. It  is  principally  upon  this  ground  that  injunctions  against 
what  is  known  as  picketing  have  been  sustained  in  this  and  other  juris- 
dictions. 

So  much  of  the  decree  as  is  directed  against  the  continuance  of  the 
boycott  is  plainly  justified  by  the  evidence,  and  accords  with  the  law. 
Barr  v.  Essex  Trades  Council,  53  N.  J.  Eq.  101,  30  Atl.  881  ;  Mar- 
tin v.  McFall,  65  N.  J.  Eq.  91,  55  Atl.  465;  Temperton  v.  Russell 
(1893)  1  Q.  B.  Div.  715 ;  Ouinn  v.  Leathern  (1901)  A.  C.  495. 

The  decree  under  review  should  be  affirmed,  with  costs. 

Garrison,  Swayze,  MinTurn,  and  Bogert,  JJ.,  dissent. 

Minturn,  J.  (dissenting).  I  find  myself  unable  to  agree  with  the 
majority  of  my  Brethren  with  respect  to  that  portion  of  the  decree 
of  the  Court  of  Chancery  which  authorizes  the  issuing  of  an  injunc- 
tion against  these  defendants  upon  the  ground  stated  in  the  opinion 
of  the  learned  Chancellor  speaking  for  the  majority  of  this  court,  viz. : 

"Inducing,  persuading,  or  causing,  or  attempting  to  induce,  persuade,  or 
cause,  the  employes  of  complainant  to  break  their  contracts  of  service  with 
complainant  or  quit  their  employment." 

It  may  be  conceded  since  the  decision  of  this  court  in  Brennan  v. 
United  Hatters,  73  N.  J.  Law,  729,  65  Atl.  165,  9  L.  R.  A.  (N.  S.) 
254.  118  Am.  St.  Rep.  727,  9  Ann.  Cas.  698,  that  an  ordinary  wage 
employe  bears  towards  his  employer  in  this  state  a  relation  in  modern 
legal  nomenclature  denominated  as  a  "service  at  will,"  and  for  the 
breach  of  which  an  action  at  law  can  be  maintained.  Still,  wTith  this 
concession,  it  is  difficult  to  discern  in  jurisprudence  outside  of  the 
sphere  of  those  English  cases  which  bear  the  distinct  impress  of 
feudal  law  and  customs  any  consensus  of  legal  authority  which  can 
support  the  principle  upon  which  this  injunction  rests ;  and  of  those 
cases  Chief  Justice  Parker,  speaking  for  the  New  York  Court  of 
Appeals,  said : 

"They  are  hostile  not  only  to  the  statute  law  of  this  country,  but  to  the  spirit 
of  our  institutions."  National  Protective  Association  v.  Gumming,  170  N.  Y. 
332,  03  N.  E.  309,  58  L.  K.  A.  135,  88  Am.  St.  Rep.  64& 

********** 

Vice  Chancellor  Stevenson  in  Jersey  City  Printing  Co.  v.  Cassidy, 
63  X.  J.  Eq.  765,  53  Atl.  233,  following  the  consideration  given  by 
Vice  Chancellor  Pitney  to  the  statute,  termed  this  "service  at  will  a 


1(128  INJUNCTION   IN    RELATION   TO   TOUTS  (Ch.  4 

newly  recognized  right,"  and  defined  it  to  be  "that  peculiar  element 
that  is  an  interest  which  one  man  has  in  the  freedom  of  another," 
which  he  further  defined  as  "freedom  in  the  market,  freedom  in  the 
purchase  and  sale  of  all  tilings,  including  both  goods  and  labor" — 
a  right,  says  the  learned  Vice  Chancellor,  "that  our  modern  law  is 
endeavoring  to  insure  to  every  dealer."  Page  766,  63  N.  J.  Eq.,  page 
233,  53  Atl.  Still  later  in  Fletcher  Co.  v.  International  Association 
of  Machinists,  55  Atl.  1077,  the  same  learned  Vice  Chancellor  con- 
ceded the  right  to  workmen  to  organize  and  use  peaceable  persuasion 
substantially  as  Vice  Chancellor  Pitney  had  conceded  it  in  the  Herold 
Case.  But  in  both  determinations  the  learned  Vice  Chancellor  makes 
the  right  to  "the  free  flow  of  labor,"  as  he  termed  it,  the  ratio  de- 
cidendi, thus  instituting  an  analogy  as  an  economic  proposition  be- 
tween goods  and  merchandise  and  labor,  a  fallacy  all  the  more  con- 
founding to  any  attempt  at  harmonious  decision  when  the  statutory 
enactment  in  question  is  disregarded. 

The  analogy  ignores  the  constitutional  guaranty  of  freedom  of 
speech  and  freedom  of  the  press  representing  labor's  demands,  be- 
cause labor,  unlike  goods,  cannot  be  severed  from  the  human  entity 
and  be  considered  apart  from  the  man.     *     *     * 


SHERRY  v.  PERKINS  et  al. 

(Supreme  Judicial  Court  of  Massachusetts,  1888.    147  Mass.  212,  17  N.  E.  307, 

9  Am.  St.  Rep.  689.) 

Reported  case  from  supreme  judicial  court,  Essex  county;  C.  Allen, 
Judge. 

Bill  in  equity,  by  Patrick  P.  Sherry  against  Charles  E.  Perkins  and 
Charles  H.  Leach,  for  an  injunction  to  restrain  the  defendants,  re- 
spectively president  and  secretary  of  the  Lasters'  Protective  Union, 
from  causing  to  be  carried  in  front  of  the  plaintiff's  shoe  factory  a 
banner  on  which  was  the  following  inscription :  "Lasters  are  requested 
to  keep  away  from  P.  P.  Sherry's  Per  order  L.  P.  U. ;"  and  also  a  ban- 
ner on  which  was  the  following :  "Lasters  on  a  strike ;  all  lasters  are 
requested  to  keep  away  from  P.  P.  Sherry's  until  the  present  trouble 
is  settled.  Per  order  L.  P.  U."  The  court,  at  the  trial,  found  as  facts 
that  members  of  the  Lasters'  Protective  Union  entered  into  a  scheme, 
by  threats  and  intimidation,  to  prevent  persons  in  the  employment  of 
the  plaintiff,  as  lasters,  from  continuing  in  such  employment,  and  in 
like  manner  to  prevent  other  persons  from  entering  into  such  em- 
ployment as  lasters ;  that  the  defendants  participated  in  the  scheme ; 
that  the  use  of  the  banner  was  a  part  of  the  scheme,  and  its  use  an  in- 
jury to  the  plaintiff  in  his  business  and  property.  The  court,  after 
finding:  the  facts,  reported  the  case  to  the  full  court.     *     *     * 


Sec.  6)  CONTRACT   RIGHTS  1029 

W.  Allen,  J.57  The  case  finds  that  the  defendants  entered,  with 
others,  into  a  scheme,  by  threats  and  intimidation,  to  prevent  persons 
in  the  employment  of  the  plaintiff  from  continuing  in  such  employ- 
ment, and  to  prevent  others  from  entering  into  such  employment ;  that 
the  banners,  with  their  inscriptions,  were  used  by  the  defendants  as 
part  of  the  scheme,  and  that  the  plaintiff  was  thereby  injured  in  his 
business  and  property.  The  act  of  displaying  banners  with  devices,  as 
a  means  of  threats  and  intimidation,  to  prevent  persons  from  enter- 
ing into  or  continuing  in  the  employment  of  the  plaintiff,  was  injurious 
to  the  plaintiff,  and  illegal  at  common  law  and  by  statute.  Pub.  St.  c. 
74,  §  2;  Walker  v.  Cronin,  107  Mass.  555.  We  think  that  the  plaintiff 
is  not  restricted  to  his  remedy  by  action  at  law,  but  is  entitled  to  relief 
by  injunction.  The  acts  and  the  injury  were  continuous.  The  banners 
were  used  more  than  three  months  before  the  filing  of  the  plaintiff's 
bill,  and  continued  to  be  used  at  the  time  of  the  hearing.  The  injury 
was  to  the  plaintiff's  business,  and  adequate  remedy  could  not  be 
given  by  damages  in  a  suit  at  law.  The  wrong  is  not,  as  argued  by 
the  defendants'  counsel,  a  libel  upon  the  plaintiff's  business.  It  is 
not  found  that  the  inscriptions  upon  the  banners  were  false,  nor  do 
they  appear  to  have  been  in  disparagement  of  the  plaintiff's  business. 
The  scheme,  in  pursuance  of  which  the  banners  were  displayed  and 
maintained,  was  to  injure  the  plaintiff's  business,  not  by  defaming  it 
to  the  public,  but  by  intimidating  workmen,  so  as  to  deter  them  from 
keeping  or  making  engagements  with  the  plaintiff.  The  banner  was 
a  standing  menace  to  all  who  were  or  wished  to  be  in  the  employ- 
ment of  the  plaintiff,  to  deter  them  from  entering  the  plaintiff's  prem- 
ises. Maintaining  it  was  a  continuous,  unlawful  act,  injurious  to  the 
plaintiff's  business  and  property,  and  was  a  nuisance,  such  as  a  court 
of  equity  will  grant  relief  against.     *     *     * 


DAVIES  et  al.  v.  CITY  OF  SEATTLE  et  al. 

(Supreme  Court  of  Washington,  1912.    67  Wash.  532,  121  Pac.  9S7.) 

GosE,  J.58  Plaintiffs,  at  the  time  of  the  filing  of  this  bill,  were  em- 
ployed by  the  city  of  Seattle  as  teamsters,  and  as  such  were  perform- 
ing day  labor  in  the  street  department  of  the  city.  The  bill  alleges 
that  the  city  was  then  employing  a  great  many  teamsters  in  the  street 
department  as  day  laborors ;  that  they  were  so  numerous  that  it  was 
impracticable  to  unite  all  of  them  in  the  action ;  that  the  wrongs  for 
which  redress  is  sought  are  common  to  all  the  men  so  employed ;  and 
that  the  action  was  prosecuted  for  the  common  benefit  of  all  such 
employes.  The  bill  further  alleges  that  the  defendants,  the  city  of 
Seattle,  its  board  of  public  works,  and  its  superintendent  of  streets, 

B7  Tart  of  the  opinion  is  omitted.  &8  Tart  of  the  opinion  is  omitted. 


1030  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

for  more  than  60  days  prior  to  the  commencement  of  the  action  had 
required  and  then  required  the  plaintiffs,  and  all  other  teamsters  em- 
ployed by  the  city  as  day  laborers  in  street  work,  to  work  more  than 
eight  hours  each  day.  The  prayer  is  that  the  city,  its  officers  and 
agents,  be  permanently  enjoined  from  requiring  the  performance  of 
more  than  eight  hours'  labor  per  day  by  the  plaintiffs  and  all  others 
on  whose  behalf  the  action  is  prosecuted.  The  defendants  answered 
and  denied  that  the  plaintiffs  were  required  to  work  more  than  eight 
hours  per  day.  There  was  a  decree  for  the  plaintiffs.  This  appeal 
followed. 

The  record  discloses  without  controversy  that  the  city  maintains 
five  or  six  barns  and  owns  its  teams;  that  all  teamsters  performing 
day  labor  for  the  street  department  of  the  city  (except  as  hereinafter 
noticed)  are  required  to  go  to  the  barn  each  morning  where  their 
respective  teams  are  kept,  grease  their  wagons  when  necessary,  har- 
ness and  hitch  their  teams,  collect  their  tools,  and  be  at  the  place  of 
work,  or,  as  the  witnesses  put  it,  "on  the  job,"  at  8  o'clock  a.  m. ;  and 
that  after  working  eight  hours  "on  the  job,"  they  are  required  to 
return  the  teams  to  the  barn  and  unhitch  and  unharness  them.  The 
appellant  Walters,  the  superintendent  of  the  street  department  of  the 
city,  testified  that  harnessing  and  hitching  the  team,  driving  it  to  the 
place  where  the  work  was  to  be  done,  and  returning  it  to  the  barn 
and  unhitching  it  after  the  teamster  had  put  in  eight  hours  time  on 
the  work,  would  ordinarily  consume  about  one  hour  each  day.  It 
further  appears  that,  where  the  distance  between  the  barn  and  the 
work  is  so  great  as  to  require  more  time  going  to  and  returning  from 
the  work,  the  city  bears  that  burden.     *     *     * 

The  appellants  next  contend  that  the  respondents  have  other  rem- 
edies, and  that  they  can  have  no  injunctive  relief.  In  this  state  there 
is  but  one  form  of  action  for  the  enforcement  or  protection  of  private 
rights  and  the  redress  of  private  wrongs,  and  it  is  called  a  "civil  ac- 
tion." Rem.  &  Bal.  Code,  §  153.  The  rule,  however,  has  been  adopt- 
ed in  this  state,  as  in  most  of  the  sister  states,  that  injunctive  relict 
will  not  be  granted  where  there  is  a  plain,  complete,  speedy,  and 
adequate  legal  remedy.  As  was  said  in  Phelan  v.  Smith,  22  Wash. 
397,  61  Pac.  31 : 

"Incompleteness  and  inadequacy  of  the  legal  remedy  are  what  determine 
the  right  to  the  equitable  remedy  of  injunction." 

The  same  view  is  announced  in  Grant  v.  Cole,  23  Wash.  542,  63 
Pac.  263.  In  Davis  v.  Wakelee,  156  U.  S.  680,  15  Sup.  Ct.  555,  39  L. 
Ed.  578,  it  is  said : 

"It  is  a  settled  principle  of  equity  jurisprudence  that,  if  the  remedy  at  law 
be  doubtful,  a  court  of  equity  will  not  decline  cognizance  of  the  suit.  *  *  * 
Where  equity  can  give  relief,  plaintiff  ought  not  to  be  compelled  to  speculate 
upon  the  chance  of  bis  obtaining  relief  at  law." 

"It  is  not  enougb  that  there  is  a  remedy  at  law.  It  must  be  as  practical 
and  efficient  to  the  ends  of  justice  and  its  prompt  administration  as  the  rem- 
edy in  equity."    16  Am.  &  Eng.  Ency.  Law  (2d  Ed.)  355. 


Sec.  6)  CONTRACT   RIGHTS  1031 

One  of  the  respondents  testified  that,  when  the  teamsters  protested 
against  the  rule  requiring  them  to  work  more  than  eight  hours  a 
day,  the  subforeman  answered  that  it  was  a  general  order,  and  that 
they  could  comply  with  it  or  "quit  the  job." 

The  appellants  argue  that  section  12,  art.  16,  of  the  city  charter, 
furnishes  the  respondents  an  adequate  remedy.  It  suffices  to  say  that 
it  applies  only  to  employes  who  have  been  discharged. 

It  is  further  argued  that  mandamus  is  the  proper  remedy.  The  re- 
spondents stated  the  facts  upon  which  they  relied  in  their  bill.  If  they 
were  entitled  to  the  relief  obtained,  viz.,  to  be  relieved  from  working 
more  than  eight  hours  a  day,  the  city  is  not  prejudiced  by  the  form 
of  the  decree. 

The  appellants  have  cited  authorities  to  the  effect  that  an  employe, 
whether  in  the  service  of  a  municipal  corporation  or  an  individual, 
cannot  maintain  an  action  in  equity  to  restrain  his  employer  from  dis- 
charging him.  That  this  is  the  general  rule  may  be  granted.  But  it 
has  no  application  to  the  case.  The  record  shows  that  the  respondents 
were  content  to  remain  in  the  service  of  the  city,  and  that  the  city  was 
satisfied  with  their  service.  The  employment  was  mutually  satis- 
factory and  agreeable.  If  the  appellants'  contention  should  be  up- 
held, the  respondents  would  be  required  to  continue  to  work  more 
than  eight  hours  a  day  or  ''quit  the  job."  The  law  places  no  such 
alternative  upon  them. 

It  is  finally  said  that  the  decree  is  too  broad.  When  the  record 
is  read  as  an  entirety,  the  decree  operates  only  in  favor  of  teamsters 
in  the  employ  of  the  city  as  day  laborers  upon  street  work,  driving  the 
city's  teams. 

The  decree  is  affirmed. 

Dunbar,  C.  J.,  and  Parker,  Crow,  and  Chadwick,  JJ.,  concur. 


LINDSAY  &  CO.,  Limited,  v.    MONTANA  FEDERATION  OF 

LABOR. 

(Supreme  Court  of  Montana,  190s.     37  Mont.  264,  96  Pac.  127,  18  L.  R.  A. 
[N.  S.]  707,  127  Am.  St.  Rep.  722.) 

Action  by  Lindsay  &  Co.,  Limited,  against  the  Montana  Federation 
of  Labor  and  others.  From  an  order  denying  a  motion  to  dissolve  an 
injunction,  defendants  appeal.     Reversed  and  remanded. 

Holloway,  J.59  This  action  was  commenced  by  Lindsay  &  Co., 
Limited,  a  domestic  corporation,  having  its  principal  office  or  place  of 
business  at  Helena,  with  branch  offices  and  places  of  business  at  Bil- 
lings and  Great  Falls,  in  this  state,  and  engaged  in  conducting  the  busi- 
ness of  wholesale  fruit  and  produce  merchants  at  whose  places,  against 
the  Montana  Federation  of  Labor,  the  Yellowstone  Trades  and  Labor 

'•>'■>  Parts  of  the  opinion  are  omitted. 


KK'2  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

Assembly,  Billings  Clerks'  Protective  Union,  certain  officers  of  these 
associations,  and  others  to  secure  an  injunction  restraining  the  defend- 
ants from  certain  acts  alleged  to  have  been  committed  by  them  and 
threatened  to  be  continued.  Upon  the  verified  complaint  a  temporary 
injunction  was  issued.  The  defendants  above  named  appeared  by  an- 
swer, which  denies  the  allegations  of  the  complaint  material  to  this 
controversy,  and  upon  such  answer  and  oral  testimony  to  be  offered 
moved  the  court  to  dissolve  the  injunction.  After  a  hearing  the  in- 
junction was  dissolved  as  to  defendants  Joy  and  Doody,  and  modified 
by  striking  out  a  portion  of  one  sentence,  and,  with  the  modifications 
thus  made,  the  motion  was  denied,  and  the  injunction  continued  in 
force  against  the  remaining  answering  defendants.  *  *  *  Stripped 
of  all  useless  verbiage,  these  facts  appeared : 

That  some  time  prior  to  October,  1907,  Lindsay  &  Co.  had  been  de- 
clared unfair  by  the  Miners'  Union  and  Trades  Assembly  in  Helena, 
and  this  action  had  been  indorsed  by  the. Montana  Federation  of  Labor, 
and  circulars  announcing  the  fact  had  been  sent  to  labor  organizations 
throughout  the  state.  On  October  25,  1907,  the  Yellowstone  Trades 
and  Labor  Assembly,  upon  information  received  of  the  action  taken  in 
Helena,  passed  a  resolution  which  declared  Lindsay  &  Co.  unfair,  and 
referred  the  matter  to  the  grievance  committee  of  that  organization  to 
advise  the  public  of  the  action  taken.  Acting  upon  the  authority  thus 
given,  the  grievance  committee  caused  to  be  published  and  circulated 
among  the  business  houses  and  elsewhere  in  Billings  circulars,  of 
which  the  following  is  a  copy : 

"Unfair. 

"All  laboring  men  and  those  in  sympathy  with  organized  labor  are  requested 
not  to  patronize  Lindsay  &  Co.  who  are  engaged  in  the  wholesale  fruit  busi- 
ness, also  distributers  for  cigars  and  vegetables  of  all  kinds  in  Billings  and 
vicinity,  as  they  are  unfair.  We  urge  the  retail  merchants,  laboring  men,  and 
all  who  are  in  sympathy  with  organized  labor  to  place  themselves  in  position 
to  patronize  friendly  wholesalers.  We  further  desire  to  call  attention  to  the 
fact  that  Lindsay  &  Co.  are  operating  peddling  wagons  throughout  this  city, 
and  we  ask  the  people  to  guard  against  patronizing  these  wagons.  We  ask  this 
for  your  own  protection  and  the  protection  of  organized  labor. 

"[Signed]     Yellowstone  Trades  and  Labor  Assembly." 

That  immediately  after  the  adoption  of  the  resolution  and  the  pub- 
lication of  this  circular  a  large  number  of  retail  dealers  in  Billings,  who 
had  theretofore  purchased  goods  from  the  plaintiff  company,  ceased  to 
do  business  with  the  concern,  with  the  result  that  the  business  of  the 
company  at  Billings  was  practically  paralyzed,  and  great  financial  loss 
resulted.  *  *  *  From  these  facts  we  are  to  determine  the  ques- 
tion: Should  the  injunction  have  been  dissolved?  It  is  to  be  observed 
that  only  two  acts  of  any  consequence  are  shown  to  have  been  commit- 
ted by  the  defendants:  (1)  They  declared  Lindsay  &  Co.  unfair,  or,  in 
the  language  of  respondent,  boycotted  the  company ;  and  (2)  they  pub- 
lished the  circular  set  forth  above,  that  is,  they  caused  it  to  be  printed 
and  circulated.  The  injunction,  as  modified,  is  very  sweeping  in  its 
terms,  and  in  that  form  could  not  be  justified  by  any  possible  state  of 


Sec.  6)  CONTRACT   RIGHTS  1033 

facts ;  but  assuming  that  it  was  continued  for  the  purpose  of  prevent- 
ing the  continuance  in  force  of  the  boycott,  and  for  the  purpose  of  pre- 
venting a  repetition  of  the  publication  of  the  circular  or  a  similar  one, 
although  there  is  not  any  evidence  of  any  threat  or  purpose  on  the  part 
of  the  defendants  or  any  of  them  to  repeat  that  act,  we  may  consider 
the  question  presented  to  us  by  reference  to  these  two  principal  acts 
mentioned. 

1.  Does  the  continuance  in  force  of  the  resolution  of  October  25, 
1907,  amount  to  such  an  invasion  of  plaintiff's  rights  as  will  warrant 
the  interposition  of  a  court  of  equity  by  injunction?     *     *     * 

We  are  of  the  opinion  that  the  evidence  shows  that  these  defendants 
inaugurated  a  boycott  on  Lindsay  &  Co.,  and  that  it  was  still  in  effect 
at  the  date  of  the  hearing.  We  adopt  the  language  of  the  Supreme 
Court  of  New  York  in  Mills  v.  United  States  Printing  Co.,  99  App. 
Div.  605,  91  N.  Y.  Supp.  185,  in  which  the  court,  speaking  through  Jus- 
tice Jenks,  said : 

"I  think  that  the  verb  'to  boycott'  does  uot  necessarily  signify  that  the  doers 
employ  violence,  intimidation,  or  other  unlawful  coercive  means ;  but  that  it 
may  be  correctly  used  in  the  sense  of  the  act  of  a  combination,  in  refusing  to 
have  business  dealings  with  another  until  he  removes  or  ameliorates  condi- 
tions which  are  deemed  inimical  to  the  welfare  of  the  members  of  the  combina- 
tion, or  some  of  them,  or  grants  concessions  which  are  deemed  to  make  for 
that  purpose." 

In  Ulery  v.  Chicago  Live  Stock  Exchange,   54  111.  App.  233,  it  is 

said: 

"A  person,  with  or  without  reason,  may  refuse  to  trade  with  another;  so 
may  10  or  50  persons  refuse.  An  individual  may  advise  his  neighbor  or  friend 
not  to  trade  with  another  neighbor.  He  may  even  command  when  the  com- 
mand amounts  only  to  earnest  advice." 

But  what  is  there  unlawful  in  the  act  of  the  union  workingmen  of 
Billings  in  withdrawing  their  patronage  from  the  plaintiff?  Certainly 
it  cannot  be  said  that  Lindsay  &  Co.  had  a  property  right  in  the  trade 
of  any  particular  person.  In  this  country  patronage  depends  upon 
good  will,  and  we  do  not  think  that  it  will  be  contended  by  any  one  that 
it  was  wrongful  or  unlawful,  or  violated  any  right  of  the  plaintiff  com- 
pany, for  any  particular  individual  in  Billings  to  withdraw  his  patron- 
age from  Lindsay  &  Co.,  or  from  any  other  concern  which  might  be 
doing  business  with  that  company,  and  that,  too,  without  regard  to  his 
reason  for  doing  so.     *     *     * 

If,  then,  these  defendants  and  their  associates  did  not  violate  any 
legal  right  of  the  plaintiff  in  withdrawing  their  patronage  from  the 
company,  or  in  agreeing  to  withdraw  their  patronage  from  any  one 
who  might  patronize  Lindsay  &  Co.,  they  cannot  be  enjoined  from  con- 
tinuing the  boycott  in  force,  so  long  as  the  means  employed  to  make  the 
boycott  effective  are  not  illegal.  The  evidence  shows  that  the  only 
means  used  in  this  instance  was  the  publication  of  the  circular  in  ques- 
tion, and  this  brings  us  to  a  consideration  of  the  second  proposition  in- 
volved. 


1034  INJUNCTION   IN    RELATION   TO   TORTS  (Cll.  4 

2.  (a)  May  a  court  of  equity  enjoin  the  publication  by  an  individual 
of  a  circular  of  this  character;  (b)  if  not,  may  it  enjoin  such  publica- 
tion when  made  by  a  number  of  individuals  acting  collectively? 

(a)  Article  3  of  our  Constitution  is  entitled :   "A  declaration  of  rights 

of  the  people  of  the  state  of  Montana,"  and  section  10  of  that  article, 

so  far  as  applicable  here,  reads  as  follows : 

"No  law  shall  be  passed  impairing  the  freedom  of  speech ;  every  person  shall 
be  free  to  speak,  write  or  publish  whatever  he  will  on  any  subject,  being  re- 
sponsible for  all  abuse  of  that  liberty." 

The  language  here  employed  seems  too  clear  to  admit  of  doubt  or 
argument.  The  one  fundamental  idea  conveyed  by  this  section  is  pen- 
alty for  a  violation  of  the  privilege,  not  prevention  of  its  abuse.  It 
cannot  be  said  that  a  citizen  of  Montana  is  free  to  publish  whatever 
he  will  on  any  subject,  while  an  injunction  preventing  him  from  pub- 
lishing a  particular  item  upon  a  particular  subject  hangs  over  his  head 
like  a  sword  of  Damocles,  readv  to  fall  with  all  the  power  which  can 
be  invoked  in  contempt  proceedings,  if  he  does  the  very  thing  the  sec- 
tion of  the  Constitution  says  he  may  do.  It  is  impossible  to  conceive 
the  idea  that  the  individual  has  an  absolute  right  to  publish  what  he 
pleases,  subject  to  the  restriction  mentioned,  and  at  the  same  time  to 
entertain  the  idea  that  a  court  may  prevent  him  from  doing  so.  The 
two  ideas  cannot  possibly  coexist.  The  language  of  the  section  is  not 
susceptible  of  any  other  meaning  than  this :  That  the  individual  citi- 
zen of  Montana  cannot  be  prevented  from  speaking,  writing,  or  pub- 
lishing whatever  he  will  on  any  subject.  If,  however,  what  he  writes 
or  publishes  constitutes  a  criminal  libel,  he  may  be  held  responsible  for 
the  abuse  of  the  liberty  in  a  criminal  prosecution  (Pen.  Code,  c.  8),  or, 
if  what  he  speaks,  writes,  or  publishes  wrongfully  infringes  the  rights 
of  others,  he  may  be  held  responsible  for.  the  abuse  in  a  civil  action  for 
damages.  If  this  is  not  the  meaning  of  the  section,  it  is  because  the 
framers  employed  language  which  is  impotent  as  a  vehicle  for  convey- 
ing their  idea. 

But  it  is  suggested  by  counsel  for  respondent  company  that  these  de- 
fendants are  insolvent,  and  that  a  judgment  for  damages  would  be 
worthless.  Even  granting  this  to  be  so,  still  the  Constitution  does  not 
discriminate  among  men  according  to  the  amount  of  their  possessions. 
The  guaranty  of  this  section  extends  as  fully  to  the  poorest  as  to  the 
wealthiest  citizen  of  the  state;  and,  though  an  abuse  of  the  liberty  so 
guaranteed  may  result  in  loss  for  which  there  cannot  be  any  adequate 
compensation,  the  framers  of  our  Constitution  in  preparing  it,  and  the 
people  in  adopting  it,  doubtless  concluded  that  it  was  better  that  such 
results  be  reached  in  isolated  cases,  than  that  the  liberty  of  speech  be 
subject  to  the  supervision  of  a  censor.  To  declare  that  a  court  may 
say  that  an  individual  shall  not  publish  a  particular  item  is  to  say  that 
the  court  may  determine  in  advance  just  what  the  citizen  may  or  may 
not  speak  or  write  upon  a  given  subject — is,  in  fact,  to  say  that  such 
court  is  a  censor  of  speech  as  well  as  of  the  press.    Under  similar  con- 


Sec.  6)  CONTRACT   RIGHTS 


1035 


stitutional  provisions,  the  Supreme  Courts  of  California  and  Missouri 
have  reached  the  same  conclusion.  Dailey  v.  Superior  Court,  112  Cal. 
94,  44  pac.  45s,  32  L.  R.  A.  273,  53  Am.  St.  Rep.  160 ;  Marx  &  Haas 
Jeans  Clothing  Co.  v.  Watson,  168  Mo.  133,  67  S.  W.  391,  56  L.  R.  A. 
951,  90  Am.  St.  Rep.  440. 

(b)  What  we  have  said  above,  in  the  first  paragraph  of  this  opinion, 
is  likewise  applicable  here.  If  any  one  of  these  individuals  could  pub- 
lish this  circular,  they  may  with  equal  security  all  join  in  its  publication. 
We  think  the  evidence  produced  at  the  hearing  was  insufficient  to  jus- 
tify the  continuance  in  force  of  the  injunction,  and  it  should  have  been 
dissolved. 

The  order  of  the  court  is  reversed,  and  the  cause  is  remanded,  with 
direction  to  vacate  the  order  heretofore  made  and  enter  an  order  dis- 
solving the  injunction. 

Reversed  and  remanded. 

Brantly,  C.  J.,  and  Smith,  J.,  concur. 


NEW  ENGLAND  CEMENT  GUN  CO.  v.  McGIVERN. 
(Supreme  Judicial  Court  of  Massachusetts,  1914.    218  Mass.  198,  105  N.  E.  885.) 

Action  for  an  injunction  by  the  New  England  Cement  Gun  Company 
against  Edward  J.  McGivern  and  others,  individually  and  as  officers 
and  members  of  a  voluntary  unincorporated  branch  plasterers'  associa- 
tion. Heard  on  master's  report,  and  reserved  on  the  bill,  answer,  rep- 
lication, and  report  for  the  full  court,  for  the  entry  of  such  decree  as 
justice  and  equity  require.  Decree  for  plaintiff,  and  case  recommitted 
for  assessment  of  damages. 

De  Courcy,  J.60  No  exceptions  were  taken  to  the  report  of  the 
master ;  and  among  the  facts  found  by  him  are  the  following :  The 
plaintiff  is  the  exclusive  licensee  in  New  England  of  certain  patented 
machinery  and  processes  by  which  sand,  cement  and  'water  are  simul- 
taneously mixed  and  projected  upon  the  walls  of  buildings  and  other 
structures.     *     *     * 

The  defendants  dimming,  Taylor  and  Keating  are  members  of  and 
respectively  president,  business  agent  and  secretary  of  the  Journey- 
men Plasterers'  Benevolent  Union  of  Boston,  Mass.,  No.  10.  McGiv- 
ern is  a  member  of  the  local  union,  and  also  president  of  the  par- 
ent body,  the  Operative  Plasterers'  International  Association  of  the 
United  States  and  Canada,  by  which  the  local  organization  was  char- 
tered.    *     *     * 

In  the  fall  of  1912,  the  plaintiff  was  plastering  with  its  process  the 
exterior  of  an  apartment  house  in  Boston,  when  the  defendant  McGiv- 
ern told  the  plaintiff's  superintendent  that  he  would  have  to  employ 

so  Parts  of  the  opinion  are  omitted. 


L036  INJUNCTION  IN  RELATION  TO  TORTS  .        (Ch.  4 

union  plasterers  to  operate  the  nozzle,  or  he  (McGivern)  would  call  a 
strike  of  the  men  working  on  the  building;  and  for  a  time  a  union 
plasterer  was  so  employed.  On  February  28.  1913,  the  plaintiff  exe- 
cuted a  written  contract  with  the  Old  Colony  Real  Estate  Trust  to  coat 
with  gunite  the  exterior  walls  of  a  building  which  the  Trust  was  erect- 
ing on  Somerset  and  Howard  streets  in  Boston.  *  *  *  About  this 
time  Taylor  called  on  one  Farley,  who  was  the  acting  trustee  for  the 
Old  Colony  Real  Estate  Trust,  and  said  to  him: 

"I  understand  yon  have  got  a  contract  with  the  New  England  Cement  Gnn 
Company.  I  would  advise  you  not  to  go  ahead  and  put  that  gunite  on  the 
building;   if  you  do,  there  is  liable  to  be  trouble." 

*  *  *  The  union  plasterers  left  their  work  a  third  time  about 
ten  days  afterwards,  the  lathers  and  metal  workers  also  leaving,  and 
McGivern  and  Taylor  refused  to  allow  the  plasterers  to  return  to  work 
until  a  contract  had  been  made  and  exhibited  to  them,  by  which  the 
builder  had  arranged  for  this  outside  work  with  Monahan,  who  had  the 
contract  for  the  inside  plastering,  and  would  employ  union  labor. 
Shortly  before  this  the  plaintiff's  letter,  later  referred  to,  releasing  the 
owner  from  its  contract,  had  been  sent  to  Farley,  and  by  him  shown  to 
McGivern  and  Taylor.     *     *     * 

It  does  not  appear  that  there  is  any  dispute  or  contention  between 
the  plaintiff  and  its  own  employes,  or  that  these  employes  are  taking 
any  part  in  the  action  of  the  defendants.  The  plaintiff's  officers  do  not 
intentionally  discriminate  between  union  and  nonunion  workmen,  and 
were  willing  that  their  employes  should  join  the  defendant  union.  But, 
as  the  defendant  McGivern  informed  them,  this  could  not  be  done  be- 
cause the  men  were  not  plasterers ;  and  he  knew  of  no  union  to  which 
they  were  eligible. 

The  master  made  certain  specific  findings  and  conclusions,  among 

which  are  these: 

********** 

•••">.  That  (he  defendants  have  conspired  together  for  the  purpose  of  creating 
and  enforcing  a  boycott  against  the  plaintiff  and  of  hindering  and  interfering 
with  the  prosecution  of  its  business  and  of  injuring  the  same  unless  it  accedes 
to  their  demand. 

"6.  That  the  defendants,  in  pursuance  of  said  conspiracy,  are  engaged  in 
watching  and  seeking  out  work  proposed  to  be  given  to  the  plaintiff  and  in 
coercing  those  in  control  thereof  not  to  make  with  the  plaintiff  any  contract 
for  such  work,  and  in  causing  the  rescission  of  such  contracts  as  they  discover 
to  have  been  made  with  the  plaintiff." 

"S.  That  the  strikes  wore  strikes  against  a  subcontractor  for  the  purpose  of 
forcing  him  to  coerce  the  main  contractor  to  coerce  the  owner  of  the  building 
to  coerce  the  plaintiff  to  yield  to  the  demands  of  the  union. 

"9.  That  the  defendants  have  instituted  a  boycott  against  the  plaintiff  and 
intend  to  continue  enforcing  the  same,  unless  prevented  from  so  doing." 

Without  further  recital  of  the  details,  it  is  apparent  that  the  record 
discloses  a  combination  on  the  part  of  the  defendants  to  do  acts  which 
the  law  does  not  justify,  notwithstanding  that  the  ultimate  motive  by 
which  they  were  inspired  was  to  advance  their  own  interests.  The 
plaintiff  had  a  written  agreement  with  the  owners  of  the  building  to  ap- 


SeC.  6)  CONTRACT   RIGHTS  1037 

ply  the  coating  of  gunite.  Under  our  decisions  it  was  unlawful  for  the 
defendants,  by  means  of  strikes  and  otherwise,  to  intentionally  induce 
the  owners  to  take  away  from  the  plaintiff  its  rights  under  that  agree- 
ment. Such  conduct  is  not  legally  allowable  as  so-called  trade  com- 
petition or  defense  of  self-interest.     *     *     * 

It  was  not  lawful  for  them  to  strike  to  compel  Monahan,  with  whom 
they  had  no  trade  dispute,  to  compel  the  general  contractor  to  compel 
the  owner  to  compel  the  plaintiff  to  give  to  the  defendants  the  work 
thev  demanded.  In  other  words,  it  was  an  unjustifiable  interference 
with  the  plaintiff's  business  to  injure  others  in  order  to  compel  them 
to  coerce  the  plaintiff.  Martin,  .Modern  Law  of  Labor  Unions,  §  77, 
and  cases  cited.  The  acts  of  coercion  and  procuring  breaches  of  con- 
tract mentioned  in  the  sixth  finding  plainly  are  not  justified  by  the  law 
of  this  commonwealth.  It  is  unnecessary  to  consider  further  the  unlaw- 
fulness of  such  a  secondary  or  compound  boycott  in  view  of  the  full 
discussion  of  the  subject  in  the  recent  opinions  of  this  court  in  Pickett 
v.  Walsh,  192  Mass.  572.  78  N.  E.  753,  6  L.  R.  A.  (N.  S.)  1067,  116 
Am.  St.  Rep.  272,  7  Ann.  Cas.  638,  and  Burnham  v.  Dowd,  217  Mass. 
351.  104  X.  E.  841,  51  L.  R.  A.  (N.  S.)  778,  in  which  cases  are  collected 
the  authorities  in  this  and  other  jurisdictions.     *     *     * 

The  plaintiff  is  entitled  to  a  decree  enjoining  the  defendants  from 
causing  or  taking  part  in  any  boycott  against  the  plaintiffs  business. 
by  coercing  others,  through  intimidation  or  threats,  to  withdraw  from 
the  plaintiff  their  beneficial  business  intercourse,  and  from  causing  or 
inciting  any  sympathetic  strike  against  the  plaintiff  or  its  customers  for 
the  purpose  of  preventing  the  use  by  the  plaintiff  of  its  machinery  or 
process  for  applying  gunite,  or  for  the  purpose  of  compelling  it  to  dis- 
charge any  of  its  nonunion  workmen,  and  to  costs  of  suit.     *     *     * 

Ordered  accordingly. 


RHODES  BROS.  CO.  v.  MUSICIANS'  PROTECTIVE  UNION, 
LOCAL  NO.  198,  A.  F.  OF  M.,  OF  PROVIDENCE,  et  al. 

(.Supreme  Court  of  Rhode  Island,  1915.    92  Atl.  641.) 

Appeal  from  Superior  Court,  Providence  and  Bristol  Counties. 

Action  for  injunction  by  the  Rhodes  Brothers  Company  against  Musi- 
cians' Protective  Union,  Local  No.  198,  A.  F.  of  M.,  of  Providence, 
and  others.    Decree  for  preliminary  injunction,  and  respondents  appeal. 

Vincent,  J.61  This  is  an  appeal  by  the  respondents  from  a  decree 
of  the  superior  court  granting  to  the  Rhodes  Bros.  Company  a  prelimi- 
nary injunction  restraining  the  respondents  from  interfering  with  the 
members  of  said  union  employed  by  the  complainant  company  and 
from  imposing  any  fine  or  penalty  upon  such  members  by  reason  of 
their  continued  employment  by  the  complainant. 

si  Parts  of  the  opinion  are  omitted. 


1038  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

It  appears  that  the  complainant,  the  Rhodes  Bros.  Company,  has  for 
a  number  of  years  maintained  a  place  of  entertainment  in  Cranston  in 
the  state  of  Rhode  Island,  known  as  "Rhodes  on  the  Pawtuxet"  ;  one 
of  the  principal  features  of  such  place  of  entertainment  being  a  dance 
hall  or  pavilion  where  those  desiring  to  dance  might  indulge  in  that 
pastime  under  agreeable  and  suitable  conditions  and  surroundings  upon 
the  payment  of  a  small  entrance  or  other  fee.  To  carry  on  this  business 
successfully,  it  was  necessary  for  the  complainant  to  furnish  music  of  a 
suitable  character  and  which  should  be  reasonably  satisfactory  to  the 
patrons  of  the  place.  For  several  years  the  complainant  has  exclu- 
sively employed  members  of  the  respondent  union,  which  is  a  volun- 
tary unincorporated  association,  composed  of  persons  in  the  musical 
profession  residing  or  located  in  the  city  of  Providence  and  in  other 
towns  and  cities  in  the  state  of  Rhode  Island.  In  the  spring  of  1914, 
the  complainant  entered  into  the  following  contract  with  Edward  M. 
Fay,  a  musician  engaged  in  leading  and  furnishing  orchestras  and 
also  a  member  of  the  respondent  union : 

Musicians'  Protective  Union,   Providence,   R.   I. 
Local  No.  198  A.  F.  of  M. 

Contract  Blank 

March  5,  1914. 

The  undersigned  party  of  the  first  part  and  second  part,  respectively  agree 
as  follows: 

The  party  of  the  first  part  hereby  agrees  to  furnish  12  musicians,  members 
of  Local  No.  19S,  A.  F.  of  M.  as  their  agent,  to  party  of  the  second  part,  for 
$280.00  to  play  at  Rhodes  on  the  Pawtuxet  six  evenings  per  week,  from  8  p.  m. 
until  11  p.  m.  and  to  play  Saturday  afternoons  from  3  p.  m.  to  6  p.  m.  (The 
party  of  the  first  part  also  hereby  agrees  to  play  six  afternoons  and  six  eve- 
nings, each  week,  three  hours  each  session  for  the  sum  of  $329.50  per  week.) 
(This  engagement  to  start  on  or  about  April  15,  1914,  and  to  continue  until  bal- 
ance of  the  season  of  1914.) 

It  is  further  agreed  that  if  there  are  any  bands  or  orchestras  employed  for 
this  engagement  who  are  unfair  to  the  American  Federation  of  Musicians,  this 
contract  shall  be  considered  null  and  void,  as  far  as  party  of  the  first  part  is 
concerned,  but  does  not  relieve  party  of  the  second  part. 

As  the  musicians  engaged  under  the  stipulations  of  this  contract  are  mem- 
bers of  tbe  American  Federation  of  Musicians,  nothing  in  this  contract  shall 
ever  lie  so  construed  as  to  interfere  with  any  obligation  which  the  musicians 
owe  to  the  American  Federation  of  Musicians  by  reason  of  their  prior  obliga- 
tions to  the  American  Federation  of  Musicians  as  members  thereof. 

The  party  of  the  second  part  agrees  to  fulfill  provisions  of  above. 

E.  M.  Fay, 

Party  of  the  First  Part. 
Rhodes  Bros.  Co., 

A.  A.  Rhodes,  Treas., 
Party  of  the  Second  Part. 

Under  this  contract,  Mr.  Fay  selected  from  the  members  of  the 
respondent  union  an  orchestra  which  furnished  the  music  at  "Rhodes 
on  the  Pawtuxet"  from  April  11,  1914,  to  June  6,  1914. 

Mr.  Fay,  with  the  exception  of  the  opening  night,  did  not  lead  the 
orchestra  himself,  but  intrusted  the  performance  of  that  duty  to  his 
brother.  The  contract  does  not  by  its  terms  secure  to  the  complainant 
the  personal  services  of  Mr.  Fay  as  a  leader  or  otherwise.  The  com- 
plainant claims  that  the  music  was  so  unsatisfactory  in  character  that 


Sec.  6)  CONTRACT  RIGHTS  1039 

it  provoked  frequent  complaints  from  the  patrons  of  the  place  and 
fully  justified  the  complainant's  action  in  canceling  the  contract. 
After  the  cancellation  of  this  contract,  the  complainant  employed  an- 
other orchestra,  also  composed  of  members  of  the  respondent  union, 
whereupon  the  union  through  its  board  of  directors  passed  a  vote  for- 
bidding its  members  to  enter  or  to  continue  in  the  employment  of  the 
complainant  as  musicians. 

In  tins  situation  of  affairs,  the  complainant  filed  its  bill  of  com- 
plaint against  the  Musicians'  Protective  Union,  Local  No.  198,  A.  F.  of 
M.,  Providence,  R.  I.,  and  certain  individuals  composing  its  board  of 
directors.  The  complainant  sets  forth  in  its  bill,  as  amended,  that  it 
had  been  for  years  past  engaged  in  carrying  on  a  place  of  entertain- 
ment and  amusement  in  Cranston  which  had  been  and  was  being 
patronized  by  a  large  number  of  people  from  Providence,  Pawtucket, 
Cranston,  and  other  places  for  the  purpose  of  dancing,  and  that  it  was 
necessary  for  the  complainant  to  employ  an  orchestra  capable  of  fur- 
nishing music  suitable  for  such  purpose ;  that  the  complainant  is  in- 
formed and  believes  that  the  respondent  association  comprises  in  its 
membership  all  the  available  musicians  in  the  state  of  Rhode  Island ; 
that  the  complainant  has  never  employed  at  its  place  of  amusement  any 
musicians  outside  of  the  membership  of  the  respondent  association, 
and  that  it  does  not  desire  so  to  do ;  that  the  quality  and  character  of 
the  music  has  not  been  and  is  not  satisfactory  to  the  patrons  of  the 
place,  but  has,  on  the  contrary,  provoked  repeated  complaints  making 
it  necessary  for  the  complainant  to  employ  other  professional  musi- 
cians ;  that  it  has  endeavored  to  employ  other  musicians  also  members 
of  the  respondent  association  who  could  and  would  furnish  music  of  a 
quality  and  character  satisfactory  to  its  patrons,  but  that  the  respond- 
ents have  undertaken  to  prevent  other  members  of  the  union  from  fur- 
nishing music  at  the  complainant's  place  of  amusement,  and  in  pursu- 
ance thereof  its  board  of  directors  on  June  4,  1914,  passed  a  vote 
prohibiting  professional  musicians,  members  of  the  respondent  associa- 
tion, from  entering  into  any  engagement  with  the  Rhodes  Bros.  Com- 
pany to  play  at  "Rhodes  on  the  Pawtuxet"  during  the  season  of  1914. 
The  complainant's  bill  prays  for  a  temporary  and  permanent  injunction 
restraining  the  respondents  from  interfering  with  the  complainant  in 
the  exercise  of  its  right  and  privilege  of  engaging  members  of  the  re- 
spondent association  or  in  any  manner  preventing  any  one  now  or  who 
may  hereafter  be  employed  by  the  complainant  as  a  musician  or  may 
be  desirous  of  such  employment  from  entering  into  or  continuing  in 
any  contract  relations  with  the  complainant  or  from  depriving  the  com- 
plainant of  the  services  of  any  such  person  through  the  imposition, 
enforcement,  or  collection  or  any  threat  or  attempt  to  impose,  enforce, 
or  collect  any  fine  or  penalty  or  expel  or  attempt  or  threaten  to  expel 
any  member  of  the  respondent  union  on  account  of  his  employment  or 
engagement  or  any  contract  with  the  complainant  in  relation  to  musical 
services  growing  out  of  the  same,  and  from  contriving  by  threats  or 


1040  INJUNCTION   IN   RELATION  TO  TORTS  (Ch.  4 

intimidation  or  in  any  way  hindering  any  person  from  entering  into 
any  contract  relations  as  a  musician  with  the  complainant,  and  that 
the  notice  to  members  forbidding  them  to  enter  into  the  employ  of  the 
complainant  may  be  declared  null  and  void  and  of  no  effect. 

The  case  came  on  for  hearing  in  the  superior  court  upon  the  question 
of  the  temporary  injunction  upon  bill,  answer,  affidavits,  and  oral 
testimony.  The  superior  court  rendered  a  decision,  in  the  first  in- 
stance, that  the  complainant,  while  having  made  out  a  case  in  other 
respects,  had  failed  to  show  that  the  action  of  the  respondents,  if  not 
interfered  with,  would  result  in  an  irreparable  injury  to  the  complain- 
ant. Later  the  case  was  reopened  before  another  justice  of  the  superior 
court  for  the  purpose  of  permitting  the  complainant  to  offer  testimony 
bearing  upon  the  question  of  irreparable  injury.  Upon  this  hearing 
the  court  decided  in  favor  of  the  complainant,  and  the  following  decree 
enjoining  the  respondent  association  was  entered  : 

"That  the  respondents,  the  Musicians'  Protective  Union,  Local  No.  198,  A.  F. 
of  M.  of  Providence,  R.  I.,  a  voluntary  unincorporated  association,  its  officers, 
directors,  agents,  and  servants  are  hereby  restrained  and  enjoined  from  inter- 
fering with  the  business  of  the  complainant  by  reason  of  any  matter  or  thing 
growing  out  of  a  certain  contract  heretofore  entered  into  between  the  Rhodes 
Bros.  Company  and  said  association,  or  any  member  of  said  association,  of- 
fered in  evidence  at  the  hearing  and  marked  "Respondents*  Exhibit  A.'  or  by 
reason  of  any  matter  or  thing  growing  out  of  said  contract,  from  imposing, 
enforcing,  or  collecting  or  attempting  to  impose,  enforce,  or  collect  any  fine  or 
penalty  by  reason  of  any  matter  or  thing  growing  out  of  said  contract,  upon 
any  member  of  said  Musicians'  Protective  Union,  Local  No.  19S.  A.  F.  of  M. 
of  Providence,  R.  L.  on  account  of  the  employment  or  engagement  of  any  such 
member  as  musician  by  said  complainant,  until  further  order  of  the  court." 

From  this  decree  the  respondents  have  taken  an  appeal,  alleging: 
(1)  That  said  decree  is  against  the  law;  (2)  that  said  decree  is  against 
the  evidence  and  the  weight  of  the  evidence;  (3)  that  the  complainant 
has  not  shown  any  probable  right  to  final  relief ;  (4)  that  the  granting 
of  the  preliminary  injunction  is  equivalent  to  final  relief;  (5)  that  the 
complainant  has  not  shown  that  it  would  be  irreparably  injured  if  the 
injunction  were  not  granted;  and  (6)  that  the  finding  of  fact  by  Mr. 
Justice  Brown  that  complainant  could  engage  a  competent  orchestra 
outside  of  the  union  is  conclusive  that  complainant  would  not  be  ir- 
reparably injured  if  the  injunction  were  not  granted,  and,  the  question 
of  irreparable  injury  being  the  only  question  opened  to  Judge  Brown 
for  rehearing,  his  said  finding  of  fact  is  conclusive  that  the  preliminary 
injunction  should  not  be  granted. 

.The  novelty  of  the  question  presented  resides  in  the  fact  that  the 
complainant,  feeling  that  its  interests  would  be  better  served  through 
the  employment  of  union  men,  desires  to  employ  the  members  of  this 
union,  and  certain  members  of  the  union  desire  to  enter  the  employ- 
ment of  the  complainant,  provided  they  can  do  so  without  imperiling 
their  membership  in  the  union  or  subjecting  themselves  to  any  fines  or 
disciplinary  measures  which  the  by-laws  of  the  union  authorize.  The 
desires  of  both  the  complainant  and  of  the  men  whom  it  desires  to  em- 
ploy are  therefore  conditional. 


Sec.  6)  CONTRACT   RIGHTS  1041 

The  contract  between  the  complainant  and  Mr.  Fay  is  in  the  form 
prescribed  by  the  union  and  upon  one  of  the  blanks  provided  by  the 
union.  The  representatives  of  the  complainant,  in  executing  this  con- 
tract, must  have  been  aware  that  they  were  dealing  with  Mr.  Fay  as 
a  member  and  under  the  rules  and  regulations  of  the  union.  This  is 
further  evidenced  by  the  fact  that  when  the  difficulty  arose  between 
the  complainant  and  the  union,  and  the  contract  was  rescinded  by  the 
former,  the  complainant  appealed  to  the  directors  of  the  union  for  a 
settlement  of  the  question  and  appeared,  through  its  representatives, 
and  presented  its  side  of  the  controversy.  Upon  this  hearing  the  direc- 
tors of  the  union  found  that  the  contract  was  binding  upon  both  parties, 
and  a  vote  was  subsequently  passed  forbidding  members  of  the  union 
from  entering  the  employment  of  the  complainant  without  permission 
of  the  said  directors. 

The  by-law  of  the  union  under  which  this  action  was  taken  is  as  fol- 
lows (section  13,  art.  7) : 

•'Members  shall  not  play  for  the  proprietor  of  a  hall,  concert  saloon,  theater, 
or  any  person,  club,  company,  or  organization  who  has  broken  a  contract  with 
a  member  or  members  of  this  union.  In  case  of  doubt  as  to  which  party  bas 
broken  the  contract,  it  must  be  referred  to  the  board  of  directors." 

The  complainant  does  not  claim  that  the  members  of  the  respondent 
association  are  deterred  from  accepting  employment  at  its  place  of 
business  through  any  acts  of  violence  or  any  acts  or  threats  producing 
a  fear  of  violence,  but  it  does  claim  that  any  disciplinary  action  under 
this  by-law,  based  upon  such  employment,  would  be  unlawful  and 
would  amount  to  a  combination  or  conspiracy  having  for  its  purpose 
the  exclusion  of  the  complainant  from  the  open  labor  market  and  re- 
sulting in  irreparable  injury. 

We  cannot  say  that  this  by-law  is  in  itself  unlawful,  or  that  its  en- 
forcement upon  the  members  of  the  union  who  have  voluntarily  sub- 
jected themselves  to  its  provisions  amounts  to  an  intimidation  or  to  a 
threat  which  would  justify  the  interference  of  a  court  of  equity.  It 
left  the  members  of  the  union  free,  in  one  sense,  to  enter  the  employ- 
ment of  the  complainant,  although  it  practically  compelled  them  to 
choose  between  the  benefits  of  such  an  engagement  and  membership 
in  the  union.     *     *     * 

The  complainant  urges  that  the  vote  of  the  directors  of  the  union 
forbidding  its  members  to  enter  the  employment  of  the  complainant 
was  in  the  nature  of  a  threat  and  operated  to  intimidate  them,  and 
brings  the  respondents  within  the  rule  laid  down  in  the  adjudicated 
cases  that  all  acts  of  violence,  threats  of  violence,  or  acts  calculated  to 
intimidate,  may  be  restrained  by  injunction.  It  seems  to  us,  however, 
that  this  vote  amounts  to  nothing  more  than  a  notice  to  the  members 
of  the  union  that  the  complainant  has  brought  itself  within  the  scope 
of  the  by-law,  and  that  if  they  should  enter  the  employment  of  the 
complainant  they  would  be  dealt  with  in  accordance  therewith.  We  do 
Boke  Eq. — 66 


1042  INJUNCTION  IN  RELATION  TO  TORTS  (Cll.  4 

not  think  that  such  vote  amounts  to  intimidation  as  defined  by  the  ad- 
judicated cases,  bearing  in  mind  that  such  vote  was  passed  after  a 
hearing  in  which  the  complainant  had  participated  and  after  the  board 
of  directors  had  found  the  contract  binding  upon  both  parties  thereto. 

The  complainant  states  that  the  case  presents  three  questions  for  the 
determination  of  the  court  upon  the  motion  for  a  preliminary  injunc- 
tion:  (1)  Has  the  complainant  shown  probable  cause  for  relief?  (2) 
Has  the  complainant  shown  that  it  would  suffer  irreparable  injury  un- 
less a  preliminary  injunction  was  granted?  And  (3)  has  the  complain- 
ant a  constitutional  right  to  a  free  market  and  to  employ  any  person 
willing  to  enter  its  employment? 

The  complainant  has  also  presented  in  its  brief  some  argument  and 
cited  some  authority  as  to  the  general  scope  and  purpose  of  a  prelimi- 
nary injunction.  As  to  this  there  seems  to  be  no  contention  between 
the  parties,  and  we  see  no  reason  for  doubting  the  general  rule  laid 
down  in  Kerr  on  Injunction  (3d  Ed.)  pp.  61,  62,  cited  by  complainant 
in  its  brief.  Under  the  rule,  the  complainant,  in  order  to  get  a  prelimi- 
nary injunction,  must  sustain  the  burden  of  satisfying  the  court  that 
there  is  a  substantial  question  to  be  tried.  The  question  whether  or 
not  the  complainant  would  suffer  an  irreparable  injury  largely  depends 
for  its  solution  upon  the  character  of  the  act  or  acts  alleged  to  be  in- 
jurious. It  is  not  every  injurious,  act  which  renders  the  party  commit- 
ting it  subject  to  injunction.  The  act  must  not  only  be  injurious,  but 
it  must  also  be  unlawful.  If  an  injury  follows  from  a  proper  and  law- 
ful act,  it  is  damnum  absque  injuria.  We  therefore  come  back  to  the 
act  of  the  respondent  in  passing  a  vote,  by  its  board  of  directors,  for- 
bidding its  members  to  enter  or  continue  in  the  employment  of  the 
complainant.  That  the  respondent  union  might  lawfully  do  so  we  have 
already  concluded. 

This  is  not  simply  a  case  where  the  complainant  desires  to  employ 
certain  musicians  who  are  desirous  of  entering  its  employment.  The 
attitude  of  both  the  complainant  and  the  musicians  is,  as  we  have  al- 
ready seen,  conditioned  upon  the  continued  membership  of  the  musi- 
cians in  the  union.  To  say  that  the  musicians  after  subjecting  them- 
selves to  the  laws  and  regulations  of  the  union,  which  provide  for  a 
finding  as  to  the  validity  of  a  contract  between  its  members  and  outside 
parties,  and  that  in  case  of  a  broken  contract  members  shall  not  enter 
the  employment  of  the  party  breaking  it,  were  willing  to  enter  such  em- 
ployment, is  not  correctly  expressive  of  the  situation  in  the  present 
case.  While  they  may  signify  their  desire  to  enter  the  employment  of 
the  complainant,  they  only  desire  to  do  so  upon  the  condition  that  they 
can  at  the  same  time  retain  their  membership  in  the  union.  It  is  quite 
apparent  that  the  interest  of  these  musicians  in  the  union  is  paramount 
to  that  of  their  employment  by  the  complainant,  and  that,  on  the  other 
hand,  the  desirability  of  these  particular  musicians  and  their  value  to 
the  complainant  over  other  musicians  resides  in  the  fact  that  they  are 
members  of  the  union.    These  men  are  not  ready  to  enter,  or  continue 


Sec.  6)  CONTRACT   RIGHTS 


1043 


in,  the  employment  of  the  complainant,  nor  does  the  complainant  care 
for  their  services  except  they  be  retained  as  members  of  the  union. 
This  being  the  situation,  it  seems  to  follow  that  the  further  dealings 
between  the  complainant  and  these  musicians  must  depend  on  the  will- 
ingness of  the  union  to  waive  its  by-law  before  mentioned  and  to 
consent  that  its  members  may  continue  in  the  employ  of  the  complain- 
ant without  penalty,  discipline,  or  expulsion,  or  that  the  musicians 
accept  such  employment  in  disregard  of  the  union  and  its  regulations, 
assuming  the  responsibility  of  its  discipline.     *     *     * 

If  we  eliminate  from  the  consideration  of  this  case  the  authorities 
based  upon  violence,  threats  of  violence,  conspiracies,  and  unlawful 
combinations,  little  remains  in  the  way  of  authority  which  could  be 
usefully  applied  to  the  determination  of  the  particular  question  before 
us.  All  that  the  respondent  union  is  attempting  to  do  or  contemplates 
doing,  so  far  as  appears,  is  to  enforce  against  its  own  members  the  pro- 
visions of  a  by-law  under  the  terms  of  which  they  have  voluntarily 
brought  themselves  and  promised  to  abide.  The  union  is  not  acting 
with  others  either  by  way  of  conspiracy  or  combination.  It  is,  at  most, 
only  claiming  the  right  to  act  for  itself  in  the  enforcement  of  its  by- 
laws governing  the  conduct  of  its  own  members,  and  this  we  think  it 
has  a  right  to  do.  Bohn  Mfg.  Co.  v.  Hollis  et  al,  54  Minn.  223,  55  N. 
W.  1119,  21  L.  R.  A.  337,  40  Am.  St.  Rep.  319;  Thomas  v.  Cincinnati, 
etc.,  Ry.  Co.  (C.  C.)  62  Fed.  303. 

In  Bohn  Mfg.  Co.  v.  Hollis  et  al.,  it  was  held  that  an  agreement 
between  the  members  of  a  retail  lumber  dealers'  association  not  to  deal 
with  any  wholesale  dealer  who  sells  directly  to  customers  not  dealers,  at 
a  point  where  a  member  of  the  association  is  doing  business,  and  contain- 
ing provisions  for  notification  to  all  members  when  the  wholesale  deal- 
er makes  such  a  sale  and  for  the  expulsion  of  members  who  dealt  with 
him,  is  not  unlawful,  and  such  wholesale  dealers  cannot  enjoin  the 
sending  out  of  such  notices ;  that  the  infliction  of  the  penalty  of  expul- 
sion was  not  coercion;  and  that  it  was  wholly  a  matter  of  their  own 
free  choice  whether  they  preferred  to  trade  with  plaintiff  or  the  associa- 
tion. 

In  the  case  of  Vegelahn  v.  Guntner,  167  Mass.  97,  44  N.  E.  1077,  35 
L.  R.  A.  722,  57  Am.  St.  Rep.  443,  it  is  held  in  the  majority  opinion 
that : 

"A  combination  among  persons  merely  to  regulate  their  own  conduct  is 
within  allowable  competition,  and  is  lawful,  although  others  may  be  indirectly 
affected  thereby." 

*  *  *  We  do  not  think  that  the  case  which  the  complainant 
presents  is  one  for  the  exercise  of  the  authority  of  a  court  of  equity  by 
vvay  of  injunction. 

The  decree  of  the  superior  court  granting  to  the  complainant  a  pre- 
liminary injunction  is  reversed,  and  the  case  is  remanded  to  that  court 
for  further  proceedings. 


1044  INJUNCTION   IN   RELATION   TO   TOUTS  (Cll.  4: 


MUTUAL  FILM  CORPORATION  v.  INDUSTRIAL  COMMIS- 
MISSION  OF  OHIO  et  al. 

(Supreme  Court  of  United  States,  1915.     236  U.  S.  230.  35  Sup.  Ct.  387, 

59  L.  Ed.  .) 

Appeal  from  the  District  Court  of  the  United  States  for  the  North- 
ern District  of  Ohio  to  review  a  decree  refusing  to  restrain  the  en- 
forcement of  a  state  statute  for  the  censorship  of  motion  picture  films. 

See  same  case  below,  215  Fed.  138. 

Statement  by  Mr.  Justice  McKenna: 

Appeal  from  an  order  denying  appellant,  herein  designated  com- 
plainant, an  interlocutory  injunction  sought  to  restrain  the  enforce- 
ment of  an  act  of  the  general  assembly  of  Ohio,  passed  April  16,  1913 
(103  Ohio  Laws,  399),  creating  under  the  authority  and  superintend- 
ence of  the  Industrial  Commission  of  the  state  a  board  of  censors  of 
motion  picture  films.  The  motion  was  presented  to  three  judges  upon 
the  bill,  supporting  affidavits,  and  some  oral  testimony. 

The  bill  is  quite  voluminous.  It  makes  the  following  attacks  upon 
the  Ohio  statute:  (1)  The  statute  is  in  violation  of  §§  5,  16,  and  19 
of  article  1  of  the  Constitution  of  the  state  in  that  it  deprives  complain- 
ant of  a  remedy  by  due  process  of  law  by  placing  it  in  the  power  of 
the  board  of  censors  to  determine  from  standards  fixed  by  itself  what 
films  conform  to  the  statute,  and  thereby  deprives  complainant  of  a 
judicial  determination  of  a  violation  of  the  law.  (2)  The  statute  is  in 
violation  of  articles  1  and  14  of  the  Amendments  to  the  Constitution 
of  the  United  States,  and  of  §  11  of  article  1  of  the  Constitution  of 
Ohio,  in  that  it  restrains  complainant  and  other  persons  from  freely 
writing  and  publishing  their  sentiments.  (3)  It  attempts  to  give  the 
board  of  censors  legislative  power,  which  is  vested  only  in  the  general 
assembly  of  the  state,  subject  to  a  referendum  vote  of  the  people,  in 
that  it  gives  to  the  board  the  power  to  determine  the  application  of 
the  statute  without  fixing  any  standard  by  which  the  board  shall  be 
guided  in  its  determination,  and  places  it  in  the  power  of  the  board, 
acting  with  similar  boards  in  other  states,  to  reject,  upon  any  whim 
or  caprice,  any  film  which  may  be  presented,  and  power  to  determine 
the  legal  status  of  the  foreign  board  or  boards,  in  conjunction  with 
which  it  is  empowered  to  act. 

The  business  of  the  complainant  and  the  description,  use,  object, 
and  effect  of  motion  pictures  and  other  films  contained  in  the  bill, 
stated  narratively,  are  as  follows :  Complainant  is  engaged  in  the  busi- 
ness of  purchasing,  selling,  and  leasing  films,  the  films  being  produced 
in  other  states  than  Ohio,  and  in  European  and  other  foreign  coun- 
tries. The  film  consists  of  a  series  of  instantaneous  photographs  or 
positive  prints  of  action  upon  the  stage  or  in  the  open.  By  being  pro- 
jected upon  a  screen  with  great  rapidity  there  appears  to  the  eye  an 
illusion   of  motion.     They  depict  dramatizations  of   standard  novels, 


Sec.  6)  CONTRACT   RIGHTS  1045 

exhibiting  many  subjects  of  scientific  interest,  the  properties  of  mat- 
ter, the  growth  of  the  various  forms  of  animal  and  plant  life,  and  ex- 
plorations and  travels ;  also  events  of  historical  and  current  interest, — 
the  same  events  which  are  described  in  words  and  by  photographs  in 
newspapers,  weekly  periodicals,  magazines,  and  other  publications,  of 
which  photographs  are  promptly  secured  a  few  days  after  the  events 
which  they  depict  happen  ;  thus  regularly  furnishing  and  publishing 
news  through  the  medium  of  motion  pictures  under  the  name  of  "Mu- 
tual Weekly."    Nothing  is  depicted  of  a  harmful  or  immoral  character. 

The  complainant  is  selling  and  has  sold  during  the  past  year  for  ex- 
hibition in  Ohio  an  average  of  fifty-six  positive  prints  of  films  per 
week  to.  film  exchanges  doing  business  in  that  state,  the  average  value 
thereof  being  the  sum  of  $100,  aggregating  $6,000  per  week,  or  $300,- 
000  per  annum. 

In  addition  to  selling  films  in  Ohio,  complainant  has  a  film  exchange 
in  Detroit,  Michigan,  from  which  it  rents  or  leases  large  quantities 
to  exhibitors  in  the  latter  state  and  in  Ohio.  The  business  of  that  ex- 
change and  those  in  Ohio  is  to  purchase  films  from  complainant  and 
other  manufacturers  of  films  and  rent  them  to  exhibitors  for  short 
periods  at  stated  weekly  rentals.  The  amount  of  rentals  depends  upon 
the  number  of  reels  rented,  the  frequency  of  the  changes  of  subject, 
and  the  age  or  novelty  of  the  reels  rented.  The  frequency  of  exhibi- 
tion is  described.  It  is  the  custom  of  the  business,  observed  by  all 
manufacturers,  that  a  subject  shall  be  released  or  published  in  all  the- 
aters on  the  same  day,  which  is  known  as  release  day,  and  the  age  or 
novelty  of  the  film  depends  upon  the  proximity  of  the  day  of  exhibi- 
tion to  such  release  day.  Films  so  shown  have  never  been  shown  in 
public,  and  the  public  to  whom  they  appeal  is  therefore  unlimited. 
Such  public  becomes  more  and  more  limited  by  each  additional  exhibi- 
tion of  the  reel. 

The  amount  of  business  in  renting  or  leasing  from  the  Detroit  ex- 
change for  exhibition  in  Ohio  aggregates  the  sum  of  $1,000  per  week. 

Complainant  has  on  hand  at  its  Detroit  exchange  at  least  2,500  reels 
of  films  which  it  intends  to  and  will  exhibit  in  Ohio,  and  which  it  will 
be  impossible  to  exhibit  unless  the  same  shall  have  been  approved  by 
the  board  of  censors.  Other  exchanges  have  films,  duplicate  prints  of 
a  large  part  of  complainant's  films,  for  the  purpose  of  selling  and  leas- 
ing to  parties  residing  in  Ohio,  and  the  statute  of  the  state  will  require 
their  examination  and  the  payment  of  a  fee  therefor.  The  amounts  of 
complainant's  purchases  are  stated,  and  that  complainant  will  be  com- 
pelled to  bear  the  expense  of  having  them  censored  because  its  cus- 
tomers will  not  purchase  or  hire  uncensored  films. 

The  business  of  selling  and  leasing  films  from  its  offices  outside  of 
the  state  of  Ohio  to  purchasers  and  exhibitors  within  the  state  is  inter- 
state commerce,  which  will  be  seriously  burdened  by  the  exaction  of 
the  fee  for  censorship,  which  is  not  properly  an  inspection  tax,  and 
the  proceeds  of  which  will  be  largely  in  excess  of  the  cost  of  enforcing 


1046  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 

the  statute,  and  will  in  no  event  be  paid  to  the  Treasury  of  the  United 
States. 

The  board  has  demanded  of  complainant  that  it  submit  its  films  to 
censorship,  and  threatens,  unless  complainant  complies  with  the  de- 
mand, to  arrest  any  and  all  persons  who  seek  to  place  on  exhibition  any 
film  not  so  censored  or  approved  by  the  censor  congress  on  and  after 
November  4,  1913,  the  date  to  which  the  act  was  extended.  It  is  phys- 
ically impossible  to  comply  with  such  demand  and  physically  impossi- 
ble for  the  board  to  censor  the  films  with  such  rapidity  as  to  enable 
complainant  to  proceed  with  its  business,  and  the  delay  consequent 
upon  such  examination  would  cause  great  and  irreparable  injury  to 
such  business,  and  would  involve  a  multiplicity  of  suits. 

There  were  affidavits  filed  in  support  of  the  bill  and  some  testimony 
taken  orally.  One  of  the  affidavits  showed  the  manner  of  shipping 
and  distributing  the  films,  and  was  as  follows : 

"The  films  are  shipped  by  the  manufacturers  to  the  film  exchanges  in- 
closed in  circular  metal  boxes,  each  of  which  metal  boxes  is  in  turn  inclosed 
In  a  fiber  or  wooden  container.  The  film  is  in  most  eases  wrapped  around  a 
spool  or  core  in  a.  circle  within  the  metal  case.  Sometimes  the  film  is  re- 
ceived by  the  film  exchange  wound  on  a  reel,  which  consists  of  a  cylindrical 
core  with  circular  flanges  to  prevent  the  film  from  slipping  off  the  core,  and 
when  so  wound  on  the  reel  is  also  received  in  metal  boxes,  as  above  described. 
When  the  film  is  not  received  on  a  reel,  it  is.  upon  receipt,  taken  from  the 
metal  box,  wound  on  a  reel,  and  then  replaced  in  the  metal  box.  So  wound 
and  so  inclosed  in  metal  boxes,  the  films  are  shipped  by  the  film  exchanges  to 
their  customers.  The  customers  take  the  film  as  it  is  wound  on  the  reel 
from  the  metal  box,  and  exhibit  the  pictures  in  their  projecting  machines, 
which  are  so  arranged  as  to  permit  of  the  unwinding  of  the  film  from  the 
reel  on  which  it  is  shipped.  During  exhibition,  the  reel  of  film  is  unwound 
from  one  reel  and  rewound  in  reverse  order  on'a  second  reel.  After  exhibi- 
tion, it  must  be  again  unwound  from  the  second  reel  from  its  reverse  posi- 
tion and  replaced  on  the  original  reel  in  its  proper  position.  After  the  ex- 
hibitions for  the  day  are  over,  the  film  is  replaced  in  the  metal  box  and  re- 
turned to  the  film  exchange,  and  this  process  is  followed  from  day  to  day 
during  the  life  of  the  film. 

"All  shipments  of  films  from  manufacturers  to  film  exchanges,  from  film 
exchanges. to  exhibitors,  and  from  exhibitors  back  to  film  exchanges,  arc 
made  in  accordance  with  regulations  of  the  Interstate  Commerce  Commis- 
sion, one  of  which  provides  as  follows: 

"  'Moving  picture  films  must  be  placed  in  metal  cases,  packed  in  strong  and 
tight  wooden  boxes  or  fiber  pails.'  " 

Another  of  the  affidavits  divided  the  business  as  follows : 

"The  motion  picture  business  is  conducted  in  three  branches ;  that  is  to 
say,  by  manufacturers,  distributers,  and  exhibitors,  th(>  distributers  being 
known  as  film  exchanges.  *  *  *  Film  is  manufactured  and  produced 
in  lengths  of  about  1,000  feet,  which  are  placed  on  reels,  and  the  market  price 
per  reel  of  film  of  a  thousand  feet  in  length  is  at  the  rate  of  10  cents  per  foot, 
or  $100.  Manufacturers  do  not  sell  their  film  direct  to  exhibitors,  but  sell  to 
film  exchanges,  and  the  film  exchanges  do  not  resell  the  film  to  exhibitors, 
but  rent  it  out  to  them." 

After  stating  the  popularity  of  motion  pictures,  and  the  demand  of 

the  public  for  new  ones,  and  the  great  expense  their  purchase  would 

be  to  exhibitors,  the  affidavit  proceeds  as  follows : 

"For  that  reason  film  exchanges  came  into  existence,  and  film  exchanges 
such  as  the  Mutual  Film  Corporation  are  like  clearing  bouses  or  circulating 


Sec.  G)  CONTRACT   RIGHTS  1017 

libraries,  in  that  they  purchase  the  film  and  rent  it  out  to  different  exhibitors. 
One  reel  of  film  being  made  to-day  serves  in  many  theaters  from  day  to  day 
until  it  is  worn  out.  The  film  exchange,  in  renting  out  the  films,  supervises 
their  circulation." 

An  affidavit  was  filed,  made  by  the  "general  secretary  of  the  na- 
tional board  of  censorship  of  motion  pictures,  whose  office  is  at  No. 
50  Madison  Avenue,  New  York  City."  The  "national  board,"  it  is 
averred,  "is  an  organization  maintained  by  voluntary  contributions, 
whose  object  is  to  improve  the  moral  quality  of  motion  pictures."  At- 
tached to  the  affidavit  was  a  list  of  subjects  submitted  to  the  board 
which  are  "classified  according  to  the  nature  of  said  subjects  into 
scenic,  geographic,  historical,  classical,  and  educational  and  propagan- 
dists." 

Mr.  Justice  McKenna,  after  stating  the  case  as  above,  delivered 
the  opinion  of  the  court : 

Complainant  directs  its  argument  to  three  propositions :  (1)  The 
statute  in  controversy  imposes  an  unlawful  burden  on  interstate  com- 
merce;  (2)  it  violates  the  freedom  of  speech  and  publication  guar- 
anteed by  section  11,  article  1,  of  the  Constitution  of  the  state  of 
Ohio;*  and  (3)  it  attempts  to  delegate  legislative  power  to  censors 
and  to  other  boards  to  determine  whether  the  statute  offends  in  the 
particulars  designated. 

It  is  necessary  to  consider  only  sections  3,  4,  and  5.  Section  3  makes 
it  the  duty  of  the  board  to  examine  and  censor  motion  picture  films  to 
be  publicly  exhibited  and  displayed  in  the  state  of  Ohio.  The  films 
are  required  to  be  exhibited  to  the  board  before  they  are  delivered 
to  the  exhibitor  for  exhibition,  for  which  a  fee  is  charged. 

Section  4: 

"Only  such  films  as  are,  in  the  judgment  and  discretion  of  the  board  of 
censors,  of  a  moral,  educational,  or  amusing  and  harmless  character  shall 
be  passed  and  approved  by  such  board." 

The  films  are  required  to  be  stamped  or  designated  in  a  proper  man- 
ner. 

Section  5.  The  board  may  work  in  conjunction  with  censor  boards 
of  other  states  as  a  censor  congress,  and  the  action  of  such  congress 
in  approving  or  rejecting  films  shall  be  considered  as  the  action  of 
the  state  board,  and  all  films  passed,  approved,  stamped,  and  numbered 
by  such  congress,  when  the  fees  therefor  are  paid,  shall  be  considered 
approved  by  the  board. 

By  section  7  a  penalty  is  imposed  for  each  exhibition  of  films  with- 
out the  approval  of  the  board,  and  by  section  8  any  person  dissatisfied 

*  "Section  11.  Every  citizen  may  freely  speak,  write,  and  publish  his  senti- 
ments on  all  subjects,  being  responsible  for  the  abuse  of  the  right ;  and  no 
law  shall  be  passed  to  restrain  or  abridge  the  liberty  of  speech,  or  of  the 
press.  In  all  criminal  prosecutions  for  libel  the  truth  may  be  given  in  evi- 
dence to  the  jury,  and  if  it  shall  appear  to  the  jury  that  the  matter  charged  as 
libelous  is  true,  and  was  published  with  good  motives  and  for  justifiable  ends, 
the  party  shall  be  acquitted." 


1048  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

with  the  order  of  the  board  is  given  the  same  rights  and  remedies  for 
hearing  and  reviewing,  amendment  or  vacation  of  the  order  "as  is  pro- 
vided in  the  case  of  persons  dissatisfied  with  the  orders  of  the  Indus- 
trial Commission." 

The  censorship,  therefore,  is  only  of  films  intended  for  exhibition 
in  Ohio,  and  we  can  immediately  put  to  one  side  the  contention  that 
it  imposes  a  burden  on  interstate  commerce.  It  is  true  that,  according 
to  the  allegations  of  the  bill,  some  of  the  films  of  complainant  are 
shipped  from  Detroit,  Michigan,  but  they  are  distributed  to  exhibitors, 
purchasers,  renters,  and  lessors  in  Ohio,  for  exhibition  in  Ohio,  and 
this  determines  the  application  of  the  statute.  In  other  words,  it  is 
only  films  which  are  "to  be  publicly  exhibited  and  displayed  in  the 
state  of  Ohio"'  which  are  required  to  be  examined  and  censored.  It 
would  be  straining  the  doctrine  of  original  packages  to  say  that  the 
films  retain  that  form  and  composition  even  when  unrolling  and  ex- 
hibiting to  audiences,  or,  being  ready  for  renting  for  the  purpose  of 
exhibition  within  the  state,  could  not  be  disclosed  to  the  state  officers. 
If  this  be  so,  whatever  the  power  of  the  state  to  prevent  the  exhibition 
of  films  not  approved, — and  for  the  purpose  of  this  contention  we 
must  assume  the  power  is  otherwise  plenary, — films  brought  from  an- 
other state,  and  only  because  so  brought,  would  be  exempt  from  the 
power,  and  films  made  in  the  state  would  be  subject  to  it.  There  must 
be  some  time  when  the  films  are  subject  to  the  law  of  the  state,  and 
necessarily  when  they  are  in  the  hands  of  the  exchanges,  ready  to  be 
rented  to  exhibitors,  or  have  passed  to  the  latter,  they  are  in  consump- 
tion, and  mingled  as  much  as  from  their  nature  they  can  be  with  other 
property  of  the  state. 

It  is  true  that  the  statute  requires  them  to  be  submitted  to  the  board 
before  they  are  delivered  to  the  exhibitor,  but  we  have  seen  that  the 
films  are  shipped  to  "exchanges"  and  by  them  rented  to  exhibitors,  and 
the  "exchanges"  are  described  as  "nothing  more  or  less  than  circulat- 
ing libraries  or  clearing  houses."  And  one  film  "serves  in  many  the- 
aters from  clay  to  day  until  it  is  worn  out." 

The  next  contention  is  that  the  statute  violates  the  freedom  of 
speech  and  publication  guaranteed  by  the  Ohio  Constitution.  In  its  dis- 
cussion counsel  have  gone  into  a  very  elaborate  description  of  moving 
picture  exhibitions  and  their  many  useful  purposes  as  graphic  expres- 
sions of  opinion  and  sentiments,  as  exponents  of  policies,  as  teachers 
of  science  and  history,  as  useful,  interesting,  amusing,  educational, 
and  moral.  And  a  list  of  the  "campaigns,"  as  counsel  call  them,  which 
may  be  carried  on,  is  given.  We  may  concede  the  praise.  It  is  not 
questioned  by  the  Ohio  statute,  and  under  its  comprehensive  descrip- 
tion, "campaigns"  of  an  infinitive  variety  may  be  conducted.  Films 
of  a  "moral,  educational,  or  amusing  and  harmless  character  shall  be 
passed  and  approved,"  are  the  words  of  the  statute.  No  exhibition, 
therefore,  or  "campaign"  of  complainant  will  be  prevented  if  its  pic- 


Sec.  6)  CONTRACT   RIGHTS 


1049 


tures  have  those  qualities.  Therefore,  however  missionary  of  opinion 
films  are  or  may  become,  however  educational  or  entertaining,  there 
is  no  impediment  to  their  value  or  effect  in  the  Ohio  statute.  But  they 
may  be  used  for  evil,  and  against  that  possibility  the  statute  was  en- 
acted. Their  power  of  amusement,  and,  it  may  be,  education,  the  au- 
diences they  assemble,  not  of  women  alone  nor  of  men  alone,  but  to- 
gether, not  of  adults  only,  but  of  children,  make  them  the  more  insid- 
ious in  corruption  by  a  pretense  of  worthy  purpose  or  if  they  should 
degenerate  from  worthy  purpose.  Indeed,  we  may  go  beyond  that 
possibility.  They  take  their  attraction  from  the  general  interest,  eager 
and  wholesome  it  may  be,  in  their  subjects,  but  a  prurient  interest  may 
be  excited  and  appealed  to.  Besides,  there  are  seme  things  which 
should  not  have  pictorial  representation  in  public  places  and  to  all  au- 
diences. And  not  only  the  state  of  Ohio,  but  other  states,  have  con- 
sidered it  to  be  in  the  interest  of  the  public  morals  and  welfare  to  su- 
pervise moving  picture  exhibitions.  We  would  have  to  shut  our  eyes 
to  the  facts  of  the  world  to  regard  the  precaution  unreasonable  or  the 
legislation  to  effect  it  a  mere  wanton  interference  with  personal  lib- 
erty. 

We  do  not  understand  that  a  possibility  of  an  evil  employment  of 
films  is  denied,  but  a  freedom  from  the  censorship  of  the  law  and  a 
precedent  right  of  exhibition  are  asserted,  subsequent  responsibility 
only,  it  is  contended,  being  incurred  for  abuse.  In  other  words,  as 
we  have  seen,  the  Constitution  of  Ohio  is  invoked,  and  an  exhibition 
of  films  is  assimilated  to  the  freedom  of  speech,  writing,  and  publica- 
tion assured  by  that  instrument,  and  for  the  abuse  of  which  only  is 
there  responsibility,  and,  it  is  insisted,  that  as  no  law  may  be  passed 
''to  restrain  the  liberty  of  speech  or  of  the  press,"  no  law  may  be 
passed  to  subject  moving  pictures  to  censorship  before  their  exhibition. 

We  need  not  pause  to  dilate  upon  the  freedom  of  opinion  and  its 
expression,  and  whether  by  speech,  writing,  or  printing.  They  are  too 
certain  to  need  discussion — of  such  conceded  value  as  to  need  no  sup- 
porting praise.  Nor  can  there  be  any  doubt  of  their  breadth,  nor  that 
their  underlying  safeguard  is,  to  use  the  words  of  another,  "that  opin- 
ion is  free,  and  that  conduct  alone  is  amenable  to  the  law." 

Are  moving  pictures  within  the  principle,  as  it  is  contended  they 
are?  They,  indeed,  may  be  mediums  of  thought,  but  so  are  many 
things.  So  is  the  theater,  the  circus,  and  all  other  shows  and  specta- 
cles, and  their  performances  may  be  thus  brought  by  the  like  reason- 
ing under  the  same  immunity  from  repression  or  supervision  as  the 
public  press, — made  the  same  agencies  of  civil  liberty. 

Counsel  have  not  shrunk  from  this  extension  of  their  contention, 
and  cite  a  case  in  this  court  where  the  title  of  drama  was  accorded  to 
pantomime  ;f   and  such  and  other  spectacles  are  said  by  counsel  to  be 

t  Kalem  Co.  v.  Harper  Bros.,  222  U.  S.  55,  56  L.  Ed.  92,  32  Sup.  Ct.  20,  Ann. 
Cas.  1913A,  1285. 


IUoO  INJUNCTION    IN    RELATION   TO   TOUTS  (Ch.  4 

publications  of  ideas,  satisfying  the  definition  of  the  dictionaries, — 
that  is,  and  we  quote  counsel,  a  means  of  making  or  announcing  pub- 
licly something  tbat  otherwise  might  have  remained  private  or  un- 
known,— and  this  being  peculiarly  the  purpose  and  effect  of  moving 
pictures,  they  come  directly,  it  is  contended,  under  the  protection  of 
the  Ohio  constitution. 

The  first  impulse  of  the  mind  is  to  reject  the  contention.  We  im- 
mediately feel  tbat  the  argument  is  wrong  or  strained  which  extends 
the  guaranties  of  free  opinion  and  speech  to  the  multitudinous  shows 
which  are  advertised  on  the  billboards  of  our  cities  and  towns,  and 
which  regards  them  as  emblems  of  public  safety,  to  use  the  words  of 
Lord  Camden,  quoted  by  counsel,  and  which  seeks  to  bring  motion  pic- 
tures and  other  spectacles  into  practical  and  legal  similitude  to  a  free 
press  and  liberty  of  opinion. 

The  judicial  sense  supporting  the  common  sense  of  the  country  is 
against  the  contention.  As  pointed  out  by  the  district  court,  the  police 
power  is  familiarly  exercised  in  granting  or  withholding  licenses  for 
theatrical  performances  as  a  means  of  their  regulation.  The  court 
cited  the  following  cases :  Marmet  v.  State,  45  Ohio  St.  63,  72,  73, 
12  N.  E.  463;  Baker  v.  Cincinnati,  11  Ohio  St.  534;  Com.  v.  Mc- 
Gann,  213  Mass.  213,  215,  100  X.  E.  355;  People  v.  Steele,  231  111. 
340,  344,  345,  14  L-  R.  A.  (X.  S.)  361,  121  Am.  St.  Rep.  321,  83  X.  E. 
236. 

The  exercise  of  the  power  upon  moving  picture  exhibitions  has  been 
sustained.  Greenberg  v.  Western  Turf  Ass'n,  148  Cal.  126,  113  Am. 
St.  Rep.  216,  82  Pac.  684,  19  Am.  Xeg.  Rep.  72 ;  Laurelle  v.  Bush,  17 
Cal.  App.  409,  119  Pac.  953;  State  v.  Loden,  117  Md.  373,  40  L.  R.  A. 
(X.  S.)  193,  83  Atl.  564,  Ann.  Cas.  1913E,  1300;  Block  v.  Chicago, 
239  111.  251,  130  Am.  St.  Rep.  219,  87  X.  E.  1011 ;  Higgins  v.  Lacroix, 
119  Minn.  145,  41  L.  R.  A.  (X.  S.)  737,  137  X.  W.  417.  See,  also, 
State  v.  Morris,  1  Boyce  (Del.)  330,  '76  Atl.  479;  People  ex  rel.  Moses 
v.  Gaynor,  77  Misc.  Rep.  576,  137  X.  Y.  Supp.  196,  199;  McKenzie 
v.  McClellan,  62  Misc.  Rep.  342,  116  X.  Y.  Supp.  645,  646. 

It  seems  not  to  have  occurred  to  anybody  in  the  cited  cases  that  free- 
dom of  opinion  was  repressed  in  the  exertion  of  the  power  which  was 
illustrated.  The  rights  of  property  were  only  considered  as  involved. 
It  cannot  be  put  out  of  view  that  the  exhibition  of  moving  pictures  is 
a  business,  pure  and  simple,  originated  and  conducted  for  profit,  like 
other  spectacles,  not  to  be  regarded,  nor  intended  to  be  regarded  by 
the  Ohio  Constitution,  we  think,  as  part  of  the  press  of  the  country, 
or  as  organs  of  public  opinion.  They  are  mere  representations  of 
events,  of  ideas  and  sentiments  published  and  known;  vivid,  useful, 
and  entertaining,  no  doubt,  but,  as  we  have  said,  capable  of  evil,  hav- 
ing power  for  it,  the  greater  because  of  their  attractiveness  and  man- 
ner of  exhibition.  It  was  this  capability  and  power,  and  it  may  be 
in  experience  of  them,  that  induced  the  state  of  Ohio,  in  addition  to 
prescribing  penalties  for  immoral  exhibitions,  as  it  does  in  its  Criminal 


Sec.  6)  CONTRACT   RIGHTS  1051 

Code,  to  require  censorship  before  exhibition,  as  it  does  by  the  act 
under  review.  We  cannot  regard  this  as  beyond  the  power  of  govern- 
ment. 

It  does  not  militate  against  the  strength  of  these  considerations  that 
motion  pictures  may  be  used  to  amuse  and  instruct  in  other  places  than 
theaters, — in  churches,  for  instance,  and  in  Sunday  schools  and  public 
schools.  Nor  are  we  called  upon  to  say  on  this  record  whether  such 
exceptions  would  be  within  the  provisions  of  the  statute,  nor  to  antic- 
ipate that  it  will  be  so  declared  by  the  state  courts,  or  so  enforced  by 
the  state  officers. 

The  next  contention  of  complainant  is  that  the  Ohio  statute  is  a 
delegation  of  legislative  power,  and  void  for  that  if  not  for  the  other 
reasons  charged  against  it,  which  we  have  discussed.  While  adminis- 
tration and  legislation  are  quite  distinct  powers,  the  line  which  sepa- 
rates exactly  their  exercise  is  not  easy  to  define  in  words.  It  is  best 
recognized  in  illustrations.  Undoubtedly  the  legislature  must  declare 
the  policy  of  the  law  and  fix  the  legal  principles  which  are  to  control 
in  given  cases;  but  an  administrative  body  may  be  invested  with  the 
power  to  ascertain  the  facts  and  conditions  to  which  the  policy  and 
principles  apply.  If  this  could  not  be  done  there  would  be  infinite  con- 
fusion in  the  laws,  and  in  an  effort  to  detail  and  to  particularize,  they 
would  miss  sufficiency  both  in  provision  and  execution. 

The  objection  to  the  statute  is  that  it  furnishes  no  standard  of  what 
is  educational,  moral,  amusing,  or  harmless,  and  hence  leaves  decision 
to  arbitrary  judgment,  whim,  and  caprice;  or,  aside  from  those  ex- 
tremes, leaving  it  to  the  different  views  which  might  be  entertained  of 
the  effect  of  the  pictures  permitting  the  "personal  equation"  to  enter, 
resulting  "in  unjust  discrimination  against  some  propagandist  film," 
while  others  might  be  approved  without  question.  But  the  statute  by 
its  provisions  guards  against  such  variant  judgments,  and  its  terms, 
like  other  general  terms,  get  precision  from  the  sense  and  experience 
of  men,  and  become  certain  and  useful  guides  in  reasoning  and  con- 
duct. The  exact  specification  of  the  instances  of  their  application 
would  be  as  impossible  as  the  attempt  would  be  futile.  Upon  such 
sense  and  experience,  therefore,  the  law  properly  relies.  This  has 
many  analogies  and  direct  examples  in  cases,  and  we  may  cite  Gund- 
ling  v.  Chicago,  177  U.  S.  183,  44  L.  Ed.  725,  20  Sup.  Ct.  633 ;  Red 
"C"  Oil  Mfg.  Co.  v.  Board  of  Agriculture,  222  U.  S.  380,  56  L.  Ed. 
240,  32  Sup.  Ct.  152;  Monongahela  Bridge  Co.  v.  United  States,  216 
U.  S.  177,  54  L.  Ed.  435,  30  Sup.  Ct.  356;  Buttfield  v.  Stranahan,  192 
U.  S.  470,  48  L.  Ed.  525,  24  Sup.  Ct.  349.  See  also  Waters-Pierce  Oil 
Co.  v.  Texas,  212  U.  S.  86.  53  L.  Ed.  417,  29  Sup.  Ct.  220.  If  this 
were  not  so,  the  many  administrative  agencies  created  by  the  state  and 
national  governments  would  be  denuded  of  their  utility,  and  govern- 
ment in  some  of  its  most  important  exercises  become  impossible. 

To  sustain  the  attack  upon  the  statute  as  a  delegation  of  legislative 
power,  complainant  cites  Harmon  v.  State,  66  Ohio  St.  249,  53  L.  R.  A. 


1052  INJUNCTION   IN    RELATION    TO   TORTS  (Ch.  4 

618,  64  N.  E.  117.  In  that  case  a  statute  of  the  state  committing  to  a 
certain  officer  the  duty  of  issuing  a  license  to  one  desiring  to  act  as  an 
engineer  if  "found  trustworthy  and  competent"  was  declared  invalid 
because,  as  the  court  said,  no  standard  was  furnished  by  the  general 
assembly  as  to  qualification,  and  no  specification  as  to  wherein  the  ap- 
plicant should  be  trustworthy  and  competent,  but  all  was  "left  to  the 
opinion,  finding,  and  caprice  of  the  examiner."  The  case  can  be  dis- 
tinguished. Besides,  later  cases  have  recognized  the  difficulty  of  exact 
separation  of  the  powers  of  government,  and  announced  the  principle 
that  legislative  power  is  completely  exercised  where  the  law  "is  per- 
fect, final,  and  decisive  in  all  of  its  parts,  and  the  discretion  given  only 
relates  to  its  execution."  Cases  are  cited  in  illustration.  And  the 
principle  finds  further  illustration  in  the  decisions  of  the  courts  of  less- 
er authority,  but  which  exhibit  the  juridical  sense  of  the  state  as  to 
the  delegation  of  powers. 

Section  5  of  the  statute,  which  provides  for  a  censor  congress  of  the 
censor  board  and  the  boards  of  other  states,  is  referred  to  in  empha- 
sis of  complainant's  objection  that  the  statute  delegates  legislative 
power.  But,  as  complainant  says,  such  congress  is  "at  present  nonex- 
istent and  nebulous ;"  and  we  are,  therefore,  not  called  upon  to  antic- 
ipate its  action,  or  pass  upon  the  validity  of  section  5. 

We  may  close  this  topic  with  a  quotation  of  the  very  apt  comment 
of  the  district  court  upon  the  statute.  After  remarking  that  the  lan- 
guage of  the  statute  "'might  have  been  extended  by  description  and  il- 
lustrative words,"  but  doubting  that  it  would  have  been  the  more  intel- 
ligible, and  that  probably  by  being  more  restrictive  might  be  more 
easily  thwarted,  the  court  said:  "In  view  of  the  range  of  subjects 
which  complainants  claim  to  have  already  compassed,  not  to  speak  of 
the  natural  development  that  will  ensue,  it  would  be  next  to  impossible 
to  devise  language  that  would  be  at  once  comprehensive  and  auto- 
matic."    [215  Fed.  147.] 

In  conclusion  we  may  observe  that  the  Ohio  statute  gives  a  review 
by  the  courts  of  the  state  of  the  decision  of  the  board  of  censors. 

Decree  affirmed. 


bosley  v.  Mclaughlin.    (Nos.  362,  363.) 

(Supreme  Court  of  United  States,  1915.    236  U.  S.  3S5,  35  Sup.  Ct.  345, 

59  L.  Ed.  .) 

Two  Appeals  from  the  District  Court  of  the  United  States  for  the 
Northern  District  of  California  to  review  decrees  refusing  to  enjoin 
the  enforcement  of  a  state  statute  restricting  the  hours  of  women  em- 
ployees. 

The  facts  are  stated  in  the  opinion. 

Mr.  Justice  Hughes  delivered  the  opinion  of  the  court: 

This  is  a  suit  to  restrain  the  enforcement  of  the  statute  of  Califor- 
nia prohibiting  the  employment  of  women  for  more  than  eight  hours 


Sec.  6)  CONTRACT  RIGHTS  1053 

in  any  one  day,  or  more  than  forty-eight  hours  in  any  one  week.  The 
act  is  the  same  as  that  which  was  under  consideration  in  Miller  v.  Wil- 
son, 236  U.  S.  373,  35  Sup.  Ct.  342,  59  L.  Ed.  — ,  as  amended  in  1913. 
By  the  amendment,  the  statute  was  extended  to  public  lodging  houses, 
apartment  houses,  hospitals,  and  places  of  amusement.  The  proviso 
was  also  amended  so  as  to  make  the  statute  inapplicable  to  "graduate 
nurses  in  hospitals."     Stat.  (Cal.)  1913,  p.  713. 

The  complainants  are  the  trustees  of  "The  Samuel  Merritt  Hospi- 
tal" in  Alameda,  California,  and  one  of  their  employees,  Ethel  E.  Nel- 
son. Their  bill  set  forth  that  there  were  employed  in  this  hospital  ap- 
proximately eighty  women  and  eighteen  men ;  that  of  these  women 
ten  were  what  are  known  as  "graduate  nurses,"  that  is  to  say,  those 
who  had  "pursued  and  completed,  at  some  training  school  for  nurses 
in  a  hospital,  courses  of  study  and  training  in  the  profession  or  occu- 
pation of  nursing  and  attending  the  sick  and  injured,"  and  had  re- 
ceived diplomas  or  certificates  of  graduation.  By  reason  of  their  qual- 
ifications, they  were  paid  "a  compensation  greatly  in  excess  of  that 
paid  to  female  pupils  engaged  in  nursing  in  hospitals  while  students 
of  the  training  school." 

It  was  further  averred  that,  in  addition  to  these  ten  graduate  nurses, 
certain  other  women  were  employed  in  the  hospital,  one  as  bookkeep- 
er, two  as  office  assistants,  one  as  seamstress,  one  as  matron  or  house- 
keeper, five  who  were  engaged  in  ordinary  household  duties,  and  one 
— the  complainant  Ethel  E.  Nelson — as  pharmacist.  It  was  stated 
that  this  complainant  was  a  graduate  pharmacist,  licensed  by  the  state 
board ;  that  she  also  acted  as  storekeeper,  but  that  her  chief  duty  was 
to  mix  and  compound  drugs  for  use  in  the  treatment  of  the  hospital 
patients.  The  general  allegation  was  made  that  these  last-mentioned 
eleven  employees  performed  work  that  was  in  no  manner  different 
from  that  done  by  "persons  engaged  in  similar  employments  or  occu- 
pations and  not  employed  in  hospitals."  The  apprehended  injury  to 
the  complainant  Nelson  by  reason  of  the  interference  of  the  statute 
with  her  freedom  to  contract  was  specially  alleged. 

It  was  also  set  forth  that  the  hospital  maintained  a  school  with  a 
three  years'  course  of  study  wherein  women  were  trained  to  nurse  the 
sick  and  injured;  that  in  this  school  there  were  enrolled  twenty-four 
in  the  third-year  class,  eighteen  in  the  second-year  class,  and  twenty- 
three  in  the  first-year  class ;  that  a  part  of  the  "education  and  train- 
ing" of  these  "student  nurses"  consisted  in  "aiding,  nursing,  and  at- 
tending to  the  wants  of  the  sick  and  injured  persons"  in  the  hospital, 
this  work  being  done  while  the  student  was  pursuing  the  prescribed 
course  of  study ;  that  the  student  nurses  were  paid  $10  a  month  dur- 
ing each  of  the  first  two  years  of  their  course  and  $12.50  a  month  in 
the  third  year,  and  were  also  provided  throughout  the  three  years 
"with  free  board,  lodging,  and  laundry."  It  was  averred  that  the  cost 
to  the  hospital  of  maintaining  the  school  was  $2,500  a  month,  and 
that  the  cost  of  procuring  the  work  to  be  performed  by  graduate  nurs- 


1054  INJUNCTION   IN   RELATION  TO   TORTS  (Ch.  4 

es  that  was  being  done  by  the  student  nurses  would  be  not  less  than 
$3,600  a  month.  It  was  set  forth  as  a  reason  why  the  work  of  the 
student  nurses  was  done  at  less  expense,  that  their  compensation  was 
paid  not  only  in  money,  board,  etc.,  but  also  partially  in  their  educa- 
tion and  training,  their  attendance  on  patients  being  in  itself  an  indis- 
pensable part  of  their  course  of  preparation.  It  was  said  further  that 
their  hours  of  labor  must  be  determined  by  the  exigencies  of  the  cases 
they  were  attending. 

The  enforcement  of  the  act  with  respect  to  these  student  nurses,  it 
was  stated,  would  require  the  hospital  either  to  cease  the  operation  of 
the  school,  or  largely  to  increase  the  number  in  attendance  in  order  that 
an  equal  return  in  service  could  be  obtained ;  and  such  increase  would 
involve  a  greatly  enlarged  expense. 

The  complainants  attacked  the  act  on  the  grounds  that  it  interfered 
with  their  liberty  of  contract,  and  denied  to  them  the  equal  protection 
of  the  laws,  contrary  to  the  14th  Amendment.  And  in  support,  it  was 
asserted  in  substance,  that  labor  in  hospitals  did  not  afford,  in  itself, 
a  basis  for  classification;  that  there  was  no  difference  between  such 
labor  and  the  "same  kind  of  labor"  performed  elsewhere ;  that  a  hos- 
pital is  not  an  unhealthful  or  unsanitary  place;  and,  generally,  that 
the  statute  and  its  distinctions  were  arbitrary. 

Upon  the  bill,  an  application  was  made  for  an  injunction  pending 
the  suit.  It  was  heard  by  three  judges  and  was  denied.  The  appeal 
in  No.  362  is  from  the  order  thereupon  entered. 

The  defendants,  the  officers  charged  with  the  enforcement  of  the 

law,    filed  an  answer.     On  final  hearing,  the  complainants  made  an 

offer  to  prove  that : 

"All  the  allegations  of  fact  set  forth  In  the  bill  were  true ;  that  the  fact 
that  a  woman  was  a  graduate  nurse  merely  showed  that  she  had  completed  a 
course  of  study  for  the  treatment  of  the  sick,  but  that  the  course  of  study 
which  a  woman  must  take  for  that  purpose  was  not  prescribed  by  law  or 
fixed  by  custom,  but  was  such  as  any  hospital  or  training  school  might,  in 
the  discretion  of  its  governing  officers,  see  fit  to  prescribe ;  that  the  difference 
between  a  graduate  nurse  and  an  experienced  nurse  is  a  difference  of  technical 
education  only,  and  that  there  is  no  standard  by  which  this  difference  can 
be  measured  ;  that  graduate  nurses  working  in  and  employed  by  hospitals  do 
not  ordinarily  perform  therein  the  work  of  nursing  the  sick,  but  act  as  over- 
seers to  assistants  to  the  medical  staff." 

The  district  judge  thereupon  stated  that  upon  the  hearing  of  the 
motion  for  an  interlocutory  injunction  it  had  been  held  that  the  com- 
plaint did  not  state  a  cause  of  action,  and  that  it  was  considered  un- 
necessary to  take  the  evidence.  The  offer  of  proof  was  rejected  and 
the  bill  of  complaint  dismissed.  No.  363  is  an  appeal  from  the  final 
decree. 

1.  As  to  liberty  of  contract. — The  gravamen  of  the  bill  is  with  re- 
spect to  the  complainant  Nelson,  a  graduate  pharmacist,  and  the  stu- 
dent nurses.  As  to  the  former, — it  appears  that  a  statute  of  Califor- 
nia limits  the  hours  of  labor  of  pharmacists  to  ten  hours  a  day  and 
sixty  hours  a  week.     Stat.  (Cal.)  1905,  p.  28.     In  view  of  the  nature 


Sec.  G)  CONTRACT   RIGHTS  1055 

of  their  work,  and  the  extreme  importance  to  the  public  that  it  should 
not  be  performed  by  those  who  are  suffering  from  overfatigue,  there 
can  be  no  doubt  as  to  the  legislative  power  reasonably  to  limit  the 
hours  of  labor  in  that  occupation.  This,  the  appellants  expressly  con- 
cede. But  this  being  admitted  to  be  obviously  within  the  authority  of 
the  legislature,  there  is  no  ground  for  asserting  that  the  right  to  con- 
tractual freedom  precludes  the  legislature  from  prohibiting  women 
pharmacists  from  working  for  more  than  eight  hours  a  day  in  hospi- 
tals. The  mere  question  whether  in  such  case  a  practical  exigency 
exists,  that  is,  whether  such  a  requirement  is  expedient,  must  be  re- 
garded as  a  matter  for  legislative,  not  judicial,  consideration. 

The  appellants,  in'  argument,  suggest  a  doubt  whether  the  statute  is 
applicable  to  the  student  nurses,  but  the  bill  clearly  raises  the  question 
of  its  validity  as  thus  applied,  and  urges  the  serious  injury  which  its 
enforcement  would  entail  upon  the  hospital.  Assuming  that  these 
nurses  are  included,  the  case  presented  would  seem  to  be  decisive  in 
favor  of  the  law.  For  it  appears  that  these  persons,  upon  whom  rests 
the  burden  of  immediate  attendance  upon,  and  nursing  of,  the  patients 
in  the  hospital,  are  also  pupils  engaged  in  a  course  of  study,  and  the 
propriety  of  legislative  protection  of  women  undergoing  such  a  disci- 
pline is  not  open  to  question.  Considerations  which,  it  may  be  as- 
sumed, moved  the  legislature  to  action,  have  been  the  subject  of  gen- 
eral discussion,  as  is  shown  by  the  bulletin  issued  by  the  United  States 
Bureau  of  Education  on  the  " Educational  Status  of  Nursing"  (Bulle- 
tin, 1912,  No.  7).  With  respect  to  the  "hours  of  duty"  for  student 
nurses,  it  is  there  said  (pp.  29-32) : 

"These  long  hours  have  always  formed  a  persistent  and  at  times  an  appar- 
ently immovable  obstacle  in  efforts  to  improve  the  education  of  nurses  and  to 
establish  a  rational  adjustment  of  practice  to  theory.  *  *  *  Ten  or  more 
hours  a  day  in  addition  to  class  work  and  study  might  be  endured  for  a  period 
of  two  years  without  obvious  or  immediate  injury  to  health.  The  same  hours 
carried  on  for  three  years  would  prove  a  serious  strain  upon  the  student's 
physical  resources,  inflicting  perhaps  irreparable  injury.  The  conclusions 
reached  in  this  first  study  of  working  hours  of  students  (189G)  were  that  they 
were  universally  excessive,  that  their  requirement  reacted  injuriously  not 
only  upon  the  students,  but  eventually  upon  the  patients  and  the  hospital,  that 
it  was  a  short-sighted  and  unjustifiable  economy  in  hospital  administration 
which  permitted  it  to  exist.  Fifteen  years  later,  statistics  show  that  though 
the  course  of  training  has  now  in  the  great  majority  of  schools  been  lengthen- 
ed to  three  years,  shorter  hours  of  work  have  not  generally  accompanied  this 
change,  and  that  progress  in  that  direction  has  been  slow  and  unsatisfactory." 

After  quoting  statistics  the  bulletin  continues : 

"In  speaking  of  hours  it  must  be  remembered  that  these  statistics  refer 
only  to  practical  work  in  ward,  clinic,  operating  room,  or  other  hospital  de- 
partment, and  not  to  any  portion  of  theoretical  work ;  that  the  ten  hours  in 
question  are  required  of  the  student  irrespective  of  lectures,  class,  or  study. 
This  practical  work,  also,  is  in  many  of  its  aspects  unusually  exacting  and 
fatiguing;  much  of  it  is  done  while  standing,  bending,  or  lifting;  much  of  it 
is  doue  under  pressure  of  time  and  nervous  tension,  and  to  a  considerable  de- 
gree the  physical  effort  which  the  student  must  make  is  accompanied  by 
mental  anxiety  and  definite,  often  grave,  responsibility.  Viewed  from  any 
standpoint  whatever,  real  nursing  is  difficult,  exacting  work,  done  under  ab- 
normal conditions,  and  all  the  extraordinary,  subtile,  intangible  rewards  and^ 


1056  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

satisfactions  which  are  bound  up  in  it  for  the  worker  cannot  alter  that  fact 
Ten  hours,  or  oven  nine  hours,  of  work  daily  of  this  nature,  cannot  satisfac- 
torily be  combined  with  theoretical  instruction  to  form  a  workable  educa- 
tional s  heme.  *  *  *  How  largely  the  superintendents  of  training  schools 
feel  the  need  of  improvement  in  this  direction  may  be  gathered  from  the  fact 
that  over  two  thirds  of  the  replies  to  the  questions  on  this  subject  suggested 
shorter  hours  as  advisable  or  uecessary,  that  a  large  proportion  of  these 
stated  their  firm  belief  in  an  eight  hour  day,  and  that  almost  every  reply 
which  came  shewed  clearly  in  one  way  or  another  the  difficulties  under  which 
the  schools  were  laboring  in  trying  to  carry  on  the  hospital  work  with  the 
existing  number  of  students." 

Whatever  contest  there  may  be  as  to  any  of  the  points  of  view  thus 
suggested,  there  is  plainly  no  ground  for  saying  that  a  restriction  of 
the  hours  of  labor  of  student  nurses  is  palpably. arbitrary. 

As  to  certain  other  women  (ten  in  number)  employed  in  the  hospital, 
such  as  the  matron,  seamstress,  bookkeeper,  two  office  assistants,  and 
five  persons  engaged  in  so-called  household  work,  the  bill  contains 
merely  this  general  description,  without  further  specifications;  and 
from  any  point  of  view  it  is  clear,  that,  with  respect  to  the  question 
of  freedom  of  contract,  no  facts  are  alleged  which  are  sufficient  to 
take  the  case  out  of  the  rulings  in  A I  tiller  v.  Oregon,  20S  U.  S.  412, 
52  L.  Ed.  551,  28  Sup.  Ct.  324.  13  Ann.  Cas.  957;  Riley  v.  Massachu- 
setts, 232  U.  S.  671,  58  L.  Ed.  788,  34  Sup.  Ct.  469;  Hawley  v.  Walk- 
er, 232  U.  S.  718,  58  L.  Ed.  813,  34  Sup.  Ct.  479;  and  Miller  v.  Wil- 
son, 236  U.  S.  373,  35  Sup.  Ct.  342,  59  L.  Ed. . 

2.  As  to  the  equal  protection  of  the  laws. — The  argument  in  this 
aspect  of  the  case  is  especially  addressed  to  the  exception  of  "gradu- 
ate nurses."    The  contention  is  that : 

They  are  placed  "on  one  side  of  the  line,  and  doctors,  surgeons,  pharmacists, 
experienced  nurses  and  student  nurses  and  all  other  hospital  employes  on 
the  other  side  of  the  line." 

So  far  as  women  doctors  and  surgeons  are  concerned,  the  question 
is  merely  an  abstract  one,  as  no  such  question  is  presented  by  the  alle- 
gations of  the  bill  with  regard  to  the  complainant  hospital.  Southern 
R.  Co.  v.  King,  217  U.  S.  524,  534.  54  L.  Ed.  868,  871,  30  Sup.  Ct. 
594;  Standard  Stock  Food  Co.  v.  Wright,  225  U.  S.  540,  550,  56  L. 
Ed.  1197,  1201,  32  Sup.  Ct.  784.  With  regard  to  other  nurses,  whether 
so-called  "experienced--  nurses  or  student  nurses,  it  sufficiently  appears 
that  the  graduate  nurse  is  in  a  separate  class.  The  allegations  of  the 
bill  itself  show  this  to  be  the  fact.  It  is  averred  that  the  graduate 
nurses  are : 

Those  who  "have  pursued  and  completed,  at  some  training  school  for  nurses 
in  a  hospital,  courses  of  study  and  training  in  the  profession  or  occupation  of 
nursing  and  attending  the  sick  and  injured,  and  have  received,  in  recognition 
thereof,  diplomas  or  certificates  of  graduation  from  said  courses  of  study." 

And,  in  the  appellants'  offer  of  proof,  it  is  said  that: 

"Graduate  nurses  working  in  and  employed  by  hospitals  do  not  ordinarily 

perform  therein  the  work  of  nursing  the  sick,  but  act  as  overseers  to  assist- 
ants to  the  medical  staff." 


Sec.  7)  TRADE    RIGHTS  1057 

It  may  be,  as  asserted,  that  the  difference  in  qualifications  between 
a  graduate  nurse  and  an  "experienced  nurse"  is  a  difference  of  techni- 
cal education  only,  but  that  difference  exists  and  is  not  to  be  brushed 
aside.  It  is  one  of  which  the  legislature  could  take  cognizance.  Not 
onlv  so,  but  as  such  nurses  act  as  overseers  of  wards  or  assistants  to 
surgeons  and  physicians,  it  would  be  manifestly  proper  for  the  legis- 
lature to  recognize  an  exigency  with  respect  to  their  employment  mak- 
ing it  advisable  to  take  them  out  of  the  general  prohibition.  Again, 
with  regard  to  the  complainant  Nelson,  who  is  a  graduate  pharmacist, 
while  she  has  been  graduated  from  a  course  of  training  for  her  chosen 
vocation,  it  is  a  different  vocation.  The  work  is  not  the  same.  There 
is  no  relation  to  the  supervision  of  the  wards,  and,  putting  mere  mat- 
ters of  expediency  aside,  there  is  no  basis  for  concluding  that  the  leg- 
islature was  without  power  to  treat  the  difference  as  a  ground  for 
classification. 

As  to  the  ten  other  women  employees,  the  validity  of  the  distinction 
made  in  the  case  of  graduate  nurses  is  obvious.  It  should  further  be 
said,  aside  from  the  propriety  of  classification  of  women  in  hospitals 
with  respect  to  the  general  conditions  there  obtaining  (Louisville  &  N. 
R.  Co.  v.  Melton,  218  U.  S.  36,  53,  54.  54  L.  Ed.  921,  928,  929,  47  L. 
R.  A.  (N.  S.)  84,  30  Sup.  Ct.  676),  that  the  bill  wholly  fails  to  show 
as  to  the  employment  of  any  of  these  persons  any  such  injury — actual 
or  threatened — as  would  warrant  resort  to  a  court  of  equity  to  enjoin 
the  enforcement  of  the  law. 

And  the  objection  based  upon  the  failure  of  the  legislature  to  extend 
the  prohibition  of  the  statute  to  persons  employed  in  other  establish- 
ments is  not  to  be  distinguished  in  principle  from  that  which  was  con- 
sidered in  Miller  v.  Wilson,  supra,  and  cases  there  cited. 

Decrees  affirmed. 


SECTION   7.— INFRINGEMENT  OF   TRADE   RIGHTS; 

TRADE-NAME,   TRADE-MARK,   AND 

TRADE  SECRET 


LEATHER  CLOTH   CO.,   Limited,  v.  AMERICAN  LEATHER 

CLOTH  CO.,  Limited. 
(In  Chancery  before  Lord  Westbury,  1S63.    4  De  Gex,  J.  &  S.  137,  46  E.  R.  S6S.) 

This  was  an  appeal  by  the  Defendants  from  a  decree  made  by  the 
Vice-Chancellor  Wood  upon  the  hearing  of  the  cause,  whereby  His 
Honour  granted,  with  costs,  a  perpetual  injunction,  restraining  them 
from  selling  or  exposing  for  sale  or  procuring  to  be  sold  any  leather 
cloth  or  any  fabric  or  article  similar  thereto  having  affixed  thereon 
Hoke  Eq.— 67 


1058  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

such  stamp  or  trade  mark  with  the  name  of  L.  R.  &  C.  P.  Crockett, 
or  the  name  of  Crockett  &  Co.,  introduced  thereon  in  such  manner 
as  by  colourable  imitation,  or  otherwise,  to  represent  the  fabric  or 
article  manufactured  or  sold  by  the  Appellants  as  being  the  same 
fabric  or  article  as  that  manufactured  and  sold  by  the  Respondents, 
the  Plaintiffs  in  the  suit,  or  as  being  the  fabric  or  article  known  as 
Crockett's  leather  cloth.     *     *     * 

The  Lord  Chancellor.62  Upon  a  review  of  the  numerous  cases 
which  have  been  decided  in  this  Court  on  the  subject  of  trade  marks, 
there  appears  to  be  some  uncertainty  and  want  of  precision  in  the 
language  of  different  Judges  as  to  the  ground  on  which  a  Court  of 
Equity  interferes  to  protect  the  enjoyment  of  a  trade  mark,  and  also 
on  the  question  whether  the  right  to  use  a  trade  mark  admits  of  being 
sold  and  transferred  by  one  man  to  another. 

At  law,  the  remedy  for  the  piracy  of  a  trade  mark  is  by  an  action 
on  the  case  in  the  nature  of  a  writ  of  deceit.  This  remedy  is  founded 
on  fraud,  and  originally  it  seems  that  an  action  was  given  not  only 
to  the  trader  whose  mark  had  been  pirated,  but  also  to  the  buyer  in 
the  market,  if  he  had  been  induced  by  the  fraud  to  buy  goods  of  an 
inferior  quality.  In  equity,  the  right  to  give  relief  to  the  trader  whose 
trade  has  been  injured  by  the  piracy  appears  to  have  been  originally 
assumed  by  reason  of  the  inadequacy  of  the  remedy  at  law,  and  the 
necessity  of  protecting  property  of  this  description  by  injunction.  But 
although  the  jurisdiction  is  now  well  settled,  there  is  still  current  in 
several  recent  cases  language  which  seems  to  me  to  give  an  in- 
accurate statement  of  the  true  ground  on  which  it  rests.  In  Croft  v. 
Day,  7  Beav.  88,  and  Perry  v.  Truefitt,  6  Beav.  73,  the  late  Lord 
Langdale  is  reported  to  have  used  words  which  place  the  jurisdiction 
of  this  Court  to  grant  relief  in  cases  of  the  piracy  of  trade  marks 
entirely  on  the  ground  of  the  fraud  that  is  committed  when  one  man 
sells  his  own  goods  as  the  goods  of  another.  The  words  of  the  learned 
Judge  are,  "I  own  it  does  not  seem  to  me  that  a  man  can  acquire 
a  property  merely  in  a  name  or  mark,"  and  in  like  manner  the  learned 
Vice-Chancellor,  whose  decision  I  am  now  reviewing,  is  reported  to 
have  said: 

"All  these  cases  of  trade  mark  turn  not  upon  a  question  of  property,  but 
upon  this,  whether  the  act  of  the  Defendant  is  such  as  to  hold  out  his  goods 
as  the  goods  of  the  Plaintiff."     1  II.  &  M.  287. 

But  with  great  respect  this  is  hardly  an  accurate  statement;  for, 
first,  the  goods  of  one  man  may  be  sold  as  the  goods  of  another  with- 
out giving  to  that  other  person  a  right  to  complain,  unless  he  sustains, 
or  is  likely  to  sustain,  from  the  wrongful  act  some  pecuniary  loss  or 
damage  (thus  in  the  case  of  Clark  v.  Freeman,  11  Beav.  112,  an 
eminent  physician,  Sir  James  Clark,  applied  for  an  injunction,  to 
restrain  a  chemist  from  publishing  and  selling  a  quack  medicine,  under 

«2  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


Sec.  7)  TRADE    RIGHTS  1059 

the  name  of  Sir  James  Clark's  pills ;  but  the  Court  refused  to  inter- 
fere, because  it  did  not  appear  that  Sir  James  sustained  any  pecuniary- 
injury)  ;  and,  secondly,  it  is  not  requisite  for  the  exercise  of  the 
jurisdiction  that  there  should  be  fraud  or  imposition  practised  by  the 
Defendant  at  all.  The  Court  will  grant  relief,  although  the  Defendant 
had  no  intention  of  selling  his  own  goods  as  the  goods  of  the  Plaintiff, 
or  of  practising  any  fraud  either  on  the  Plaintiff  or  the  public. 

If  the  Defendant  adopts  a  mark  in  ignorance  of  the  Plaintiff's 
exclusive  right  to  it,  and  without  knowing  that  the  symbols  or  words 
so  adopted  and  used  are  already  current  as  a  trade  mark  in  the  market, 
his  acts,  though  innocently  done,  will  be  a  sufficient  ground  for  the 
interference  of  this  Court.     *     *     * 

If  the  Plaintiff  has  an  exclusive  right  so  to  use  any  particular  mark 
or  symbol,  it  becomes  his  property  for  the  purposes  of  such  application, 
and  the  act  of  the  Defendant  is  a  violation  of  such  right  of  property, 
corresponding  with  the  piracy  of  copyright  or  the  infringement  of  the 
patent.  I  cannot  therefore  assent  to  the  dictum  that  there  is  no  prop- 
erty in  a  trade  mark. 

It  is  correct  to  say,  that  there  is  no  exclusive  ownership  of  the 
symbols  which  constitute  a  trade  mark  apart  from  the  use  or  appli- 
cation of  them ;  but  the  word  "trade  mark"  is  the  designation  of  these 
marks  or  symbols  as  and  when  applied  to  a  vendible  commodity,  and 
the  exclusive  right  to  make  such  user  or  application  is  rightly  called 
property.  The  true  principle  therefore  would  seem  to  be,  that  the 
jurisdiction  of  the  Court  in  the  protection  given  to  trade  marks  rests 
upon  property,  and  that  the  Court  interferes  by  injunction,  because 
that  is  the  only  mode  by  which  property  of  this  description  can  be 
effectually   protected. 

The  same  things  are  necessary  to  constitute  a  title  to  relief  in  equity 
in  the  case  of  the  infringement  of  the  right  to  a  trade  mark,  as  in 
the  case  of  the  violation  of  any  other  right  of  property.63     *     *     * 


KIRCHNER  &  CO.  v.  GRUBAN. 

(Chancery  Division.     [1909]  1  Ch.  413.) 

Adjourned  summons  and  motion. 

By  an  agreement  dated  June  30,  1905,  and  made  between  the  plain- 
tiffs Kirchner  &  Co.,  of  Leipzig,  and  the  defendant  Gruban,  a  German 
subject,  the  defendant  was  engaged  as  representative  of  the  plaintiff 
firm  for  the  United  Kingdom,  with  domicile  in  London,  for  the  sale 
of  the  goods  manufactured  and  sold  by  the  plaintiffs  at  a  remuner- 
ation consisting  of  a  fixed  salary  and  certain  commissions  on 
sales.     *     *     * 

G3  The  bill  was  finally  dismissed  on  another  ground. 


10G0  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

From  the  date  of  the  agreement  the  defendant  acted  as  agent  for 
the  plaintiff  firm,  but  by  the  end  of  1907,  he  became  desirous  of  de- 
termining his  engagement  with  the  plaintiffs,  on  the  ground  of  certain 
alleged  complaints  against  them.  He  gave  three  months'  notice  to  the 
plaintiffs  of  his  intention  to  determine  the  agreement,  and  on  May 
1,  1908,  after  the  expiration  of  the  notice,  he  left  their  employment 
and  entered  into  the  employ  of  a  rival  English  firm  with  whom  in 
the  month  of  February,  1908,  he  had  entered  into  a  conditional  agree- 
ment for  employment  of  a  similar  nature  in  the  event  of  the  determi- 
nation of  his  employment  with  the  plaintiffs. 

On  June  9,  1908,  the  plaintiffs  issued  a  writ  for  an  injunction  to 
restrain  the  defendant  from  engaging  in  any  other  business  than  that 
of  the  plaintiffs  until  after  July  1,  1910;  an  injunction  to  restrain 
him  from  divulging  to  any  one  any  matters  relating  to  the  plaintiffs' 
business ;  an  account  of  commissions ;  damages,  incidental  relief, 
and  costs.     *     *     * 

The  plaintiffs  filed  evidence  alleging  that  the  defendant  had  divulged 
certain  matters  relating  to  their  business  and  had  solicited  their  cus- 
tomers.    *     *     * 

EvE,  J.64  *  *  *  With  regard  to  the  second  part  of  the  motion 
different  and  somewhat  wider  considerations  arise.  That  part  of  the 
motion  is  directed  to  an  injunction  to  restrain  Mr.  Gruban,  the  de- 
fendant, from  divulging  to  his  present  employers  or  to  others  con- 
fidential information  which  he  has  obtained  while  in  the  employ  of  the 
plaintiffs.  I  am  not  desirous  at  the  present  moment  of  saying  anything 
which  would  in  the  least  affect  the  tribunal  before  whom  these  matters 
will  ultimately  come,  and  more  so  because  I  have  not  heard  Mr. 
Danckwerts  upon  these  matters,  in  which  it  is  suggested  the  defendant 
has  acted  in  breach  of  his  duty  towards  his  employers.  When  I 
say  my  judgment  proceeds  on  the  assumption  that  there  may  have 
been  a  breach  I  must  not  be  understood  as  expressing  any  opinion 
that  there  has  been  in  fact  such  a  breach.  Assuming  for  the  moment, 
for  the  purposes  of  my  judgment,  that  there  has  been  such  conduct 
on  the  part  of  the  defendant  as  would  in  the  ordinary  course  in  this 
court  lead  to  the  court  making  an  injunction  against  him  until  judg- 
ment or  further  order,  what  ought  I  to  do  having  regard  to  the  con- 
tract between  the  parties  here?  I  think  it  is  abundantly  clear  upon 
the  authority  of  Robb  v.  Green  [1895]  2  Q.  B.  315,  that  the  real  prin- 
ciple upon  which  the  employee  is  restrained  from  making  use  of  con- 
fidential information  which  he  has  gained  in  the  employment  of  some 
other  person  is  that  there  is  in  the  contract  of  service  subsisting  be- 
tween the  employer  and  employee  an  implied  contract  on  the  part 
of  the  employee  that  he  will  not,  after  the  service  is  determined,  use 
information  which  he  has  gained  while  the  service  has  been  subsisting 

64  Tlu>  statement  of  facts  is  abridged  and  parts  of  the  opinion  here  omitted 
arc  printed  at  page  249,  supra. 


Sec.  S)  LITERARY   PROPERTY  1061 

to  the  detriment  of  his  former  employer.  It  rests,  in  my  opinion,  on 
the  implied  contract,  and  it  seems  to  me  it  goes  almost  without  saying 
that,  in  order  to  arrive  at  a  decision  whether  a  particular  contract  is 
to  be  implied,  it  becomes  absolutely  necessary  to  resort  to  the  con- 
tract of  service  to  ascertain  what  is  the  meaning  of  that  particular 
contract,  and  what  implications  can  properly  and  legitimately  be  drawn 
from  that  contract  of  service.  That  involves  as  a  necessity  the  con- 
struction of  the  contract.  Now  it  appears  to  me  that  in  whatever 
way  one  looks  at  it  the  parties  here  have  agreed  that  this  contract 
shall  be  construed  according  to  the  German  law ;  and  it  may  be — I  do 
not  say  it  is,  but  it  may  be — that,  construing  this  contract  according 
to  the  law  of  Germany,  the  German  court  would  not  deduce  from  this 
any  implied  obligation  such  as  might  have  been  deduced  if  the  contract 
had  to  be  construed  according  to  English  law,  or  if  indeed  the  only 
contract  between  the  parties  was  the  contract  established  by  the  re- 
lationship of  master  and  servant  subsisting  between  them.05     *     *     * 


SECTION  8.— VIOLATION  OF  COMMON-LAW  RIGHTS  RE- 
LATING TO  LITERARY  AND  SIMILAR  PRODUCTIONS 


KARNO  v.  PATHE  FRERES,  LONDON. 

(King's  Bench  Division,  190S.    99  Law  T.  114.) 

Action  tried  by  Jelf,  J.,  without  a  jury. 

The  plaintiff  in  his  statement  of  claim  alleged  that  he  was  the  pro- 
prietor of  the  sole  rights  in  Great  Britain  and  Ireland  of  represent- 
ing or  performing  or  causing  to  be  represented  or  performed  a  dra- 
matic piece,  being  a  farce  or  pantomimical  sketch  entitled  "The  Mum- 
ming Birds  or  Twice  Nightly" ;  that  the  defendants  had  at  various 
times  since  the  14th  Oct.,  1906,  infringed  the  plaintiff's  right  by  rep- 
resenting or  causing  to  be  represented  at  various  places  of  dramatic 
entertainment  his  dramatic  piece  without  the  consent  of  the  plain- 
tiff ;  that  the  defendants  carried  on  business  as  makers  of  and  deal- 
ers in  cinematographs  and  the  accessory  apparatus  thereof,  and  also  of 
films  or  photographs  for  use  therein  and  by  the  apparatus  ai'id  films 
scenic  representations  of  living  and  moving  beings  were  given ;  that 
by  a  catalogue  issued  by  the  defendants  and  entitled  "Supplement  for 
Jan.  1907,"  they  offered  to  supply  such  films  to  proprietors  of  or  per- 
formers at  music  halls  and  other  places  of  public  entertainment,  and 
that  such  catalogue  included  a  film  No.  1625  entitled  "At  the  Music 

oe  The  court  made  an  order  on  the  summons  staying  the  action. 


1062  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

Hall,"  and  this  film  when  used  in  the  cinematographic  apparatus  pro- 
duced a  representation  of  the  plaintiff's  dramatic  piece;  that  the  de- 
fendants had  sold  or  supplied  or  let  on  hire  to  various  persons,  pro- 
prietors of  or  performers  at  music-halls  and  other  places  of  dramatic 
entertainment,  copies  of  the  film  "At  the  Music  Hall"  for  the  pur- 
pose of  being  used  and  with  the  knowledge  that  they  were  to  be  used 
with  cinematographic  apparatus  at  music-halls  and  other  places  of 
dramatic  entertainment ;  that  by  the  use  of  the  films  so  supplied  by 
the  defendants  in  such  apparatus  the  aforesaid  dramatic  piece  had 
been  represented  in  various  music-halls  or  other  places  of  dramatic 
entertainment,  and  that  the  plaintiff  had  suffered  great  damage  by 
reason  of  such  representations. 

The  plaintiff  claimed :  An  inquiry  as  to  the  various  places  of 
dramatic  entertainment  at  which  by  means  of  films  sold  or  supplied 
by  the  defendants  there  had  been  representations  of  the  dramatic  piece, 
and  of  the  number  of  representations  at  each  such  place ;  payment 
of  a  penalty  of  40s.  for  each  of  the  representations,  or  in  the  alter- 
native an  inquiry  as  to  and  payment  of  damages  sustained  in  respect 
of  each  such  representation,  and  an  injunction -to  restrain  the  defend- 
ants from  infringing  the  plaintiff's  right  by  representing  or  causing  to 
be  represented  the  plaintiff's  dramatic  piece.     *     *     * 

April  29. — Jelf,  J.,cg  after  referring  to  the  statement  of  claim  as 
above  set  out,  read  the  following  judgment: 

The  case  raises  important  questions  under  the  Dramatic  Copyright 
Act  1833,  commonly  known  as  Bulwer-Lytton's  Act  (3  &  4  Will.  IV, 
c.  15)  §  1,  which  I  have  to  construe  by  the  light  of  the  recent  decision 
of  the  Court  of  Appeal  in  Tate  v.  Fullbrook,  98  L.  T.  Rep.  706,  [1908] 
1  K.  B.  821.  The  defendants  contended  (1)  that  the  sketch  in  ques- 
tion was  not  such  a  "dramatic  piece"  as  to  be  entitled  to  protection 
under  the  Act.  (2)  That  the  alleged  cinematographic  reproduction 
was  not  in  fact  or  in  law  a  "representation"  of  the  plaintiff's  sketch 
within  the  meaning  of  the  Act.  (3)  That  the  defendants  by  merely 
selling  the  film  were  not  "causing"  the  plaintiff's  sketch  "to  be  rep- 
resented." 

In  order  to  determine  these  points,  it  is  necessary  to  state  somewhat 
minutely  the  facts  which  were  admitted  or  proved  before  me.  The 
plaintiff  carries  on  a  lucrative  business  by  composing  humorous 
sketches,  training  his  companies  to  play  them,  and  sending  them  round 
the  country  and  abroad  to  be  performed  in  music-halls  and  theatres. 
One  of  such  sketches  is  called  "The  Mumming  Birds  or  Twice  Night- 
ly," which  is  entered  by  that  name  under  date  the  15th  Jan.,  1906,  as 
a  pantomimical  sketch  in  the  Book  of  Registry  of  Copyrights  and  As- 
signments kept  at  the  hall  of  the  Stationers'  Company  in  pursuance 
of  5  &  6  Vict.  c.  45.  The  plaintiff's  name,  with  his  address,  appears 
therein  as  the  author  and  composer  and  also  as  the  proprietor  of  the 

co  The  statement  <>f  f;iets  is  abridged  and  parts  of  the  opinion  are  omitted. 


SeC.  8)  LITERARY   PROPERTY  1063 

sole  liberty  of  representation  or  performance  so  far  as  Great  Britain 
and  Ireland  are  concerned,  and  the  time  and  place  of  the  first  repre- 
sentation or  performance  is  stated  to  be  the  14th  April,  1904,  at  the 
Star  Music-Hail,  Bermondsey.  In  teaching  his  company  the  plaintiff 
instructs  them  orally  what  to  do  and  what  to  say.     *     *     * 

The  artistes  are  a  male  vocalist,  a  lady  vocalist,  a  conjurer,  a  quar- 
tet of  singers,  a  soubrette,  and  a  wrestler.  The  piece  is  acted  mainly 
in  pantomime,  and  the  "fun"  consists  in  the  incompetence  of  the  per- 
formers, the  disgust  of  the  audience,  the  pranks  of  the  boy,  who  shoots 
peas  or  throws  buns  at  the  artistes  and  members  of  the  audience, 
especially  the  "swell,"  and  who  spoils  the  conjuring  tricks,  &c,  the 
general  free  fights  on  the  stage,  in  which  most  of  the  company  take 
part,  and  the  by-play  between  the  soubrette,  the  "swell,"  a  female 
programme  attendant,  and  others.  There  is  no  sustained  dialogue, 
but  from  time  to  time  a  few  words  are  spoken.     *     *     * 

Now,  what  the  defendants  have  done  is  this :  They  have  manu- 
factured a  cinematographic  film,  photographed  from  living  persons 
whom  they  have  placed  on  a  stage  to  act,  got  up  like  the  plaintiff's 
players,  and  these  figures,  when  their  pictures  are  thrown  upon  the 
sheet,  appear  to  go  through  the  same  antics,  the  same  succession  of 
pranks,  and  the  same  scenic  "business"  as  that  portrayed  in  the  plain- 
tiff's sketch,  the  incidents  being  presented  substantially  in  the  same 
order  and  by  the  same  characters.     *     *     * 

At  the  request  of  the  parties,  and  in  order  the  better  to  judge  as 
to  the  alleged  plagiarisms,  I  attended  a  special  private  performance 
at  the  Oxford  Music-Hall  on  the  6th  inst,  at  which  the  plaintiff's 
sketch  was  performed  and  was  followed  immediately  by  the  "living 
pictures"  produced  by  the  film  of  the  cinematograph  twice  repeated ; 
and  I  have  no  hesitation  in  finding  as  a  fact,  whatever  the  result  may 
be  in  law,  that  the  one  piece  is  copied  in  all  essential  particulars  from 
the  other.  It  was,  moreover,  proved  to  my  satisfaction  that  when  the 
plaintiff  is  about  to  give  a  performance  in  a  provincial  town  the  pur- 
chasers from  the  defendants  of  the  film  in  question  habitually  antici- 
pate such  performance  by  giving  an  exhibition  of  the  "living  pictures," 
and  so  destroy  or  damage  the  success  of  the  plaintiff's  show,  people 
refusing  to  go  to  the  latter,  on  the  ground  that  they  have  seen  it  all 
before.  In  selling  these  films  to  these  purchasers  the  defendants  well 
knew  that  they  were  bought  for  the  purpose  and  with  the  intention 
on  the  part  of  the  purchasers  of  exhibiting  the  "living  pictures"  in 
places  of  entertainment,  and  they  obtain  large  prices  for  them,  on  the 
ground  that  they  will  be  in  this  way  profitable  to  the  purchas- 
ers.    *     *     * 

Looking  to  the  object  of  the  statute,  which  is  evidently  to  protect 
the  results  of  independent  labour  and  composition  in  dramatic  work 
and  to  extend  to  dramatic  compositions  the  same  protection  as  that 
already  given  to  books,  I  see  no  reason  in  the  nature  of  things  why  a 


1064  INJUNCTION    IN   RELATION   TO   TORTS  (Cll.  4 

dramatic  composition  which  is  entirely  pantomimic  or  performed  in 
dumb  show,  and  neither  reduced  or  reducible  into  writing,  should  not 
be  protected  against  piracy  as  being  a  piece  "composed" — that  is, 
"put  together" — by  its  author.     *     *     * 

If,  indeed,  it  could  be  shown  that  in  the  present  case  there  are  words 
capable  of  being  printed  and  published  as  a  literary  piece,  then  I  think 
it  might  be  held  that  the  cinematographic  reproduction  is  a  representa- 
tion of  a  substantial  part  of  the  whole  piece,  though,  of  course,  no 
words  are  reproduced,  and  Tate  v.  Fullbrook,  ubi  sup.,  might  on  that 
ground  be  distinguishable  on  the  facts,  but,  as  I  have  said,  I  do  not 
think  there  is  any  literary  substratum  on  which  to  found  this  conten- 
tion. The  defendants'  first  objection  therefore  prevails.  Inasmuch, 
however,  as  Tate  v.  Fullbrook,  ubi  sup.,  and  the  present  case  may  some 
day  be  reviewed  by  the  House  of  Lords,  I  think  it  best  to  state  shortly, 
for  what  it  is  worth,  my  opinion  on  the  other  two  points  taken  by  the 
defendants.  In  my  opinion,  if  the  "Mumming  Birds"  were  within  the 
protection  of  the  Act,  the  cinematographic  reproduction  of  it,  such 
as  I  find  this  to  be,  would,  in  fact  and  in  law,  be  a  representation  of  the 
plaintiff's  sketch  within  the  meaning  of  the  Act.  It  is  represented  to 
the  eyes  of  the  spectators.  If  the  parts  were  played  by  living  per- 
sons the  spectators  would  see  them  moving  about  and  copying  what  is 
done  in  the  "Mumming  Birds."  Mere  pictures  or  even  stationary 
tableaux  vivants  would  not,  I  think,  infringe  the  right  of  sole  rep- 
resentation, but,  as  the  cinematograph  shows  the  figures  moving,  just 
as  the  living  persons,  I  think  this  reproduction  would  be  held  to  be 
within  the  language  as  well  as  within  the  mischief  of  the  Act.  As  to 
the  defendants'  third  point,  I  was  at  first  inclined  to  think  that,  by  sell- 
ing the  film  to  other  persons  in  the  manner,  with  the  knowledge  and 
under  the  circumstances  already  described  the  defendants  were  "caus- 
ing" the  plaintiff's  sketch  "to  be  represented"  within  the  meaning  of 
the  statute.  But  on  further  consideration,  and  after  perusing  the  case 
of  Russell  v.  Briant,  8  C.  B.  836,  and  comparing  it  with  Marsh  v. 
Conquest,  10  L.  T.  Rep.  717,  17  C.  B.  N.  S.  418,  I  have  come  to  the 
opposite  conclusion,  and  I  think  there  is  no  evidence  on  which  I  could 
properly  hold  the  defendants  liable.  In  the  former  case  Wilde,  C.  J., 
says  (8  C.  B.,  at  p.  848) : 

"No  one  can  be  considered  as  an  offender  against  the  provisions  of  the  Act 
so  as  to  subject  himself  to  an  action  of  this  nature,  unless  by  himself  or  his 
agent  he  actually  takes  part  in  a  representation  which  is  a  violation  of  copy- 
right." 

And  the  same  view  is  taken  in  Lyon  v.  Knowles,  7  L.  T.  Rep.  670,  3 
B.  &  S.  556.  It  might,  indeed,  be  plausibly  argued  that  the  defend- 
ants who  make  and  sell  the  infringing  instrument  without  which  the 
infringement  could  not  take  place,  and  do  so  with  the  knowledge  and 
intention  that  it  will  and  shall  be  used  for  that  purpose  do  take  an  im- 
portant part  in  the  infringement  itself,  but  I  think  on  the  whole  the 
inference  would  be  held  to  be  too  remote  and  too  far-reachhi£  in  the 


Sec.  8)  LITERARY  PROPERTY  1065 

consequences  to  be  accepted.  If  this  view  is  correct,  then,  even  if  the 
action  were  otherwise  maintainable,  it  ought  to  have  been  brought, 
not  against  the  defendants,  but  against  the  actual  proprietors  of  the 
piratical  performance  impugned. 

Judgment  for  the  defendants  with  costs,  except  the  costs  of  the  is- 
sue as  to  title. 


EDISON  v.  EDISON  POLYFORM  MFG.  CO. 

(Court  of  Chancery  of  New  Jersey,  1907.    73  N.  J.  Eq.  136,  67  Atl.  392.) 

Bill  by  Thomas  A.  Edison  against  the  Edison  Poly  form  Manufac- 
turing Company  to  restrain  defendant  from  the  use  of  the  name  "Edi- 
son" as  a  part  of  its  corporate  title  or  in  connection  with  its  business 
or  advertisements. 

Stevens,  V.  C.67  The  complainant,  who  is  an  inventor  of  electrical 
instruments  and  processes,  and  enjoys  in  this  regard  a  world-wide 
reputation,  early  in  his  career  compounded  a  medicinal  preparation  in- 
tended to  relieve  neuralgic  pains  by  external  application.  It  was  first 
made  for  the  personal  use  of  Mr.  Edison  and  his  assistants,  and  not 
for  sale.  In  the  year  1879  a  Mr.  Lewis  and  a  Mr.  Jacobs  went  to  his 
laboratory  in  Menlo  Park  to  examine  his  inventions.  While  there  Mr. 
Edison  happened  to  mention  the  fact  that  he  had  been  a  sufferer  from 
facial  neuralgia,  and  that  he  had  made  a  preparation  which  he  had 
called  "Polyform"  and  which  he  had  found  to  be  a  good  pain 
killer.  Lewis  and  Jacobs  were  so  impressed  with  its  merits  that 
they  asked  him  to  sell  it.  He  finally  agreed  to  sell  for  $5,000.  The 
arrangement  was  that  he  would  apply  for  a  patent  and  execute  an 
assignment.  The  patent  does  not  appear  to  have  been  issued, 
but  a  written  assignment  of  his  right  to  it  and  to  the  preparation 
was  made  on  September  2.  1879.  On  November  7,  1879,  a  com- 
pany, called  the  "Menlo  Park  Manufacturing  Company,"  in  which 
Mr.  Edison  had  no  interest,  was  organized  under  the  laws  of  Con- 
necticut, and  it  proceeded  to  manufacture  and  sell  the  preparation.  It 
did  so  for  several  years  on  a  small  scale,  with  little  or  no  success,  and 
finally  failed.  It  was  succeeded  by  a  corporation,  organized  on  Sep- 
tember 3,  1886,  under  the  laws  of  Maine,  called  the  "Edison  Poly- 
form Company."  This  company,  too,  met  with  little  success.  It  was, 
in  turn,  succeeded  by  a  New  York  company,  which  did  nothing.  Final- 
ly a  New  Jersey  company,  the  present  defendant,  was  on  May  23, 
1893,  formed  by  certain  gentlemen  living  in  Chicago.  This  corpora- 
tion is  now  carrying  on  the  business  of  making  and,  selling  Polyform 
in  that  city.  The  present  suit  was  commenced  October  9,  1903.  There 
has  been  some  delay  in  prosecuting  it,  caused,  I  suppose,  by  the  death 
of  complainant's  solicitor.     I  do  not  think,  however,  that  as  the  case 

oi  Parts  of  the  opinion  are  omitted. 


1066  INJUNCTION   IN   RELATION  TO  TORTS  (Ch.  4 

stands  there  is  any  question  of  laches.  The  case  must  be  decided  on 
its  merits. 

The  prayer  of  the  bill  is  that  the  defendant  company  may  be  re- 
strained from  using  the  name  "Edison"  as  a  part  of  its  corporate  title 
or  in  connection  with  its  business,  or  in  connection  with  any  adver- 
tisements circulated  or  published  by  it,  and  from  holding  out  that 
complainant  is  the  inventor  or  manufacturer  or  seller  of  the  prepara- 
tion sold  by  defendant.  What  the  defendant  company  is  doing  is  to 
manufacture  and  sell  a  liquid  preparation  containing  apparently  all 
but  one  of  the  drugs  (viz.,  morphine)  mentioned  in  Mr.  Edison's 
formula.  On  each  bottle  is  a  label,  containing  on  the  one  side  direc- 
tions for  use,  and  on  the  other  a  picture  of  Air.  Edison  and  the  fol- 
lowing words:  "Edison's  Polyform.  I  certify  that  this  preparation 
is  compounded  according  to  the  formula  devised  and  used  by  myself. 
Thos.  A.  Edison."  Air.  Edison  testifies  that  he  has  never  authorized 
the  use  of  his  picture  and  that  he  has  never  made  or  authorized  this 
certificate.  As  to  the  present,  defendant,  there  is  absolutely  no  pretense 
that  he  has.  As  to  the  predecessors  of  the  defendant,  there  is  evidence 
that  the  picture  and  certificate  were  used ;  but  it  would  seem  that,  when 
Mr.  Edison  heard  that  they  were,  he  objected.  He  says  that  he  ob- 
jected to  any  use  whatever  of  his  name  or  picture.  Mr.  Grant  says, 
but  does  not  show  by  competent  proof,  that  he  objected  only  to  the  rep- 
resentation of  machinery  around  the  head.  I  do  not  regard  the  matter 
as  important,  because,  even  if  Mr.  Edison  had  given  a  license  to  use  a 
picture  and  certificate  to  the  first  vendees — persons  whom  he  knew 
and  in  whom  he  may  have  reposed  confidence — it  would  not  by  any 
means  follow  that  others,  unlicensed  and  whom  he  did  not  know, 
would  possess  the  same  privilege.  In  the  original  assignment  of  the 
formula  no  authority  whatever  to  use  either  name  or  picture  was  con- 
ferred.    *     *     * 

The  cases  relating  to  the  law  of  unfair  trade  have  no  application. 
They  decide  merely  that  a  trader  or  manufacturer  has  no  right  to  put 
off  his  goods  as  the  goods  of  his  competitor.  The  defendant  does  not 
put  off  his  goods  as  being  of  Air.  Edison's  manufacture.  It  asserts  that 
it  is  itself  the  maker  of  them.  What  it  does,  however,  falsely  declare, 
is  that  it  is  Air.  Edison  who  is  certifying  that  the  preparation  which 
the  company  is  making  and  selling  is  made  according  to  the  Edison 
formula.  It  is,  by  its  corporate  name,  by  the  certificate,  and  by  the 
picture,  holding  out  that  Mr.  Edison  is  connected  with  the  enterprise 
and  supervising  its  work.  The  question  is  whether  Air.  Edison  is  with- 
out standing  to  complain  because  he  is  not  a  business  competi- 
tor.    *     *     * 

That  the  subject  is  attended  with  difficulty  and  that  the  line  between 
what  the  court  will  restrain  and  what  it  will  not  restrain  is  hard  to 
draw  with  absolute  precision,  is  undoubted.  This  is  well  illustrated 
by  the  case  of  libel.    If  you  call  a  business  man  a  thief,  or  a  physician 


Sec.  8)  LITERARY   PROPERTY 


10G7 


a  quack,  in  a  printed  publication,  you  undoubtedly  do  that  which  tends, 
and  very  directly  tends,  to  diminish  his  earnings ;  and  yet  all  the  au- 
thorities, up  to  this  time  at  least,  agree  that,  because  libel  is  a  crime 
and  is  actionable  at  law,  equity  will  not  interfere.  Prudential  Insur- 
ance Company  v.  Knott,  L.  R.  10  Ch.  142,  is  an  illustration.     *     *     * 

There  must  be  limits  to  the  so-called  right  of  privacy.  It  is  certain 
that  a  man  in  public  life  may  not  claim  the  same  immunity  from  pub- 
licity that  a  private  citizen  may.  Corless  v.  Walker  Co.  (C.  C.)  64  Fed. 
230,  31  L.  R.  A.  283.  And  as  far  as  my  researches  have  extended  I 
do  not  find  that  it  has  yet  been  decided  that  injury  to  property  in  some 
form  is  not  an  essential  element  to  relief.     *     *     * 

I  regard  the  case  of  Vanderbilt  v.  Mitchell  [72  N.  J.  Eq.  910,  67 
Atl.  97,  14  L.  R.  A.  (N.  S.)  304] ,  just  decided  by  the  Court  of  Appeals, 
as  conclusive.  That  court,  as  I  have  said,  condemned  Roberson  v. 
Rochester  Folding  Box  Co.  [171  N.  Y.  538,  64  N.  E.  442,-  59  L.  R.  A. 
478,  89  Am.  St.  Rep.  828],  and  cited  with  approval  Routh  v.  Webster 
[10  Beav.  561],  and  Walter  v.  Ashton  [(1902)  2  Ch.  282].  It  appeared 
in  Vanderbilt  v.  Mitchell  that  complainant's  wife,  having  had  born  to 
her,  two  years  after  her  marriage,  a  son  who  was  not  complainant's 
son,  falsely  stated  to  the  attending  physician  that  the  complainant  was 
the  father  of  the  child.  This  statement  was  credited  by  the  physician, 
who  inserted  it  in  his  birth  certificate,  sent  by  him  to  the  bureau  of  vital 
statistics,  where  it  was  recorded.  The  record,  by  the  terms  of  our 
statute,  is  prima  facie  evidence  of  the  facts  therein  stated.  The  com- 
plainant prayed  that  this  fraudulent  record  might  be  canceled,  and  that 
an  injunction  might  issue  restraining  both  mother  and  child  from 
claiming  thereunder  the  status,  name,  or  property  of  a  child  lawfully 
begotten  by  complainant.  The  defense  set  up  was  that  complainant  did 
not  show  that  any  of  his  property  rights  had  been  affected,  and  such 
was  the  decision  of  Garrison,  V.  C. ;  but  on  appeal  it  was  held  that  the 
complainant  was  entitled  to  relief.  It  was  pointed  out  by  Dill,  J.,  that, 
inasmuch  as  the  statute  made  the  recorded  certificate  prima  facie  evi- 
dence of  the  facts  stated  in  it,  it  could  be  used  as  evidence  in  a  suit 
brought  against  the  complainant  for  necessaries  furnished  to  the  child. 
This  of  itself,  brought  the  case  well  within  the  ruling  in  Routh  v.  Web- 
ster, supra.  It  was  a  false  statement,  which  exposed  the  complainant 
to  the  risk  of  pecuniary  liability ;  but  the  court  went  further.  It  ap- 
peared that  the  complainant  was  a  beneficiary  of  a  vested  remainder  in 
land  under  a  trust  which  was  being  executed  according  to  the  laws  of 
New  York.  Under  the  laws  of  that  state  a  man  cannot  devise  more 
than  half  of  his  estate  to  charity  where  he  leaves  (inter  alios)  a  child. 
His  right  to  make  an  absolute  devise  of  his  property  was  thus  threat- 
ened, and  the  impairment  of  this  right  was  held  to  give  him  a  standing 
in  a  court  of  equity  to  attack  the  certificate.  Judge  Dill,  in  concluding 
his  illuminating  opinion,  said  that  the  question  whether  the  bill  might 
not  have  been  rested  on  the  ground  of  an  interference  with  personal, 


1.008  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 

as  contradistinguished  from  property,  rights,  was  not  decided,  for  the 
reason  that  the  case  "presented  the  property  feature  to  an  extent  suffi- 
cient to  satisfy  even  the  rule  adopted  by  the  court  below." 

The  Court  of  Appeals  has  thus  emphatically  declared  that  the  term 
"property  right"  is  not  to  be  taken  in  any  narrow  sense,  and  that  the 
tendency  of  equity  in  cases  of  this  description  should  be  to  extend,  rath- 
er than  to  restrict,  the  jurisdiction.    Judge  Dill  says  : 

"From  time  immemorial  it  lias  been  the  rule  not  to  grant  equitable  relief, 
where  a  party  praying  for  it  had  an  adequate  remedy  at  law;  but  modern 
ideas  of  what  are  adequate  remedies  are  changing  and  expanding,  and  it  is 
gradually  coming  to  be  understood  that  a  system  of  law  which  will  not  prevent 
the  doing  of  a  wrong,  but  only  affords  redress  after  the  wrong  is  committed. 
is  not  a  complete  system,  and  is  inadequate  to  the  present  needs  of  society." 

It  is  difficult  to  imagine  a  case  in  which  preventive  relief  would  be 
more  appropriate  than  the  present.  In  a  perfectly  unauthorized  way  a 
certificate  falsely  purporting  to  be  made  by  Mr.  Edison,  and  also  false 
in  fact,  because  the  preparation  is  not  compounded  with  all  the  ingre- 
dients of  the  formula,  is  put  by  a  company  bearing  Edison's  name  upon 
every  bottle  of  Poly  form  which  it  sells.  That  there  may  be  no  mis- 
take as  to  who  is  intended,  the  certificate  is  accompanied  with  a  like- 
ness. 

I  think  an  injunction  should  be  granted  restraining  the  defendant 
company  from  holding  out,  either  in  the  name  of  the  company,  or  by 
certificate,  or  by  pictorial  representation,  that  Air.  Edison  has  any  con- 
nection with  or  part  in  the  complainant's  business.  I  cannot  divorce 
the  company's  name  from  the  other  parts  of  the  representation.  It  is, 
as  the  evidence  stands,  part  of  the  fraudulent  contrivance.  The  ab- 
stract question  whether  a  company  can  innocently  use,  as  a  part  of  iis 
title,  the  name  of  a  distinguished  living  character,  is  not  before  me  for 
decision,  and  no  opinion  is  expressed  about  it.'is 

<;^  Mr.  Justice  Hughes,  delivering  the  opinion  of  the  court  in  Thaddeus 
Davids  Co.  v.  Davids  (1914)  223  V.  S.  461,  84  Sup.  Ct.  648,  58  L.  Ed.  104U.  says 
(inter  alia):  "Thaddeus  Inn  ids  Company,  manufacturer  of  inks,  etc.,  brought 
this  suit  for  the  infringement  of  its  registered  trademark  'Davids.'  It  was  al- 
leged that  the  complainant  was  the  owner  of  the  trademark;  that  it  had  been 
used  in  interstate  commerce  by  the  complainant  and  its  predecessors  in  busi- 
ness for  upwards  of  eighty  years;  that  on  January  22,  1907,  it  had  been  reg- 
istered by  the  complainant  as  a  trademark,  applicable  to  inks  and  stamp  pads, 
under  the  act  of  February  20,  1905  (chap.  592,  :::;  Stat,  at  L.  724,  U.  S.  Comp. 
Stat.  Supp.  1911,  p.  1459);  that  the  complainant  was  entitled  to  such  registra- 
tion under  §  5  of  the  act  by  reason  of  actual  and  exclusive  use  for  more  than 
ten  years  prior  to  the  passage  of  the  act;  and  that  the  defendants,  Oortlandt 
1.  Davids  and  Walter  I.  Davids,  trading  as  I>avids  Manufacturing  Company, 
were  putting  inks  upon  the  market  with  infringing  labels.  The  bill  also 
charged  unfair  competition.  Upon  demurrer,  the  validity  of  the  trademark 
was  upheld  by  the  circuit  court  of  appeals  ([1910]  102  C.  C.  A.  249,  178  Fed, 
soli,  ami  on  final  hearing  upon  pleadings  and  proofs,  complainant  had  a  de- 
cree (|1!)11|  190  Fed.  2S5),  This  decree  was  reversed  by  the  circuit  court  of 
appeals,  which  held  that  there  was  no  infringement  of  the  registered  trade- 
mark, and  that  the  suit,  if  regarded  as  one  for  unfair  competition,  was  not 
within  the  jurisdiction  of  the  court,  the  parties  being  citizens  of  the  same  state 
([1912]  114  C.  C.  A.  355,  L92  Fed.  9151.  Certiorari  was  granted.  As  the  mark 
consisted  of  an  ordinary  surname,  it  was  not  the  subject  of  exclusive  appropri- 


Sec.  8)  LITERARY  PROPERTY  10(i!) 

ation  as  a  common-law  trademark.  *  *  *  In  the  case,  therefore,  of  marks 
consisting  of  names  or  terms  having  a  double  significance,  and  being  suscepti- 
ble of  legitimate  uses  with  respect  to  their  primary  sense,  the  reproduction, 
copy,  or  imitation  which  constitutes  infringement  must  be  such  as  is  calculated 
to  mislead  the  public  with  respect  to  the  origin  or  ownership  of  the  goods,  and 
thus  to  invade  the  right  of  the  registrant  to  the  use  of  the  name  or  term  as  a 
designation  of  his  merchandise.  This  we  conceive  to  be  the  meaning  of  the 
statute.  It  follows  that  where  the  mark  consists  of  a  surname,  a  person  having 
the  same  name  and  using  it  in  his  own  business,  although  dealing  in  similar 
goods,  would  not  be  an  infringer,  provided  that  the  name  was  not  used  in  a 
manner  tending  to  mislead,  and  it  was  clearly  made  to  appear  that  the  goods 
were  his  own,  and  not  those  of  the  registrant.  This  is  not  to  say  that,  in 
this  view,  the  case  becomes  one  simply  of  unfair  competition,  as  that  category 
has  been  defined  in  the  law ;  for,  whatever  analogy  may  exist  with  respect  to 
the  scope  of  protection  in  this  class  of  cases,  still  the  right  to  be  protected 
against  an  unwarranted  use  of  the  registered  mark  has  been  made  a  statutory 
right,  and  the  courts  of  the  United  States  have  been  vested  with  jurisdiction 
of  suits  for  infringement,  regardless  of  diversity  of  citizenship.  Moreover,  in 
view  of  this  statutory  right,  it  could  not  be  considered  necessary  that  the  com- 
plainant, in  order  to  establish  infringement,  should  show  wrongful  intent  in 
fact  on  the  part  of  the  defendant,  or  facts  justifying  the  inference  of  such  an 
intent.  Lawrence  Mfg.  Co.  v.  Tennessee  Mfg.  Co.  (1891)  138  U.  S.  537,  549,  34 
L.  Ed.  997,  1004,  11  Sup.  Ct.  390;  Singer  Mfg.  Co.  v.  June  Mfg.  Co.  (1S96) 
103  U.  S.  109,  41  L.  Ed.  118,  10  Sup.  Ct.  1002 :  Elgin  Nat.  Watch  Co.  v.  Illinois 
Watch  Case  Co.  (1900)  179  U.  S.  005,  074,  45  L.  Ed.  305,  379,  21  Sup.  Ct.  270. 
Having  duly  registered  under  the  act,  the  complainant  would  be  entitled  to 
protection  against  any  infringing  use ;  but,  in  determining  the  extent  of  the 
right  which  the  statute  secures,  and  what  may  be  said  to  constitute  an  in- 
fringing use,  regard  must  be  had,  as  has  been  said,  to  the  nature  of  the  mark, 
and  its  secondary,  as  distinguished  from  its  primary,  significance.  The  dis- 
tinction between  permissible  and  prohibited  uses  may  be  a  difficult  one  to  draw 
in  particular  cases,  but  it  must  be  drawn  in  order  to  give  effect  to  the  act  of 
Congress.  That  the  distinction  may  readily  be  observed  in  practice  is  appar- 
ent. In  this  case,  for  instance,  if  the  defendants  had  so  chosen,  they  could 
have  adopted  a  distinct  mark  of  their  own,  which  would  have  served  to  des- 
ignate their  inks  and  completely  to  distinguish  them  from  those  of  the  com- 
plainant. It  was  not  necessary  that,  in  exercising  the  right  to  use  their  own 
name  in  trade,  they  should  imitate  the  mark  which  the  complainant  used,  and 
was  entitled  to  use  under  the  statute,  as  a  designation  of  its  wares ;  or  that 
they  should  use  the  name  in  question  upon  their  labels  without  unmistakably 
differentiating  their  goods  from  those  which  the  complainant  manufactured 
and  sold.  We  agree  with  the  circuit  court  that  infringement  was  shown.  The 
complainant  put  its  mark  'Davids'  prominently  at  the  top  of  its  labels.  The 
defendants,  in  the  same  position  on  its  labels,  put  'C.  I.  Davids.'  At  the  bot- 
tom of  their  labels  the  defendants  placed  'Davids  Mfg.  Co.'  The  use  of  the 
name  in  this  manner  was  a  mere  simulation  of  the  complainant's  mark  which 
it  had  duly  registered  ;  it  constituted  a  'colorable  imitation'  within  the  meaning 
of  the  act.  The  decree  of  the  circuit  court  accordingly  restrained  the  defend- 
ants from  the  use  of  the  words  'Davids  Manufacturing  Company,'  and  from 
the  use  of  the  word  'Davids'  at  the  top  of  their  labels  in  connection  with  the 
business  of  making  and  selling  inks.  We  think  that  the  complainant  was  en- 
titled to  this  measure  of  protection.  The  decree  of  the  Circuit  Court  of  Ap- 
peals must  therefore  be  reversed  and  that  of  the  Circuit  Court  affirmed.  It 
is  so  ordered." 


1070  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 


NATIONAL  TELEGRAPH  NEWS  CO.  et  al.  v.  WESTERN 
UNION  TELEGRAPH  CO. 

(Circuit  Court  of  Appeals  of  the  United  States,  Seventh  Circuit,  1902. 
119  Fed.  294,  56  C.  C.  A.  19S,  60  L.  R.  A.  805.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  North- 
ern Division  of  the  Northern  District  of  Illinois. 

The  bill  in  the  Circuit  Court  was  by  appellee,  a  corporation  of  New 
York,  against  the  appellants,  The  National  Telegraph  News  Company, 
a  corporation  of  Illinois,  and  F.  E.  Crawford  and  A.  K.  Brown,  citi- 
zens of  Illinois ;  and  the  appeal  is  from  an  interlocutory  order  restrain- 
ing the  appellants,  and  each  of  them,  their  servants,  agents  and  em- 
ployes, from  copying  from  the  appellee's  electrical  instruments  and 
printing  machines,  known  as  tickers,  for  the  purpose  of  publishing,  sell- 
ing or  transmitting  through  their  own  tickers,  or  otherwise  disposing  of, 
or  using,  any  of  the  news  or  information — such  as  base-ball,  foot-ball, 
racing,  athletics,  stock,  grain  and  produce  quotations,  financial  and 
other  reports — which  may  thereafter  be  collected,  formulated  and 
transmitted  by  the  appellee  through  its  tickers ;  and  from  publishing, 
selling  or  using  the  matter  so  copied  until  the  lapse  of  fully  sixty  min- 
utes from  the  time  such  news  items  are  printed  by  appellee's  tickers. 

The  further  facts  appear  in  the  opinion  of  the  court. 

Before  Jenkins  and  Grosscup,  Circuit  Judges,  and  Bunn,  District 
Judge. 

Grosscup,  Circuit  Judge,09  delivered  the  opinion  of  the  Court: 

The  appellee,  the  Western  Union  Telegraph  Company,  does  a  gen- 
eral telegraphing  business,  having  offices  in  every  state,  village,  ham- 
let and  railroad  station  in  the  country,  and  wires  connecting  the  same 
with  central  offices  through  the  country. 

About  1881  there  was  invented  an  instrument  which,  by  means  of 
a  type  wheel,  actuated  by  electrical  impulse,  automatically  prints  in 
plain,  ordinary  type,  upon  a  strip  of  paper,  messages  transmitted  elec- 
trically from  a  distance.  The  instrument  is  now  generally  known  as 
the  "ticker,"  and  is  commonly  found  in  the  offices  of  brokers,  bankers 
and  other  persons  interested  in  the  current  price  of  securities,  and  in 
hotels,  saloons  and  other  places  where  people,  who  are  interested  in  the 
happenings  of  the  race  tracks,  athletic  clubs,  base-ball  associations,  and 
in  pending  events  generally,  are  in  the  habit  of  gathering.  Upon  the 
perfecting  of  this  instrument  appellee  entered,  in  addition  to  its  general 
telegraph  business,  upon  a  business  heretofore  new  to  it.  It  collected 
at  various  points,  where  it  had  offices,  news  relating  to  events  there 
transpiring,  and,  after  accumulating  in  its  central  offices  such  product 
by  means  of  its  wires,  redistributed  to  its  tickers,  in  the  offices  and 
places  of  its  patrons,  by  means  of  local  wires,  what  was  deemed  of  suffi- 

«8  Parts  of  the  opinion  are  omitted. 


SeC.  8)  LITERARY   PROPERTY  1071 

cient  interest.  The  news  thus  gathered  and  printed  upon  strips  of 
paper  is  open  to  the  inspection  of  all  persons  who  may  come  within 
these  places. 

The  appellants,  The  National  Telegraph  News  Company,  and  F.  E. 
Crawford  and  A.  K.  Brown,  its  officers,  own  and  control  within  the 
city  of  Chicago,  a  system  of  wires,  connecting  their  operating  office 
with  tickers  of  their  own,  in  the  offices  and  places  of  patrons  of  their 
own.  The  evidence  in  the  record  before  us  shows  that  they  have  been 
appropriating  vi  et  armis  the  news  appearing  upon  the  appellee's  tape ; 
and  thereupon,  with  the  loss  of  a  few  moments  only,  redistributing  such 
news  over  their  own  wires  and  tickers  to  their  own  patrons.  Such 
appropriation  is  not  denied;  but  is  defended  as  appellants'  lawful  right, 
upon  the  ground,  chiefly,  that  upon  the  appearance  of  the  printed  tape 
upn  the  appellee's  tickers,  in  the  places  of  appellee's  patrons,  there  is 
such  a  publication  as,  within  the  meaning  of  the  law,  dedicates  the  con- 
tents of  the  tape  to  the  public,  and  deprives  appellee  of  any  further 
monopoly  therein. 

The  contention  is  grounded,  chiefly,  upon  the  assumption  that  the 
■matter  thus  printed  is,  unless  the  subject-matter  of  copyright,  unpro- 
tected against  appropriation  by  the  public;  and,  if  the  subject-matter 
of  copyright,  comes  under  section  4956  of  the  Revised  Statutes  (U.  S. 
Comp.  St.  1901,  p.  3407),  which  provides  that  no  person  shall  be  entitled 
to  a  copyright  unless  he  shall,  before  publication,  deliver  at  the  office 
of  the  librarian  of  Congress,  or  deposit  in  the  mail  addressed  to  the 
librarian  of  Congress  at  Washington,  a  printed  copy  of  the  title  of  the 
book,  or  other  article,  or  a  description  of  the  painting,  drawing,  chromo, 
statue,  statuary,  or  a  model  or  design  for  a  work  of  the  fine  arts,  for 
which  he  desires  copyright.     *     *     * 

It  is  obvious,  also,  that  if  appellants  may  lawfully  appropriate 
the  product  thus  expensively  put  upon  the  appellee's  tape  and'  dis- 
tribute the  same  instantaneously  to  their  own  patrons,  as  their 
own  product,  thus  escaping  any  expense  of  collection,  but  one  re- 
sult could  follow — the  gathering  and  distributing  of  news,  as  a  busi- 
ness enterprise,  would  cease  altogether.  Appellee  could  not,  in  the 
nature  of  things,  procure  copyright  under  the  Act  of  Congress  upon 
its  printed  tape ;  and  it  could  not,  against  such  unfair  conditions,  with- 
out some  measure  of  protection,  compete  with  appellants  upon  prices 
to  be  charged  their  respective  patrons.  And  in  the  withdrawal  of  ap- 
pellee from  this  business,  there  would  come  death  to  the  business  of 
appellants  as  well ;  for  without  the  use  of  appellee's  tape,  appellants 
would  have  nothing  to  distribute.  The  parasite  that  killed,  would  itself 
be  killed,  and  the  public  would  be  left  without  any  service  at  any  price. 

The  general  question  raised  by  appellants'  contention,  then,  is  this  • 
Is  the  printed  tape,  coming  out  of  appellee's  tickers,  a  book  or  article 
within  the  meaning  of  the  copyright  laws  of  the  United  States,  and 
especially  of  section  4956  (U.  S.  Comp.  St.  1901,  p.  3407),  and  if  not 
a  book  or  article  within  the  meaning  of  the  copyright  law,  is  there  any 


1072  INJUNCTION  IN  RELATION  TO  TORTS  (Cll.  4 

remedy  that  will  protect  this  feature  of  appellee's  business  against  the 
kind  of  piracy  shown? 

We  are  of  the  opinion  that  the  printed  tape  would  not  be  copyright- 
able, even  if  the  practical  difficulties  were  out  of  the  way.  When  the 
federal  constitution  was  adopted  the  right  of  property  in  literary  pro- 
duction had  been  already  securely  established  in  English  law.  Its 
source,  whether  in  natural  right, 'or  in  the  statute  of  Anne,  was  still  in 
doubt ;  but  that  an  author  had  ownership  of  some  species  over  the  pro- 
duction of  his  brain — an  ownership  as  distinctive  as  that  of  the  creator 
of  corporeal  property — was  conceded  by  all.  Indeed,  it  could  not  be 
otherwise  in  a  civil  polity  that  recognizes  the  individual,  and  his  right 
to  enjoy  what  he  creates,  as  the  unit  of  organized  society. 

But  when  the  federal  constitution  was  adopted,  the  application  of 
this  right  to  productions  other  than  those  strictly  literary  had  not  yet 
been  mooted.  The  great  case  of  Donaldson  v.  Beckett,  2  Brown,  Pari. 
Cas.  129,  had  been  decided  only  thirteen  years  previously.  The  business 
world,  that  in  this  day  permits  nothing  to  escape  as  a  means  for  its  ex- 
ploitation had  not  yet  pressed  into  her  service  art  and  books.  Business 
catalogues,  circulars  containing  market  quotations,  sheets,  such  as  Dun's 
and  Bradstreet's  directories — the  whole  staff  of  aides-de-camp  to  com- 
merce, now  familiar  to  all — were  then  practically  unknown.  In  the 
public  mind,  the  publication  of  a  book  meant  that  literature,  as  Litera- 
ture, had  received  an  accession.     *     *     * 

But,  obviously,  there  is  a  point  at  which  this  process  of  expansion 
must  cease.  It  would  be  both  inequitable  and  impracticable  to  give 
copyright  to  every  printed  article.  Much  of  current  publication — in 
fact  the  greater  portion — is  nothing  beyond  the  mere  notation  of  events 
transpiring,  which,  if  transpiring  at  all,  are  accessible  by  all.  It  is  in- 
conceivable that  the  copyright  grant  of  the  constitution,  and  the  stat- 
utes *in  pursuance  thereof,  were  meant  to  give  a  monopoly  of  narrative 
to  him,  who,  putting  the  bare  recital  of  events  in  print,  went  through 
the  routine  formulae  of  the  copyright  statutes. 

It  would  be  difficult  to  define,  comprehensively,  what  character  of 
writing  is  copyrightable,  and  what  is  not.  But,  for  the  purposes  of 
this  case,  we  may  fix  the  confines  at  the  point  where  authorship  proper 
ends,  and  mere  annals  begin.     *     *     * 

Judged  by  a  test  like  this,  the  printed  matter  on  the  tape  in  question 
is  in  no  sense  copyrightable.  It  is,  at  most,  the  mere  annal  of  events 
transpiring.  True,  the  happenings  of  a  race  track,  or  the  incidents  of 
a  college  boat  race,  may  be  put  in  narrative,  involving  creative  imagi- 
nation ;  or  the  doings  of  a  board  of  trade  become  the  basis  of  a  useful 
book  or  article  evincing  originality.  But  the  printed  tape  under  con- 
sideration is  no  such  book  or  article,  and  affects  no  such  dignity.  It  is, 
in  its  totality,  nothing  more  or  less  than  the  transmission  by  electricity, 
over  long  di -lances,  of  what  a  spectator  of  the  event,  occupying  a  for- 
tunate position  to  see  or  hear,  would  have  communicated,  by  word  of 
mouth,  to  his  less  fortunate  neighbor.     It  is  an  exchange  merely,  over 


Sec.  8)  LITERARY   PROPERTY  1073 

wider  area,  of  ordinary  sight-seeing;  and  the  exchange  is  in  the  lan- 
guage of  the  ordinary  sight-seer.  Matter  of  this  character  is  not,  with- 
in the  meaning  of  the  copyright  law,  the  fruit  of  intellectual  lahor,  and 
would  not,  if  actually  copyrighted,  be  protected  by  the  courts.  Iron 
Works  v.  Clow,  27  C.'C.  A.' 250,  82  Fed.  316. 

Indeed,  the  printed  tape  under  consideration  has  no  value  at  all  as 
a  book  or  article.  It  lasts  literally  for  an  hour,  and  is  in  the  waste 
basket  when  the  hour  has  passed.  It  is  not  desired  by  the  patron  for 
the  intrinsic  value  of  the  happening  recorded — the  happening,  as  an 
happening,  may  have  no  value.  The  value  of  the  tape  to  the  patron  is 
almost  wholly  in  the  fact  that  the  knowledge  thus  communicated  is 
earlier,  in  point  of  time,  than  knowledge  communicated  through  other 
means,  or  to  persons  other  than  those  having  a  like  service.  In  just 
this  quality — to  coin  a  word,  the  precommunicatedness  of  the  informa- 
tion— is  the  essence  of  appellee's  service ;  the  quality  that  wins  from 
the  patron  his  patronage. 

Now,  in  virtue  of  this  quality,  and  of  this  quality  alone,  the  printed 
tape  has  acquired  a  commercial  value.  It  is,  when  thus  looked  at  a  dis- 
tinct commercial  product,  as  much  so  as  any  other  out-put  relating  to 
business,  and  brought  about  by  the  joint  agency  of  capital  and  business 
ability.  In  no  accurate  view  can  appellee  be  said  to  be  a  publisher  or 
author.  Its  place,  in  the  classification  of  the  law,  is  that  of  a  carrier 
of  news ;  the  contents  of  the  tape  being  an  implement  only,  in  the  hands 
of  such  carrier,  in  its  engagement  for  quick  transmission.  This  is 
Service ;  not  Authorship,  nor  the  work  of  the  Publisher. 

This,  then,  brings  us  to  the  second  inquiry  :  Is  there  any  remedy- 
that  will  protect  appellee,  in  this  feature  of  its  business,  against  the 
piracy  of  outsiders  ?  Has  appellee,  in  the  performance  of  this  service, 
no  appeal  to  the  law? 

It  will  be  noted,  first,  that  the  business  is,  as  an  entirety,  a  lawful 
one.  It  meets  a  distinctive  commercial  want,  and  in  some  of  its 
branches,  at  least,  adds  to  the  facilities  of  the  business  world.  Indeed, 
no  argument  against  its  lawfulness  has  been  advanced. 

The  business  involves,  also,  the  use  of  property.  This  consideration 
brings  it  at  once,  in  a  general  way,  within  the  protecting  care  of  courts 
of  equity.  At  first  glance  the  immediate  act  restrained  in  the  order  be- 
low— the  use  of  the  information  by  a  rival  enterprise  until  after  sixty 
minutes — may  not  appear  as  a  trespass  upon,  or  injury  to,  property, 
other  than  to  the  extent  that  there  may  be  property  in  the  printed  mat- 
ter. But  such  a  view  falls  short  of  looking  far  enough.  Property, 
even  as  distinguished  from  property  in  intellectual  production,  is  not, 
in  its  modern  sense,  confined  to  that  which  may  be  touched  by  the  hand, 
or  seen  by  the  eye.  What  is  called  tangible  property  has  come  to  be, 
in  most  great  enterprises,  but  the  embodiment,  physically,  of  an  under- 
lying life — a  life  that,  in  its  contribution  to  success,  is  immeasurably 
more  effective  than  the  mere  physical  embodiment.  Such,  for  example, 
Boke  Eq—  68 


1074  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

are  properties  built  upon  franchises,  on  grants  of  government,  on  good 
will,  or  on  trade  names,  and  the  like.  It  is  needless  to  say,  that  to  every 
ingredient  of  property  thus  made  up — the  intangible  as  well  as  the  tan- 
gible, that  which  is  discernible  to  mind  only,  as  well  as  that  susceptible 
to  physical  touch — equity  extends  appropriate  protection.  Otherwise 
courts  of  equity  would  be  unequal  to  their  supposed  great  purposes ; 
and  every  day,  as  business  life  grows  more  complicated,  such  inade- 
quacy would  be  increasingly  felt. 

Nowhere  is  this  recognition  by  courts  of  equity  of  the  intangible- 
side  of  property  better  exemplified,  than  in  the  remedies  recently  devel- 
oped against  unfair  competition  in  trade.  An  unregistered  trade  name 
or  mark  is,  in  essence,  nothing  more  than  a  symbol,  conveying  to  eye 
and  ear  information  respecting  origin  and  identity;  as  if  the  manufac- 
turer, present  in  person,  and  pointing  to  the  article,  were  to  say,  "These 
are  mine" ;  and  the  injunctive  remedy  applied  is  simply  a  command  that 
this  form  of  speech — this  method  of  saying,  These  are  mine — shall  not 
be  intruded  upon  unfairly  by  a  like  speech  of  another. 

Standing  apart,  the  symbol  or  speech  is  not  property.  Disconnected 
from  the  business  in  which  it  is  utilized  it  cannot  be  monopolized.  But 
used  as  a  method  of  making  an  enterprise  succeed,  so  that  its  appro- 
priation by  another  would  be  a  distinctive  injury  to  the  enterprise  to 
which  it  is  attached,  the  name,  or  mark,  becomes  at  once  the  subject- 
matter  of  equitable  protection.  Here,  as  elsewhere,  the  eye  of  equity 
jurisdiction  seeks  out  results,  and  though  the  immediate  thing  to  be 
acted  upon  by  the  injunction  is  not  itself,  alone  considered,  property, 
it  is  enough  that  the  act  complained  of  will  result,  even  though  some- 
what remotely,  in  injury  to  property. 

Considering  that  in  such  case,  equity,  without  question,  lays  its  re- 
straining hands  upon  the  injurious  appropriation  of  words  that  belong 
to  the  common  language  of  mankind — than  which  nothing  could  be 
freer  to  the  uses  of  men — there  ought,  it  would  seem,  to  be  no  difficulty, 
in  the  case  under  consideration,  to  find  the  power  so  manifestly  needful. 

The  case  under  consideration  may  be  summed  up  as  follows :  The 
business  of  appellee  is  that  of  a  carrier  of  information.  The  gist  of 
its  service  to  the  patron  is,  that,  by  such  carriage,  the  patron  acquires 
knowledge  of  the  matter  communicated  earlier  than  those  not  thus 
served.  The  ticker,  with  its  printed  tape,  is  an  implement  or  means 
only  to  this  commercial  end,  which  the  patron,  or  the  patron's  patron, 
may  utilize  to  the  end  intended,  but  may  not  appropriate  to  some  end 
not  intended,  especially  if  such  appropriation  result  in  injury  to,  or 
total  destruction  of,  the  service.  In  short,  the  law  being  clearly  inade- 
quate to  that  purpose,  equity  should  see  to  it,  that  the  one  who  is  serv- 
ed, and  the  one  who  serves,  each  gets  what  the  engagement  between 
them  calls  for;  and  that  neither,  to  the  injury  of  the  other,  shall  ap- 
propriate more.     *     *     * 

Is  the  enterprise  of  the  great  news  agencies,  or  the  independent  en- 
terprise of  the  great  newspapers,  or  of  the  great  telegraph  and  cable 


Sec.  8)  LITERARY  PROPERTY  1075 

lines,  to  be  denied  appeal  to  the  courts,  against  the  inroads  of  the  para- 
site, for  no  other  reason  than  that  the  law,  fashioned  hitherto  to  fit  the 
relations  of  authors  and  the  public,  cannot  be  made  to  fit  the  relations 
of  the  public  and  this  dissimilar  class  of  servants?  Are  we  to  fail  our 
plain  duty  for  mere  lack  of  precedent?  We  choose,  rather,  to  make 
precedent — one  from  which  is  eliminated,  as  immaterial,  the  law  grown 
up  around  authorship — and  we  see  no  better  way  to  start  this  precedent 
upon  a  career,  than  by  affirming  the  order  appealed  from. 

Affirmed. 

NoTE. — Baker,  Circuit  Judge,  though  not  sitting  in  this  case,  read, 
in  connection  with  the  following  case,  Illinois  Commission  Co.  v.  Cleve- 
land Tel.  Co.,  119  Fed.  301,  56  C.  C.  A.  205,  the  briefs  and  record  here- 
in, and  took  part,  informally,  in  the  conferences.  He  authorizes  the 
statement  that  the  reasoning  and  conclusions  arrived  at  in  this  case 
meet  with  his  concurrence. 


GEE  v.  PRITCHARD. 

(In  Chancery  before  Lord  Eldon,  1818.     2  Swanst.  403,  36  E.  R.  670.) 

The  bill  charged  that  Pritchard  was  proceeding  to  print  and  publish, 
or  cause  to  be  printed  and  published,  the  letters  of  the  Plaintiff,  or  true 
copies  or  copy  thereof,  and  extracts  therefrom,  and  that  he  and  the 
Defendant  Anderson  had  caused  public  notice  thereof  to  be  given 
by  advertisement  in  the  newspapers,  and  otherwise,  and  particularly 
in  a  newspaper  called  the  Morning  Post,  on  Friday  the  9th  of  July,  in 
the  words  following:  "In  the  press,  and  speedily  will  be  published, 
by  William  Anderson,  bookseller,  Piccadilly,  'The  Adopted  Son,  or, 
Twenty  Years  at  Beddington,'  containing  Memoirs  of  a  Clergyman, 
written  by  himself,  and  interspersed  with  interesting  correspondence ;" 
and  that  Anderson  was  printing  and  about  to  publish  the  same,  or 
some  work  in  which  the  letters,  or  copies  thereof,  or  extracts  there- 
from, were  introduced.     *     *     * 

The  bill  prayed,  that  the  Defendants  might  be  respectively  restrain- 
ed by  injunction  from  printing  or  publishing  the  original  letters,  or 
any  copies  or  copy  of  the  original  letters,  so  written  by  the  Plaintiff, 
or  any  extracts  or  extract  therefrom,  and  might  be  decreed  to  deliver 
up  to  the  Plaintiff,  or  to-  destroy,  the  original  copy  of  the  letters  so 
taken  or  made  by  the  Defendant  Pritchard,  and  all  printed  and  other 
copies  thereof,  or  of  any  extracts  therefrom,  which  they  might  re- 
spectively have  in  their  possession  or  power.     *     *     * 

"It  was  therefore  prayed,  that  the  Defendants  may  be  respectively  re- 
strained, by  the  order  or  injunction  of  this  Court,  from  printing  or  publishing 
the  said  original  letters  written  by  the  Plaintiff,  or  extracts  or  extract ;  which, 
upon  hearing,  &e.,  is  ordered  accordingly,  until  the  Defendants  shall  appear 
to,  and  fully  answer,  the  Plaintiff's  bill,  or  this  Court  make  other  order  to 
the  contrary."     Reg.  Lib.  A.  1817,  fol.  1S19. 


1076  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

On  this  day  [July  28]  a  motion  was  made,  on  behalf  of  the  Defend- 
ant, to  dissolve  the  injunction.     *     *     * 

The  Lord  Chancellor.70  I  am  of  opinion,  that  the  Plaintiff  has  a 
sufficient  property  in  the  original  letters  to  authorize  an  injunction, 
unless  she  has  by  some  act  deprived  herself  of  it.  Laying  out  of  the 
case  much  of  what  Mr.  Wetherell  lias  urged  with  so  much  ingenuity. 
I  say  only  that  though  a  letter  is  a  subject  of  property,  capable  of" 
being  much  more  largely  dealt  with,  in  communication,  than  books, 
as,  by  reading  to  others,  repeating  passages,  ccc.  yet  the  Court  has 
never  been  alarmed  out  of  the  practice  of  granting  injunctions  relative 
to  letters  to  the  extent  to  which  it  grants  them  in  the  case  of  books,  be- 
cause persons  may  assemble  others,  and  read  and  recite  to  them :  it  is 
not  deterred  from  giving  that  relief  because  it  cannot  give  other  relief 
more  effectual. 

In  stating  what  Lord  Hardwicke  says  on  the  subject,  though  I 
cannot  at  the  moment  refer  to  cases,  I  state  that  which,  in  cases,  has 
been  handed  down  as  the  law  of  the  Court.  In  Pope  v.  Curl,  Lord 
Hardwicke  went  out  of  his  way  to  state  what  he  thought  the  doctrine 
on  the  subject  of  letters.  Though  the  letters  of  eminent  men,  no  one 
can  suppose  that  they  were  all  meant  for  publication  ;  there  are  many 
passages  in  Swift's  letters  which  he  would  be  unwilling  to  have  pub- 
lished.   Lord  Hardwicke  says : 

"Another  objection  has  been  made  by  the  Defendant's  counsel,  that  where 
a  man  writes  a  letter  it  is  in  tbe  nature  of  a  gift  to  the  receiver;  but  I  am  of 
opinion  that  it  is  only  a  special  property  in  the  receiver:  possibly  the  prop- 
erty of  the  paper  may  belong  to  him,  but  this  does  not  give  a  license  to  any 
person  whatsoever  to  publish  them  to  the  world.-' 

If  he  had  stopped  there,  doubt  might  have  been  entertained  whether 

the  receiver  was  not  at  liberty  to  publish  them  to  the  world,  but  he 

proceeds : 

"For,  at  most,  the  receiver  has  only  a  joint  property  with  the  writer."  L' 
Atk.  342. 

Xo  one  can  read  the  case  of  Thompson  v.  Stanhope  without  seeing 

that  this  was  understood  at  that  time  to  be  the  doctrine  of  the  Court. 

Publication  was  there  advertised  in  November,  and  the  application  to 

the  Court  not  made  till  March,  and  on  that  circumstance  Lord  Apsley 

proceeded  in  recommending  the   arrangement  which  he   afterwards 

mentions : 

"The  executors  cannot  be  said  to  have  given  their  consent,  though  his  Lord- 
ship thought  they  would  have  done  better  if  they  had  applied  earlier,  before 
the  expense  (.1'  printing  was  incurred."     Amb.  739,  740. 

That  is  a  strong  part  of  the  case.  Those  were  letters  of  two  class- 
es, written  by  a  father  to  his  son  ;  one  class  relating  to  the  characters 
of  individuals.  The  communication  being  made  by  letter  is  prima 
facie  evidence,  that  that  is  all  the  communication  which,  on  the  subject 
of  those  characters,  the  writer  intends  to  make.    So  of  what  relates  to 

'"  Tlie  statement  of  facts  is  abridged. 


Sec.  8)  LITERARY   PROPERTY  1077 

education  :  though  they  concern  public  characters,  and  a  public  sub- 
ject— education,  no  one  can  maintain,  that  those  discussions  found 
in  private  letters  gave  to  the  person  who  received  the  letters  a  right  to 
carry  into  public  the  opinions  of  the  writer  on  those  public  charac- 
ters, and  the  system  of  education.  Lord  Apsley  therefore  granted 
the  injunction,  observing,  that  the  Defendant  "did  very  ill  in  keeping 
copies  of  the  characters,  when  Lord  Chesterfield  meant  that  they 
should  be  destroyed  and  forgotten."  Lord  Apsley  also  cites  the  case 
of  Mr.  Forrester,  which  certainly  does  apply  to  letters.  I  believe 
the  parties  came  to  a  compromise. 

The  doctrine  is  thus  laid  down,  following  the  principle  of  Lord 
Hardwicke :  I  do  not  say  that  I  am  to  interfere  because  the  letters 
are  written  in  confidence,  or  because  the  publication  of  them  may 
wound  the  feelings  of  the  Plaintiff;  but  if  mischievous  effects  of  that 
kind  can  be  apprehended  in  cases  in  which  this  Court  has  been  accus- 
tomed, on  the  ground  of  property,  to  forbid  publication,  it  would  not 
become  me  to  abandon  the  jurisdiction  which  my  predecessors  have 
exercised,  and  refuse  to  forbid  it. 

Such  is  my  opinion ;  and  it  is  not  shaken  by  the  case  of  Lord  and 
Lady  Perceval  v.  Phipps.  I  will  not  say  that  there  may  not  be  a 
case  of  exception,  but  if  there  is,  the  exception  must  be  established  on 
examination  of  the  letters  ;  and  I  think  that  it  will  be  extremely  diffi- 
cult to  say  where  the  distinction  is  to^  be  found  between  private  let- 
ters of  one  nature,  and  private  letters  of  another  nature.  For  the 
purposes  of  public  justice  publicly  administered,  according  to  the 
established  institutions  of  the  country,  the  letters  must  always  be 
produced  ;  I  do  not  say  that  of  justice  administered  by  private  hands  ; 
nor  do  I  say  that  there  may  not  be  a  case,  such  as  the  Vice  Chancellor 
thought  the  case  before  him,  where  the  acts  of  the  parties  supply  rea- 
sons for  not  interfering :  but  that  differs  most  materially  from  this 
case.  In  April  last,  the  Defendant  having  so  much  of  property  in 
these  letters  as  belongs  to  the  receiver,  and  of  interest  in  them  as 
possessor,  thinks  proper  to  return  them  to  the  person  who  has  in 
them,  as  Lord  Hardwicke  says,  a  joint  property,  keeping  copies  of 
them  without  apprising  her,  and  assigning  such  a  reason  as  he  assigns 
for  the  return.  Now  I  say,  that,  if  in  the  case  before  the  Vice-Chancel- 
lor, Lady  Perceval  had  given  to  Phipps  a  right  to  publish  her  letters, 
this  case  is  the  converse  of  that  ;  and  that  the  Defendant,  if  he  pre- 
viously had  it,  has  renounced  the  right  of  publication. 

On  these  grounds  the  injunction  must  be  continued. 

Motion  refused.71 

7i  Abernethy  v.  Hutchinson  (1825)  3  Law  J.  Ch.  (O.  S.)  209: 
'"The  bill  was  tiled  by  the  distinguished  surgeon,  Mr.  Abernethy,  against  G. 
L.  Hutchinson,  John  Knight  and  Henry  Lacey.  The  prayer  was,  that  an  ac- 
count might  be  taken  of  the  profits  derived  by  the  defendants,  any  or  either 
of  them,  from  the  sale  of  surgical  lectures  delivered  by  the  plaintiff — and  that 
they  might  be  restrained  from  printing  and  publishing  any  other  work  or 
works,  publication  or  publications,  being  or  purporting  to  be  lectures  delivered, 


1078  INJUNCTION   IN   RELATION  TO  TORTS  (Ch.  4 

or  to  be  delivered,  by  tbe  plaintiff ;  and  also  from  reprinting  and  republish- 
ing tbe  surgical  lectures,  or  any  works  or  work,  publications  or  publication, 
being  or  purporting  to  be  delivered  by  the  plaintiff,  or  any  or  either  of  them. 
*  *  *  On  tbe  4th  day  of  October,  1824,  the  plaintiff  commenced  the  deliv- 
ery of  a  course  of  lectures  on  the  principles  and  practice  of  surgery,  at  tbe 
Thea  I  re  of  St.  Bartholomew's  Hospital,  to  his  pupils,  and  to  students  and  per- 
sons desirous  of  acquiring  a  knowledge  of  surgery,  and  who,  previously  to  the 
commencement  of  the  intended  course  had  respectively  been  admitted  by  him 
as  attendants  upon  such  course,  and  had  signed  their  names  respectively  In 
a  book  provided  for  that  purpose,  and  had  paid  the  fees  for  the  privilege  and 
permission  of  attending  the  same.  *  *  *  On  the  9th  day  of  October,  1824, 
was  published  a  number,  or  part,  of  a  periodical  work,  called  'The  Lancet.' 
in  which  was  described,  as  in  the  very  words  and  figures  thereof,  in  the  name 
of  the  plaintiff,  the  lecture  which  he  had  so  as  aforesaid  delivered  on  Monday 
evening,  October  the  4th ;  that  the  said  work  held  out  to  the  public,  that  it 
then  gave,  and  that,  from  time  to  time,  it  would  continue  to  give,  plaintiff's 
said  lecture  and  lectures  with  minute  fidelity:  that  this  number  of  The  Lancet 
contained  a  notice  or  advertisement,  that  a  lecture,  on  the  principles  and  prac- 
tice of  surgery  by  the  plaintiff,  would  be  published,  in  every  succeeding  num- 
ber of  The  Lancet,  until  the  course  should  be  concluded.  *  *  *  The  defend- 
ant, Hutchinson,  filed  an  affidavit,  stating,  *  *  *  That  the  lectures  de- 
livered by  the  plaintiff  have  been  delivered  extemporaneously,  and  were  not 
read  from  any  papers  or  other  writing  at  the  time  of  the  delivery  thereof,  and 
are  illustrations  of  the  principles  of  surgery,  as  laid  down  by  John  Hunter,  and 
others,  for  the  most  part  derived  by  the  plaintiff  from  cases  in  the  perform- 
ance of  his  duty  as  a  surgeon  in  the  said  hospital.  Upon  the  case  appearing 
from  these  affidavits,  the  plaintiff  moved  for  an  injunction,  according  to  the 
prayer  of  his  bill. 

"The  Lord  Chancellor  [Lord  Eldon].  *  *  *  With  regard  to  the  question 
of  literary  property,  I  have  no  right  to  interfere  by  injunction — unless  1  have 
a  very  strong  opinion  that  the  legal  right  is  with  the  plaintiff.  Now,  looking 
at  all  that  has  passed  with  respect  to  literary  property,  and  particularly  with 
respect  to  the  case  of  Millar  v.  Taylor  (1769)  4  Burr.  2303,  which  was  first  be- 
fore the  Court  of  King's  Bench,  and  afterwards  before  the  House  of  Lords, 
(though  there  was  a  vast  deal  of  argument  on  the  question  of  what  sort  of 
property  a  man  may  have  in  his  unpublished  ideas  or  sentiments,  or  the  lan- 
guage which  he  uses,)  yet  I  do  not  recollect,  in  the  course  of  those  proceedings 
(particularly  in  the  House  of  Lords),  that  any  question  was  put  to  the  Judges 
that  did  not  adapt  itself  to  the  case  of  a  book  or  a  literary  composition ; — for 
of  the  questions  which  were  there  put  to  the  Judges,  the  first  was.  Whether 
at  common  law  an  author  of  any  book  or  literary  composition  had  the  sole 
right  of  first  printing  and  publishing  the  same  for  sale,  and  might  bring  an 
action  against  any  person  who  printed,  published,  and  sold  the  same  without 
his  consent?  The  next  question  was,  If  the  author  had  such  a  right  originally, 
did  the  law  take  it  away  upon  his  printing  and  publishing  such  book  or  liter- 
ary composition,  and  might  any  person  afterwards  reprint  and  sell  for  his  own 
benefit  such  book  or  literary  composition,  against  the  will  of  the  author  V  The 
third  question  was,  if  such  an  action  would  have  lain  at  common  law,  was  it 
taken  away  by  the  statute  of  Anne,  and  was  an  author,  by  that  statute,  pre- 
cluded from  any  remedy  except  on  the  foundation  of  the  statute,  and  on  the 
terms  and  conditions  prescribed  thereby?  On  these  questions,  the  Judges  of 
the  land  differed.  On  the  first  question,  one  of  them  wTas  of  opinion  that,  at 
common  law,  an  author  of  any  book  or  literary  composition  had  not  the  sole 
right  of  first  printing  and  publishing  the  same  for  sale;  and  that  he  could 
not  bring  an  action  against  any  person  who  printed,  published,  and  sold  the 
same,  unless  such  person  had  obtained  the  copyright  by  fraud  or  by  violence. 
So  that,  although  this  Judge  was  of  opinion,  that  at  law  the  author  was  not 
the  party  who  had  the  sole  right  of  first  printing  and  publishing  a  composition 
for  sale,  yet  he  was  also  of  opinion,  that  to  give  him  a  right  of  action  against 
those  who  first  printed  and  published  the  same  for  sale,  it  was  necessary  to 
show,  in  order  to  maintain  an  action,  that  the  person  who  had  first  printed 
and  published  had  gotten  it  either  by  violence  or  by  fraud.  Now,  if  it  can  be 
made  out,  as  matter  of  contract  between  Mr.  Abernethy  and  those  who  attend 
bis  lectures,  that  they  should  not  be  at  liberty  to  print  or  publish  the  same, 


SeC.  8)  LITERARY   PROPERTY  1079 

I  should  say,  then,  that  supposing  notes  of  all  that  he  delivered  in  his  lectures 
to  be  taken,  and  supposing  it  to  be  a  proper  thing  for  the  use  of  the  students 
that  that  should  be  done,  yet,  I  never  would  permit  a  third  person  to  make 
use  of  the  delivery  of  those  notes  to  that  third  person,  for  the  purpose  of  doing 
that  which  the  person  delivering  those  notes  would  not  himself  be  permitted  to 
do.  I  should  call  that,  in  the  sense  in  which  a  court  of  equity  uses  the  word, 
a  gross  fraud.  *  *  *  It  was  therefore  a  question,  whether  a  stranger,  not 
bound  by  contract,  could  be  enjoined.  Various  considerations  would  arise  out 
of  this ;  for  a  court  of  equity  would  be  called  upon  to  say,  whether  the  means, 
by  which  the  defendants  were  enabled  to  publish  the  lectures,  might  or  might 
not  be  used.  One  view  of  the  case  which  ought  not  to  be  lost  sight  of,  was,  that 
supposing  the  lectures  to  have  been  taken  down  by  a  pupil,  who  afterwards 
communicated  them  to  the  publishers,  and  you  could  not  get  at  the  pupil,  you 
could  not  maintain  an  action.  But  in  that  case,  the  publishers  might  come  un- 
der the  jurisdiction  of  the  Court,  upon  the  ground  of  having  made  a  fraudu- 
lent use  of  that  which  had  been  communicated  to  them,  by  one  who  had  com- 
mitted a  breach  of  trust. 

"June  17. — The  Lord  Chancellor  stated,  that  where  the  lecture  was  orally 
delivered,  it  was  difficult  to  say,  that  an  injunction  could  be  granted  upon 
the  same  principle,  upon  which  literary  composition  was  protected ;  because 
the  Court  must  be  satisfied  that  the  publication  complained  of  was  an  in- 
vasion of  the  written  work,  and  this  could  only  be  done  by  comparing  the  com- 
position with  the  piracy.  But  it  did  not  follow,  that,  because  the  information 
communicated  by  the  lecturer  was  not  committed  to  writing,  but  orally  deliv- 
ered, it  was  therefore  within  the  power  of  the  person  who  heard  it,  to  publish 
it.  On  the  contrary,  he  was  clearly  of  opinion,  that  whatever  else  might  be 
done  with  it,  the  lecture  could  not  be  published  for  profit.  He  had  the  satis- 
faction now  of  knowing,  and  he  did  not  possess  that  knowledge  when  this  ques- 
tion was  last  considered,  that  this  doctrine  was  not  a  novel  one,  and  that  this 
opinion  was  confirmed  by  that  of  some  of  the  judges  of  the  land.  He  was, 
therefore,  clearly  of  opinion,  that  when  persons  were  admitted,  as  pupils  or 
otherwise,  to  hear  these  lectures,  although  they  were  orally  delivered,  and  al- 
though the  parties  might  go  to  the  extent,  if  they  were  able  to  do  so,  of  putting 
down  the  whole  by  means  of  short-hand,  yet  they  could  do  that  only  for  the 
purposes  of  their  own  information,  and  could  not  publish  for  profit  that  which 
they  had  not  obtained  the  right  of  selling.  There  was  no  evidence  before  the 
Court  of  the  manner  in  which  the  defendants  got  possession  of  the  lectures ; 
but  as  they  must  have  been  taken  from  a  pupil,  or  otherwise  in  such  a  way 
as  the  Court  would  not  permit,  the  injunction  ought  to  go  upon  the  ground 
of  property ;  and  although  there  was  not  sufficient  to  establish  an  implied  con- 
tract as  between  the  plaintiff  and  the  defendants,  yet  it  must  be  decided,  that 
as  the  lectures  must  have  been  procured  in  an  undue  manner  from  those  who 
were  under  a  contract  not  to  publish  for  profit,  there  was  sufficient  to  author- 
ize the  Court  to  say,  the  defendants  shall  not  publish.  He  had  no  doubt  what- 
ever that  an  action  would  lie  against  a  pupil  who  published  these  lectures. 
How  the  gentlemen,  who  had  published  them,  came  by  them,  he  did  not  know ; 
but  whether  an  action  could  be  maintained  against  them  or  not,  on  the  footing 
of  implied  contract,  an  injunction  undoubtedly  might  be  granted ;  because  if 
there  had  been  a  breach  of  contract  on  the  part  of  the  pupil  who  heard  these 
lectures,  and  if  the  pupil  could  not  publish  for  profit,  to  do  so  would  certainly 
be  what  this  Court  would  call  a  fraud  in  a  third  party.  If  these  lectures 
had  not  been  taken  from  a  pupil,  at  least  the  defendants  had  obtained  the 
means  of  publishing  them,  and  had  become  acquainted  with  the  matter  of  the 
lectures,  in  such  a  manner  that  this  Court  would  not  allow  of  a  publication. 
It  by  no  means  followed,  because  an  action  could  not  be  maintained,  that  an 
injunction  ought  not  to  be  granted.     *     *     *     Injunction  granted." 


10SO  INJUNCTION  IN  RELATION  TO  TORTS  (Ch.  4 

ROUTH  v.  WEBSTER. 

(In  Chancery,  1847.     10  Bear.  561,  50  E.  R.  60S.) 

In  1846  a  joint  stock  company,  called  "The  Economic  Conveyance 
Company/'  was  established,  having  for  its  object  the  carrying  passen- 
gers by  steamboat  and  omnibus  at  the  average  rate  of  Id.  a  mile.  The 
Defendants,  the  provisional  directors,  had  published  prospectuses  in 
which  the  name  of  the  Plaintiff  was  used,  without  his  authority,  as  a 
trustee  of  the  company.  They  also  paid  monies  into  the  bankers  of  the 
company  to  the  Plaintiff's  account  as  trustee. 

The  Plaintiff,  conceiving  that  he  might  be  subjected  to  responsibility 
by  the  unauthorized  use  of  his  name,  filed  his  bill  against  the  directors, 
and  now  moved  for  an  injunction  to  restrain  them  from  using  his  name 
in  connection  with  the  company. 

The  Master  of  the  Rolls  [Lord  Langdale].  The  sort  of  oppo- 
sition made  to  the  application  to  prevent  the  unauthorized  use  of  the 
Plaintiff's  name  furnishes  a  specimen  of  the  anxiety  of  the  Defendants 
to  avoid  unnecessary  litigation. 

I  think  that  the  Plaintiff  is  entitled  to  the  injunction.  I  have  no 
doubt  that  the  Plaintiff  never  did  consent  to  be  a  trustee.  The  De- 
fendant Webster  might  have  thought  he  did :  if  he  did,  his  belief  rested 
upon  a  very  slight  foundation.  However,  the  name  of  Mr.  Ronth,  who 
desired  to  have  nothing  to  do  with  this  concern,  has  been  published  to 
the  world  as  a  trustee ;  his  name  was  also  used  at  the  bankers' ;  and 
though  he  may  not  be  subjected  to  the  duties  of  trustee,  yet  it  is  plain 
that  he  is  exposed  to  some  risk  by  the  unauthorized  act  of  the  Defend- 
ants in  using  his  name.  Money  was  placed  in  his  name  at  the  bankers', 
and  he  is  left  to  get  rid  of  his  responsibility  as  he  can. 

The  Defendants  having  published  his  name  as  a  trustee,  some  nego- 
tiation took  place  for  giving  the  Plaintiff  an  indemnity,  and  which  he 
was  willing  to  accept  as  a  condition  for  his  not  applying  for  an  injunc- 
tion. This  was  not  given,  and  then  the  matter  remained  as  it  was  be- 
fore. He  now  moves  for  an  injunction  to  prevent  the  Defendants  pro- 
ceeding in  the  same  course  for  the  future,  and  the  Defendants,  not  pre- 
tending that  they  have  a  right  to  continue  the  use  of  his  name,  and 
disavowing  any  intention  of  doing  so,  nevertheless  file  affidavits  in 
opposition  to  the  application. 

I  am  of  opinion  that  the  Plaintiff  is  entitled  to  the  injunction ;  and, 
if  it  subjects  the  Defendants  to  expense,  let  it  be  a  warning  to  them  as 
well  as  tojothers  not  to  use  the  names  of  other  persons  without  their 
authority.  What !  Are  they  to  be  allowed  to  use  the  name  of  any  per- 
son they  please,  representing  him  as  responsible  in  their  speculations, 
and  to  involve  him  in  all  sorts  of  liabilities,  and  are  they  then  to  be  al- 
lowed to  escape  the  consequences  by  saying  they  have  done  it  by  in- 
advertence?    Certainly  not. 


Sec.  8)  LITERARY   PROrERTY  1081 

Is  not  the  Plaintiff  entitled  to  be  protected  against  a  repetition  of 
those  misrepresentations  which  have  already  been  made?  I  am  willing 
to  believe  the  statement  made  on  behalf  of  the  Defendants,  that  they  do 
not  intend  to  repeat  their  misrepresentations ;  but  I  think  the  Plaintiff 
is  not  bound  to  rely  on  their  assurance,  and  that  he  is  entitled  to  be 
'ccted  by  the  order  and  injunction  of  this  Court.72 


REICHARDT  et  al.  v.  SAPTE  et  al. 
(Queen's  Bench  Division.     [18931  -  Q-  B.  308.) 

1893.  July  24.  Hawkins,  J.73  The  action  was  brought  by  Mr. 
Reichardt  and  Mr.  Goldsworthy  against  Mr.  Sapte  and  Mr.  Alport. 
In  it  the  plaintiffs,  under  statute  3  &  4  Wm.  IV,  c.  15,  claimed  the  sole 
liberty  of  representing,  at  any  place  of  dramatic  entertainment  in  the 
United  Kingdom,  a  play  of  which  they  were  the  joint  authors,  called 
the  "Picture  Dealer" ;  and  they  charged  the  defendants  with  having 
infringed  that  liberty  by  representing  at  divers  places  of  dramatic  en- 
tertainment a  play,  called  "A  Lucky  Dog,"  which  was,  as  they  alleged, 
in  substance  the  same  as  "The  Picture  Dealer."  They  claimed  dam- 
ages for  this  infringement,  and  an  injunction  to  restrain  its  future  rep- 
resentation. 

The  short  history  of  the  authorship  of  "The  Picture  Dealer"  is, 
according  to  Mr.  Reichardt's  evidence,  as  follows :  In  the  autumn  of 
1889  he  and  his  co-plaintiff,  Goldsworthy,  commenced  to  write  the 
play.  It  was  finished  in  the  month  of  March,  1892,  and  on  May  3  in 
the  same  year  it  was  typewritten.  On  May  4  it  was  sent  to  Mr.  Thorne, 
the  lessee  of  the  Vaudeville  Theatre,  to  read,  with  a  view  to  its  being 
produced  on  the  stage.  Mr.  Alport  was  Mr.  Thome's  manager.  Sev- 
eral applications  were  made  for  its  return,  but  Mr.  Reichardt  says  he 
did  not  get  it  back  till  July  7.  Anyhow,  it  was  performed  publicly 
at  the  Ladbroke  Hall,  Xotting  Hill,  on  June  30,  1892.  "A  Lucky  Dog," 
said  to  be  a  piracy  of  "The  Picture  Dealer,"  was  first  represented  on 
the  stage  of  the  Strand  Theatre  at  a  matinee  on  July  4,  1892.  The  his- 
tory of  "A  Lucky  Dog"  is  as  follows :  It  was  written  and  completely 
composed  between  the  end  of  1889  and  the  early  part  of  1890  by  Mr. 
Sapte,  on  the  suggestion  of  his  wife,  Mrs.  Sapte.  It  was  then  entitled 
"Peter."  It  was  read  by  Mr.  Blackmoore,  a  dramatic  agent,  early  in 
the  latter  year,  in  manuscript.  On  November  5,  1890,  three  copies  were 
made — typewritten.     It  was  offered  to,  and  read  by,  the  stage  manager 

72  Abstract  of  Order. — Restrain  the  Defendants  "from  printing,  publishing, 
or  circulating  any  prospectus  or  other  document  of  or  relating  to  a  certain 
company  called  the  Economic  Conveyance  Company,  mentioned  and  referred 
to  in  the  Plaintiff's  bill  in  this  causi>.  with  the  Plaintiff's  name  thereto,  and 
from,  in  any  manner,  using  the  name  of  the  Plaintiff,  so  as  to  identify  him  as 
a  party  interested  or  associated  with  the  said  company." 

73  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


10S2  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 

of  the  Criterion  Theatre  at  Christmas  in  the  same  year.     In  February, 

1891,  it  was  offered  to,  and  read  by,  the  brother  of  the  manager  of  the 
Comedy  Theatre.  In  July,  1891,  it  was  read  by  Miss  Kingsley  in  Aus- 
tralia. The  name  of  "A  Lucky  Dog"  was  afterwards  substituted  for 
"Peter,*'  but  the  play  was  in  all  other  respects  the  same.  It  was  acted 
and  first  published  at  a  matinee  at  the  Strand  Theatre  on  July  4,  1892. 
As  a  fact  I  find  that  the  defendants'  play,  "A  Lucky  Dog,"  was  finish- 
ed completely  and  typewritten  early  in  November,  1890,  whereas  the 
plaintiffs'  play,  the  "Picture  Dealer,"  was  not  finished  before  March, 

1892.  The  plaintiffs'  play,  however,  was  first  publicly  acted  on  June 
30,  1892,  whilst  the  defendants'  was  not  so  acted  until  a  few  days  after- 
wards. I  am  satisfied  that  the  defendants'  play  was  in  no  respect  taken 
or  copied  from,  or  suggested  by,  the  plaintiffs',  but,  as  between  the 
parties  to  the  action,  was  in  every  respect  an  original  play.  Upon  this 
state  of  things  I  have  to  consider  whether,  even  assuming  the  two 
plays  to  be  substantially  alike  either  wholly  or  in  material  parts,  the 
plaintiffs  can  maintain  this  action.  By  statute  3  &  4  Wm.  IV,  c.  15, 
s.  1,  it  is  enacted  that : 

"From  and  after  the  passing  of  this  Act" — June  10.  1833 — "the  author  of 
any  tragedy,  comedy,  play,  opera,  farce,  or  any  other  dramatic  piece  or  enter- 
tainment, composed  and  not  printed  and  published  by  the  author  thereof  or  his 
assignee,  or  which  hereafter  shall  be  composed  and  not  printed  or  published 
by  the  author  thereof  or  his  assignee,  or  the  assignee  of  such  author,  shall 
have  as  his  own  property  the  sole  liberty  of  representing  or  causing  to  be  rep- 
resented at  any  place  or  places  of  dramatic  entertainment  whatsoever  in  auy 
part  of  the  United  Kingdom  *  *  *  any  such  production  as  aforesaid,  not 
printed  and  published  by  the  author  thereof  or  his  assignee,  and  shall  be 
deemed  and  taken  to  be  the  proprietor  thereof."     *     *     * 

Finding,  as  I  have  done  and  do,  that  "A  Lucky  Dog"  was  an  original 
play  composed,  though  not  printed  or  published,  by  the  defendants, 
and  of  which  they  were  joint  authors,  and  that  it  was  completely  finish- 
ed some  fifteen  months  or  so  before  "The  Picture  Dealer"  was  com- 
pleted, and  that  no  part  of  "The  Picture  Dealer"  was  used  or  taken 
directly  or  indirectly  in  the  formation  and  composition  of  "A  Lucky 
Dog"- — however  similar  the  two  plays  may  be  in  many  respects — I  can 
see  nothing  to  deprive  the  defendants  of  their  right  to  claim  the  sole 
liberty  of  representation  of  their  play  under  the  first  section  of  the 
statute ;  and  if  that  right  was  vested  in  them,  it  seems  to  me  logically 
to  follow  that,  in  allowing  their  play  to  be  represented  as  they  did  at 
the  Strand  and  other  theatres,  they  were  acting  within  their  right;  and, 
if  so,  no  action  can  be  maintained  against  them  for  so  doing.  I  care 
not  to  discuss,  for  it  is  not  necessary  to  do  so,  the  question  whether 
they  could  have  sued  the  plaintiffs  for  infringing  upon  their  right  by 
causing  "The  Picture  Dealer"  to  be  represented  at  the  Ladbroke  Hall. 
They  clearly  could  not  do  so  now,  for  the  limited  period  of  twelve 
months  within  which  such  action  must  lie  brought  (section  3)  has  ex- 
pired. Possibly,  assuming  the  plaintiffs'  play  to  have  been  as  original 
as  the  defendants',  they  might,  consistently  with  the  defendants'  right, 
have  acquired  a  similar  right  for  "The  Picture  Dealer."     *     *     * 


SeC.  8)  LITERARY  PROTERTY  1083 

In  the  view  I  take  of  this  case  it  becomes  unnecessary  to  consider 
the  question  whether,  if  the  plaintiffs'  play  had  been  first  written,  the 
defendants'  play  was  an  infringement  of  the  plaintiffs'  right  of  rep- 
resentation. There  are,  no  doubt,  many  similarities  in  the  two  plays 
which,  in  the  absence  of  evidence  to  the  contrary,  would  have  led  me 
strongly  to  suspect  that  they  had  both  been  written  from  one  common 
source,  or  that  "The  Picture  Dealer"  had  been  taken  from  "A  Lucky 
Dog" ;  for  the  many  coincidences  to  be  found  in  them  are  certainly 
remarkable.  There  is,  however,  no  evidence  of  a  common  source,  nor 
is  there  any  that  the  plaintiffs  ever  saw  the  defendants'  play  before  its 
production ;  whilst  the  evidence  which  was  given  has  satisfied  me  that 
the  defendants'  play  was  finished  for  more  than  a  year  before  the 
plaintiffs',  and  that  the  right  of  the  defendants  to  the  sole  representa- 
tion of  "A  Lucky  Dog"  had  been  acquired  before  the  plaintiffs'  play 
was  finished.  Under  these  circumstances,  I  think  the  defendants  are 
entitled  to  my  judgment. 

Judgment  for  the  defendants. 


POLLARD  v.  PHOTOGRAPHIC  CO. 

(Chancery  Division,  1889.    40  Ch.  Div.  345.) 

North,  J.74  In  the  month  of  August  last  the  female  Plaintiff  called 
at  the  place  of  business  in  Rochester  of  the  Defendant,  a  person  who 
carries  on  business  as,  and  is  sued  by  the  name  of,  the  Photographic 
Company,  and  there  had  her  photograph  taken  in  various  positions, 
and  for  this  and  for  photographs  taken  of  other  members  of  her  fam- 
ily she  paid  a  sum  of  £7.  lQs.  The  evidence  is  silent  as  to  what  passed 
upon  this  occasion,  and  therefore  I  infer  that  the  transaction  was  one 
of  the  ordinary  kind,  and  that  no  special  terms  or  conditions  of  any 
sort  were  agreed  upon.  In  November  last  it  came  to  the  knowledge 
of  the  Plaintiffs  that  the  Defendant  was  exhibiting  in  his  shop 
window,  apparently  for  the  purpose  of  sale,  one  of  the  photographs  of 
the  female  Plaintiff  got  up  as  a  Christmas  card.  A  copy  of  the  photo- 
graph as  originally  taken  and  also  the  copy  so  exhibited  in  the  window 
are  now  before  me,  and  it  appears  that  the  former,  which  is  what  is 
commonly  called  a  vignette,  has  been  decorated  by  the  addition  there- 
to, above  and  below  the  figure,  of  scrolls  of  what  I  suppose  are  in- 
tended for  leaves,  with  the  superscription,  also  in  leafy  letters,  of  the 
words  "A  Merry  Christmas  and  a  Happy  New  Year."  This  step 
was  taken  by  the  Defendant  without  any  license  or  consent  from 
and  without  the  knowledge  of  the  Plaintiffs,  who  had  never  author- 
ized the  use  of  the  photograph  by  the  Defendant  in  any  manner,  much 
less  its  public  exhibition  or  sale  for  profit  as  a  Christmas  card.  They 
accordingly  placed  the  matter  in  the  hands  of  their  solicitors,  and 

i*  The  statement  of  facts  and  parts  of  the  opinion  are  omitted. 


1084  INJUNCTION    IN    RELATION"   TO   TORTS  (Ch.  4 

a  clerk  of  theirs,  Mr.  Andrews,  subsequently  called  at  the  Defend- 
ant's shop  and  purchased  the  exhibit  with  the  above  words  on.    *    *    * 

The  question,  therefore,  is  whether  a  photographer  who  has  been 
employed  by  a  customer  to  take  his  or  her  portrait  is  justified  in 
striking  off  copies  of  such  photograph  for  his  own  use,  and  selling  and 
disposing  of  them,  or  publicly  exhibiting  them  by  way  of  advertise- 
ment or  otherwise,  without  the  authority  of  such  customer,  either 
express  or  implied.  I  say  "express  or  implied,"  because  a  photog- 
rapher is  frequently  allowed,  on  his  own  request,  to  take  a  photograph 
of  a  person  under  circumstances  in  which  a  subsequent  sale  by  him 
must  have  been  in  the  contemplation  of  both  parties,  though  not 
actually  mentioned.  To  the  question  thus  put,  my  answer  is  in  the 
negative,  that  a  photographer  is  not  justified  in  so  doing.  Where  a 
person  obtains  information  in  the  course  of  a  confidential  employment, 
the  law  does  not  permit  him  to  make  any  improper  use  of  the  informa- 
tion so  obtained;  and  an  injunction  is  granted,  if  necessary,  to  re- 
strain such  use ;  as,  for  instance,  to  restrain  a  clerk  from  disclosing  his 
master's  accounts,  or  an  attorney  from  making  known  his  client's 
affairs,  learned  in  the  course  of  such  employment.  Again,  the  law  is 
clear  that  a  breach  of  contract,  whether  express  or  implied,  can  be 
restrained  by  injunction.  In  my  opinion  the  case  of  the  photographer 
comes  within  the  principles  upon  which  both  these  classes  of  cases 
depend.  The  object  for  which  he  is  employed  and  paid  is  to  supply 
his  customer  with  the  required  number  of  printed  photographs  of  a 
given  subject.  For  this  purpose  the  negative  is  taken  by  the  photog- 
rapher on  glass ;  and  from  this  negative  copies  can  be  printed  in  much 
larger  numbers  than  are  generally  required  by  the  customer.  The 
customer  who  sits  for  the  negative  thus  puts  the  power  of  reproduc- 
ing the  object  in  the  hands  of  the  photographer :  and  in  my  opinion 
the  photographer  who  uses  the  negative  to  produce  other  copies  for 
his  own  use,  without  authority,  is  abusing  the  power  confidentially 
placed  in  his  hands  merely  for  the  purpose  of  supplying  the  customer  ; 
and  further,  I  hold  that  the  bargain  between  the  customer  and  the 
photographer  includes,  by  implication,  an  agreement  that  the  prints 
taken  from  the  negative  are  to  be  appropriated  to  the  use  of  the  cus- 
tomer only. 

The  principles  upon  which  I  rest  my  judgment  are  well  known,  and 
of  familiar  application ;  and,  though  I  am  not  aware  that  any  case  has 
been  decided  as  to  the  negative  of  a  photograph,  there  are  many 
analogous  cases  in  the  books.  In  Murray  v.  Heath,  1  B.  &  Ad.  804, 
811,  the  owner  of  some  drawings  employed  the  defendant  to  engrave 
plates  from  them,  and  the  defendant,  having  done  so,  struck  off  some 
impressions  from  the  plates  before  handing  them  over,  which  impres- 
sions his  assignees  sold  after  his  bankruptcy.  An  action  was  brought 
by  the  owner  of  the  drawings,  founded  on  the  Copyright  Acts,  and 
also  in  trover  for  the  prints  so  struck.  The  action  failed  on  both  these 
heads,  but  Lord  Tenterden  said,  in  the  course  of  his  judgment: 


SeC.  8)  LITERARY   PROPERTY  1085 

"The  engraver  having  contracted  to  engrave  the  plate,  and  to  appropriate  the 
prints  taken  from  it  to  the  use  of  another,  an  action  at  common  law  would 
lie  against  him  for  the  breach  of  that  contract."'     *     *     * 

The  phrase  "a  gross  breach  of  faith"  used  by  Lord  Justice  Lindley 
in  that  case  applies  with  equal  force  to  the  present,  when  a  lady's  feel- 
ings are  shocked  by  finding  that  the  photographer  she  has  employed 
to  take  her  likeness  for  her  own  use  is  publicly  exhibiting  and  selling 
copies  thereof.  It  may  be  said  that  in  the  present  case  the  property 
in  the  glass  negative  is  in  the  Defendant,  and  that  he  is  only  using  his 
own  property  for  a  lawful  purpose.  But  it  is  not  a  lawful  purpose  to 
employ  it  either  in  breach  of  faith,  or  in  breach  of  contract.     *     *     * 

It  may  be  said  also  that  the  cases  to  which  I  have  referred  are  all 
cases  in  which  there  was  some  right  of  property  infringed,  based 
upon  the  recognition  by  the  law  of  protection  being  due  for  the  prod- 
ucts of  a  man's  own  skill  or  mental  labour ;  whereas  in  the  present 
case  the  person  photographed  has  done  nothing  to  merit  such  pro- 
tection, which  is  meant  to  prevent  legal  wrongs,  and  not  mere  senti- 
mental grievances.  But  a  person  whose  photograph  is  taken  by  a 
photographer  is  not  thus  deserted  by  the  lawr ;  for  the  Act  of  25  &  26 
Vict.  c.  68,  §  1,  provides  that  when  the  negative  of  any  photograph  is 
made  or  executed  for  or  on  behalf  of  another  person  for  a  good  or 
valuable  consideration,  the  person  making  or  executing  the  same  shall 
not  retain  the  copyright  thereof,  unless  it  is  expressly  reserved  to 
him  by  agreement  in  writing  signed  by  the  person  for  or  on  whose  be- 
half the  same  is  so  made  or  executed  ;  but  the  copyright  shall  belong  to 
the  person  for  or  on  whose  behalf  the  same  shall  have  been  made  or 
executed. 

The  result  is  that  in  the  present  case  the  copyright  in  the  photograph 
is  in  one  of  the  Plaintiffs.  It  is  true,  no  doubt,  that  section  4  of  the 
same  Act  provides  that  no  proprietor  of  copyright  shall  be  entitled  to 
the  benefit  of  the  Act  until  registration,  and  no  action  shall  be  sus- 
tained in  respect  of  anything  done  before  registration ;  and  it  was,  I 
presume,  because  the  photograph  of  the  female  Plaintiff  has  not 
been  registered  that  this  Act  was  not  referred  to  by  counsel  in  the 
course  of  the  argument.  But,  although  the  protection  against  the 
world  in  general  conferred  by  the  Act  cannot  be  enforced  until  after 
registration,  this  does  not  deprive  the  Plaintiffs  of  their  common  law 
right  of  action  against  the  Defendant  for  his  breach  of  contract  and 
breach  of  faith.  This  is  quite  clear  from  the  cases  of  Morison  v.  Moat, 
9  Hare,  241,  and  Tuck  v.  Priester,  19  Q.  B.  D.  629,  already  referred 
to,  in  which  latter  case  the  same  act  of  Parliament  was  in  question. 

But  the  counsel  for  the  Defendant  did  not  hesitate  to  contend  boldly 
that  no  injunction  could  be  granted  in  a  case  where  there  could 
be  no  injury  to  property  in  respect  of  which  damages  could  be  re- 
covered in  an  action  at  law  ;  and  he  alleged  that  this  is  such  a  case, 
and  relied  on  such  decisions  as  Soul  hey  v.  Sherwood,  2  Mer.  435,  and 
Clark  v.  Freeman,  11  Beav.  112.    I  have  already  pointed  out  why,  in 


10S6  INJUNCTION  IN  RELATION  TO  TORTS  (Cll.  4 

my  opinion,  this  is  not  such  a  case ;  but,  if  it  were,  the  alleged  conse- 
quences would  not  follow.  Supposing  that  the  present  photograph 
actually  was,  or  that  by  manipulation  of  the  negative  or  by  the  addi- 
tion of  the  rest  of  the  figure,  or  of  a  background,  it  was  rendered,  a 
libel  upon  the  Plaintiffs,  by  exposing  them,  for  instance,  to  contempt 
or  ridicule,  it  is  quite  clear  that  in  such  a  case  a  Court  of  Law  could 
give  damages,  and  could  also,  ever  since  the  passing  of  the  Common 
Law  Procedure  Act  of  1854,  grant  an  injunction;  and  ever  since  the 
passing  of  the  Judicature  Acts  each  branch  of  the  High  Court  has  the 
same  power.  See  Quartz  Hill  Consolidated  Gold  Alining  Company 
v.  Beall,  20  Ch.  D.  501.  The  right  to  grant  an  injunction  does  not 
depend  in  any  way  on  the  existence  of  property  as  alleged ;  nor  is  it 
worth  while  to  consider  carefully  the  grounds  upon  which  the  old 
Court  of  Chancery  used  to  interfere  by  injunction.  But  it  is  quite 
clear  that,  independently  of  any  question  as  to  the  right  at  law,  the 
Court  of  Chancery  always  had  an  original  and  independent  jurisdic- 
tion to  prevent  what  that  Court  considered  and  treated  as  a  wrong, 
whether  arising  from  a  violation  of  an  unquestionable  right  or  from 
breach  of  contract  or  confidence,  as  was  pointed  out  by  Lord  Cotten- 
ham  in  Prince  Albert  v.  Strange,  1  Mac.  &  G.  25.  For  these  reasons 
the  Defendant  is  wholly  in  the  wrong;  and  as  he  denies  the  jurisdic- 
tion of  the  Court,  the  injunction  must  go  as  a  matter  of  course;  and 
as  the  parties  have  agreed  that  this  motion  is  to  be  treated  as  the 
trial  of  the  action  the  injunction  will  be  perpetual,  and  the  Defendant 
must  pay  the  costs  of  the  action.75 

T5Mayall  v.  Higbey  (1862)  1  Hurlstone  &  Coltnian,  14S-152: 
"The  first  count  of  the  declaration  stated  that  the  defendant  wrongfully  and 
unlawfully  took  and  kept  possession  of  the  plaintiff's  goods,  that  is  to  say, 
photographic  portraits,  and  while  the  said  goods  continued  to  be  the  prop- 
erty of  the  plaintiff,  and  were  not  the  property  of  the  defendant,  and  were 
wrongfully  and  improperly  in  his  possession,  and  while  the  plaintiff  was  of 
right  entitled  to  prevent,  by  writ  of  injunction  thereinafter  claimed,  the  de- 
fendant from  using  the  same  by  making  therefrom,  and  photographically  print- 
ing from  negatives  obtained  therefrom,  reduced  or  other  copies  of  such  por- 
traits, and' from  selling  such  copies,  wrongfully  and  unlawfully  used  the  same 
by  making  therefrom,  or  photographically  printing  from  negatives  obtained 
therefrom,  reduced  and  other  copies  of  such  portraits ;  and  thereby  the  said 
portraits  of  the  plaintiff  have  become  less  valuable  to  him,  and  he  has  been 
deprived  of  the  profits  which  he  would  have  derived  by  selling  copies  or  dupli- 
cates of  such  portraits  or  of  the  photographic  negatives  from  which  the  said 
portraits  had  been  obtained:  *  *  *  Pleas  (inter  alia). — First:  not  guilty. 
Secondly,  to  the  first  count:  that  the  goods  were  not  the  plaintiffs.  Thirdly, 
to  the  same  count  and  to  the  claim  of  writ  of  injunction:  that  the  goods  were 
not  wrongfully  and  improperly  in  the  possession  of  the  defendant.  *  *  * 
At  the  trial,  iiefore  Pollock,  C.  B.,  at  the  London  Sittings  after  last  Hilary 
Term,  the  following  facts  appeared:  The  plaintiff,  who  was  a  photographer. 
had  lent  to  one  Tallis,  the  proprietor  of  a  newspaper  called  'The  Illustrated 
News  of  the  World,'  a  number  of  photographic  portraits  of  eminent  individ- 
uals, for  the  purpose  of  being  engraved  ami  published  in  that  newspaper.  Tal- 
lis having  become  insolvent,  assigned  all  his  estate  and  effects  to  trustees  for 
the  benefit  of  his  creditors.  The  trustees  sold  the  newspaper  and  stock  in  trade 
by  auction,  together  with  about  ninety  photographic  portraits  belonging  to  the 
plaintiff.  The  defendant  bought  these  portraits,  and  by  photographically 
printing  from  negatives  he  obtained  reduced  copies,  which  he  published  and 


SeC.  S)  LITERARY   PROPERTY  1087 

CORLISS  et  al.  v.  E.  W.  WALKER  CO.  et  al. 
(Circuit  Court  of  the  United  States,  D.  Massachusetts,  1S93.    57  Fed.  434.) 

In  Equity.  Bill  by  Emily  A.  Corliss  and  others  against  the  E.  W. 
Walker  Company  and  others  to  restrain  respondents  from  publishing 
a  biography  and  selling  a  picture  of  George  H.  Corliss. 

Colt,  Circuit  Judge.  This  suit  is  brought  by  the  widow  and  chil- 
dren of  George  H.  Corliss  to  enjoin  the  defendants  from  publishing 
and  selling  a  biographical  sketch  of  Mr.  Corliss,  and  from  printing 
and  selling  his  picture  in  connection  therewith.  The  bill  does  not  al- 
lege that  the  publication  contains  anything  scandalous,  libelous,  or 
false,  or  that  it  affects  any  right  of  property,  but  the  relief  prayed 
for  is  put  upon  the  novel  ground  that  such  publication  is  an  injury  to 
the  feelings  of  the  plaintiffs,  and  against  their  express  prohibition. 

The  counsel  for  plaintiffs,  in  argument,  put  the  case  upon  the  ground 
that  Mr.  Corliss  was  a  private  character,  and  that  the  publication  of 
his  life  is  an  invasion  of  the  right  of  privacy,  which  a  court  of  equity 
should  protect.  In  the  first  place,  I  cannot  assent  to  the  proposition 
that  Mr.  Corliss  was  a  private  character.  He  held  himself  out  to  the 
public  as  an  inventor,  and  his  reputation  became  world-wide.  He  was 
a  public  man,  in  the  same  sense  as  authors  or  artists  are  public  men. 
It  would  be  a  remarkable  exception  to  the  liberty  of  the  press  if  the 
lives  of  great  inventors  could  not  be  given  to  the  public  without  their 
own  consent  while  living,  or  the  approval  of  their  family  when  dead. 
But  whether  Mr.  Corliss  is  to  be  regarded  as  a  private  or  public  char- 
sold.  On  application  to  a  Judge  at  Chambers,  an  order  for  an  injunction  had 
been  obtained  to  restrain  the  defendant  from  using  the  portraits,  by  making 
therefrom,  and  photographically  printing  from  negatives  obtained  therefrom, 
reduced  or  other  copies  of  the  photographs,  and  from  selling  such  copies.  A 
verdict  was  found  for  the  plaintiff  on  the  first  count,  with  40s.  damages,  and 
on  the  second  count  with  £25  damages;  leave  being  reserved  to  the  defend- 
ant to  move  to  enter  the  verdict  for  him  on  the  first  count,  if  the  Court  should 
be  of  opinion  that  the  right  alleged  and  the  right  to  an  injunction  were  not 
proved.     *     *     * 

"[Pollock,  C.  B.  It  is  essential  not  only  that  the  defendant  should  not  make 
copies,  but  also  that  he  should  not  sell  them.  If  a  person  surreptitiously  copied 
a  picture,  a  Court  of  equity  would  interfere  to  prevent  him  from  availing  him- 
self of  it  in  any  manner  whatever.  The  right  of  a  person  as  against  another 
who  has  surreptitiously  copied  his  work  is  distinct  from  the  right  of  copyright, 
which  is  the  creation  of  the  statutes.]     *     *     * 

"[Bramwell,  B.  The  wrongful  act  of  which  the  plaintiff  complains  is  a  com- 
pound one,  namely,  copying  the  plaintiff's  works  and  selling  the  copies.  The 
plaintiff  claims  damages  for  the  injury  done  to  him  by  taking  the  copies,  and 
an  injunction  to  restrain  the  defendant  from  doing  further  injury  by  selling 
them.  If  the  plaintiff  had  recovered  substantial  damages  on  the  first  count,  we 
mii-'ht,  as  in  the  case  of  a  penalty,  in  our  discretion  have  refused  an  in- 
junction.] 

"Pollock.  C.  B.  The  damages  on  the  first  count  were  merely  nominal,  and 
only  in  respect  of  the  infringement  of  the  plaintiff's  right.  The  question  of 
copyright  does  not  arise.  The  rule  ought  to  be  discharged,  and  the  injunction 
must  issue. 

"Martin,  B.,  and  Bramwell,  B.,  concurred.     Rule  discharged." 


10SS  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

acter  (a  distinction  often  difficult  to  define)  is  not  important  in  this 
case.  Freedom  of  speech  and  of  the  press  is  secured  by  the  constitu- 
tion of  the  United  States  and  the  constitutions  of  most  of  the  states. 
This  constitutional  privilege  implies  a  right  to  freely  utter  and  pub- 
lish whatever  the  citizen  may  please,  and  to  be  protected  from  any  re- 
sponsibility for  so  doing,  except  so  far  as  such  publication,  by  reason 
of  its  blasphemy,  obscenity,  or  scandalous  character,  may  be  a  pub- 
lic offense,  or,  by  its  falsehood  and  malice,  may  injuriously  affect  the 
standing,  reputation,  or  pecuniary  interests  of  individuals.  Cooley, 
Const.  Lim.  (6th  Ed.)  518.  In  other  words,  under  our  laws,  one  can 
speak  and  publish  what  he  desires,  provided  he  commits  no  offense 
against  public  morals  or  private  reputation.  Schuyler  v.  Curtis,  15 
X.  Y.  Supp.  787,  recently  decided  by  the  New  York  supreme  court, 
and  upon  which  the  plaintiffs  rely,  is  not  in  point.  In  that  case  the 
court  enjoined  the  defendants  from  erecting  a  statue  of  Airs.  Schuyler. 
The  right  of  publication  was  not  in  issue  in  that  case. 

There  is  another  objection  which  meets  us  at  the  threshold  of  this 
case.  The  subject-matter  of  the  jurisdiction  of  a  court  of  equity  is  civil 
property,  and  injury  to  property,  whether  actual  or  prospective,  is  the 
foundation  on  which  its  jurisdiction  rests.  In  re  Sawyer,  124  U.  S. 
200,  210,  8  Sup.  Ct.  482,  31  L.  Ed.  402:  Kerr,  Inj.  (2d  Ed.)  1.  It 
follows  from  this  principle  that  a  court  of  equity  has  no  power  to  re- 
strain a  libelous  publication.  Boston  Diatite  Co.  v.  Florence  Manuf'g 
Co.,  114  Mass.  69.  19  Am.  Rep.  310;  Brandreth  v.  Lance,  8  Paige  (N. 
Y.)  24,  34  Am.  Dec.  368.  The  opinion  of  Vice  Chancellor  Malins  in 
Dixon  v.  Holden,  L.  R.  7  Eq.  488,  to  the  contrary,  is  disapproved  by 
Lord  Chancellor  Cairns  in  Assurance  Co.  v.  Knott,  10  Ch.  App.  142. 
In  Kidd  v.  Horry  (C.  C.)  28  Fed.  773,  Mr.  Justice  Bradley,  in  speaking 
of  Dixon  v.  Holden,  and  several  recent  English  cases,  declares  that 
they  depend  on  certain  acts  of  parliament,  and  not  on  the  general  prin- 
ciple of  equity  jurisprudence.  But  in  the  present  bill  it  is  not  pre- 
tended that  the  publication  is  libelous,  and  therefore  there  can  be  no 
question  as  to  the  want  of  jurisdiction  in  this  case. 

As  to  the  picture  which  accompanies  the  published  sketch,  the  case 
stands  on  a  different  footing.  The  defendants  obtained  from  the  plain- 
tiffs a  copy  of  a  portrait  and  a  photograph  of  Mr.  Corliss,  from  which 
they  have  made  two  plates,  one  of  which  they  propose  to  insert  in  the 
publication.  But  it  appears  from  the  evidence  that  these  pictures  were 
obtained  on  certain  conditions,  which  the  defendants  have  not  com- 
plied with.  This  matter  directly  concerns  the  exclusive  right  of  prop- 
erty which  the  plaintiffs  have  in  the  painting  and  photograph,  and  it 
would  be  a  violation  of  confidence,  or  a  breach  of  contract  between  the 
parties,  to  permit  the  defendants,  under  these  circumstances,  to  use  ei- 
ther of  the  plates.  Pollard  v.  Photographic  Co.,  40  Ch.  Div.  345; 
Prince  Albert  v.  Strange,  1  Macn.  &  G.  25.  The  injunction  is  denied 
as  to  the  publication,  and  granted  as  to  the  use  of  the  plates. 


Sec.  8)  LITERARY  PROPERTY  1089 

DRUMMOND  v.  ALTEMUS. 

(Circuit  Court  of  the  United  States,  E.  D.  Pennsylvania.  189(4.     60  Fed.  338.) 

This  is  a  bill  by  Henry  Drummond  against  Henry  Altemus  to  en- 
join the  publication  and  sale  of  a  book  purporting  to  contain  certain 
lectures  delivered  by  complainant. 

Dallas,  Circuit  Judge.  From  the  facts  as  developed  on  the  hearing 
of  this  motion  for  an  interlocutory  injunction  it  appears  that  the  de- 
fendant has  published,  and  to  a  considerable  extent  has  sold,  a  book 
purporting  to  contain  certain  lectures  delivered  by  the  plaintiff,  which, 
in  fact,  does  not  present  those  lectures  correctly,  but  with  additions 
and  omissions  which  essentially  alter  the  productions  of  the  author. 
This  is  sought  to  be  justified  by  the  averment  that  the  lectures  in 
question  had  not  been  copyrighted,  and  that  their  author  had  dedicated 
them  to  the  public.  The  subject  of  copyright  is  not  directly  involved. 
The  complainant  does  not  base  his  claim  to  relief  upon  the  statute,  but 
upon  his  right,  quite  distinct  from  any  conferred  by  copyright,  to  pro- 
tection against  having  any  literary  matter  published  as  his  work  which 
is  not  actually  his  creation,  and,  incidentally,  to  prevent  fraud  upon 
purchasers.  That  such  right  exists  is  too  well  settled,  upon  reason  and 
authority,  to  require  demonstration ;  and,  although  it  is  equallv  well 
established  that  an  author  may.  by  dedication  of  any  product  of  his 
pen  to  the  public,  irrecoverably  abandon  his  title,  yet,  in  this  case,  the 
fact  relied  on  by  the  defendant  to  support  his  assertion  of  dedication 
wholly  fails  to  vindicate  the  publication  complained  of.  The  com- 
plainant did  send  to  a  journal  called  the  "British  Weekly,"  and  permit 
its  publishers  to  print  in  its  columns,  reports  of  eight  of  the  lectures 
to  which  this  suit  relates,  but  these  did  not  give,  and  could  not  be  un- 
derstood as  giving,  a  full  and  exact  presentation  of  those  particular 
lectures,  and  of  the  remaining  four  lectures  of  the  series  no  report  of 
any  kind  was  furnished  to  the  press  or  placed  before  the  public. 

The  defendant's  book  is  founded  on  the  matter  which  had  appeared 
in  the  British  Weekly,  and,  if  that  matter  had  been  literally  copied,  and 
so  as  not  to  misrepresent  its  character  and  extent,  the  plaintiff  would 
be  without  remedy ;  but  the  fatal  weakness  in  the  defendant's  posi- 
tion is  that,  under  color  of  editing  the  author's  work,  he  has  repre- 
sented a  part  of  it  as  the  whole,  and  even,  as  to  the  portion  published, 
has  materially  departed  from  the  reports  which  he  sets  up  in  justifi- 
cation. The  title  of  the  book  is  "The  Evolution  of  Man;  being  the 
Lowell  Lectures  Delivered  at  Boston,  Mass.,  April  1893,  by  Professor 
Drummond."  It  is  true  that  all  the  reports,  except  one,  in  the  British 
Weekly,  appear  under  a  heading  in  the  same  words ;  but  the  ordinary 
reader  is  not  likely  to  rely  upon  display  lines  of  a  public  journal  to  give 
a  precise  indication  of  the  contents  of  an  article  to  which  they  are 
prefixed,  whereas  such  a  title  as  we  have  in  this  instance,  given  to  a 
Boke  Eq.— 69 


1090  INJUNCTION   IN   RELATION   TO   TORTS  (Cll.  4 

book  in  permanent  form,  may  reasonably  be,  and  usually  is,  relied  on 
as  truly  stating  the  nature  of  its  contents.  A  most  important  circum- 
stance in  this  connection  is  that  the  defendant,  while  precisely  adopt- 
ing his  title  from  the  headlines  of  the  reports,  has  so  altered  their  text 
as  to  make  it  appear,  contrary  to  the  whole  tenor  of  the  reports  them- 
selves, that  what  his  book  contains  is  the  precise  language  of  the  au- 
thor of  the  lectures,  although,  as  has  been  said,  it  contains  only  some 
of  the  lectures,  not  all  of  them,  and  presents  none  of  them  fully  or 
correctly.  The  complainant's  right  has  been  fully  made  out,  and  the 
case  shown  is  manifestly  one  which  calls  for  the  interposition  of  the 
court  at  this  stage.  An  order  will  be  made  for  a  temporary  injunc- 
tion. 


ATKINSON  v.  JOHN  E.  DOHERTY  &  CO. 

(Supreme  Court  of  Michigan,  1899.     121  Mich.  372,  80  N.  W.  2S5, 
46  L.  R.  A.  219,  80  Am.  St.  Rep.  507.) 

Hooker,  J.76  The  late  Col.  John  Atkinson  was  a  well-known  lawyer 
and  politician.  After  his  death,  the  defendant,  a  manufacturer  of 
cigars,  brought  out  an  article  that  he  named  the  John  Atkinson  cigar, 
and  sought  to  put  it  upon  the  market  under  a  label  bearing  that  name 
and  a  likeness  of  Col.  John  Atkinson.  The  widow  of  Col.  Atkinson 
filed  a  bill  to  restrain  this,  and  upon  the  hearing  the  circuit  court  made 
a  decree  dismissing  the  bill  with  costs,  and  the  complainant  has  ap- 
pealed. 

As  a  rule,  names  are  received  at  the  hands  of  parents, — surnames 
by  inheritance,  and  Christian  names  at  their  will.  But  this  is  not  an 
invariable  rule,  for  many  names  are  adopted  or  assumed  by  those  who 
bear  them.  But  in  neither  case  is  the  right  to  the  use  of  a  name 
exclusive.  A  disreputable  person  or  criminal  may  select  the  name  of 
the  most  exemplary  for  his  child,  or  for  his  horse  or  dog  or  monkey. 
We  have  never  heard  this  questioned.  No  reason  occurs  to  us  for 
limiting  the  right  to  apply  a  name,  though  borne  by  another  person, 
to  animate  objects.  Why  not  a  John  Atkinson  wagon,  as  well  as  a 
John  Atkinson  Jones  or  horse  or  dog.  Society  understands  this,  and 
may  be  depended  upon  to  make  proper  allowances  in  such  cases ;  and 
although  each  individual  member  may,  in  his  own  case,  suffer  a 
feeling  of  humiliation  when  his  own  name  or  that  of  some  beloved 
or  respected  friend  is  thus  used,  he  will  usually,  in  the  case  of  another, 
regard  it  as  a  trifle.  We  feel  sure  that  society  would  not  think  the 
less  of  Col.  John  Atkinson  if  cigars  bearing  his  name  were  sold  in 
the  shops.  Nor  are  his  friends  brought  into  disrepute  thereby.  So 
long  as  such  use  does  not  amount  to  a  libel,  we  are  of  the  opinion  that 

7«  Parts  of  the  opinion  are  omitted. 


Sec.  8)  LITERARY   PROPERTY  1091 

Col.  John  Atkinson  would  himself  be  remediless,  were  he  alive,  and 
the  same  is  true  of  his  friends  who  survive. 

It  is  urged  in  this  case  that  the  connection  of  the  name  with  cigars 
wounds  the  feelings  of  the  widow,  and  extreme  and  improbable  il- 
lustrations of  the  possibilities  of  a  rule  which  should  permit  the  indis- 
criminate use  of  names  of  deceased  persons  are  given.  *  *  *  The 
sentiment  which  prompts  the  feeling  of  annoyance  at  such  an  act  is 
aroused  by  any  aspersion  of  the  dead.  It  is  natural  and  commendable, 
as  are  all  recognitions  of  the  proprieties  of  life;  but  it  does  not  fol- 
low that  such  an  act  is  an  actionable  wrong,  or  that  equity  will  inter- 
vene by  injunction  to  prevent  it,  though  we  are  quite  sure  that  the 
disapproval  of  society  would  ordinarily  have  the  latter  effect.     *     *     * 

The  limitation  upon  the  exercise  of  these  rights  being  the  law  of 
slander  and  libel,  whereby  the  publication  of  an  untruth  that  can  be 
presumed  or  shown  to  the  satisfaction,  not  of  the  plaintiff,  but  of 
others  (i.  e.  an  impartial  jury),  to  be  injurious,  not  alone  to  the  feel- 
ings, but  to  the  reputation,  is  actionable.  Should  it  be  thought  that  it 
is  a  hard  rule  that  is  applied  in  this  case,  it  is  only  necessary  to  call 
attention  to  the  fact  that  a  ready  remedy  is  to  be  found  in  legislation. 
We  are  not  satisfied,  however,  that  the  rule  is  a  hard  one,  and  think 
that  the  consensus  of  opinion  must  be  that  the  complainants  contend 
for  a  much  harder  one.  The  law  does  not  remedy  all  evils.  It  can- 
not, in  the  nature  of  things ;  and  deliberation  may  well  be  used  in 
considering  the  propriety  of  an  innovation  such  as  this  case  suggests. 
We  do  not  wish  to  be  understood  as  belittling  the  complaint.  We  have 
no  reason  to  doubt  the  feeling  of  annoyance  alleged.  Indeed,  we 
sympathize  with  it,  and  marvel  at  the  impertinence  that  does  not  re- 
spect it.  We  can  only  say  that  it  is  one  of  the  ills  that,  under  the 
law,  cannot  be  redressed. 

The  decree  of  the  learned  circuit  judge  is  affirmed.  The  other  jus- 
tices concurred. 


MANSEIX  v.  VALLEY  PRINTING  CO. 

(Court  of  Appeal.     [190S]  2  Ch.  Div.  441.) 

Appeal  from  a  decision  of  Swinfen  Eady,  J.     [1908]    1  Ch.  567. 

The  question  raised  by  this  appeal  was  whether  the  owner  of  an 
unpublished  picture  could,  at  common  law  and  apart  from  statutory 
protection,  recover  damages  against  a  person  who  had,  innocently  and 
in  good  faith,  published  a  pirated  copy  of  the  picture. 

The  facts  are  given  in  greater  detail  in  the  report  of  the  case  in  the 
court  below,  but  the  following  summary,  taken  from  the  judgment  of 
the  Master  of  the  Rolls,  is  sufficient  for  the  purposes  of  this  report. 

The  plaintiff  was  the  exclusive  owner  of  two  pictures  and  designs 
suitable  for  advertisements  which  had  been  produced  for  him  by  an 
artist  named  Higham,  at  a  cost  of  £43.    Rankine,  another  artist  in  the 


1092  INJUNCTION   IN    RELATION   TO   TOUTS  (Ch.  4 

plaintiff's  employ,  surreptitiously  made  copies  of  these  pictures,  and 
having  left  the  plaintiff's  employ  sold  them  as  original  drawings  to 
the  defendant  company.  The  defendant  company  published  them  with- 
out notice  of  the  plaintiff's  title,  and  before  registration  by  the  plain- 
tiff under  the  Fine  Arts  Copyright  Act,  1862.  On  complaint  made  by 
the  plaintiff  the  defendant  company  at  once  offered  to  stop  any  further 
publication  and  to  hand  over  all  copies,  but  under  the  circumstances 
ihey  declined  to  pay  damages  for  their  innocent  publication. 

The  plaintiff  thereupon  commenced  the  present  action  against  the 
defendant  company  and  Rankine,  claiming  damages  against  both  de- 
fendants and  an  injunction  against  Rankine. 

Swinfen  Eady,  J.,  gave  judgment  for  the  plaintiff  for  £43  damages, 
the  cost  of  the  pictures,  against  both  defendants. 

The  defendant  company  appealed. 

July  11.  Cozens-Hardy,  M.  R.,  after  stating  the  question  now 
raised  for  decision  and  the  material  facts  as  given  above,  continued  : 

We  have  had  an  interesting  argument  as  to  the  nature  and  extent 
of  the  common  law  right  of  an  author  before  publication.  It  seems  to 
me  that,  for  the  purpose  of  the  present  case,  there  is  no  uncertainty 
in  the  law. 

In  Caird  v.  Sime,  12  App.  Cas.  326,  the  right  of  a  professor  to  re- 
strain the  publication  of  lectures  orally  delivered  in  his  class-room  was 
established  by  the  House  of  Lords.  Although  it  was  a  Scottish  case, 
the  law  applicable  is  treated  as  being  the  same  as  in  England.  Lord 
Halsbury  there  said  (12  App.  Cas.  337): 

"It  is  not  denied,  and  it  cannot  in  the  present  state  of  the  law  he  denied, 
that  an  author  has  a  proprietary  right  in  his  unpublished  literary  productions. 
It  is  further  incapable  of  denial  that  that  proprietary  right  may  still  continue 
notwithstanding  some  kind  of  communication  to  others." 

And  Lord  Watson  (12  App.  Cas.  343)  said: 

"The  author  of  a  lecture  on  moral  philosophy,  or  of  any  other  original  com- 
position, retains  a  right  of  property  in  his  work  which  entitles  him  to  pre- 
vent its  publication  by  others  until  it  has,  with  his  consent,  been  communi- 
cated to  the  public." 

The  law  thus  laid  down  is  based  upon  property,  irrespective  of  im- 
plied contract  or  breach  of  duty.  It  does  not  depend  upon  property  in 
the  paper  or  MS.  It  is  an  incorporeal  property.  I  do  not  think  it  nec- 
essary to  occupy  time  by  referring  to  the  earlier  authorities,  including 
authorities  in  the  House  of  Lords,  which  plainly  establish  the  same  prop- 
osition. I  will  only  remark  in  passing  that  in  Caird  v.  Sime,  12  App. 
Cas.  326,  the  sheriff  substitute  ordered  all  copies  of  the  publications  to 
be  delivered  up,  and  that  the  House  of  Lords  afhrmed  this  order.  This 
is  inconsistent  with  the  dicta  of  Wigram,  V.  C,  in  Colburn  v.  Simms,  2 
Hare,  543,  upon  which  the  appellants  relied  to  some  extent,  although 
1  doubt  whether  the  Vice-Chancellor's  judgment  really  assists  the  ap- 
pellants. Caird  v.  Sime,  12  App.  Cas.  326,  was  decided  in  1887.  More 
than  a  century  earlier  a  very  important  case  came  before  the  House  of 


Sec.  8)  LITERARY    PROPERTY  1093 

Lords :  I  refer  to  Donaldsons  v.  Becket,  4  Burr.  2408,  decided  in  1774. 
It  is  best  reported  in  Cobbett's  Parliamentary  History,  vol.  17,  pp.  954- 
1003.  The  great  question  there  raised  was  whether  an  author,  after 
the  expiration  of  the  statutory  protection  given  by  the  statute  of  Anne, 
had  a  perpetual  right  of  literary  property  at  common  law,  and  this 
question  was  decided  in  the  negative.  The  judges  were  summoned, 
and  several  questions  were  put  to  them,  of  which  the  first  was  as  fol- 
lows:  (1)  Whether  at  common  law  an  author  of  any  book  or  literary 
composition  had  the  sole  right  of  first  printing  and  publishing  the  same 
for  sale  and  might  bring  an  action  against  any  person  who  printed,  pub- 
lished, and  sold  the  same  without  his  consent.  All  the  judges  except 
three  answered  this  question  in  the  affirmative.  This  weighty  authority,, 
in  my  opinion,  is  decisive  of  the  present  appeal.  It  shews  that  an  action 
on  the  case  would  lie  against  any  person  who  prints  and  publishes  an 
unpublished  book  without  consent.  And  when  it  is  established  that  the 
right  is  a  proprietary  right,  it  is  plain  that  the  element  of  motive  or  in- 
tention on  the  part  of  the  defendant  is  wholly  irrelevant. 

It  could  not  be  contended  since  Prince  Albert  v.  Strange,  2  De  G. 
&  Sm.  652,  1  Mac.  &  G.  25,  1  H.  &  T.  1,  that  the  owner  of  an  un- 
published picture  stands  in  any  different  position  from  the  owner  of 
an  unpublished  literary  work.  The  case  of  Turner  v.  Robinson,  10  Ir. 
Ch.  Rep.  121,  131,  132,  510,  is,  however,  a  direct  authority  on  the  point. 
The  Master  of  the  Rolls  there  states  the  law  in  language  which  I  desire 
to  adopt : 

"There  is  no  statute  for  the  protection  of  the  copyright  in  painting.  The 
only  remedies,  therefore,  which  a  painter  has  in  case  of  piracy  are — first,  an 
action  at  the  common  law  ;  secondly,  a  suit  in  equity  for  an  injunction  founded 
on  the  common  law  right ;  thirdly,  a  suit  in  equity,  where  the  piracy  has  been 
accompanied  by  circumstances  of  fraud,  or  breach  of  trust,  confidence  or  con- 
tract, express  or  implied." 

And  again : 

"By  the  common  law,  copyright  or  protection  exists  in  favour  of  works  of 
literature,  art  or  science,  to  this  limited  extent  only,  that  while  they  remain 
unpublished  no  person  can  pirate  them,  but  that  after  publication  they  are 
by  the  common  law  unprotected." 

In  my  opinion  the  judgment  of  Swinfen  Eady,  J.,  which  is  based 
substantially  on  the  reasons  I  have  expressed,  was  correct,  and  the  ap- 
peal must  be  dismissed  with  costs.77 

»?  The  concurring  opinions  of  Tarwell  and  Kennedy,  L.  J  J.,  are  omitted.. 


1094  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 


SECTION  9.— INVASION  OF  SO-CALLED  RIGHT  OF 

PRIVACY 


ROBERSON  v.  ROCHESTER  FOLDING  BOX  CO.  et  al. 

(Court  of  Appeals  of  New  York,  1902.     171  N.  Y.  538,  G4  N.  E.  442, 
59  L.  R.  A.  478,  S9  Am.  St.  Rep.  828.) 

Parker,  C.  J.78  *  *  *  The  complaint  alleges  that  the  Franklin 
Mills  Company,  one  of  the  defendants,  was  engaged  in  a  general  mill- 
ing husiness  and  in  the  manufacture  and  sale  of  flour ;  that  before  the 
commencement  of  the  action,  without  the  knowledge  or  consent  of 
plaintiff,  defendants,  knowing  that  they  had  no  right  or  authority  so  to 
do,  had  obtained,  made,  printed,  sold,  and  circulated  about  25,000 
lithographic  prints,  photographs,  and  likenesses  of  plaintiff,  made  in 
a  manner  particularly  set  up  in  the  complaint ;  that  upon  the  paper  upon 
which  the  likenesses  were  printed  and  above  the  portrait  there  were 
printed  in  large,  plain  letters,  the  words,  "Flour  of  the  Family,"  and 
below  the  portrait,  in  large  capital  letters,  "Franklin  Mills  Flour,"  and 
in  the  lower  right-hand  corner,  in  smaller  capital  letters,  "Rochester 
Folding  Box  Co.,  Rochester,  N.  Y." ;  that  upon  the  same  sheet  were 
other  advertisements  of  the  flour  of  the  Franklin  Mills  Company;  that 
those  25,000  likenesses  of  the  plaintiff  thus  ornamented  have  been  con- 
spicuously posted  and  displayed  in  stores,  warehouses,  saloons,  and 
other  public  places ;  that  they  have  been  recognized  by  friends  of  the 
plaintiff  and  other  people,  with  the  result  that  plaintiff  has  been  greatly 
humiliated  by  the  scoffs  and  jeers  of  persons  who  have  recognized  her 
face  and  picture  on  this  advertisement,  and  her  good  name  has  been 
attacked,  causing  her  great  distress  and  suffering,  both  in  body  and 
mind;  that  she  was  made  sick,  and  suffered  a  severe  nervous  shock, 
was  confined  to  her  bed,  and  compelled  to  employ  a  physician,  because 
of  these  facts ;  that  defendants  had  continued  to  print,  make,  use,  sell, 
and  circulate  the  said  lithographs,  and  that  by  reason  of  the  foregoing 
facts  plaintiff  had  suffered  damages  in  the  sum  of  $15,000.  The  com- 
plaint prays  that  defendants  be  enjoined  from  making,  printing,  pub- 
lishing, circulating,  or  using  in  any  manner  any  likenesses  of  plaintiff 
in  any  form  whatever;  for  further  relief  (which  it  is  not  necessary  to 
consider  here) ;  and  for  damages. 

It  will  be  observed  that  there  is  no  complaint  made  that  plaintiff 
was  libeled  by  this  publication  of  her  portrait.  The  likeness  is  said  to 
be  a  very  good  one,  and  one  that  her  friends  and  acquaintances  were 
able  to  recognize.  *  *  *  Such  publicity,  which  some  find  agree- 
able, is  to  plaintiff  very  distasteful,  and  thus,  because  of  defendants' 

7  8  Tarts  of  the  opinions  of  Parker,  C.  J.,  and  Gray,  J.,  are  omitted. 


Sec.  9)  INVASION  OF  SO-CALLED   RIGHT   OF  PRIVACY  1095 

impertinence  in  using  her  picture,  without  her  consent,  for  their  own 
business  purposes,  she  has  been  caused  to  suffer  mental  distress  where 
others  would  have  appreciated  the  compliment  to  their  beauty  implied 
in  the  selection  of  the  picture  for  such  purposes ;  but,  as  it  is  distasteful 
to  her,  she  seeks  the  aid  of  the  courts  to  enjoin  a  further  circulation 
of  the  lithographic  prints  containing  her  portrait  made  as  alleged  in 
the  complaint,  and,  as  an  incident  thereto,  to  reimburse  her  for  the 
damages  to  her  feelings,  which  the  complaint  fixes  at  the  sum  of  $15,- 
000.  There  is  no  precedent  for  such  an  action  to  be  found  in  the  deci- 
sions of  this  court.  Indeed,  the  learned  judge  who  wrote  the  very  able 
and  interesting  opinion  in  the  appellate  division  said,  while  upon  the 
threshold  of  the  discussion  of  the  question: 

"It  may  be  said,  in  the  first  place,  that  the  theory  upon  which  this  action  is 
predicated  is  new,  at  least  in  instance,  if  not  in  principle,  and  that  few  prec- 
edents can  be  found  to  sustain  the  claim  made  by  the  plaintiff,  if,  indeed,  it 
can  be  said  that  there  are  any  authoritative  cases  establishing  her  right  to 
recover  in  this  action." 

Nevertheless  that  court  reached  the  conclusion  that  plaintiff  had  a 
good  cause  of  action  against  defendants,  in  that  defendants  had  invaded 
what  is  called  a  "right  of  privacy" ;  in  other  words,  the  right  to  be  let 
alone.  Mention  of  such  a  right  is  not  to  be  found  in  Blackstone,  Kent, 
or  any  other  of  the  great  commentators  upon  the  law ;  nor,  so  far  as  the 
learning  of  counsel  or  the  courts  in  this  case  have  been  able  to  discover, 
does  its  existence  seem  to  have  been  asserted  prior  to  about  the  year 
1890,  when  it  was  presented  with  attractiveness,  and  no  inconsiderable 
ability,  in  the  Harvard  Law  Review  (volume  4,  p.  193)  in  an  article  en- 
titled "Rights  of  a  Citizen  to  His  Reputation."  The  so-called  "right  to 
privacy"  is,  as  the  phrase  suggests,  founded  upon  the  claim  that  a  man 
has  the  right  to  pass  through  this  world,  if  he  wills,  without  having  his 
picture  published,  his  business  enterprises  discussed,  his  successful  ex- 
periments written  up  for  the  benefit  of  others,  or  his  eccentricities  com- 
mented upon  either  in  handbills,  circulars,  catalogues,  periodicals,  or 
newspapers ;  and,  necessarily,  that  the  things  which  may  not  be  written 
and  published  of  him  must  not  be  spoken  of  him  by  his  neighbors, 
whether  the  comment  be  favorable  or  otherwise.     *     *     * 

If  such  a  principle  be  incorporated  into  the  body  of  the  law  through 
the  instrumentality  of  a  court  of  equity,  the  attempts  to  logically  apply 
the  principle  will  necessarily  result  not  only  in  a  vast  amount  of  litiga- 
tion, but  in  litigation  bordering  upon  the  absurd,  for  the  right  of 
privacy,  once  established  as  a  legal  doctrine,  cannot  be  confined  to  the 
restraint  of  the  publication  of  a  likeness,  but  must  necessarily  embrace 
as  well  the  publication  of  a  word  picture,  a  comment  upon  one's  looks, 
conduct,  domestic  relations  or  habits.  And,  were  the  right  of  privacy 
once  legally  asserted,  it  would  necessarily  be  held  to  include  the  same 
things  if  spoken  instead  of  printed,  for  one,  as  well  as  the  other,  in- 
vades the  right  to  be  absolutely  let  alone.  An  insult  would  certainly 
be  in  violation  of  such  a  right,  and  with  many  persons  would  more  seri- 


10'JG  INJUNCTION   IN   RELATION   TO   TOUTS  (Ch.  4 

ously  wound  the  feelings  than  would  the  publication  of  their  picture. 
And  so  we  might  add  to  the  list  of  things  that  are  spoken  and  done 
day  by  day  which  seriously  offend  the  sensibilities  of  good  people  to 
which  the  principle  which  the  plaintiff  seeks  to  have  imbedded  in  the 
doctrine  of  the  law  would  seem  to  apply.  I  have  gone  only  far  enough 
to  barely  suggest  the  vast  field  of  litigation  which  would  necessarily  be 
opened  up  should  this  court  hold  that  privacy  exists  as  a  legal  right 
enforceable  in  equity  by  injunction,  and  by  damages  where  they  seem 
necessary  to  give  complete  relief. 

The  legislative  body  could  very  well  interfere  and  arbitrarily  provide 
that  no  one  should  be  permitted  for  his  own  selfish  purpose  to  use  the 
picture  or  the  name  of  another  for  advertising  purposes  without  his 
consent.     *     *     * 

The  first  case  is  Prince  Albert  v.  Strange,  1  Macn.  &  G.  25,  2  De 
Gex  &  S.  652.  *  *  *  The  opinion  contained  no  hint  whatever  of 
a  right  of  privacy  separate  and  distinct  from  the  right  of  property. 

Pollard  v.  Photographic  Co.,  40  Ch.  Div.  345,  is  certainly  not  an  au- 
thority for  granting  an  injunction  on  the  ground  of  threatened  injury 
to  the  feelings,  although  it  is  true,  as  stated  in  the  opinion  of  the  appel- 
late division,  that  the  court  did  say  in  the  course  of  the  discussion  that 
the  right  to  grant  an  injunction  does  not  depend  upon  the  existence  of 
property.     *     *     * 

In  Gee  v.  Pritchard,  2  Swanst.  402,  B.  attempted  to  print  a  private 
letter  written  him  by  A.,  and  he  was  restrained  on  the  ground  that  the 
property  of  that  private  letter  remained  in  A.     *     *     * 

In  not  one  of  these  cases,  therefore,  was  it  the  basis  of  the  decision 
that  the  defendant  could  be  restrained  from  performing  the  act  he  was 
doing  or  threatening  to  do  on  the  ground  that  the  feelings  of  the  plain- 
tiff would  be  thereby  injured;  but,  on  the  contrary,  each  decision  was 
rested  either  upon  the  ground  of  breach  of  trust,  or  that  plaintiff  had  a 
property  right  in  the  subject  of  litigation  which  the  court  could  protect. 

A  more  recent  English  case,  decided  in  1898,  is  more  nearly  in  point, 

and  negatives  the  contention  that  plaintiff  may  restrain  an  unauthorized 

publication  which  is  offensive  to  him,  namely,  Dockrell  v.  Dougall,  78 

Law  T.  (N.  S.)  840.     *     *     *     The  court  said,  in  effect:     *     *     * 

"In  order  that  an  injunction  may  issue  to  restrain  a  defendant  from  using 
a  plaintiff's  name,  the  use  of  it  must  be  such  as  to  injure  the  plaintiff's  rep- 
utation or  property."     *     *     * 

The  case  that  seems  to  have  been  more  relied  upon  than  any  other 
by  the  learned  appellate  division  in  reaching  the  conclusion  that  the 
complaint  in  this  case  states  a  cause  of  action  is  Schuvler  v.  Curtis,  147 
N.  Y.  434,  42  X.  E.  22,  31  L.  R.  A.  286,  49  Am.  St.  Rep.  671.  In  that 
case  certain  persons  attempted  to  erect  a  statue  or  bust  of  a  woman  no 
longer  living,  and  one  of  her  relatives  commenced  an  action  in  equity 
to  restrain  such  erection,  alleging  that  his  feelings  and  the  feelings  of 
other  relatives  of  deceased  would  be  injured  thereby.  At  special  term 
an  injunction  was  granted  on  that  ground.     19  X.  Y.  Supp.  264.     The 


SeC.  9)  INVASION   OF   SO-CALLED   RIGHT    OF   PRIVACY  1097 

general  term  affirmed  the  decision.  64  Hun,  594.  This  court  reversed 
the  judgment.     *     *     * 

Outside  of  this  jurisdiction  the  question  seems  to  have  been  pre- 
sented in  two  other  cases  in  this  country :  Corliss  v.  E.  W.  Walker  Co. 
iC.  C.)  57  Fed.  434.  64  Fed.  280,  31  L.  R.  A.  283,  and  Atkinson  v. 
Doherty,  121  Mich.  372.  80  X.  W.  285,  46  L.  R.  A.  219,  80  Am.  St. 
Rep.  507.  The  Corliss  Case  was  an  action  in  equity  to  restrain  the  pub- 
lication of  the  biography  and  picture  of  Air.  Corliss.  *  *  *  Both 
the  opinion  and  the  decision  necessarily  negative  the  existence  of  an 
actionable  right  of  privacy.     *     *     * 

This  distinction  between  public  and  private  characters  cannot  possi- 
bly be  drawn.  On  what  principle  does  an  author  or  artist  forfeit  his 
right  of  privacy,  and  a  great  orator,  a  great  preacher,  or  a  great  advo- 
cate retain  his?     *     *     * 

An  examination  of  the  authorities  leads  us  to  the  conclusion  that  the 
so-called  "right  of  privacy'"  has  not  as  yet  found  an  abiding  place  in 
our  jurisprudence,  and,  as  we  view  it,  the  doctrine  cannot  now  be  in- 
corporated without  doing  violence  to  settled  principles  of  law  by  which 
the  profession  and  the  public  have  long  been  guided.     *     *     * 

The  judgment  of  the  appellate  division  and  of  the  special  term  should 
be  reversed,  and  questions  certified  answered  in  the  negative,  without 
costs,  and  with  leave  to  the  plaintiff  to  serve  an  amended  complaint 
within  20  days,  also  without  costs.     *     *     * 

Gray,  J.  (dissenting).  *  *  *  The  right  of  privacy,  or  the  right 
of  the  individual  to  be  let  alone,  is  a  personal  right,  which  is  not  with- 
out judicial  recognition.  It  is  the  complement  of  the  right  to  the  im- 
munity of  one's  person.  The  individual  has  always  been  entitled  to  be 
protected  in  the  exclusive  use  and  enjoyment  of  that  which  is  his  own. 
The  common  law  regarded  his  person  and  property  as  inviolate,  and  he 
has  the  absolute  right  to  be  let  alone.     *     *     * 

In  the  social  evolution,  with  the  march  of  the  arts  and  sciences  and 
in  the  resultant  effects  upon  organized  society,  it  is  quite  intelligible 
that  new  conditions  must  arise  in  personal  relations,  which  the  rules 
of  the  common  law,  cast  in  the  rigid  mold  of  an  earlier  social  status, 
were  not  designed  to  meet.  It  would  be  a  reproach  to  equitable  juris- 
prudence if  equity  were  powerless  to  extend  the  application  of  the  prin- 
ciples of  common  law  or  of  natural  justice  in  remedying  a  wrong, 
which,  in  the  progress  of  civilization,  has  been  made  possible  as  the  re- 
sult of  new  social  or  commercial  conditions.  *  *  *  Lord  Chancel- 
lor Cottenham  observed  in  YVallworth  v.  Holt.  4  Mylne  &  C.  619: 

"I  think  it  is  the  duty  of  this  court  [meaning  equity]  to  adapt  its  practice 
and  course  of  proceeding  to  the  existing  state  of  society,  and  not,  by  a  strict 
adherence  to  forms  and  rules,  under  different  circumstances,  to  decline  to 
administer  justice  and  enforce  ri-rhrs  for  which  there  Is  no  other  rem- 
edy.    *     *     *  '* 

The  proposition  is,  to  me,  an  inconceivable  one  that  these  defendants 
may,  unauthorizedly,  use  the  likeness  of  this  young  woman  upon  their 
advcrtisement  as  a  method  of  attracting  widespread  public  attention  to 


1098  INJUNCTION  IN  RELATION  TO  TORTS  (Cll.  4 

their  wares,  and  that  she  must  submit  to  the  mortifying  notoriety,  with- 
out right  to  invoke  the  exercise  of  the  preventive  power  of  a  court  of 
equity.     *     *     * 

It  seems  to  me  that  the  principle  which  is  applicable  is  analogous  to 
that  upon  which  courts  of  equity  have  interfered  to  protect  the  right 
of  privacy  in  cases  of  private  writings,  or  of  other  unpublished  prod- 
ucts of  the  mind.  The  writer  or  the  lecturer  has  been  protected  in  his 
right  to  a  literary  property  in  a  letter  or  a  lecture,  against  its  unauthor- 
ized publication,  because  it  is  property,  to  which  the  right  of  privacy  at- 
taches. Woolsey  v.  Judd,  4  Duer,  399;  Gee  v.  Pritchard,  2  Swanst. 
402 ;  Abernethy  v.  Hutchinson,  3  Law  J.  Ch.  209 ;  Folsom  v.  Marsh, 
2  Story,  100,  Fed.  Cas.  Xo.  4,901.     *     *     * 

A  careful  consideration  of  the  question  presented  upon  this  appeal 
leads  me  to  the  conclusion  that  the  judgment  appealed  from  should  be 
affirmed. 

O'Brien,  Cullen,  and  Werner,  JJ.,  concur  with  Parker,  C.  J. 
Bartlett  and  Haight,  JJ.,  concur  with  Gray,  J.79 

7  9  For  an  expression  of  the  contrary  view,  that  such  a  right  of  privacy  ex- 
ists, and  should  be  recognized  by  the  courts  as  a  personal  right,  apart  from 
anv  incidental  property  right,  see  Pavesich  v.  New  England  Life  Ins.  Co.  (1905) 
122  Ga.  190,  50  S.  E.  6S,  69  L.  R.  A.  101,  106  Am.  St.  Rep.  101,  2  Ann.  Cas. 
561,  where  Cobb,  J.,  speaking  for  the  court,  said  (the  case  involved  the  pub- 
lication of  defendant's  picture,  without  his  consent,  for  advertising  purposes) : 
"The  question  therefore  to  be  determined  is  whether  an  individual  has  a  right 
of  privacy  which  he  can  enforce,  and  which  the  courts  will  protect  against 
invasion.  It  is  to  be  conceded  that  prior  to  1890  every  adjudicated  case,  both 
in  this  country  and  in  England,  which  might  be  said  to  have  involved  a  right 
of  privacy,  was  not  based  upon  the  existence  of  such  right,  but  was  founded 
upon  a  supposed  right  of  property,  or  a  breach  of  trust  or  confidence,  or  the 
like,  and  that  therefore  a  claim  to  a  right  of  privacy,  independent  of  a  prop- 
erty or  contractual  right,  or  some  right  of  a  similar  nature,  had,  up  to  that 
time,  never  been  recognized  in  terms  in  any  decision.  The  entire  absence  for 
a  long  period  of  time,  even  for  centuries,  of  a  precedent  for  an  asserted  right 
shotild  have  the  effect  to  cause  the  courts  to  proceed  with  caution  before  rec- 
ognizing the  right,  for  fear  that  they  may  thereby  invade  the  province  of  the 
lawmaking  power;  but  such  absence,  even  for  all  time,  is  not  conclusive  of  the 
question  as  to  the  existence  of  the  right.  The  novelty  of  the  complaint  is  no 
objection,  when  an  injury  cognizable  by  law  is  shown  to  have  been  inflicted 
on  the  plaintiff.  In  such  a  case,  'although  there  be  no  precedent,  the  common 
law  will  judge  according  to  tbe  law  of  nature  and  the  public  good.'  Where 
the  case  is  new  in  principle,  the  courts  have  no  authority  to  give  a  remedy, 
no  matter  how  great  the  grievance ;  but  where  the  case  is  only  new  in  in- 
stance, and  the  sole  question  is  upon  the  application  of  a  recognized  principle 
to  a  new  case,  'it  will  be  just  as  competent  to  courts  of  justice  to  apply  the 
principle  to  any  case  that  may  arise  two  centuries  hence  as  it  was  two  cen- 
turies ago.'  Broom's  Legal  Maxims  (8th  Ed.)  193.  *  *  *  The  right  of 
privacy  has  its  foundation  in  the  instincts  of  nature.  It  Is  recognized  in- 
tuitively, consciousness  being  the  witness  that  can  be  called  to  establish  its 
existence.  Any  person  whose  intellect  is  in  a  normal  condition  recognizes  at 
once  that  as  to  each  individual  member  of  society  there  are  matters  private, 
and  there  are  matters  public  so  far  as  the  individual  is  concerned.  *  *  * 
The  right  of  privacy  within  certain  limits  is  a  right  derived  from  natural  law, 
recognized  by  the  principles  of  municipal  law.  and  guarantied  to  persons  in 
this  state  both  by  the  Constitutions  of  the  United  States  and  of  the  state 
of  Georgia,  in  those  provisions  which  declare  that  no  person  shall  he  deprived 
of  liberty  except  by  due  process  of  law.  *  *  *  The  right  of  privacy,  how- 
ever, like  every  other  right  that  rests  in  the  individual,  may  be  waived  by 


Sec.  9)  INVASION   OF   SO-CALLED   RIGHT   OF   PRIVACY  1099 

him,  or  by  any  one  authorized  by  him,  or  by  any  one  whom  the  law  empowers 
to  act  in 'his  behalf,  provided  the  effect  of  his  waiver  will  not  be  such  as  to 
bring  before  the  public  those  matters  of  a  purely  private  nature  which  ex- 
press law  or  public  policy  demands  shall  lie  kept  private.  This  waiver  may 
be  either  express  or  implied,  but  the  existence  of  the  waiver  carries  with  it 
the  right  to  an  invasion  of  privacy  only  to  such  an  extent  as  may  be  legiti- 
mately necessary  and  proper  in  dealing  with  the  matter  which  has  brought 
about'  the  waiver.  *  *  *  The  most  striking  illustration  of  a  waiver  is 
where  one  either  seeks  or  allows  himself  to  be  presented  as  a  candidate  for 
public  office.  He  thereby  waives  any  right  to  restrain  or  impede  the  public 
in  any  proper  investigation  into  the  conduct  of  his  private  life  which  may 
throw  light  upon  his  qualifications  for  the  office,  or  the  advisability  of  impos- 
ing upon  him  the  public  trust  which  the  office  carries.  But  even  in  this  case 
the  waiver  does  not  extend  into  those  matters  and  transactions  of  private 
life  which  are  wholly  foreign,  and  can  throw  no  light  whatever  upon  the  ques- 
tion as  to  his  competency  for  the  office,  or  the  propriety  of  bestowing  it  upon 
him.  *  *  *  The  liberty  of  privacy  exists,  has  been  recognized  by  the  law, 
and  is  entitled  to  continual  recognition.  But  it  must  be  kept  within  its  proper 
limits,  and  in  its  exercise  must  be  made  to  accord  with  the  rights  of  those 
who  have  other  liberties,  as  well  as  the  rights  of  any  person  who  may  be. 
properly  interested  in  the  matters  which  are  claimed  to  be  of  purely  private 
concern.  Publicity  in  many  cases  is  absolutely  essential  to  the  welfare  of 
the  public.  Privacy  in  other  matters  is  not  only  essential  to  the  welfifre  of 
the  individual,  but  also  to  the  well-being  of  society.  The  law  stamping  the 
unbreakable  seal  of  privacy  upon  communications  between  husband  and  wife, 
attorney  and  client,  and  similar  provisions  of  the  law,  is  a  recognition  not 
only  of  the  right  of  privacy,  but  that,  for  the  public  good,  some  matters  of 
private  concern  are  not  to  be  made  public,  even  with  the  consent  of  those  in- 
terested. It  therefore  follows  from  what  has  been  said  that  a  violation  of 
the  right  of  privacy  is  a  direct  invasion  of  a  legal  right  of  the  individual.  It 
is  a  tort,  and  it  is  not  necessary  that  special  damages  should  have  accrued 
from  its  violation  in  order  to  entitle  the  aggrieved  party  to  recover.  Civ. 
Code  1895,  §  3807.  In  an  action  for  an  invasion  of  such  right  the  damages  to 
be  recovered  are  those  for  which  the  law  authorizes  a  recovery  in  torts  of 
that  character,  and,  if  the  law  authorizes  a  recovery  of  damages  for  wounded 
feelings  in  other  torts  of  a  similar  nature,  such  damages  would  be  recover- 
able, in  an  action  for  a  violation  of  this  right.  The  stumbling  block  which 
many  have  encountered  in  the  way  of  a  recognition  of  the  existence  of  a  right 
of  privacy  has  been  that  the  recognition  of  such  right  would  inevitably  tend 
to  curtail  the  liberty  of  speech  and  of  the  press.  The  right  to  speak  and  the 
right  of  privacy  have  been  coexistent.  Each  is  a  natural  right,  each  exists, 
and  each  must  be  recognized  and  enforced  with  due  respect  for  the  other. 
*  *  *  The  right  of  privacy  is  unquestionably  limited  by  the  right  to  speak 
and  print.  It  may  he  said  that  to  give  liberty  of  speech  and  of  the  press  such 
wide  scope  as  has  been  indicated  would  impose  a  very  serious  limitation  upon 
the  right  of  privacy,  but,  if  it  does,  it  is  due  to  the  fact  that  the  law  considers 
that  the  welfare  of  the  public  is  better  subserved  by  maintaining  the  liberty 
of  speech  and  of  the  press  than  by  allowing  an  individual  to  assert  his  right 
of  privacy  in  such  a  way  as  to  interfere  with  the  free  expression  of  one's 
sentiments,  and  the  publication  of  every  matter  in  which  the  public  may  be 
legitimately  interested.  In  many  cases  the  law  required  the  individual  to  sur- 
render some  of  his  natural  and  private  rights  for  the  benefit  of  the  public,  and 
this  is  true  in  reference  to  some  phases  of  the  right  of  privacy  as  well  as 
other  legal  rights.  Those  to  whom  the  right  to  speak  and  write  and  print  is 
guarantied  must  not  abuse  this  right,  nor  must  one  in  whom  the  right  of  pri- 
vacy exists  abuse  this  right.  *  *  *  It  seems  that  the  first  case  in  this 
country  where  the  right  of  privacy  was  invoked  as  the  foundation  for  an  ap- 
plication to  the  courts  for  relief  was  the  unreported  case  of  Manola  v.  Ste- 
vens, which  was  an  application  for  injunction  to  the  Supreme  Court  of  New 
York,  filed  on  June  15,  1890.  The  complainant  alleged  that  while  she  was 
playing  in  the  Broadway  Theatre,  dressed  as  required  by  her  role,  she  was, 
by  means  of  a  flash  light,  photographed  surreptitiously  and  without  her  con- 
sent, from  one  of  the  boxes,  by  the  defendant,  and  she  prayed  that  an  injunc- 
tion issue  to  restrain  the  use  of  the  photograph.     An  interlocutory  injunction 


1100  INJUNCTION    IN    RELATION   TO   TOUTS  (Ch.  4 

was  granted  ex  parte.  At  the  time  sel  for  a  hearing  there  was  no  appearance 
for  the  defendant,  and  the  injunction  was  made  permanent.  See  4  Harv. 
Law  Rev.  195,  note  T.  The  article  in  this  magazine  which  refers  to  the  case 
above  mentioned  appeared  in  1890',  and  was  written  by  Samuel  I>.  Warren 
and  Louis  D.  Brandeis.  In  it  the  authors  ably  and  forcefully  maintained  the 
existence  of  a  right  of  privacy,  and  the  article  attracted  much  attention  at 
the  time.  It  was  conceded  by  tbe  authors  that  there  was  no  decided  case  in 
which  the  right  of  privacy  was  distinctly  asserted  and  recognized,  but  it  was 
asserted  that  there  were  many  cases  from  which  it  would  appear  that  this 
right  really  existed,  although  the  judgment  in  each  ease  was  put  upon  other 
grounds  when  the  plaintiff  was  granted  the  relief  prayed.  The  cases  es- 
pecially referred  to  were  Yovatt  v.  Wingard,  1  J.  &  W.  394  (1820);  Abernethy 
v.  Hutchinson.  3  L.  J.  Ch.  209  (1825);  Prince  Albert  v.  Strange,  2  De  Ges  & 
Sm.  652  (1849)  :  Tuck  v.  Priester,  19  Q.  B.  D.  639  •  J^^7>  ;  Pollard  v.  Phot.  Co., 
40  Ch.  Div.  34 5  (1888).  *  *  *  It  must  be  conceded  that  the  numerous  cases 
decided  before  1890  in  which  equity  has  interfered  to  restrain  the  publication 
of  letters,  writings,  papers,  etc.,  have  all  been  based  either  upon  the  recognition 
of  a  right  of  property,  or  upon  the  fact  that  the  publication  would  be  a  breach 
of  contract,  confidence,  or  trust.  It  is  well  settled  that,  if  any  contract  or 
property  right  or  trust  relation  lias  been  violated,  damages  are  recoverable. 
There  are  many  cases  which  sustain  such  a  doctrine.  *  *  *  The  decision 
of  the  Court  of  Appeals  of  New  York  in  the  Roberson  Case  gave  rise  to  nu- 
merous articles  in  the  different  law  magazines  of  high  standing  in  ihe  coun- 
try— some  by  the  editors  and  others  by  contributors.  In  some  the  conclusion 
of  the  majority  of  the  court  was  approved,  in  others  the  views  of  the  dis- 
senting judges  were  commended,  and  in  still  others  the  case  and  similar 
cases  were  referred  to  as  apparently  establishing  that  the  claim  of  the  major- 
ity was  correct,  but  regret  was  expressed  that  the  necessity  was  such  that 
the  courts  could  not  recognize  the  right  asserted.  An  editorial  in  the  Amer- 
ican Law  Review  (volume  36,  p.  636)  said:  'The  decision  under  review  shocks 
and  wounds  the  ordinary  sense  of  justice  of  mankind.  We  have  heard  it  al- 
luded to  only  in  terms  of  regret.'  *  *  *  There  is  in  the  publication  of  one's 
picture  for  advertising  purposes  not  the  slightest  semblance  of  an  expression 
of  an  idea,  a  thought,  or  an  opinion,  within  the  meaning  of  the  constitutional 
provision  which  guaranties  to  a  person  the  right  to  publish  his  sentiments 
Dii  any  subject  Such  .-(induct  is  not  embraced  within  the  liberty  to  print, 
but  is  a  serious  invasion  of  one's  right  of  privacy,  and  may  in  many  cases,  ac- 
cording to  tbe  circumstances  of  Cue  publication  and  the  uses  to  which  it  is 
put,  cause  damages  to  flow  which  are  irreparable  in  their  nature.  *  *  * 
So  thoroughly  satisfied  are  we  that  the  law  recognizes,  within  proper  limits, 
as  a  legal  rigid,  the  right  of  privacy,  and  that  the  publication  of  one's 
picture  without  his  consent  by  another  as  an  advertisement,  for  the  mere  pur- 
pose of  increasing  the  profits  and  gains  of  the  advertiser,  is  an  invasion  of  this 
right,  that  we  venture  to  predict  that  the  day  will  come  that  the  American 
bar  will  marvel  that  a  contrary  view  was  ever  entertained  by  judges  of 
eminence  and  ability,  just  as  in  the  present  day  we  stand  amazed  that  Lord 
Coke  should  have  combated  with  all  the  force  of  Ids  vigorous  nature  the 
proposition  that  the  court  id'  chancery  had  jurisdiction  to  entertain  an  ap- 
plication for  injunction  to  restrain  the  enforcement  of  a  common-law  judgment 
which  had  I  een  obtained  by  fraud,  and  that  Lord  Hale,  with  perfect  com- 
posure of  manner  and  complete  satisfaction  of  soul,  imposed  the  death  penalty 
for  witchcraft  upon  ignorant  and  harmless  women.     *     *     *  " 


Sec.  9)  INVASION   OP   SO-CALLED   RIGHT   OF   PRIVACY  1101 

ELIOT  v.  JONES  et  al. 

ELIOT  v.  CIRCLE  PUB.  CO.  et  al. 

(Supreme  Court  of  New  York,  Special  Term,  New  York  County,  1010. 
66  Misc.  Rep.  9o.  120  N.  Y.  Supp.  9S9.) 

Actions  by  Charles  W.  Eliot  against  E.  Milton  Jones,  doing  business 
as  the  University  Library  Extension,  and  by  Charles  W.  Eliot  against 
the  Circle  Publishing  Company  and  another.  On  motion  for  an  in- 
junction pendente  lite. 

Xewburger,  J.  The  plaintiff  is  the  president  emeritus  of  Harvard 
University,  and  is  now  editing  an  edition  of  books  being  published  by 
Collier  &  Son,  and  known  and  advertised  by  them  as  "The  Harvard 
Classics''  and  "Dr.  Eliot's  Five-Foot  Shelf  of  Books,"  for  which  plain- 
tiff receives  remuneration  from  Collier,  payable  from  time  to  time. 
The  plaintiff  at  no  time  has  given  his  consent  to  the  use  of  his  name  by 
the  defendants.  The  defendant  E.  Milton  Jones  does  business  under 
the  name  of  University  Library  Extension.  In  the  months  of  Novem- 
ber and  December,  1909,  the  defendants  caused  to  be  published  in  sev- 
eral publications  in  this  city  an  advertisement  announcing  the  sale  by 
them  for  the  price  of  $14.75  of  10  volumes  of  books,  entitled  "Dr. 
Eliot's  Famous  Five-Foot  Shelf  of  the  World's  Greatest  Books,"  and 
"Dr.  Eliot's  Five-Foot  Shelf,"  and  "Dr.  Eliot's  Set."  The  plaintiff 
claims  that  the  advertisement  is  published  without  his  consent,  and  that 
the  defendants  had  no  authority  to  use  plaintiff's  name ;  that  the  plain- 
tiff's reputation  will  be  injured  by  the  use  of  his  name  in  connection 
with  the  inferior  edition  advertised  by  the  defendants.  The  answer  of 
the  defendant  Jones  admits  that  he  is  now  preparing  for  publication 
and  sale  a  series  of  books,  including  selections  by  Dr.  Charles  W.  Eliot, 
and  that  they  are  not  published  with  the  consent  or  authority  of  Dr. 
Eliot.  The  defendant  Jones  further  claims  that  the  advertisements 
complained  of  were  inserted  in  the  magazines  and  newspapers  without 
his  direction. 

The  affidavits  clearly  show  that  not  only  had  he  knowledge  of,  but 
supplied  the  material  for,  the  advertisements.  Section  2  of  chapter 
132,  of  the  Laws  of  1903  provides : 

"Any  person  whose  name,  portrait  or  picture  is  used  within  this  state  for 
advertising  purposes  or  for  the  purposes  of  trade  without  the  written  con- 
sent first  obtained,  may  maintain  an  equitable  action  in  the  Supreme  Court  of 
this  state  against  the  person,  firm  or  corporation,  so  using  his  name,  portrait 
or  picture,  to  prevent  and  restrain  the  use  thereof." 

The  Court  of  Appeals  in  Rhodes  v.  Sperrv  &  Hutchinson  Co.,  193 

N.  Y.  223,  85  N.  E.  1097,  34  L.  R.  A.  (N.  S.)  1143,  127  Am.  St.  Rep. 

945.  has  sustained  the  constitutionality  of  this  act.     Mr.  Justice  Wil- 

lard  Bartlett,  in  delivering  the  opinion  of  the  court  in  that  case,  said : 

"Tbe  statute  merely  recognizes  and  enforces  the  right  of  a  person  to  control 
the  use  of  his  name  or  portrait  by  others,  so  far  as  advertising  or  trade  pur- 
poses are  concerned.  This  right  of  control  in  the  person  whose  name  or  picture 
is  sought  to  be  used  for  such  purposes  is  not  limited  by  the  statute.     The 


1102  INJUNCTION    IN    RELATION   TO  TORTS  (Ch.  4 

requirement  of  his  written  consent  in  order  to  effectuate  a  valid  transfer 
of  the  privilege  of  thus  using  his  name  or  portrait  is  not  any  more  liable  to 
constitutional  objection  than  the  requirement  of  the  statute  of  frauds  that 
an  executory  contract  for  the  sale  of  personal  property  exceeding  $50  in  price 
must  be  made  in  writing  in  order  to  be  enforceable." 

The  Circle  Publishing  Company  has  interposed  no  defense  and  con- 
sents to  the  issuance  of  the  injunction.  Plaintiff  has  made  out  such  a 
case  as  warrants  the  intervention  of  a  court  of  equity. 

The  motion  for  an  injunction  pendente  lite  is  therefore  granted. 
Settle  order  on  notice. 


SECTION  10.— INFRINGEMENT  OF  STATUTORY  MONOP- 
OLY RIGHTS 


PARK  &  POLLARD  CO.  v.  KELLERSTRASS  et  al. 
(Circuit  Court  of  the  United  States,  W.  D.  Missouri,  1910.     1S1  Fed.  431.) 

In  Equity.  Suit  by  the  Park  &  Pollard  Company  against  Ernest 
Kellerstrass  and  the  Fidelity  Printing  Company.  On  motion  for  pre- 
liminary injunction. 

Philips,  District  Judge.  This  is  a  bill  in  equity  praying  for  a  tem- 
porary and  permanent  injunction  against  the  defendants  from  print- 
ing, publishing,  advertising,  and  distributing,  either  by  mail  or  gift, 
certain  books  or  pamphlets  entitled  "The  Kellerstrass  Way  of  Rais- 
ing Poultry."  The  one  marked  "Exhibit  E"  was  published  in  1909, 
and  the  other,  "Exhibit  F,"  was  published  in  1910.  The  complain- 
ant, a  corporation,  for  many  years  had  been  engaged  in  the  manu- 
facture and  sale  of  poultry  feeds,  and  poultrymen's  supplies,  in  the 
state  of  Massachusetts,  and  in  the  study,  care,  feeding,  and  raising  of 
poultry,  and  during  the  years  1906,  1907,  190S,  1909,  and  finally  in 
1910.  had  issued  books  designated  as  "The  Park  &  Pollard  Year 
Book,"  "Year  Book  &  Almanac,"  and  "The  Park  &  Pollard  Corn- 
pan.}-,  Boston,  Mass.,"  which  had  been  copyrighted  pursuant  to  law. 
The  bill  charges  that  the  defendant  Kellerstrass,  engaged  in  the  busi- 
ness of  raising  a  like  high  class  of  chickens  and  pursuing  methods  for 
their  care  and  cultivation  in  Jackson  County,  Mo.,  had,  through  the 
defendant  Fidelity  Printing  Company,  caused  to  be  printed  for  him 
the  book  in  1909,' "Exhibit^  "  of  the 'complaint,  entitled  "The  Keller- 
strass Way  of  Raising  Poultry,"  and  in  1910  a  book  or  pamphlet  with 
like  title,  which  the  defendant  Kellerstrass  used  for  exploiting  his 
business  and  for  sale  and  distribution.  The  bill  charges  that  said 
books  or  pamphlets  so  printed,  published,  and  distributed  by  the 
defendants  were  and  are  an  invasion  and  infringement  of  complain- 
ant's said  copyright. 


Sec.  10)    INFRINGEMENT  OF  STATUTORY  MONOPOLY  RIGHTS       1103 

The  defendant  Kellerstrass  on  the  hearing  of  the  application  for 
a  temporary  injunction  presented  his  affidavit,  in  effect,  admitting  that 
the  said  book  issued  in  1909  contained  matter  constituting  an  inva- 
sion of  the  complainant's  copyright,  and  that,  on  discovering  the 
same,  he  ceased  said  publication  or  distribution  or  use  of  said  book, 
and  has  destroyed  all  the  copies  thereof  remaining  undistributed,  and 
that  the  plates  for  printing  the  same  had  been  broken  up  or  recast 
for  other  purposes,  but  denies  that  the  "Exhibit  F,"  printed,  published, 
and  distributed  and  used  for  the  year  1910,  in  any  wise  constitutes 
an  invasion  or  infringement  of  the  complainant's  said  copyrighted 
book;  and  asserts  that  it  is  the  sole  intellectual  production  of  the  de- 
fendant Kellerstrass  based  upon  his  personal  experience,  observation, 
and  original  suggestion.  In  view,  however,  of  the  manifest  piracy  in 
his  antecedent  book  of  1909  from  the  complainant's  antecedent  pro- 
duction, the  conclusion  is  irresistible  that  in  preparing  and  construct- 
ing his  last  book  of  1910,  even  if  he  did  not  have  the  complainant's 
book  present  before  him,  its  matter,  arrangement,  and  suggestions  were 
present  in  his  mind. 

While  it  is  to  be  conceded  to  the  defendants  that  there  is  much  more 
in  the  book  or  pamphlet  gotten  up  by  them  for  the  year  1910  that  in 
no  wise  interferes  with  or  appropriates  the  conceptions  and  sugges- 
tions contained  in  the  complainant's  book,  yet  a  comparison  of  certain 
parts  of  the  two  books  in  question  clearly  demonstrates  the  fact  that 
the  author  of  the  defendants'  book  has  in  some  instances  appropriated 
the  language,  ipsissimis  verbis,  of  the  complainant's  book,  and  in  other 
instances  has  appropriated  the  thought  and  suggestions  of  the  com- 
plainant after  such  a  fashion  as  to  leave  little  doubt  that  it  was  imita- 
tive, and  with  studied  effort,  by  transposition  and  rearrangement,  he 
has  sought  to  conceal  the  fact  of  such  imitation  and  appropriation. 

While  the  restraining  order  can  only  apply  to  the  portions  of  the 
book  which  constitute  piracy  or  invasion  of  the  complainant's  copy- 
right, and  should  only  operate  upon  the  forbidden  matter,  yet,  as 
what  is  permissible  and  what  is  improper  are  so  interwoven  and  com- 
bined in  one  and  the  same  book  that  the  defendant  without  elimina- 
tion cannot  use  or  employ  what  is  his  own  without  employing  and 
using  that  which  is  not,  he  ought  not  at  this  juncture  to  exact  of  the 
court  the  task  of  such  separation  so  as  to  relieve  him  therefrom. 
When  he  shall  have  made  the  proper,  complete,  erasures,  he  can  then 
be  heard  as  to  a  modification  or  restriction  of  the  decree.  In  view  of 
the  statement  made  by  the  defendant  Kellerstrass  in  his  affidavit,  pre- 
sented on  this  hearing,  that  he  has  abandoned  the  publication,  dis- 
tribution, or  use  of  the  book,  "Exhibit  E,"  published  in  1909,  and  that 
the  type  and  matrices  for  printing  the  same  have  been  destroyed, 
and  therefore  there  is  no  injury  therefrom  threatened,  the  restraining 
order  as  to  that  is  refused,  but  is  granted  as  to  "Exhibit  F,"  the  book 
published  in  the  year  1910. 


11U4  INJUNCTION  IN  RELATION  TO  TORTS  (Cll.  4 


FROHMAN  et  al.  v.  FERRIS. 

(Supreme  Court  of  Illinois.  1900.     238  111.  430,  87  N.  E.  327, 
43  L.  R.  A.  [N.  S.]  630.  128  Am.  St.  Rep.  135.) 

Error  to  Branch  Appellate  Court,  First  District,  on  Appeal  from 
Superior  Court,  Cook  County ;    Joseph  E.  Gary,  Judge. 

Bill  by  Charles  Frohman  and  others  against  Richard  Ferris  for  an 
injunction  and  other  relief.  There  was  a  judgment  of  the  Branch  Ap- 
pellate Court  for  the  First  District  reversing  a  decree  of  the  circuit 
court,  and  plaintiffs  bring  error. 

For  prior  report,  see  131  111.  App.  307. 

This  is  an  appeal  from  a  judgment  of  the  Appellate  Court  reversing 
a  decree  of  the  superior  court  in  a  proceeding  begun  in  the  circuit 
court  by  plaintiffs  in  error  for  an  injunction  and  other  relief  against 
defendant  in  error. 

There  is  no  controversy  as  to  the  facts.  In  1894  Charles  Haddon 
Chambers  and  B.  C.  Stephenson,  dramatic  authors  and  playwriters, 
citizens  and  residents  of  London,  England,  created  and  invented  a 
dramatic  composition  entitled  "The  Fatal  Card."  Said  composition 
was  original  with  said  Chambers  and  Stephenson,  possessed  consid- 
erable literary  merit,  and  was  of  substantial  value  to  the  authors  as 
a  literary  product.  It  was  a  melodrama  in  five  acts,  written  in  manu- 
script form,  and  was  never  printed.  It  was  with  the  consent  of  the 
authors  publicly  performed  at  the  Adelphi  Theater,  London,  England, 
September  6,  1894,  by  A.  and  S.  Gatti,  theatrical  managers,  who  had 
acquired  an  interest  from  the  authors  in  the  royalties  to  be  derived 
from  a  performance  of  the  play.  Plaintiff  in  error  Charles  Frohman 
is  a  citizen  of  the  United  States,  and  on  March  25,  1895,  purchased  all 
the  right,  title,  and  interest  of  Stephenson  in  said  melodrama,  with 
the  exclusive  right  to  produce  and  perform  it  in  the  United  States  of 
America  and  Canada.  The  play  was  never  copyrighted  in  the  United 
States.  It  was  publicly  produced  under  the  supervision  of  Frohman 
in  cities  of  the  United  States  and  Canada  and  appears  to  have  met 
with  popular  favor  and  to  have  been  a  success  financially.  After- 
wards George  E.  AlacFarlane  adapted  the  composition  of  Chambers 
and  Stephenson,  called  it  by  the  same  name,  "The  Fatal  Card,"  and 
transferred  it  to  defendant  in  error,  who  caused  it  to  be  copyrighted 
in  the  United  States,  and  thereafter  produced  and  performed  it  in 
various  cities  of  the  United  States  until  enjoined  from  so  doing  under 
the  bill  filed  in  this  case.  It  is  not  denied  that  the  master's  conclusion 
that  the  MacFarlane  play  is  "substantially  identical  with  the  play 
claimed  by  the  complainants"  was  justified  by  the  evidence. 

The  bill  alleged  that  at  the  time  Ferris  obtained  from  MacFarlane 
the  pirated  copy  of  "The  Fatal  Card"  he  had  full  knowledge  of  com- 
plainants' rights;  that  he  deceived  the  public  by  inducing  them  to  be- 
lieve that  the  play  produced  was  the  play  of  said  Charles  Frohman 


SeC.  10)    INFRINGEMENT  OF  STATUTORY  MONOPOLY  RIGHTS       1105 

and  his  associates ;  that  he  made  large  profits  by  the  production  of 
said  play,  to  the  injury  of  the  complainants,  and  the  bill  prayed  for 
an  accounting-,  and  that  the  further  production  of  the  play  by  defend- 
ant in  error  be  enjoined.  After  answer  and  replication  filed,  the  case 
was  referred  to  a  master  in  chancery  to  take  the  testimony  and  report 
his  conclusions  of  law  and  fact.  The  master  reported  that  in  his 
opinion  complainants  failed  to  establish  an  exclusive  right  to  produce 
the  play  in  the  United  States,  and  that  the  prayer  of  their  bill  should 
be  denied  and  the  bill  dismissed.  Objections  to  this  report  filed  by 
the  complainants  were  overruled  by  the  master,  and  the  cause  was 
heard  by  the  chancellor  on  the  report  of  the  master  and  exceptions 
filed  thereto  by  complainants.  A  decree  was  entered  disapproving 
the  master's  report,  and  finding  that  complainants  had  the  exclusive 
right  in  the  United  States  to  represent  and  perform,  and  to  allow  oth- 
ers to  represent  and  perform,  the  said  melodrama,  "The  Fatal  Card," 
and  to  otherwise  use  and  enjoy  the  same,  and  it  was  ordered  that  the 
temporary  injunction  theretofore  issued  be  made  perpetual,  and  that 
the  defendant,  Ferris  account  to  the  complainants  for  the  profits  and 
royalties  received  by  him  through  the  production  of  the  play.  From 
this  decree  the  defendant  prosecuted  an  appeal  to  the  Appellate  Court 
for  the  First  District,  and  that  court  reversed  the  decree  of  the  su- 
perior court  and  remanded  the  case,  with  directions  to  dismiss  the 
bill.  Complainants  in  said  bill  have  sued  out  a  writ  of  error  from  this 
court  to  review  the  judgment  of  the  Appellate  Court. 

Farmer,  J.so  Plaintiffs  in  error  base  their  exclusive  title  and  right 
to  perform  said  play  upon  what  they  contend  to  be  their  rights  under 
the  common  law.  Defendant  in  error  contends  that  the  public  per- 
formance of  the  play  in  England  with  the  consent  of  its  authors,  with- 
out causing  it  to  be  copyrighted  in  this  country,  was,  so  far  as  this 
country  is  concerned,  such  an  act  of  dedication  to  the  public  as  to 
extinguish  the  common-law  rights  of  the  authors  or  their  assignees  in 
the  United  States.  At  common  law  the  author  of  a  literary  composi- 
tion had  an  absolute  property  right  in  his  production  which  he  could 
not  be  deprived  of  so  long  as  it  remained  unpublished,  nor  could  he 
be  compelled  to  publish  it.  This  right  of  property  exists  at  common 
law  in  all  productions  of  literature,  the  drama,  music,  art,  etc.,  and  the 
author  may  permit  the  use  of  his  productions  by  one  or  more  persons 
to  the  exclusion  of  all  others  and  may  give  a  copy  of  his  manuscript 
to  another  person  without  parting  with  his  property  in  it.  Drone  on 
Copyright,  p.  101  et  seq. 

"So,  also,  without  forfeiting  his  rights,  he  may  communicate  his  work  to  the 
general  public,  when  such  communication  does  not  amount  to  a  publication 
within  the  meaning  of  the  statute.  *  *  *  It  may  be  transmitted  by  be- 
quest, gift.  sale,  operation  of  law,  or  any  mode  by  which  personal  property  is 
transferred.''     Id.  104. 


8<>  Parts  of  the  opinion  are  omitted. 
Boke  Eq. — 70 


HOG  INJUNCTION   IN   RELATION  TO   TORTS  (Ch.  4 

Upon  the  publication  of  the  production  the  author's  common-law 
rights  ceased,  and  it  became  public  property  unless  protected  by  stat- 
ute. 

To  protect  the  rights  of  authors  in  their  productions  after  publica- 
tion, statutes,  in  various  countries  have  been  enacted.  Prior  to  1891 
an  alien  could  not  under  the  copyright  statutes  in  the  United  States 
obtain  a  copyright  upon  his  production,  and  the  publication  by  an 
author  in  a  foreign  country  by  printing  his  production  was  held  to 
have  the  effect  of  destroying  his  common-law  rights  in  his  production 
in  this  country  and  it  became  public  property  here.  In  March,  1891, 
Congress  passed  an  act  which  extended  to  citizens  of  foreign  countries 
the  privilege  of  copyright  in  this  country  when  such  foreign  countries 
granted  the  same  privilege  to  citizens  of  the  United  States,  and  the 
statute  provided  that  the  existence  of  the  conditions  that  authorized 
citizens  of  foreign  countries  to  avail  themselves  of  the  privileges  of 
copyright  in  this  country — 

"shall  be  determined  by  the  President  of  the  United  States  by  proclamation 
made  from  time  to  time,  as  the  purposes  of  this  act  may  require."  Act  March 
3,  1891,  c.  565,  §  13,  26  Stat.  1110  (U.  S.  Comp.  St.  1901,  c.  3117). 

On  July  1,  1891,  the  President  of  the  United  States  by  proclama- 
tion announced  that  the  laws  of  Great  Britain  and  the  British  posses- 
sions permitted  citizens  of  the  United  States  the  benefit  of  copyright 
on  substantially  the  same  basis  as  citizens  of  those  countries,  and  the 
act  of  Congress  therefore  became  effective  and  its  benefits  available 
to  citizens  of  Great  Britain  and  the  British  possessions.  Section  4956 
of  our  copyright  statute  (U.  S.  Comp.  St.  1901,  p.  3407)  provides  that: 

"No  person  shall  be  entitled  to  a  copyright  unless  he  shall,  before  publica- 
tion, deliver  at  the  office  of  the  Librarian  of  Congress,  or  deposit  in  the  mail, 
addressed  to  the  Librarian  of  Congress,  at  Washington,  District  of  Columbia, 
a  printed  copy  of  the  title  of  the  book  or  other  article  *  *  *  for  which 
he  desires  a  copyright,  nor  unless  he  shall  also,  within  ten  days  from  the  pub- 
lication thereof,  deliver  at  the  office  of  the  Librarian  of  Congress,  or  deposit 
in  the  mail,  addressed  to  the  Librarian  of  Congress,  at  Washington,  District  of 
Columbia,  two  copies  of  such  copyright  book  or  other  article." 

Even  after  the  taking  effect  of  the  act  of  1891,  an  English  author 
could  not,  after  publication  of  his  production  in  England,  secure  a 
copyright  in  this  country,  but  in  order  to  avail  himself  of  that  priv- 
ilege, it  became  necessary  that  simultaneously  with  his  publication 
and  securing  a  copyright  in  England  he  also  comply  with  the  copyright 
statutes  in  this  country.  A  publication  of  his  production  without  such 
compliance  with  our  statutes  prevented  him  from  afterwards  securing 
the  benefits  of  our  copyright  statutes,  and  rendered  the  publication 
public  property  in  this  country.  There  is  no  provision  in  our  statute 
for  securing  to  the  author  of  a  drama  the  exclusive  right  to  perform 
it  except  where  the  drama  is  printed  in  a  book,  but  the  common-law 
rights  apply  in  such  cases,  and  the  author  does  not  lose  his  rights  in 
the  production  by   public  representation.     Drone  on   Copyright,  p. 

1  ]Q         *        *        * 


SeC.  10)    INFRINGEMENT  OF  STATUTORY  MONOPOLY  RIGHTS       1107 

The  effect  of  the  English  statutes  was  to  substitute,  after  the  first 
publication,  for  the  common-law  right  of  the  author  the  statutory 
right  to  represent  or  perform  his  production  for  the  period  limited  by 
the  statute.  The  public  performance  of  the  play  in  England  had  the 
effect  of  divesting  the  authors  of  their  common-law  rights,  and  invest- 
ing them  with  the  rigfit  conferred  by  the  statutes.     *     *     * 

It  is  not  disputed  that  a  performance  of  "The  Fatal  Card"  in  Eng- 
land was,  by  the  statute  referred  to,  a  publication,  and  that  in  that 
country  the  author's  common-law  rights  thereupon  ceased.  Defend- 
ant in  error  contends  that,  when  the  authors  of  the  drama  surrendered 
their  common-law  rights  in  England  for  the  rights  conferred  by  the 
statutes,  they  ceased  to  have  any  common-law  rights  in  the  produc- 
tion in  England  or  elsewhere.  The  plaintiffs  in  error  contend  that 
as  under  our  laws  the  performance  of  the  manuscript  drama  is  not 
a  publication  of  it,  and  does  not  deprive  the  author  of  his  com- 
mon-law rights,  and,  as  our  statute  provides  no  means  for  copyright- 
ing a  drama  unless  it  is  printed  and  published  in  a  book,  our  courts 
in  deciding  what  is  such  a  publication  as  to  divest  the  author  of  his 
common-law  rights  are  not  to  be  governed  by  what  the  English  stat- 
ute declares  shall  constitute  a  publication  thereof.  It  is  not  by  vir- 
tue of  any  statute  that  it  has  been  decided  the  publication  of  a 
book,  either  in  this  country  or  in  England,  is  a  surrender  by  the 
author  of  his  common-law  rights  and  a  dedication  to  the  public  un- 
less protected  by  copyright  under  the  statute.  The  basis  of  such 
decisions  is  that  by  causing  the  book  to  be  printed  without  the  pro- 
tection of  the  copyright,  the  author  is  deemed  to  have  relinquished  all 
rights,  both  common  law  and  statutory,  and  to  have  dedicated  his  pro- 
duction to  the  public ;  and  this  applies  to  books  published  in  foreign 
countries  as  well  as  in  this  country.  In  the  absence  of  the  provision 
of  the  English  act  referred  to,  that  the  first  public  representation  or 
performance  of  a  dramatic  piece  shall  be  deemed  equivalent,  in  the 
construction  of  that  act,  to  the  first  publication  of  a  book,  it  could  not 
be  claimed  that  the  performance  of  "The  Fatal  Card"  in  England  was 
a  publication  any  more  than  would  its  performance  in  this  country, 
while  it  remained  imprinted,  be  deemed  a  publication.  The  object  of 
copyright  statutes  is  to  protect  the  authors'  rights  to  their  own  produc- 
tions. There  is  no  international  copyright  law  or  agreement  between 
this  country  and  England  providing  for  the  copyrighting  of  manu- 
script dramas,  and  we  have  seen  "The  Fatal  Card"  could  not  have 
been  copyrighted  in  this  country  without  printing.     *     *     * 

It  would  seem,  therefore,  that  there  is  a  logical  distinction  to  be 
observed  in  dealing  with  the  effect  upon  the  authors'  rights  of  the 
public  performance  of  an  imprinted  drama  and  the  publication  of  a 
printed  book.  It  is  not  contended  that  the  English  statute  has  any 
extraterritorial  effect,  but,  as  we  have  said,  the  contention  is  that,  as 
under  the  English  statute  a  performance  of  the  drama  was  made  a 
publication  of  it  so  that  the  authors'  common-law  rights  ceased  and 


1108  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  1 

their  statutory  rights  attached  in  that  country,  it  necessarily  follows 
that  the  authors  and  their  assignees  can  claim  no  common-law  right 
in  this  country.     *     *     * 

If  "The  Fatal  Card"  had  heen  first  performed  in  this  country,  the 
English  courts  would  have  treated  it  as  a  dedication  to  the  public  and 
to  have  had  the  effect  of  divesting  the  author  of  any  rights  whatever, 
under  the  laws  of  England,  to  its  exclusive  production. 

As  the   English  decisions  appear  to  be  based  upon  provisions  of 

the  statute  referred  to,*  and  there  is  no  such  statute  in  this  country, 

we  are  of  opinion  they  are  not  decisive  of  the  question  here  involved, 

and  this  view  is  sustained,  we  think,  by  the  cases  first  above  cited.* 

The  view  of  the  Appellate  Court  was  that  in  Crowe  v.  Aiken  [2  Biss. 

203,  Fed.  Cas.  No.  3,441]  supra,  the  learned  chancellor  did  not  have 

in  mind  the  construction  of  the  English  statute  adopted  by  the  courts 

in  the  decisions  we  have  cited.     Crowe  v.  Aiken  was  decided  in  1870 

and  Boucicault  v.  Chatterton  [5  L.  R.  Ch.  Div.  267]  was  not  decided 

until  1876,  but  Boucicault  v.  Delafield  [1  H.  &  M.  597]  was  decided  in 

1863,  and  Judge  Drummond  said  in  Crowe  v.  Aiken : 

"I  understand  that  it  has  been  decided  in  England  that  the  public  per- 
formance, even  in  a  foreign  country,  of  the  play  of  which  an  English  subject 
is  the  author,  defeats  his  claim  to  the  copyright  under  the  British  statutes." 

From  this  expression  it  would  seem  clear  that  the  author  of  the 
opinion  was  familiar  with  the  doctrine  announced  in  the  Delafield 
Case,  so  that  the  opinion  in  that  respect  could  not  have  been  based 
upon  any  misapprehension.  To  our  minds  it  is  squarely  in  point  and 
its  reasoning  sound.  Besides,  it  is  in  harmony  with  sound  principles 
of  justice,  and  we  are  disposed  to  follow  it  rather  than  adopt  the  rule 
that  we  are  bound  by  the  decisions  of  the  English  courts  made  under 
their  statute. 

The  judgment  of  the  Appellate  Court  will  therefore  be  reversed,  and 
the  decree  of  the  superior  court  affirmed. 

Judgment  reversed. 


REECE  FOLDING  MACH.  CO.  v.  EARL  &  WILSON. 
(District  Court  of  the  United  States,  N.  D.  New  York,  1913.     205  Fed.  539.) 

In  Equity.  Suit  by  the  Reece  Folding  Machine  Company  against 
Earl  &  Wilson,  a  corporation.  On  demurrer  to  bill  of  complaint,  which 
seeks  to  restrain  by  injunction  the  defendant  from  violating  the  terms 
and  conditions  of  two  certain  leases  and  licenses  for  the  use  of  certain 
patented  folding  machines. 

Ray,  District  Judge.  The  complainant,  Reece  Folding  Machine 
Company,  is  a  corporation  of  the  state  of  Massachusetts  engaged  in 
the  business  of  manufacturing  and  leasing  automatic  machines  for  in- 

*Kef erred  to  in  the  omitted  portion. 


Sec.  10)    INFRINGEMENT  OF  STATUTORY  MONOPOLY  RIGHTS       1109 

folding  edges  of  cloth  blanks  for  collars,  cuffs,  and  shirt  bosoms.  The 
defendant,  Earl  &  Wilson,  is  a  corporation  of  the  state  of  New  York, 
engaged  in  the  manufacture  and  sale  of  collars,  cuffs,  and  shirts  in 
the  city  of  Troy,  N.  Y. 

Prior  to  March  12.  1910,  the  Reece  Folding  Machine  Company  had 
secured  United  States  letters  patent  for  30  or  more  alleged  inventions 
relating  to  automatic  machines  for  infolding  cloth  blanks  for  collars, 
cuffs,  and  shirt  bosoms.  March  12,  1910,  the  Reece  Company  entered 
into  a  lease,  license,  and  agreement  whereby  it  leased  and  licensed 
to  the  Earl  &  Wilson  Company  31  specific  collar  band  machines,  and 
on  the  7th  day  of  April,  1910.  the  said  Reece  Company  entered  into 
another  lease  and  license  agreement  whereby  it  leased  and  licensed  to 
said  Earl  &  Wilson  16  specified  collar  top  machines.  Each  of  these 
leases  specifies  by  number  all  the  patents  relating  to  this  art  owned  by 
the  Reece  Company,  and  each  specifies  by  number  the  machines  leased 
thereby.  The  lessor  specifically  agrees  to  keep  and  perform  all  the  con- 
ditions of  the  lease  and  license,  and  specifies  the  consideration  to  be 
paid  as  rent  for  the  machines,  which  consideration  to  be  paid  is 
measured  by  the  work  done  on  each  machine.  The  third  clause  or 
subdivision  of  each  of  these  leases  or  license  agreements  provides  as 
follows  : 

"(3)  The  lessee  shall  not  in  any  way  violate  or  infringe  or  contest  the  valid- 
ity of  any  of  the  patents  nnder  which  he  is  hereby  licensed,  or  the  sufficiency 
of  their  specifications,  or  the  validity  of  the  title  of  the  lessor  to  the  said 
patents  or  any  of  them.'' 

By  subdivision  8  it  is  provided  that  in  case  the  lessee  shall  cease 
to  do  business,  or  shall  desire  to  terminate  the  lease  and  license,  the 
lessor  will  cancel  same  on  surrender  of  the  machines  in  good  condi- 
tion. By  paragraph  7  of  such  lease  or  agreement  it  is  provided  that 
the  machines  are  to  remain  the  sole  and  exclusive  property  of  the 
lessor  and  that — 

"if  the  lessee  at  any  time  refuses  or  neglects  to  perform  or  violates  any  of  the 
conditions  or  covenants  of  tins  or  any  other  lease  or  license  now  or  hereafter 
existing  between  the  parties  hereto,  the  lessor  shall  have  the  right  to  ter- 
minate this  and  any  and  all  other  leases  and  licenses  then  existing  between 
the  parties  hereto  by  giving  written  notice  that  it  has  elected  so  to  do,"  etc. 

These  leased  machines  were  delivered  to  Earl  &  Wilson,  which  cor- 
poration has  used  them  ever  since  and  is  now  using  them.  The  de- 
fendant has  paid  the  consideration.  After  the  execution  of  these 
leases  the  defendant  corporation,  Earl  &  Wilson,  caused  to  be  con- 
structed a  machine  for  the  infolding  of  collars,  cuffs,  etc.,  for  which 
it  obtained  United  States  letters  patent,  and  the  defendant  has  con- 
structed at  least  21  of  these  machines  and  is  now  using  them  in  its 
factory  at  Troy,  N.  Y.,  side  by  side  with  the  said  leased  machines,  and 
has  thereby  not  only  largely  extended  and  increased  its  business,  but 
has  made  it  unnecessary,  as  incidental  to  this  increase  of  business,  to 
lease  more  machines  of  the  complainant's  manufacture. 

The  complainant  alleges  that  these  machines  so  constructed  by  the 


1110  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

defendant  and  put  in  its  factory  at  Troy,  N.  Y.,  infringe  at  least  eight 
of  its  patents  above  referred  to  and  specified  in  the  said  leases  and 
license  agreements,  and  that  the  complainant  by  reason  of  said  in- 
fringement is  greatly  damaged  and  injured,  and  in  appropriate  lan- 
guage that  defendant  threatens  to  continue  such  violation  of  the  afore- 
said license  agreements,  and  that  it  has  and  will  suffer  large  damages 
and  injury  and  large  losses  of  profits  and  royalties,  and  that  such  vio- 
lations of  such  leases  or  license  agreements  will  occasion  irreparable 
damage  to  the  complainant  and  its  business  by  the  example  and  en- 
couragement set  to  other  lessees  to  violate  their  leases  and  to  other 
manufacturers  to  infringe  the  said  patents,  and  that  such  damages 
would  be  incapable  of  adequate  measurement,  and  that  unless  the  said 
violations  of  the  said  leases  and  licenses  by  such  infringements  of  the 
patents  is  enjoined  by  the  court  the  complainant  will  suffer  great  and 
interminable  injury,  and  be  put  to  the  expense  and  trouble  of  a  mul- 
tiplicity of  successive  and  numerous  suits  at  law  for  recovery  from 
the  said  defendant  of  the  damages  occasioned  by  the  unlawful  acts 
alleged.  In  short,  the  complainant  alleges  a  violation  of  these  leases 
and  license  agreements  by  infringement  of  the  patents  and  the  use  of 
an  infringing  machine  made  by  the  defendant,  and  also  alleges  as  a 
ground  for  injunctive  relief  that  such  relief  is  necessary  to  prevent  a 
resort  to  a  great  number  or  multiplicity  of  actions  at  law,  and  also 
that  the  damages  sustained  are  and  will  be  incapable  of  adequate  meas- 
urement. 

To  this  bill  of  complaint  the  defendant  interposes  a  demurrer  on  the 
grounds:  (1)  That  the  facts  stated  do  not  show  such  a  cause  of  action 
as  entitles  the  complainant  to  injunctive  relief;  and  (2)  that  it  appears 
on  the  complainant's  own  showing  that  it  has  full,  complete,  and  ade- 
quate remedy  at  law. 

It  goes  without  saying  that  if  the  complaint  shows  on  its  face  that 
a  multiplicity  of  actions  will  be  unnecessary,  and  that  the  complainant 
has  full,  complete,  and  adequate  remedy  at  law  for  the  injuries  com- 
plained of,  the  action  cannot  be  sustained  as  one  in  equity  for  injunc- 
tive relief.  Nothing  is  better  settled  than  that  contracts  will  not  be 
enforced  by  injunction  when  the  injured  party  has  full,  complete,  and 
adequate  remedy  at  law  for  the  breach  thereof. 

To  make  out  a  cause  of  action,  the  complainant  will  be  compelled 
to  prove  that  the  defendant  has  violated  subdivision  3  of  these  leases 
by  infringing  one  or  more  of  the  patents  specified  therein.  By  the 
terms  of  these  leases  or  license  agreements,  same  are  to  run  during  the 
life  of  all  the  patents,  to  wit,  for  the  term  of  17  years. 

Whether  the  defendant  infringes  one  or  more  of  the  complainant's 
patents  specified  in  the  lease,  it  has  the  right  at  any  time  to  end  the 
lease  and  agreement  by  returning  the  machines  to  the  Boston  office  of 
complainant  in  good  condition,  on  payment  of  all  sums  earned  by  such 
machines  up  to  that  time,  on  giving  the  notice  required.    If  the  defend- 


SeC.  10)    INFRINGEMENT  OF  STATUTORY  MONOPOLY  RIGHTS       1111 

ant  infringes  one  or  more  of  these  patents,  the  complainant  may  bring 
and  maintain  an  action  at  law  to  recover  damages  for  such  infringe- 
ment, or  the  complainant  may  bring  an  action  in  equity  for  an  injunc- 
tion restraining  such  infringement,  and  as  incidental  thereto  ask  and 
have  an  accounting  for  damages  and  profits. 

Under  clause  3  of  these  leases  or  license  agreements  Earl  &  Wilson 
assumed  no  greater  obligation  to  the  complainant  than  they  were  al- 
ready under  in  so  far  as  infringement  of  the  patents  is  concerned. 
License  or  no  license,  agreement  or  no  agreement,  the  law  imposes 
upon  Earl  &  Wilson  the  obligation  not  to  infringe  either  of  the  pat- 
ents mentioned.  Clause  3  goes  further  than  this,  and  binds  Earl  & 
Wilson  not  to  contest  the  validity  of  either  of  said  patents,  or  the 
sufficiency  of  their  specifications,  or  the  validity  of  the  title  of  the 
Reece  Company  thereto.  There  is  no  charge  in  the  bill  of  complaint 
in  this  suit  that  any  action  or  suit  has  been  brought  for  infringement 
of  either  of  said  patents,  and  that  the  defendant  is  violating  the  agree- 
ment by  contesting  the  validity  of  either  of  said  patents  or  the  sufficien- 
cy of  their  specifications  or  the  validity  of  the  lessor's  title  thereto. 
The  lessor  seeks  in  this  action  to  restrain  the  lessee  from  violating 
a  negative  covenant  that  he  will  not  infringe  certain  patents  under  and 
in  accordance  with  which  the  complainant  has  made  certain  machines, 
which  machines  have  been  leased  to  the  defendant,  the  licensee,,  and 
which  licensee  is  now  using  them  under  and  pursuant  to  the  lease  or 
license. 

If  this  suit  can  be  maintained,  and  if  clause  3  is  binding,  then  on 
the  trial,  when  it  appears,  if  it  does  appear,  that  the  defendant  is  in- 
fringing either  of  said  patents  under  which  it  has  licensed  the  defend- 
ant, the  defendant  will  be  precluded  from  contesting  the  validity  of 
such  patent,  or  the  sufficiency  of  the  specifications  thereof,  or  the  title 
of  the  lessor  of  such  patent. 

The  demurrer  admits  the  infringement  of  eight  United  States  let- 
ters patent,  which  defendant  has  agreed  not  to  infringe  and  the  valid- 
ity of  which  it  has  agreed  not  to  contest.  The  consideration  was  a 
license  to  use  the  machines  made  under  these  patents  and  which  license 
is  in  force,  and  the  defendant  is  using  the  machines  under  the  license. 
Why  is  not  this  a  case  for  injunctive  relief?  Infringement  is  con- 
ceded. The  letters  patent  are  presumed  to  be  valid  in  the  first  place, 
and  defendant,  so  long  as  it  operates  under  the  licenses,  has  agreed 
not  to  contest  the  validity  of  the  patents  or  the  sufficiency  of  the  spec- 
ifications. Must  the  complainant  be  driven  to  eight  separate  actions 
to  restrain  these  infringements,  or  may  it  be  done  in  one  action  ?  It 
is  true  that  ordinarily  courts  will  not  interfere  by  injunction  to  enforce 
contracts.  But  there  are  many  cases  where  this  is  done,  and  should 
be  done.  In  General  Electric  Company  v.  Westinghouse  Electric  Com- 
pany (C.  C.)  151  Fed.  664,  this  court  considered  this  subject,  with  the 
aid  of  most  able  counsel  on  each  side,  and  I  cannot  add  anything  of 


1112  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

value  to  the  discussion  there  presented.  I  think  the  court  has  power 
to  grant  injunctive  relief  in  such  a  case  as  this,  if  the  proofs  sustain  the 
allegations. 

The  demurrer  is  overruled,  but  defendant  may  answer  in  30  days. 


KRYPTOK  CO.  v.  STEAD  LENS  CO. 

(Circuit  Court  of  Appeals  of  the  United  States,  Eighth  District,  1911. 
190  Fed.  767,  111  C.  C.  A.  495,  39  L.  R,  A.  [N.  S.]  1.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  Western 
District  of  Missouri. 

Bill  by  the  Kryptok  Company  against  the  Stead  Lens  Company  for 
infringement  of  patent.  From  an  order  enjoining  complainant  from 
bringing  other  suits  for  infringement  of  patents,  complainant  appeals. 

Sanborn,  Circuit  Judge.  On  June  11,  1909,  Kryptok  Company,  a 
corporation,  exhibited  a  bill  in  the  court  below  at  Kansas  City,  in  the 
state  of  Missouri,  against  Stead  Lens  Company,  another  corporation, 
for  infringement  of  letters  patent  Xos.  637,444  and  876,933,  on  im- 
provements in  bifocal  lenses,  and  prayed  for  an  injunction  and  an  ac- 
counting of  gains  and  profits  and  for  damages.  On  September  9,  1909, 
the  Stead  Company  answered,  and  denied  the  validity  of  the  patents 
and  its  alleged  infringement  of  them.  On  April  19,  1910,  Kryptok 
Company  closed  its  evidence  in  chief,  and  any  delay  thereafter  in  the 
proceedings  in  the  case  seems  to  have  been  attributable  to  the  Stead 
Company.  That  company  was  a  manufacturer  of  bifocal  lenses  al- 
leged to  infringe  the  patents,  and  Haussman  &  Co.,  a  corporation  of 
Pennsylvania,  was  one  of  their  customers,  that  bought  the  lenses  of  the 
Stead  Company  at  wholesale  and  sold  them  at  retail.  In  November, 
1910,  about  17  months  after  it  instituted  its  suit  against  the  Stead  Com- 
pany, and  about  7  months  after  it  closed  its  evidence  in  chief  in  that 
suit,  Kryptok  Company  brought  a  suit,  in  Philadelphia,  against  Hauss- 
man &  Co.  for  infringement  of  the  patents.  Thereupon  the  Stead 
Company  filed  a  petition  and  affidavits  in  the  suit  in  Kansas  City,  and 
prayed  that  the  Kryptok  Company  be  enjoined  from  prosecuting  its 
suit  against  Haussman  &  Co.,  and  from  beginning  any  other  suits 
against  others  who  were  purchasing  bifocal  lenses  of  the  Stead  Com- 
pany; and  upon  this  petition,  these  affidavits,  and  counteraffidavits 
presented  by  Kryptok  Company,  the  court  below  entered  an  order 
whereby  it  enjoined  Kryptok  Company  from  proceeding  farther  with 
its  suit  against  Haussman  &  Co.  and  from  commencing  any  suits  for 
infringement  of  its  patents  against  any  of  the  purchasers  of  bifocal 
lenses  of  Stead  Company  until  the  final  decree  should  be  rendered  in 
the  suit  of  the  Kryptok  Company  against  the  Stead  Company.  From 
this  order  the  Kryptok  Company  has  appealed  to  this  court. 

The  grant  of  a  preliminary  injunction  rests  in  the  discretion  of  the 
trial  court,  not  in  its  arbitrary,  whimsical  will,  but  in  its  sound  judicial 


SeC.  10)    INFRINGEMENT  OF  STATUTORY  MONOPOLY  RIGHTS       1113 

discretion,  informed  and  guided  by  the  established  principles,  rules,  and 
practice  of  equity  jurisprudence;  and  where  the  court  has  not  departed 
from  them  its  in  junctional  orders  may  not  be  reversed  without  clear 
proof  of  an  abuse  of  its  discretion. 

Established  principles  of  equity  jurisprudence  are  (1)  that  one  may 
not  be  enjoined  from  doing  lawful  acts  to  protect  and  enforce  his  rights 
of  property  or  of  person,  unless  his  acts  to  that  effect  are  clearly  shown 
to  be  done  unnecessarily,  not  for  the  purpose  of  preserving  and  en- 
forcing his  rights,  but  maliciously  to  vex,  annoy,  and  injure  another; 
and  (2)  that  where  the  injury  to  the  applicant  if  the  preliminary  in- 
junction is  refused  will  probably  be  greater  than  the  injury  to  the  op- 
ponent if  it  is  granted  it  should  be  issued,  while  if  the  contrary  is  the 
probable  result  the  application  for  it  should  be  denied.  Russell  v;  Far- 
ley, 105  U.  S.  433,  438,  26  L.  Ed.  1060 ;  Shubert  v.  Woodward,  92  C. 
C.  A.  509,  522,  167  Fed.  47,  60;  Blount  v.  Societe  Anonyme  Du  Filtre, 
53  Fed.  98,  101,  3  C.  C.  A.  455,  458. 

The  Stead  Company  by  its  petition  based  its  application  for  this  in- 
junction upon  two  grounds,  upon  the  proposition  of  law  that  in  this 
suit  against  it  Kryptok  Company  could  procure  all  the  relief  it  was  en- 
titled to  obtain  for  the  infringement  of  its  patents  by  the  Stead  Com- 
pany and  by  Haussman  &  Co.  and  the  other  customers  of  Stead  Com- 
pany who  bought  the  infringing  article  of  it  at  wholesale  and  sold  it  at 
retail,  and  upon  the  averment  of  the  fact  that  the  Kryptok  Company 
had  brought  the  suit  against  Haussman  &  Co.  and  threatened  to  bring 
like  suits  against  three  other  customers  of  the  Stead  Company,  and  had 
notified  and  were  notifying  its  customers  that  they  were  infringing  its 
patents,  and  had  threatened  and  were  threatening  its  customers  with 
like  suits  for  infringement,  not  for  the  purpose  of  protecting  and  en- 
forcing its  rights  under  its  patents,  but  for  the  sole  purpose  of  vexing 
and  annoying  the  Stead  Company,  which  was  morally  bound  to  defend 
the  suits  against  its  customers,  and  of  maliciously  injuring  its  business. 
The  proposition  of  law  whch  the  Stead  Company  relied  upon  was  an 
error  of  law.  There  was  no  denial  that  the  patents  were  issued  and 
from  their  issue  the  legal  presumption  arose  that  they  were  valid. 
While  infringement  was  denied,  the  legal  right  to  sue  and  to  prosecute 
suits  for  infringement  to  a  hearing  must  be  admitted  in  the  considera- 
tion of  this  injunction,  because  thus  only  could  that  issue  ever  be  tried 
or  determined.  Kryptok  Company  therefore  had  the  legal  right  to  sue 
Haussman  &  Co.  and  every  other  purchaser  and  retailer  from  Stead 
Company  of  the  infringing  lenses,  and  if  it  proved  their  infringement 
it  had  the  right  to  an  injunction  forbidding  each  of  them  from  selling 
or  using  any  of  the  lenses,  and  to  a  recovery  of  the  gains  and  profits 
each  of  them  had  made  by  purchasing  and  selling  them,  and  to  the  dam- 
ages it  had  sustained  by  their  infringement.  It  is  always  difficult  to 
prove  the  gains  and  profits  an  infringer  obtains,  and  the  damages  suf- 
fered by  the  owner  of  a  patent  from  the  sales  of  the  infringing  article 
are  equally  difficult  to  prove,  so  that  the  most  valuable  relief  to  which 


1114  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 

he  is  entitled  in  equity  is  the  injunction  against  further  infringement. 
Such  an  injunction  against  the  retailers  Kryptok  Company  could  not 
secure  in  its  suit  against  Stead  Company.  It  might  in  that  suit  recover 
the  gains  and  profits  Stead  Company  had  acquired  by  its  manufacture 
and  sale  to  its  customers  of  the  infringing  lenses  and  the  damage  Stead 
Company  had  inflicted  thereby,  but  it  could  not  in  that  suit  recover  the 
gains  and  profits  the  purchasers  from  Stead  Company  had  made  nor 
the  damages  their  infringements  had  inflicted.  The  owner  of  a  patent 
cannot  recover,  in  a  suit  against  a  manufacturer  of  an  infringing  article 
which  he  sells  to  retailers,  the  full  relief  to  which  he  is  entitled  in  suits 
against  the  retailers,  and  a  decree  for  an  injunction  and  damages 
against  a  manufacturer  is  no  bar  to  suits  against  those  who  purchase 
from  the  manufacturer  and  use  or  sell  to  others.  Birdsell  v.  Shaliol, 
112  U.  S.  485,  488,  5  Sup.  Ct.  244,  28  L.  Ed.  768.  The  proposition  of 
law,  therefore,  on  which  the  petition  for  this  injunction  is  based  must 
fall. 

The  evidence  fairly  established  these  facts :  Kryptok  Company  in 
October,  1910,  more  than  11  months  after  it  sued  Stead  Company  and 
more  than  5  months  after  it  closed  its  evidence  in  chief,  notified  Stead 
Company  that  it  would  sue  four  of  the  purchasers  from  it  if  it  did  not 
stop  its  alleged  infringement,  and  in  November,  1910,  it  sued  one  of 
them.  But  it  had  the  legal  right  to  sue  them,  and  to  endeavor  by  such 
suits  to  obtain  an  injunction  to  stop  their  alleged  continuing  trespass 
upon  its  rights.  It  notified  many  of  the  customers  of  the  Stead  Com- 
pany that  the  lenses  they  were  buying  of  that  company  were  infringe- 
ments of  its  patents,  and  that  if  they  did  not  cease  dealing  in  them  it 
would  sue  them  for  infringement.  But  there  was  danger  that  if  know- 
ing of  their  infringement,  it  failed  to  give  these  notices,  it  might  there- 
by lose  its  right  to  recover  the  gains  and  profits  they  made  anterior  to 
the  filing  of  its  bills  against  them.  Layton  Pure  Food  Co.  v.  Church 
&  Dwight  Co.,  182  Fed.  35,  41,  104  C.  C.  A.  475,  481,  32  L.  R.  A.  (N. 
S.)  274,  and  cases  there  cited. 

The  result  is  that  all  the  acts  of  Kryptok  Company  were  justified 
by  the  law,  were  well  calculated  to  and  tended  to  preserve  and  enforce 
its  legal  rights  under  its  patents,  and  these  acts  fail  to  convince  that 
they  were  not  done  for  that  purpose,  or  that  they  were  done  unneces- 
sarily and  maliciously,  for  the  sole  purpose  of  annoying  and  vexing 
Stead  Company  and  injuring  their  business. 

Finally,  it  is  a  good  defense  to  an  application  for  a  preliminary  in- 
junction that  the  wrong  and  injury  likely  to  be  inflicted  upon  the  oppo- 
nents of  the  application  by  its  issue  are  greater  than  those  which  the 
applicant  is  likely  to  suffer  from  its  denial.  The  only  loss  which  Stead 
Company  would  probably  have  sustained  by  the  prosecution  of  the  suit 
against  I  laussman  &  Co.  and  the  commencement  of  the  threatened  suits 
against  three  of  its  other  customers,  if  the  injunction  had  been  denied, 
would  have  been  the  cost  of  defending  those  suits,  which  cost,  it  al- 
leges, it  was  morally,  but  not  legally,  bound  to  pay.     The  loss  which 


SeC.  10)         INFRINGEMENT   OF   STATUTORY   MONOPOLY   RIGHTS  1H5 

Kryptok  Company  will  probably  sustain  from  the  issue  and  continu- 
ance of  the  injunction,  if  its  bills  are  well  founded,  will  be  the  post- 
ponement of  its  injunction  against  the  infringement  by  these  customers 
of  its  patents  for  several  years,  and  the  loss  of  those  gains  and  profits 
made  by  those  customers  which  it  is  unable  eventually  to  prove.  The 
evidence  is  not  convincing  that  the  probable  loss  of  the  Stead  Company 
from  the  denial  is  greater  than  that  of  the  Kryptok  Company  from  the 
granting  of  the  injunction. 

No  case  has  been  cited  that  sustains  an  injunction  of  the  character 
here  in  question  under  a  similar  state  of  facts.  In  Acetylene  Co.  v. 
Avery  Portable  Co.  (C.  C.)  152  Fed.  642,  upon  which  counsel  for  the 
Stead  Company  seem  to  rely,  the  suit  against  the  manufacturer  was  in- 
stituted on  July  24,  1906,  and  within  three  months  the  complainant  had 
brought  ten  suits  against'  purchasers  from  the  defendant  and  threat- 
ened more.  Perhaps  those  facts  indicated  a  purpose  unnecessarily  and 
maliciously  to  annoy  the  defendant  and  injure  its  business.  But,  even 
so,  the  court  granted  an  injunction  against  the  commencement  of  more 
such  suits  only,  and  refused  to  enjoin  the  prosecution  of  the  ten  that 
had  already  been  commenced.  There  is  a  wide  difference  between  a 
case  in  which  10  suits  against  customers  of  the  defendant  are  brought 
within  3  months  after  the  bill  against  a  manufacturer  is  filed,  and  prob- 
ably before  the  complainant  had  made  his  prima  facie  case,  and  one  in 
which  no  such  suit  is  instituted  until  17  months  after  the  bill  is  filed 
and  more  than  6  months  after  the  complainant  has  closed  its  case  in 
chief. 

Because  the  proposition  of  law  upon  which  Stead  Company  founded 
its  petition  for  the  injunction  was  an  error,  because  the  evidence  in  the 
petition  and  affidavits  fail  to  show  that  Kryptok  Company's  notices  to 
the  customers  of  Stead  Company  of  their  infringement  and  of  com- 
ing suits  were  given,  that  they  commenced  the  suit  against  Haussman 
&  Co.,  or  that  their  threats  to  sue  three  other  customers  of  Stead  Com- 
pany were  made  unnecessarily  and  maliciously,  for  the  sole  purpose  of 
vexing  and  annoying  Stead  Company  and  injuring  their  business,  and 
because  it  does  not  appear  that  the  injury  to  Stead  Company  by  refus- 
ing the  injunction  would  probably  be  greater  than  to  the  Kryptok  Com- 
pany by  granting  it,  the  order  below  must  be  reversed. 

And  it  is  so  ordered. 


NEW  FICTION  PUB.  CO.  v.  STAR  CO. 

(District  Court  of  United  States,  S.  D.  New  York,  1915.    220  Fed.  904.) 

In  Equity.  Suit  by  the  New  Fiction  Publishing  Company  against 
the  Star  Company.    On  motion  to  dismiss  bill. 

Mayer,  District  Judge.  The  defendant  has  moved  under  equity 
rule  29  to  dismiss  the  bill  of  complaint,  upon  the  ground  that  upon  the 
face  of  the  bill  no  cause  of  action  against  defendant  is  disclosed,  and 


111C  INJUNCTION    IN    RELATION   TO   TORTS  (Ch.  4 

that  the  court  is  without  jurisdiction  to  entertain  the  suit.  The  parties 
are  New  York  corporations,  with  their  places  of  business  in  the  bor- 
ough of  Manhattan,  city  of  New  York. 

The  sole  question  is  whether  plaintiff  is  the  assignee  of  or  merely  the 
licensee  under  a  copyright,  and,  as  this  question  is  said  to  be  important, 
a  full  statement  of  the  facts  as  disclosed  on  the  face  of  the  bill  seems 
to  be  desirable.  On  July  9,  1913,  one  Edward  Goodman,  being  the 
author  and  proprietor  of  an  unpublished  drama  entitled  "En  Desha- 
bille," copyrighted  it  as  provided  by  the  Copyright  Act.  Before  copies 
of  the  drama  were  produced  for  sale,  Goodman  entered  into  an  ar- 
rangement with  plaintiff  whereby,  as  plaintiff  claims,  he  assigned  to 
plaintiff  the  ''serial  rights"'  in  and  to  the  drama.  Plaintiff  paid  Good- 
man $50  by  check,  and  Goodman  indorsed  the  check.  The  check, 
with  its  indorsement,  is  the  evidence  upon  which  plaintiff  relies  in  as- 
serting an  assignment,  and  is  as  follows : 
"No.  697.  New  York,  Dec.  5,  1913. 

"The  Mutual  Bank,  49-51  West  33d  Street:  Pay  to  the  order  of  Edward 
Goodman  ($50oo/100)  fifty  &  °o/100  dollars. 

"The  New  Fiction  Publishing  Company, 
"W.  M.  Clayton,  President." 

On  the  margin  of  said  check : 

"The  New  Fiction  Publishing  Co.,  16  East  33d  St.,  New  York." 

Indorsed : 

"For  all  serial  rights  to  one  act  play,  En  Deshabille.  For  deposit.  Edward 
Goodman. 

"Indorsement  correct.     The  Fifth  Avenue  Bank  of  N.  Y. 

"Received  payment  through  New  York  Clearing  House,  Dec.  6,  1913.  Ad- 
dition The  Fifth  Avenue  Bank  of  New  York.*' 

The  words  "serial  rights"  have,  as  plaintiff  alleges  (and  this  alle- 
gation must  be  accepted  for  the  purposes  of  this  motion),  a  definite 
meaning  among  publishers,  and  are  understood  to  comprehend  all 
publishing  rights,  including  magazine  and  newspaper  publishing  rights, 
and  excepting  only  book,  dramatic,  and  moving  picture  scenario  rights. 

Prior  to  the  transfer  of  the  "serial  rights,"  viz.,  about  September  16, 
1913,  Goodman  sold  to  the  Managers'  Producing  Company  the  right 
to  perform  the  play  on  the  stage,  and  thereafter  this  Managers'  Pro- 
ducing Company  gave  performances  at  various  theaters  in  the  United 
States  and  Canada,  and,  because  of  the  interest  aroused  by  the  play, 
the  right  to  print  and  publish  the  drama  in  a  magazine  became  of 
\  alue. 

Plaintiff  is  the  proprietor  of  a  monthly  magazine  called  "Snappy 
Stories,"  and  as  "En  Deshabille"  could  be  readily  printed  in  one  issue, 
it  was  so  printed  in  the  March,  1914,  issue.  Before  that,  however, 
namely,  on  Sunday,  January  18,  1(H4,  and  without  the  consent  of 
Goodman  or  plaintiff,  substantial  parts  of  Goodman's  play  were  pub- 
lished in  the  Xew  York  American,  a  newspaper  owned  by  defendant. 

The  allegation  is  that  this  publication  in  the  New  York  American 
satisfied  the  public  desire  to  read  the  play  and  thereby  diminish  the 


Sec.  10)    INFRINGEMENT  OF  STATUTORY  MONOPOLY  RIGHTS       1117 

sales  and  profits  of  plaintiff's  magazine.  The  relief  asked  for  is  that 
prescribed  by  section  25  of  the  Copyright  Act  in  cases  of  infringement, 
as  follows : 

"(1)  For  an  injunction  restraining  the  infringement ;  (2)  for  destruction  of 
infringing  prints  and  matrices  :  (3)  for  an  accounting  and  payment  of  all 
profits  ensuing  from  the  sale  of  the  copyrighted  material ;  and  (4)  for  a  pen- 
alty of  $1.00  for  each  and  every  infringing  copy  made  or  sold  by  or  now  in 
the'  possession  of  defendant  and  the  defendant  is  required  to  make  discovery 
of  the  number  of  such  copies  made  or  sold  by  it  and  now  in  its  possession." 

It  is  asserted  that  the  March,  1914,  issue  of  "Snappy  Stories"  was 
duly  copyrighted  in  February,  1914;  but  that  fact  is  of  no  consequence 
and  adds  nothing  to  plaintiff's  case,  in  view  of  the  previous  copyright 
of  Goodman. 

At  the  outset,  it  may  be  well  to  clear  away  some  misapprehensions. 
If  the  transaction  described  constitutes  an  assignment  of  the  copy- 
right, it  was  not  necessary  for  the  purposes  of  this  cause  of  action 
that  the  assignment  should  be  recorded  as  provided  in  section  44  of  the 
act.  That  section  protects  subsequent  purchasers  or  mortgagees  for 
value,  and  is  akin  in  principle  to  the  filing  or  recording  acts,  which 
relate  to  bills  of  sale  or  chattel  mortgages.  As  against  infringers,  an 
assignee  would  have  a  cause  of  action,  irrespective  of  the  recording 
provisions  of  the  act. 

Further,  the  check  transaction,  although  informal,  clearly  shows  the 
intention  of  Goodman  to  sell  to  plaintiff  all  rights  to  publish  in  mag- 
azines and  newspapers. 

So  that  the  sole  question,  as  indicated  supra,   is  whether  plaintiff 

is  an  assignee  or  licensee.     When  Goodman  obtained  his  copyright,  he 

acquired  the  exclusive  rights  conferred  by  section    1  of  the  act,  and 

also  the  right  to  assign  permitted  by  section  42.     Under  the  act  but 

one  assignment  is  necessary   for  absolute  protection.     Less  than  an 

assignment  of  the  entire  copyright  cannot  carry  the  causes  of  action 

(if  the  right  is  invaded)  which  the  act  accords  to  the  owner  or  assignee. 

Air.  Bowker  in  "Copyright,  Its  History  and  Its  Law"  (Edition  1912) 

at  page  49,  aptly  states  the  proposition : 

"In  respect  to  the  right  to  limit  the  use  of  his  work  under  his  sale,  gift, 
loan,  grant,  lease,  etc.,  for  a  special  purpose,  or  at  a  special  price,  or  for  a 
special  time,  or  in  a  special  locality,  or  to  a  special  person,  these  powers  of 
limitation,  though  implied  in  the  grant  of  copyright,  are  dependent  for  their 
enforcement  rather  upon  the  law  of  contracts  than  upon  copyright  law. 
There  can  be  no  such  thing  as  a  copyright  for  a  special  purpose,  or  for  a  spe- 
cial locality,  or  under  other  special  conditions,  for  there  can  be  only  one 
copyright,  and  that  a  general  copyright,  in  any  one  work.  But  specific  con- 
tracts can  be  made,  enforceable  under  the  law  of  contracts,  as  for  the  sale  of 
a  copyrighted  book  within  a  certain  territory,  provided  such  contracts  or  limi- 
tations are  not  contrary  to  other  laws.  Although  record  of  assignment  in 
the  Copyright  Office  is  provided  for  by  the  law  only  for  the  copyright  in  gen- 
eral, the  separate  estates,  as  a  right  to  publish  in  a  periodical  and  the  right 
to  publish  as  a  book,  may  be  sold  and  assigned  separately,  and  the  si*'i-ial 
assignment  recorded  in  the  Copyright  Office,  though  this  does  not  convey  a 
right  to  substitute  in  the  copyright  notice  a  name  other  than  that  of  the  re- 
corded proprietor  of  the  general  copyright,  which  can  only  be  changed  as 
specifically  provided  in  the  law  under  recorded  assignment  of  the  entire  copy- 
right" 


1118  INJUNCTION    IN   RELATION  TO   TORTS  (Ch.  4 

That  Goodman  transferred  or  licensed  to  plaintiff  only  a  special  or 
limited  right  is  made  especially  clear  by  the  fact  that  he  sold  the 
dramatic  rights  to  some  one  else,  and  this,  obviously,  he  could  not 
have  done,  had  he  divested  himself  of  his  copyright  by  assignment. 
It  must  be  remembered  throughout  that  the  remedies  here  sought  are 
statutory  creations.  They  have  been  made  drastic  to  protect  authors 
against  wrongful  invasions,  but  they  were  not  intended  to  be  cumula- 
tive, so  as  to  subject  a  defendant  to  more  than  one  recovery  for  the 
redress  of  one  wrong. 

Under  section  25  of  the  act,  which  enumerates  the  remedies,  an  in- 
fringer, among  other  things,  "shall  be  liable  *  *  *  to  pay  to  the 
copyright  proprietor  such  damages  as  the  copyright  proprietor  may 
have  suffered  due  to  infringement."  Yet,  if  plaintiff's  theory  were 
right,  the  anomalous  result  would  follow  that  not  only  plaintiff,  but 
every  other  licensee  of  plaintiff,  could  severally  sue  the  defendant,  and 
each  obtain  a  separate  judgment  for  one  and  the  same  violation  of  a 
copyright  which  no  one  of  them  owned,  but  in  respect  of  which  each 
had  only  certain  special  or  limited  rights. 

It  is   urged,   however,   that  under   section   3   of  the   act  the   right 

here  claimed  is  distinctly  conferred.     That  section  is  as  follows : 

"Sec.  3.  That  the  copyright  provided  by  this  act  shall  protect  all  the  copy- 
rightable component  parts  of  the  work  copyrighted,  and  all  matter  therein 
in  which  copyright  is  already  subsisting,  but  without  extending  the  duration 
or  scope  of  such  copyright.  The  copyright  upon  composite  works  or  periodi- 
cals shall  give  to  the  proprietor  thereof  alt  the  rights  in  respect  thereto  which 
he  would  have  if  each  part  were  individually  copyrighted  under  this  act." 

Without  intending  to  construe  this  section  further  than  necessary 
for  the  purposes  of  this  case,  it  is  clear  that  "component  parts"  does 
not  mean  subdivision  of  rights,  licenses,  or  privileges,  but  refers  to 
the  separate  chapters,  subdivisions,  acts,  and  the  like  of  which  most 
works  are  composed. 

Finally,  it  is  said  that  if  the  owner  of  rights  such  as  in  the  case 
at  bar  cannot  sue  under  the  act,  but  is  remitted  to  an  appropriate  ac- 
tion because  of  the  invasion  of  its  contract  rights  obtained  from  the 
author,  then  that  a  valuable  protection  will  be  lost  to  the  author  as 
the  result  of  the  diminished  protection  to  his  transferee.  I  think  I 
fully  appreciate  the  new  situations  which  the  enlarged  use  of  copy- 
righted works  has  developed  commercially.  The  motion  picture  sce- 
nario, the  daily  short  story  in  the  newspaper,  the  growing  vogue  of 
the  concise  one-act  play  and  of  the  short-story  magazine,  have  all  been 
developments  towards  specialization,  which  doubtless  render  partic- 
ular rights  of  increasing  importance;  but  if  the  statute  has  not  met 
these  new  developments,  and  in  this  regard  I  do  not  express  any  opin- 
ion, the  time-worn  answer  of  the  courts  is  that  the  subject-matter 
then  becomes  one  for  legislative  consideration. 

An  examination  of  many  reported  cases  fails  to  disclose  a  disposi- 
tion of  the  precise  question  at  bar,  but  it  may  be  helpful  to  refer  to 


Sec.  11)  LIBEL  1119 

Tude's  "Liedertafel"   Case,  L.   R.   (1907)    1    Ch.   651;    Empire   City 

Amusement  Co.  v.  Wilton  (C.  C.)  134  Fed.  133. 

As  the  suit  cannot  be  maintained  under  the  Copyright  Act,  and  as 

diversity  of  citizenship  is  lacking,  the  motion  to  dismiss  the  bill  is 

granted,  with  costs. 

Note. — It  will  be  understood  that  I  aru  not  passing  on  the  question  which 
would  be  presented  if  Goodman  were  a  party  plaintiff. 


SECTION  11.— LIBEL 


NEW  YORK  TUVENILE  GUARDIAN  SOCIETY  v.  ROOSE- 
VELT et  al. 

(Court  of  Common  Pleas  of  New  York,  1S77.     7  Daly,  1SS.) 

Motion  to  vacate  an  injunction.  The  facts  are  fully  stated  in  the 
opinion. 

Charles  P.  Daly,  C.  J.81  At  the  close  of  the  argument  in  this  case, 
I  expressed  my  conviction  that  the  injunction  which  has  been  granted, 
could  not  be  sustained,  and  stated  orally  my  conclusions  upon  the 
other  questions  discussed,  and  gave  my  reasons.  But  as  the  plaintiff 
desired  that  the  authorities  cited  might  be  carefully  examined  by  him, 
as  well  as  by  the  court,  and  that  he  might  submit  a  further  brief  in 
the  case,  liberty  was  given  him  to  do  so.  His  further  brief  has  been 
submitted  and  considered,  the  various  authorities  cited  have  been  read 
by  me,  and  the  result  of  the  examination  is  that  I  have  but  to  reiterate 
in  a  more  deliberate  form  the  views  and  conclusions  previously  ex- 
pressed. 

It  was  decided  in  Brandreth  v.  Lance,  8  Paige,  24,  34  Am.  Dec. 
368,  that  a  court  of  equity  has  no  jurisdiction  to  restrain  the  pub- 
lication of  a  pamphlet  or  literary  work  upon  the  ground  that  its  pub- 
lication would  be  libellous,  and  the  reason  given  by  the  chancellor 
was,  that  to  assume  jurisdiction  in  such  a  case  or  in  any  other  case  of 
a  like  nature,  would  be  infringing  upon  the  liberty  of  the  press,  and 
attempting  to  exercise  a  power  of  preventive  justice,  which  the  Legis- 
lature has  decided  cannot  be  intrusted  to  any  tribunal  consistently  with 
the  principles  of  a  free  government.  The  cases  of  The  Springhead 
S.  Co.  v.  Riley,  L.  R.  6  Eq.  Cas.  561,  and  Dixon  v.  Holden,  L.  R.  7 
Eq.  Cas.  488,  are  English  cases ;  and  if  they  went  as  far  as  is  claimed, 
they  would  be  no  authority  in  this  State  for  disregarding  the  decision 
of  Chancellor  Walworth  in  the  case  above  cited.  In  the  last  of  these 
cases  (Dixon  v.  Holden),  Vice-Chancellor  Malins  undertook  to  qualify 

si  Part  of  the  opinion  is  omitted. 


1120  INJUNCTION    IN    RELATION  TO  TORTS  (Ch.  4 

the  well-settled  rule  in  England,  that  a  court  of  equity  would  not  re- 
strain by  injunction  the  publication  of  a  libel,  by  holding  that  it  would 
restrain  it,  if  the  effect  of  the  publication  would,  in  addition  to  its 
libellous  character  be  injurious  to  property. 

The  propriety  of  any  such  qualification  was  questioned  by  Vice- 
Chancellor  Wickens  in  the  subsequent  case  of  Mulkern  v.  Ward,  L.  R. 
13  Eq.  Cas.  619,  and  was  expressly  overruled  afterwards  in  The  Pru- 
dential Assurance  Co.  v.  Knott,  L.  R.  10  Ch.  App.  142,  showing  that 
the  law  in  England,  in  this  respect,  is  substantially  the  same  as  in  this 
State. 

What  is  averred  in  the  complaint,  in  the  present  case,  is,  that  the 
defendants,  as  members  or  visitors  of  the  State  Board  of  Charities, 
claim  the  power  and  right  to  publish,  or  authorize  to  be  published. 
the  proceedings  before  them  in  their  inspection,  and  examination, 
under  the  statute,  of  the  affairs  and  conduct  of  the  Xew  York  Juvenile 
Guardian  Society  and  its  officers,  which  examinations,  it  is  averred, 
are  secret  and  ex  parte ;  from  which  the  society  or  its  officer  or  em- 
ploye of  the  society  could  be  before  the  defendants  at  any  one  time, 
and  in  which  they  exclude  the  society  from  being  present  by  counsel, 
and  deny  their  right  to  cross-examine  the  witnesses,  or  to  produce 
testimony  on  its  own  behalf,  or  to  know,  except  from  the  publication 
of  the  proceedings,  what  charges  were  made  against  the  society  or 
its  officers ;  and  that  the  publication  referred  to,  consists  of  evidence. 
some  of  which  is  taken  in  the  form  of  affidavits,  and  some  in  the 
form  of  verbal  and  unsworn  statements,  charging  the  society  and  its 
officers  with  mismanagement  of  its  direction  and  affairs ;  the  perver- 
sion or  waste  of  the  contributions  or  donations  received  by  it ;  the 
abuse  of  its  power,  or  perversion  of  its  corporate  purposes  and  duties  ; 
and  it  is  further  averred  that  the  testimony  of  the  officers  and  em- 
ployes of  the  society  is  essentially  suppressed  or  garbled  and  per- 
verted in  the  publication  of  it ;  whereas,  if  truly  reported,  it  would 
have  justified  the  work  and  conduct  of  the  society ;  and  that  the  ac- 
counts of  the  proceedings,  as  published  so  far  as  it  reflects  upon  the 
society  or  its  officers,  is  untrue,  defamatory  and  libellous. 

It  appears  from  the  affidavits  that  the  investigations  conducted  by 
the  defendants  have  been  attended  by  reporters  of  the  public  press, 
and  that  the  publications  which  have  appeared,  are  of  such  proceed- 
ings as  were  taken  down  by  the  reporters  and  published  in  the  re- 
spective newspapers  by  the  proprietors  of  which  the  reporters  were 
employed. 

Conceding  that  this  is  done  with  the  authority  and  assent  of  the 
defendants,  and  that  the  matter  thus  published  is  defamatorv  and 
libellous,  as  averred,  the  publication  cannot  be  restrained  by  a  court 
of  equity;  and  those  injured  by  such  publications,  if  they  are  libellous, 
must  seek  their  remedy  by  a  civil  action,  or  by  an  indictment  in  the 
criminal  courts;  there  being  no  authority,  in  this  court,  as  a  court 
of  equity,  to  restrain  any  such  publication;    the  exercise  of  any  such 


Sec.  11)  LIBEL  1121 

jurisdiction  being  repugnant  to  the  provision  of  the  Constitution, 
which  declares  (article  1,  §  8)  that  every  citizen  may  freely  speak, 
write  and  publish  his  sentiments  on  all  subjects,  being  responsible  for 
the  abuse  of  that  right ;  and  that  no  law  shall  be  passed  to  restrain 
or  abridge  the  liberty  of  speech  or  of  the  press. 

This  applies  to  the  temporary  injunction  that  has  been  granted, 
which  is,  that  the  defendants  be  restrained  from  publishing  any  false, 
defamatory  or  libellous  statements  concerning  the  society  or  its  offi- 
cers ;  as  well  as  to  the  more  extensive  relief  that  is  asked  upon  the 
present  motion,  which  is,  that  the  publication  of  the  proceedings  that 
have  taken  place  upon  the  investigation,  be  restrained  as  defamatory 
and  libellous.  The  plaintiffs  also  ask  that  the  defendants  be  enjoined 
from  carrying  on  any  such  investigation ;  or  if  that  is  denied,  that  they 
be  restrained  from  conducting  it,  except  in  the  manner  pointed  out 
in  the  complaint.     *     *     * 

Injunction  vacated. 


BOSTON  DIATITE  CO.  v.  FLORENCE  MFG.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1873.     114  Mass.  69, 
19  Am.   Rep.  310.) 

Bill  in  equity  against  the  Florence  Manufacturing  Company,  Isaac 
S.  Parsons,  George  A.  Burr  and  George  A.  Scott,  alleging  that  the 
plaintiff  corporation  was  and  for  three  years  had  been  engaged  in  the 
manufacture  of  sundry  articles,  among  which  were  toilet  mirrors, 
made  from  a  composition,  invented  and  patented  by  one  Merrick, 
which  was  capable  of  being  moulded  by  heat  and  pressure  into  vari- 
ous shapes,  and  that  they  had  applied  to  this  material  the  trade-mark 
"Diatite,"  by  which  it  was  generally  known  ;  that  the  defendant  cor- 
poration was  engaged  in  the  manufacture  of  toilet  mirrors  from  an- 
other material  capable  of  being  moulded  and  pressed,  upon  which 
there  were  no  letters  patent ;  that  the  defendant  Parsons  was  the  pres- 
ident, the  defendant  Burr  the  treasurer,  and  the  defendant  Scott  the 
agent  of  the  defendant  corporation ;  that  Parsons,  Burr  and  Scott, 
acting  as  such  officers  and  in  the  name  of  the  corporation,  falsely, 
fraudulently  and  maliciously,  and  for  the  purpose  of  injuring  the  plain- 
tiff and  diverting  its  trade,  represented  to  the  plaintiff's  customers 
that  the  articles  manufactured  by  the  plaintiff  under  its  letters  patent 
were  manufactured  in  infringement  of  letters  patent  owned  by  the  de- 
fendant corporation,  and  that  the  defendant  corporation  was  prose- 
cuting a  suit  against  the  plaintiff  corporation  for  such  infringement. 
The  bill  then  set  forth  specific  instances  in  which  persons,  in  the  bill 
named,  who  intended  to  make  purchases  of  the  plaintiff,  had  been 
deterred  therefrom  by  oral  and  written  representations,  of  the  pur- 
Boke  Eq. — 71 


1122  INJUNCTION   IN   RELATION  TO   TORTS  (Ch.  4 

port  above  set  forth,  made  to  them  by  the  defendants,  and  had  been 
induced  to  purchase  of  the  defendant  corporation. 

The  bill  prayed  that  the  defendants  might  be  enjoined  from  making 
such  representations,  and  that  the  defendant  corporation  might  be 
decreed  to  account  for  the  profits  of  its  sales  made  by  reason  of  such 
false  representations. 

The  defendants  demurred,  because  the  plaintiff  had  not  stated  a 
case  which  entitled  it  to  the  relief  prayed  for. 

Gray,  C.  J.  The  jurisdiction  of  a  Court  of  Chancery  does  not  ex- 
tend to  cases  of  libel  or  slander,  or  of  false  representations  as  to  the 
character  or  quality  of  the  plaintiff's  property,  or  as  to  his  title  there- 
to, which  involve  no  breach  of  trust  or  of  contract.  Huggonson's 
Case,  2  Atk.  469,  488;  Gee  v.  Pritchard,  2  Swanst.  402,  413;  Seeley 
v.  Fisher,  11  Sim.  581,  5S3;  Fleming  v.  Newton,  1  H.  L.  Cas.  363, 
371,  376;  Emperor  of  Austria  v.  Day,  3  De  G.,  F.  &  J.  217,  238- 
241 ;  Mulkern  v.  Ward,  L.  R.  13  Eq.  619.  The  opinions  of  Vice- 
Chancellor  Malins  in  Springhead  Spinning  Co.  v.  Riley,  L.  R.  6 
Eq.  551,  in  Dixon  v.  Holden,  L.  R.  7  Eq.  488,  and  in  Rollins  v. 
Hinks,  L.  R.  13  Eq.  355,  appear  to  us  to  be  so  inconsistent  with 
these  authorities  and  with  well  settled  principles,  that  it  would  be 
superfluous  to  consider  whether,  upon  the  facts  before  him,  his  deci- 
sions can  be  supported. 

The  jurisdiction  to  restrain  the  use  of  a  name  or  a  trade-mark,  or 
the  publication  of  letters,  rests  upon  the  ground  of  the  plaintiff's 
property  in  his  name,  trade-mark  or  letters,  and  of  the  defendant's 
unlawful  use  thereof.  Routh  v.  Webster,  10  Beav.  561 ;  Leather 
Cloth  Co.  v.  American  Leather  Cloth  Co.,  4  De  G.,  J.  &  S.  137,  and 
11  H.  L.  Cas.  523 ;  Maxwell  v.  Hogg,  L.  R.  2  Ch.  307,  310,  313 ;  Gee 
v.  Pritchard,  2  Swanst.  402. 

The  present  bill  alleges  no  trust  or  contract  between  the  parties,  and 
no  use  by  the  defendants  of  the  plaintiff's  name ;  but  only  that  the 
defendants  made  false  and  fraudulent  representations,  oral  and  writ- 
ten, that  the  articles  manufactured  by  the  plaintiff  were  infringements 
of  letters  patent  of  the  defendant  corporation,  and  that  the  plaintiff 
had  been  sued  by  the  defendant  corporation  therefor ;  and  that  the 
defendants  further  threatened  divers  persons  with  suits  for  selling  the 
plaintiff's  goods,  upon  the  false  and  fraudulent  pretence  that  they  in- 
fringed upon  the  patent  of  the  defendant  corporation.  If  the  plaintiff 
has  any  remedy,  it  is  by  action  at  law.  Barley  v.  Walford,  9  Q.  B.  197 ; 
Wren  v.  Weild.  L.  R.  4  Q.  B.  730. 

Demurrer  sustained  and  bill  dismissed. 


Sec.  11)  libel  1123 

BONNARD  v.  PERRYMAN. 

(Chancery  Division,  Court  of  Appeal.     [1891]  2  Ch.  200.) 

This  was  an  action  for  libel.  The  plaintiffs  were  Gustave  Richard 
Bonnard  and  Arthur  Henry  Deakin,  trading  as  the  Mercantile  and 
General  Trust  at  Broad  Street  Avenue.  The  defendants  were,  Charles 
W.  Perryman,  the  publisher,  proprietor,  and  editor  of  a  weekly  news- 
paper called  the  Financial  Observer  and  Mining  Herald,  and  Clement 
Allen,  sued  as  the  printer  of  that  newspaper.  Both  defendants  swore 
that  the  defendant  Allen  was  not  the  printer,  and  that  the  defendant 
Perryman  was ;  but  there  was  evidence  which  satisfied  the  court  that 
the  defendant  Allen  had,  in  fact,  printed  the  numbers  of  the  paper 
referred  to  below. 

The  writ  was  indorsed  with  a  claim  for  an  injunction  to  restrain 

the  defendants — 

"from  selling,  circulating,  or  delivering,  or  communicating  to  any  person  or 
persons,  any  copy  of  the  Financial  Observer  and  Mining  Herald  of  the  7th 
of  February,  1891,  containing  an  article  headed  'The  Fletcher  Mills  of  Provi- 
dence, Rhode  Island,'  or  of  the  said  article,  and  from  printing  or  publishing 
in  the  said  newspaper,  or  otherwise,  any  statement  imputing  to  the  plaintiffs, 
or  either  of  them,  fraudulent  or  dishonest  conduct  in  connection  with  the  pro- 
motion or  floating  of  Sykes  Brewery  or  the  City  of  Baltimore  United  Brew- 
eries, or  the  promotion  of  the  proposed  Providence  and  National  Worsted 
Mills,  Limited,  or  imputing  or  suggesting  that  the  plaintiffs,  or  either  of  them, 
have  or  has  bribed,  suborned,  or  conspired  with  the  proprietors  or  editors  of 
the  Financial  News,  or  any  other  newspaper  proprietor  or  other  person,  or 
that  they  or  either  of  them  have  or  has  been  guilty  of  stealing  or  other  dis- 
honest conduct. 

"£5000  damages  for  libel." 

A  motion  was  now  made  on  behalf  of  the  plaintiffs  for  an  interim 
injunction,  till  trial,  substantially  in  the  terms  of  the  claim  for  an  in- 
junction indorsed  on  the  writ.     *     *     * 

1891.  Mar.  3.  North,  J.82  *  *  *  The  defendant  says  nothing 
ought  to  be  done  now :  that  the  question  is  one  that  ought  to  be  tried 
by  a  jury,  and  that  he  has  a  right  to  have  it  tried  by  a  jury,  which  is  a 
far  better  tribunal  than  any  judge  can  be.  And  so  far  as  that  goes  I 
quite  agree  that  a  jury  is  the  proper  tribunal  to  decide  whether  this 
is  or  is  not  the  libel  it  is  alleged  to  be.  But  the  difficulty  is  this,  that  I 
have  to  consider  now  whether  the  publication  of  this  article  should 
or  should  not  be  continued  in  the  meantime,  and  that,  inasmuch  as  I 
have  come  to  the  conclusion  that,  unless  I  restrain  it,  it  will  be  con- 
tinued, I  have  no  course  but  to  consider  for  myself  as  well  as  I  can 
whether  it  is  a  case  in  which  an  interlocutory  injunction  should  be 
granted.     *     *     * 

In  these  circumstances  I  have  come  to  the  conclusion  that  an  in- 
junction   must    be    granted    in    the    terms    which    I    have    mention- 

82  The  statement  of  facts  is  abridged  and  parts  of  the  opinions  of  North,  J., 
and  Kay,  L.  J.,  are  omitted. 


1124  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

The  form  of  the  order,  therefore,  that  I  shall  make  is  this,  to  re- 
strain, not  the  defendants  and  each  of  them,  but  the  defendant  Perry- 
man,  his  servants  and  agents,  until  trial  or  further  order,  from  selling, 
circulating,  or  delivering  or  communicating  to  any  person  or  per- 
sons, or  permitting  to  be  sold  or  circulated,  or  delivered  or  communi- 
cated, to  any  person  or  persons,  any  copy  of  the  Financial  Observer 
and  Mining  Herald  of  the  7th  of  February,  1891,  containing  an  article 
headed  "Fletcher  Mills,  Providence,  Rhode  Island,''  and  from — here 
I  depart  rather  from  the  terms  of  the  notice  of  motion — printing  or 
publishing  or  selling — repeating  the  previous  words  I  have  used — any 
copy  of  the  said  article,  or  any  extract  thereof,  or  material  portion 
thereof,  so  far  as  such  extract  or  portion  affects  the  plaintiffs  or  either 
of  them. 

The  defendant  Perryman  appealed. 

The  appeal  was  heard  by  the  full  Court  of  Appeal  on  the  9th  and 
10th  of  April,  1891. 

1891.  April  21.  Lord  Coleridge,  C.  J.,  read  the  following  judg- 
ment, in  which  Lord  Esher,  M.  R.,  and  Lindlet,  BowEN,  and  Lopes, 
L.  JJ.,  concurred : 

The  plaintiffs  in  this  case  are  two  gentlemen  carrying  on  business 
as  financial  agents  under  the  title  of  the  Mercantile  and  General  Trust. 
The  defendant  Perryman  is  the  printer  and  publisher  of  a  paper  called 
the  Financial  Observer  and  Mining  Herald.  The  defendant  Allen  is  in 
some  way  (not  material  to  ascertain)  connected  with  the  paper,  and  he 
appears  to  have  printed  the  particular  number  which  contains  the  mat- 
ter of  which  the  plaintiffs  complain.  In  the  number  of  the  7th  of  Feb- 
ruary, 1891,  appeared  the  article  which  the  plaintiffs  assert  to  be  a  libel 
upon  them,  and  in  respect  of  which,  having  issued  a  writ  in  the  Chan- 
cery Division,  they  applied  for  and  have  obtained  from  Mr.  Justice 
North  the  injunction  which  we  are  asked  upon  appeal  to  dissolve. 
[His  Lordship  read  the  order  appealed  from,  and  continued:]  One 
point  raised  in  the  course  of  the  argument  has  become  immaterial  to 
decide — namely,  whether  the  Court  of  Appeal,  sitting  with  its  full  num- 
ber, can,  according  to  the  course  and  practice  of  the  Court,  overrule 
a  Court  consisting  of  three  or  any  other  number  of  members,  if  the 
decision  which  they  are  asked  to  review  appears  to  be  clearly  wrong. 
It  is  unnecessary  to  discuss  or  to  decide  this  question,  because  the  pre- 
vious decisions  of  this  Court  on  the  main  question  before  us  appear  to 
us  to  be  perfectly  correct,  and  we  found  our  own  decision  upon  them. 

Two  questions  only  is  it  really  necessary  to  decide — (1)  is  there 
jurisdiction  in  the  Supreme  Court  to  issue  an  injunction  to  restrain 
the  publication  of  an  alleged  libel,  either  at  all,  or  before  the  libel  has 
been  adjudged  to  be  such?  And  (2)  is  this  a  case  in  which,  as  mat- 
ter of  discretion,  the  jurisdiction  should  be  exercised,  if  it  exists?  The 
decision  of  the  first  question  is,  it  is  manifest  independent  of  the  cir- 
cumstances of  any  particular  case ;   the  decision  of  the  second  entirely 


Sec.  11)  libel  1125 

depends  upon  them.  As  to  the  first,  we  are  unable  to  entertain  any 
doubt ;  the  point  is  clear,  and  is  settled  by  authority.  The  authorities, 
indeed,  are  few  and  recent,  for  very  obvious  reasons ;  but  they  are 
uniform,  and  they  are  clear.  Prior  to  the  Common  Law  Procedure 
Act,  1854,  neither  Courts  of  Law  nor  Courts  of  Equity  could  issue  in- 
junctions in  such  a  case  as  this:  not  Courts  of  Equity,  because  cases 
of  libel  could  not  come  before  them ;  not  Courts  of  Law,  because  prior 
to  1854  they  could  not  issue  injunctions  at  all.  But  the  79th  and  82d 
sections  of  the  Common  Law  Procedure  Act,  1854,  undoubtedly  con- 
ferred on  the  Courts  of  Common  Law  the  power,  if  a  fit  case  should 
arise,  to  grant  injunctions  at  any  stage  of  a  cause  in  all  personal  ac- 
tions of  contract  or  tort,  with  no  limitation  as  to  defamation.  This 
power  was,  by  the  Judicature  Act,  1873,  conferred  upon  the  Chancery 
Division  of  the  High  Court,  representing  the  old  Courts  of  Equity. 
Nevertheless,  although  the  power  had  existed  since  1854,  there  is  no 
reported  instance  of  its  exercise  by  a  Court  of  Common  Law  till  Saxby 
v.  Easterbrook,  3  C.  P.  D.  339.  which  was  decided  in  1878.  In  that 
case  the  injunction  was  not  applied  for,  nor,  of  course,  granted,  till 
after  a  verdict  and  judgment  had  ascertained  the  publication  to  be  a 
libel.  That  case  was  acquiesced  in ;  and  about  the  same  time  the 
Chancerv  Division  began,  and  it  has  since  continued,  to  assert  the 
jurisdiction,  which  has  been  questioned  before  us,  of  granting  injunc- 
tions on  the  interlocutory  application  of  one  of  the  parties  to  an  ac- 
tion for  libel. 

Sir  George  Jessel  in  Quartz  Hill  Consolidated  Gold  Mining  Com- 
pany v.  Beall,  20  Ch.  D.  501,  distinctly  asserted  the  jurisdiction;  and 
it  was  considered  and  established  in  an  elaborate  judgment  of  this 
Court  in  Liverpool  Household  Stores  Association  v.  Smith,  37  Ch.  D. 
170.  in  which  Lord  Justice  Cotton,  affirming  indeed  the  refusal  of  Mr. 
Justice  Kekewich  to  issue  the  injunction  prayed  for  in  that  case,  assert- 
ed the  jurisdiction  in  plain  language,  and  went  on  to  explain  the  prin- 
ciples on  which,  in  his  opinion,  the  jurisdiction  should  be  exercised. 
There  have  been  other  examples,  but  these  are  sufficient ;  and  we  do 
not  doubt,  upon  the  true  construction  of  the  statutes  and  upon  author- 
ity, that  as  matter  of  jurisdiction  Mr.  Justice  North's  order  might  law- 
fully be  made.  But  it  is  obvious  that  the  subject-matter  of  an  action 
for  defamation  is  so  special  as  to  require  exceptional  caution  in  exer- 
cising the  jurisdiction  to  interfere  by  injunction  before  the  trial  of  an 
action  to  prevent  an  anticipated  wrong.  The  right  of  free  speech  is 
one  which  it  is  for  the  public  interest  that  individuals  should  possess, 
and,  indeed,  that  they  should  exercise  without  impediment,  so  long  as 
no  wrongful  act  is  done ;  and,  unless  an  alleged  libel  is  untrue,  there  is 
no  wrong  committed  ;  but,  on  the  contrary,  often  a  very  wholesome 
act  is  performed  in  the  publication  and  repetition  of  an  alleged  libel. 
Until  it  is  clear  that  an  alleged  libel  is  untrue,  it  is  not  clear  that  any 
right  at  all  has  been  infringed ;    and  the  importance  of  leaving  free 


1126  INJUNCTION   IN   RELATION   TO   TORTS  (Ch.  4 

speech  unfettered  is  a  strong  reason  in  cases  of  libel  for  dealing  most 

cautiously  and  warily  with  the  granting  of  interim  injunctions.     We 

entirely  approve  of,  and  desire  to  adopt  as  our  own,  the  language  of 

Lord  Esher,  M.  R.,  in  Coulson  v.  Coulson,  3  Times  L.  R.  846: 

"To  justify  the  Court  in  granting  an  interim  injunction  it  must  come  to  a 
decision  upon  the  question  of  libel  or  no  libel,  before  the  jury  have  decided 
whether  it  was  a  libel  or  not.  Therefore  the  jurisdiction  was  of  a  delicate 
nature.  It  ought  only  to  be  exercised  in  the  clearest  cases,  where  any  jury 
would  say  that  the  matter  complained  of  was  libellous,  and  whore,  if  the  jury 
did  not  so  find,  the  Court  would  set  aside  the  verdict  as  unreasonable." 

In  the  particular  case  before  us,  indeed,  the  libellous  character  of  the 
publication  is  beyond  dispute,  but  the  effect  of  it  upon  the  defendant 
can  be  finally  disposed  of  only  by  a  jury,  and  we  cannot  feel  sure  that 
the  defence  of  justification  is  one  which,  on  the  facts  which  may  be 
before  them,  the  jury  may  find  to  be  wholly  unfounded;  nor  can  we 
tell  what  may  be  the  damages  recoverable.  Moreover,  the  decision  at 
the  hearing  may  turn  upon  the  question  of  the  general  character  of 
the  plaintiffs ;  and  this  is  a  point  which  can  rarely  be  investigated  sat- 
isfactorily upon  affidavit  before  the  trial, — on  which  further  it  is  not 
desirable  that  the  Court  should  express  an  opinion  before  the  trial. 
Otherwise,  an  injunction  might  be  granted  before  the  trial  in  a  case  in 
which  at  the  trial  nothing  but  nominal  damages,  if  so  much,  could  be 
obtained.  Upon  the  whole  we  think,  with  great  deference  to  Mr.  Jus- 
tice North,  that  it  is  wiser  in  this  case,  as  it  generally  and  in  all  but 
exceptional  cases  must  be,  to  abstain  from  interference  until  the  trial 
and  determination  of  the  plea  of  justification.  The  appeal,  therefore, 
must  be  allowed,  and  the  order  discharged ;  the  costs  in  this  Court  and 
in  the  Court  below  to  be  costs  in  the  cause. 

Kay,  L.  J.  *  *  *  I  should  have  granted  the  injunction,  at  least 
as  to  this  part  of  the  libel,  and  I  should  have  been  glad  if  the  Court  of 
Appeal  had  been  prepared  to  sustain  it. 


WALTER  v.  ASHTON. 

(Chancery  Division.      [1902]  2  Ch.   282.) 

Motion. 

This  action  was  brought  by  the  plaintiff,  on  behalf  of  himself  and  all 
the  other  proprietors  of  The  Times  newspaper,  to  restrain  the  defend- 
ant from  advertising  the  sale  of  his  cycles  in  such  a  way  as  to  suggest 
or  represent  that  he  was  carrying  on  business  as  a  department  of,  or  in 
connection  with,  The  Times.  An  application  was  now  made  for  an  in- 
terim injunction  restraining  the  defendant,  his  manager,  servants,  and 
agents,  "from  publishing  advertisements  and  issuing  or  distributing  cir- 
culars or  letters  containing  statements  asserting  or  suggesting  that  cy- 
cles offered  by  him  for  sale  are  in  fact  offered  for  sale  by  the  propri- 


Sec.  11)  libel  1127 

etors  of  The  Times  newspaper,  and  from  representing  that  he  is  carry- 
ing on  business  as  a  department  of  or  in  connection  with  The  Times, 
or  in  any  way  holding  out  The  Times  newspaper,  or  the  proprietors 
thereof,  to  be  the  owners  of  his  business."     *     *     * 

March  20.  Byrne,  J.S3  As  this  case  presents  some  elements  of 
great  importance  and  of  some  novelty,  I  should  have  preferred  post- 
poning my  judgment  until  I  could  have  put  it  into  writing;  but  the  case 
is  one  of  a  somewhat  pressing  nature,  and  it  is  of  importance  to  the 
parties  that  they  should  have  a  speedy  decision.  The  action  is  brought 
by  the  plaintiff  on  behalf  of  himself  and  the  proprietors  of  The  Times 
asking  for  an  injunction,  and  application  is  now  made  for  an  interim 
injunction  in  the  following  terms  :  [His  Lordship  read  the  terms  of  the 
injunction,  and  continued:] 

]^ow,  it  is  no  part  of  the  general  business  of  a  newspaper  to  carry  on 
a  cycle  business,  and  this  is  not  a  question  arising  between  rivals  in 
trade.  It  appears  to  me  that  to  entitle  the  plaintiffs  to  an  interlocutory 
injunction  they  have  to  establish,  first,  that  the  defendant  has  repre- 
sented the  plaintiffs  as  his  principals  or  partners,  or,  at  least,  as  respon- 
sibly connected  with  his  venture ;  and,  secondly,  that  there  is  tangible 
probability  of  injury  to  the  property  of  the  plaintiffs  in  consequence  of 
such  representations.  Mere  annoyance  is  not  enough,  nor  libel,  not  be- 
ing trade  libel ;  nor  is  a  shadowy  possibility  of  actions  being  -brought 
enough.  The  case  has  to  be  considered  apart  from  those  cases  turning 
on  trade  competition,  infringement  of  rights,  trade  names,  trade-mark, 
or  the  ordinary  passing  off  equity.  The  plaintiffs  have,  I  think, 
founded  their  notice  of  motion  on  the  only  ground  upon  which,  if  at 
all,  they  are  entitled  to  succeed  upon  the  present  application.     *     *     * 

Taking  all  those  matters  together,  and  having  regard  to  the  circu- 
lars, the  advertisements,  and  the  general  conduct  of  the  business  car- 
ried on  by  the  defendant  in  reference  to  these  cycles,  I  have  come  to  the 
conclusion  on  the  present  materials  that  he  has  intended  to  induce  peo- 
ple to  think  either  that  the  proprietors  of  The  Times  are  the  vendors, 
for  whom  the  person  in  Chancery  Lane,  whoever  he  may  be,  is  the 
manager  of  the  department,  or  that  they  are  partners,  or  in  some  way 
pecuniarily  and  with  responsibility  connected  with  the  sale  of  these  ar- 
ticles. Now,  as  I  have  said,  this  not  being  a  case  as  between  rival  trad- 
ers, and  not  being  a  case  turning  upon  contract,  it  is  not  enough  to 
shew  a  probability  of  deception  of  the  public  for  the  purpose  of  this 
interlocutory  injunction,  or  to  shew  that  persons  may  be  deceived  into 
thinking  that  these  cycles  are  the  manufacture  or  the  property  of  the 
Times  newspaper:  that  alone  would  not  be  sufficient  for  the  present 
purpose.  I  think  you  must  shew  some  probable  risk  of  injury  by  what 
has  been  done.  Now  how  do  the  authorities  stand  in  reference  to  this 
matter?  I  think  one  of  the  earliest  I  need  refer  to  is  Routh  v.  Web- 
ster, 10  Beav.  561.     *     *     * 

ss  The  statement  of  facts  is  abridged  and  parts  of  the  opinion  are  omitted. 


1128  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  1 

Of  course  there  are  points  of  difference  between  that  case  and  the 
present;  but  the  injunction  was  granted  on  the  footing  that  the  plain- 
tiff was  exposed  to  some  risk  and  liability  by  the  unauthorized  use  of 
his  name.  That  case  was  referred  to  with  approval  by  Lord  Cairns  in 
Prudential  Assurance  Co.  v.  Knott  (1875)  L.  R.  10  Ch.  142,  146,  an  ac- 
tion to  restrain  a  trade  libel  in  which  the  court  held  there  was  no  juris- 
diction to  restrain  the  publication  of  a  libel  as  such,  even  if  it  was  in- 
jurious to  property ;  and  Lord  Cairns,  after  referring  to  the  case  of 
Dixon  v.  Holden  (1869)  L.  R.  7  Eq.  488,  says  [in  (1875)  L.  R.  10  Ch. 
App.  Cas.  142,  146]  : 

"It" — that  is,  Dixon  v.  Holden — "professes  to  proceed  mainly  upon  a  case 
of  Routh  v.  Webster,  10  Beav.  561,  because  I  observe  that  the  Vice  Chancellor 
says:  'The  case  of  Routh  v.  Webster  is  an  authority  going  the  whole  length 
of  what  is  asked  here.'  "  After  stating  the  facts  as  I  have  already  given 
them,  Lord  Cairns  continues:  "That  case  appears,  if  I  may  say  so,  to  have 
been  quite  rightly  decided."     *     *     * 

I  may  mention  in  passing  a  case  of  Clark  v.  Freeman  (1848)  11  Beav. 
112,  where  the  court  declined  to  interfere  to  restrain  the  sale  by  the 
defendant  of  a  quack  medicine  under  the  name  of  "Sir  J.  Clarke's  Con- 
sumption Pills,"  on  the  ground  that  it  was  libel  if  it  was  anything,  and 
that  there  was  no  injury  to  the  property  which  was  sold.  That  deci- 
sion has  been  frequently  the  subject  of  observation  by  various  judges. 
Lord  Cairns,  in  Maxwell  v.  Hogg  (1867)  L.  R.  2  Ch.  307,  311,  said 
that  it  might  have  been  decided  in  favour  of  the  plaintiff  on  the  ground 
that  he  had  a  property  in  his  own  name.  And  Lord  Selborne,  in  In 
re  Riviere's  Trade-Mark  (1884)  26  Ch.  D.  48,  53,  says  that  Clark  v. 
Freeman,  11  Beav.  112,  had  seldom  been  cited  but  to  be  disapproved; 
and  Kekewich,  J.,  in  a  recent  case,  having  in  view  all  that  has  been  said 
about  it,  has  declined  to  follow  it.  The  principle  is  clear  enough :  the 
Court  does  not  grant  an  injunction  to  restrain  the  use  of  a  man's  name 
simply  because  it  is  a  libel  or  calculated  to  do  him  injury;  but  if  what 
is  being  done  is  calculated  to  injure  his  property,  and  the  probable  ef- 
fect of  it  will  be  to  expose  him  to  risk  or  liability,  then,  if  I  rightly  un- 
derstand the  law  of  this  court,  an  injunction  is  the  proper  rem- 
edy.    *     *     * 

This  really  is  only  a  carrying  out  of  a  branch  of  the  law  turning 
upon  estoppel  by  conduct.  If  a  man  allows  his  name  to  be  held  out  to 
the  public  as  being  the  person  responsible  for  the  transaction  in  ques- 
tion, he  may  be  held  liable  in  consequence  of  this  holding  out,  or  in 
consequence  of  his  conduct,  although  he  may  not  have  originally  au- 
thorized the  act  because  he  has  not  taken  steps  which  he  should  take 
to  stop  the  unauthorized  use  of  his  name.  I  apprehend  that  a  similar 
principle  would  apply  in  the  case  of  allowing  a  name  to  be  held  out  by 
a  man  representing  himself  as  agent  or  as  principal  in  a  particular 
transaction,  all  forming  part,  as  I  have  said,  of  the  general  principle 
of  estoppel  by  acts.  Now  in  the  present  case  trie  defence  is  chiefly 
founded  on  this.     "I,"  said  the  defendant,  "have  done  nothing  that  the 


Sec.  11)  libel  1129 

law  has  not  entitled  me  to  do"  ;   and,  taking  the  single  acts  and  matters 
complained  of,  he  says,  to  begin  with : 

"I  am  entitled  to  call  my  cycle  'Times  Cycle'  or  'The  Times  Cycle.'  I 
am  entitled  to  adopt  for  a  mark  upon  it  a  similar  clock  to  the  clock  used  by 
The  Times  newspaper.  I  am  entitled  to  have  the  hands  of  the  clock  pointing 
to  the  same  hour." 

And  he  is  perfectly  right  in  what  he  says.    Again,  he  says: 
"I  am  perfectly  entitled  to  advertise  my  cycles  as  'The  Times  Cycles'  if 
that  is  the  proper  name  of  the  cycle.     I  am  entitled  to  advertise  that  payment 
is  according  to  The  Times  system   (meaning  The  Times  newspaper  system), 
the  system  inaugurated  by  the  proprietors  of  The  Times." 

So  he  is,  and,  thus  taking  each  item  one  by  one,  he  says :  "I  am  en- 
titled to  do  this,  that,  and  the  other."  But  the  real  question  I  have  to 
consider  is  whether,  by  what  he  has  done,  he  has  in  fact  held  out  the 
proprietors  of  The  Times  as  either  being  principals,  or  responsibly  con- 
nected with  him,  or  partners  with  him  in  the  sale  of  these  cycles.  I 
have  come  to  the  conclusion  that  he  has ;  and  I  have  further  come  to 
the  conclusion  that  there  was  such  a  reasonable  probability  of  The 
Times  being  exposed  to  litigation,  and  possibly  of  being  made  responsi- 
ble had  they  not  taken  the  steps  to  disconnect  their  names  from  the  ad- 
vertisements and  circulars  that  are  issued,  by  the  defendant,  that,  al- 
though I  have  hesitated  for  some  time  as  to  whether  I  ought  to  do  this 
upon  an  interlocutory  motion,  now  that  the  action  will  come  on  so 
quickly  for  trial  when  the  matter  might  finally  be  disposed  of  upon  fur- 
ther evidence  still,  I  think  that  it  is  so  clear  upon  the  documents  and 
the  acts  that  I  have  mentioned  that  this  case  really  falls  within  the  line 
of  authorities  commencing  with  that  before  Lord  Langdale  which  I 
cited,  that  I  propose  to  grant  an  injunction  now  in  proper  form.  I  may 
make  one  other  observation.  Since  the  writ  was  issued  the  defendant 
has  put  out  another  advertisement  in  the  Daily  Mail,  in  which  he  does 
state  fairly  conspicuously,  though  not  so  conspicuously  as  I  should  have 
wished,  that  his  goods  had  no  connection  with  any  newspaper  what- 
ever. That,  in  my  judgment,  is  not  sufficient  under  the  circumstances. 
I  think  I  ought  to  grant  the  injunction  in  the  following  form:  To  re- 
strain the  defendant,  his  managers,  servants,  and  agents,  until  the  trial 
or  further  order,  from  representing  that  the  cycles  offered  by  him  for 
sale  are  in  fact  offered  for  sale  by  the  proprietors  of  The  Times  news- 
paper, or  representing  that  he  is  carrying  on  business  as  a  department 
of,  or  in  connection  with,  The  Times  newspaper,  or  in  any  way  hold- 
ing out  The  Times  newspaper,  or  the  proprietors  thereof,  to  be  the 
owners  of  his  business.  The  costs  will  be  costs  in  the  action.  I  think 
it  is  only  fair,  however,  that  the  defendant  should  have  a  little  time  to 
put  things  in  order. 


1130  INJUNCTION  IN  RELATION  TO  TORTS  (Ch.  4 


AMERICAN  MALTING  CO.  v.  KEITEL. 

(Circuit  Court  of  Appeals  of  the  United  States,  Second  Circuit.  1013. 
209  Fed.  351,  126  C.  C.  A.  277.) 

Appeal  from  the  District  Court  of  the  United  States  for  the  South- 
ern District  of  New  York. 

Suit  by  the  American  Malting  Company  against  Adolph  Keitel. 
From  an  order  granting  an  injunction  pendente  lite,  defendant  appeals. 

Before  Lacombe,  \Yard,  and  Rogers,  Circuit  Judges. 

Rogers,  Circuit  Judge.84  The  plaintiff  seeks  to  restrain  the  defend- 
ant from  issuing  printed  circulars  alleged  to  contain  matters  which 
tend  greatly  to  injure  the  business,  credit,  and  property  of  the  plain- 
tiff. The  American  Malting  Company  is  a  corporation  organized  under 
the  laws  of  the  state  of  New  Jersey.  Its  capital  stock  is  $30,000,000. 
It  does  a  business  of  from  $7,000,000  to  $12,000,000  a  year;  the 
amount  of  its  business  varying  with  the  price  of  barley.  It  is  said  to 
be  the  largest  manufacturer  of  malt  in  the  United  States.  The  defend- 
ant is  a  citizen  and  resident  of  the  state  of  New  York  and  holds  no 
stock  in  the  complainant  company.  The  circulars  complained  of  be- 
gan to  make  their  appearance  in  1907  and  since  July,  1912,  have  been 
issued  at  intervals  of  a  week.  They  have  been  mailed  to  brewers  and 
consumers  of  malt  throughout  the  United  States,  as  well  as  to  banks 
and  to  complainant's  stockholders.  The  corporate  name  of  the  plain- 
tiff is  mentioned  in  only  a  few  of  the  circulars.  They  contain  refer- 
ences, however,  to  the  "gold-brick  swindle,"  the  "gold-brick  pool," 
"trust,"  "malt  combine,"  which  plaintiff  says  were  intended  to  be  un- 
derstood to  refer  to  it,  and  it  alleges  that  they  are  so  understood  by  the 
persons  to  whom  they  were  sent.  The  defendant  denies  that  the  cir- 
culars show  that  the  complainant  was  mentioned  to  its  damage  or  that 
it  can  be  said  that  the  plaintiff  in  fact  was  intended.  The  plaintiff 
claims  that  defendant  is  persistently  attempting  maliciously  to  inter- 
fere with  its  existing  contracts,  is  seeking  maliciously  to  induce  parties 
to  refrain  from  dealing  with  plaintiff  and  to  resist  the  payment  of  their 
debts  to  it,  and  is  endeavoring  maliciously  to  destroy  its  business  credit 
and  property. 

The  defendant  was  convicted  of  criminal  libel  in  1911  because  of  a 
circular  dated  January  6,  1910,  which  he  issued.  But  that  conviction 
is  not  res  adjudicata  as  to  statements  made  in  the  subsequent  circulars. 
And  we  have  no  exact  knowledge  as  to  what  the  statements  were  in 
the  January  6,  1910,  circular  which  the  jury  found  to  be  libelous.  The 
subsequent  circulars  are  unquestionably  full  of  libels  on  various  per- 
sons if  the  allegations  they  contain  are  false.  They  are  not  libelous  so 
far  as  the  allegations  are  true.  The  campaign  he  is  evidently  engaged 
in  is  against  the  combination  of  makers  which  he  alleges  is  illegal.  He 
charges  the  combination  with  keeping  up  the  price  of  malt  by  false 

84  Parts  of  the  opinion  are  omitted. 


Sec.  11)  LIBEL  1131 

statements  and  artifices  and  with  inducing  brewers  to  contract  for  fu- 
ture delivery  at  unreasonable  prices.  He  advises  brewers  not  to  buy 
for  future  delivery  and  those  who  have  purchased  in  the  season  of 
1911-1912  to  repudiate  their  contracts.  He  charges  the  American  Malt 
Corporation  with  trying  to  get  the  stockholders  of  the  American  Malt- 
ing Company  to  exchange  their  stock  by  means  of  false  representations 
and  also  perhaps  that  the  officers  of  the  malting  company  have  made 
false  statements  in  circulars  about  its  financial  condition.  The  Ameri- 
can Malt  Corporation  is  a  separate  organization  distinct  from  the 
American  Malting  Company,  and  is  also  organized  under  the  laws  of 
New  Jersey,  and  at  the  time  of  this  suit  held  98  per  cent,  of  the  capital 
stock  of  the  American  Malting  Company.  It  is  alleged  that  the  Ameri- 
can Malt  Corporation  does  not  own  or  control  the  stock  of  any  other 
corporation. 

The  court  below  awarded  a  very  drastic  injunction  pendente  lite, 
restraining  the  publication  of  the  circulars.  It,  however,  added  a 
clause  to  the  effect  that,  if  defendant  would  accompany  each  future 
circular  with  the  statement  that  his  charges  were  not  directed  against 
this  particular  plaintiff,  he  might  continue  issuing  them.  As  one 
ground  of  his  defense  is  that  the  charges  are  not  against  the  plaintiff, 
his  purpose  would  not  be  thwarted  by  embodying  such  a  statement  in 
each  subsequent  circular.  But  he  appeals  to  this  court,  and  it  becomes 
necessary  to  consider  whether  the  court  below  had  jurisdiction  of  the 
subject-matter.  If  it  had  not,  the  preliminary  injunction  should  be 
vacated  and  the  bill  dismissed.  This  makes  it  necessary  to  inquire 
what  power  the  courts  of  equity  possess  to  restrain  the  publication  of 
libels.     *     *     * 

Lord  Chancellor  Hardwicke  in  1742  (Huggonson's  Case,  2  Atk.  469) 

declared  that : 

"Notwithstanding  this  should  be  a  libel,  yet,  unless  it  is  a  contempt  of 
the  court,  I  have  no  cognizance  of  it,  for.  whether  it  is  a  libel  against  the  pub- 
lic or  private  persons,  the  only  method  is  to  proceed  at  law." 

It  should  be  said,  however,  that  in  that  case  equity  was  asked  to 
punish  a  past  tort,  not  to  restrain  a  future  one.  Lord  Ellenborough  in 
1810,  in  a  common-law  court  (Du  Bost  v.  Beresford,  2  Camp.  511), 
said,  in  speaking  of  a  picture,  that,  if  it  was  a  libel  upon  the  persons 
introduced  into  it,  "upon  an  application  to  the  Lord  Chancellor  he 
would  have  granted  an  injunction  against  its  exhibition."  But  this 
dictum  is  known  to  have  excited  much  astonishment  in  the  minds  of 
all  practitioners  in  the  court  of  chancery.  Thus  matters  stood  in  Eng- 
land until  1869,  when  Vice  Chancellor  Malins  granted  injunctions 
against  libels.  Springhead  Spinning  Co.  v.  Riley,  L.  R.  6  Eq.  551 ;  Dix- 
on v.  Holden,  L.  R.  13  Eq.  355.  These  decisions  were,  however,  speed- 
ily overruled  in  1875  in  Prudential  Assurance  Co.  v.  Knotts,  L.  R.  10 
Ch.  App.  142.  In  Collard  v.  Marshall  (1892)  1  Ch.  571,  Chitty,  J., 
said  that,  before  the  Judiciary  Act,  equity  had  no  power  to  try  a  libel. 
In  Monson  v.  Tussands  Limited  (1894)  12  B.  671,  Lopes,  L.  J.,  said: 


1132  INJUNCTION   IN    RELATION   TO   TORTS  (Ch.  4 

'Trior  to  the  Common-Law  Procedure  Act  lS."i4.  no  court  could  grant  any  in- 
junction in  a  case  of  libel.  The  Court  of  Chancery  could  grant  no  injunction 
in  such  a  case,  because  it  could  not  try  a  Libel.  Neither  could  courts  of  com- 
mon law  until  the  Common-Law  Procedure  Act  of  1854,  because  they  had  no 
power  to  grant  injunctions.  Whether  they  had  power  to  grant  interlocutory 
injunctions  after  1854,  I  think  doubtful.  As  a  matter  of  practice  thev  never 
did." 

The  Common-Law  Procedure  Act  of  1854  conferred  on  the  English 
courts  of  common  law  the  power  to  grant  injunctions  in  all  personal 
actions  of  contract  or  tort,  with  no  limitation  as  to  defamation.  And 
by  the  Judicature  Act  of  1873  a  power  was  conferred  upon  the  Chan- 
cery Division  of  the  High  Court  to  grant  injunctions  in  cases  of  libel. 
But  prior  to  these  acts  neither  courts  of  law  nor  courts  of  equity  could 
issue  injunctions  in  England  in  such  cases.  The  English  law  courts 
began  to  exercise  such  jurisdiction  in  1878,  and  about  the  same  time 
the  equity  courts  began  in  like  manner  to  exercise  theirs.  But  it  is 
understood  that  they  interfere  only  in  the  "clearest  cases,"  and  espe- 
cially by  interlocutory  injunctions.  See  Bonnard  v.  Perryman  (1891) 
Ch.  269  (C.  A.) ;  Kerr  on  Injunctions,  5,  6.  For  150  years  it  has  been 
understood  in  England  that  equity  had  no  jurisdiction  to  enjoin  a  libel, 
and  the  power  of  the  courts  of  that  country  to  do  so  rests  upon  statute. 

In  the  United  States  a  like  view  of  the  matter  has  been  taken.  In 
Pomeroy's  Equity  Jurisprudence,  vol.  6,  §  629,  it  is  laid  down  that : 

"Equity  will  not  restrain  by  injunction  the  threatened  publication  of  a  libel, 
as  such,  however  great  the  injury  to  property  may  he.  This  is  the  universal 
rule  in  the  United  States  and  was  formerly  the  rule  in  England.  The  present 
rule  in  England  rests  on  statute." 

In  High  on  Injunctions  (4th  Ed.)  §  1015,  that  writer  states  that  the 
doctrine  which  seems  most  in  accord  with  the  principles  governing 
the  jurisdiction  of  equity  by  way  of  injunction  is  that,  the  preventive 
jurisdiction  being  limited  to  the  protection  of  property  rights  which  are 
remediless  by  the  usual  course  of  procedure  at  law,  courts  of  equity 
.will  not  restrain  the  publication  of  libels  or  works  of  a  libelous  nature, 
even  though  such  publications  are  calculated  to  injure  the  credit,  busi- 
ness, or  character  of  the  person  aggrieved,  and  that  he  will  be  left  to 
pursue  his  remedy  at  law.  In  a  case  in  the  Supreme  Court  of  the  Unit- 
ed States  (1885). 'Francis  v.  Flynn,  118  U.  S.  385,  6  Sup.  Ct.  1148,  30 
L.  Ed.  165,  Mr.  Justice  Field  said  : 

"If  the  publications  in  the  newspapers  are  false  and  injurious,  he  can  prose- 
cute the  publishers  for  libel.  If  a  court  of  equity  could  interfere  and  use  its 
remedy  of  injunction  in  such  cases,  it  would  draw  to  itself  the  greater  part  of 
the  litigation  properly  belonging  to  courts  of  law." 

In  1886  the  question  arose  in  the  Circuit  Court  for  the  Third  Cir- 
cuit in  Kidd  v.  Horry,  28  Fed.  773.  An  injunction  was  asked  to  restrain 
the  defendants  from  publishing  certain  circular  letters  concerning  the 
business  of  the  complainants.    The  injunction  was  refused.     *     *     * 

In  1907  the  question  arose  in  the  Eighth  Circuit  (Montgomery  Ward 
&  Co.  v.  South  Dakota  Retail  Merchants'  &  Hardware  Dealers'  As- 


Sec.  11)  libel  1133 

soc.  [C.  C]  150  Fed.  413),  and  the  court  refused  the  injunction,  say- 
ing: 

"In  the  jurisprudence  of  the  United  States  there  is  no  remedy  for  the  abuse 

of  this  right  (to  freely  speak,  write,  and  publish)  conferred  by  the  Constitution, 
except  an  action  at  law  for  damages  or  a  criminal  proceeding  by  indictment 
or  information." 

In  1912  the  question  was  before  a  District  Court  in  Missouri  (Vas- 

sar  College  v.  Loose-Wiles  Biscuit  Co.,  197  Fed.  982).     The  bill  was 

dismissed ;  the  court  saying : 

"In  this  country  a  court  of  equity  is  without  jurisdiction  to  restrain  the 
publication  of  a  libel." 

The  state  courts  in  a  number  of  cases  have  held  that  the  jurisdic- 
tion of  equity  did  not  extend  to  libels  and  have  refused  injunctions  to 
restrain  their  publication.  Boston  Diatite  Co.  v.  Florence  Mfg.  Co., 
114  Mass.  69,  19  Am.  Rep.  310  (1873) ;  Marlin  Firearms  Co.  v.  Shields, 
171  N.  Y.  384,  64  N.  E.  163,  59  L.  R.  A.  310  (1902);  Baltimore  Life 
Ins.  Co.  v.  Gleisner,  202  Pa.  386,  51  Atl.  1024  (1902);  Mayer  v.  Jour- 
neyman Stone-Cutters'  Assoc,  47  N.  J.  Eq.  519,  20  Atl.  492  (1890). 

In  Flint  v.  Hutchinson  Smoke  Burner  Co.,  110  Mo.  492,  19  S.  W. 
804,  16  L.  R.  A.  243,  33  Am.  St.  Rep.  476,  the  court  held  that  the  ques- 
tion of  libel  should  be  determined  by  a  jury  in  an  action  at  law,  and 
that  after  a  verdict  for  the  plaintiff  he  might  have  an  injunction  to 
restrain  the  further  publication  of  that  which  the  jury  found  to  be 
actionable  libel  or  slander. 

The  fact  that  the  false  statements  may  injure  the  plaintiff  in  his 
business  or  as  to  his  property  does  not  alone  constitute  a  sufficient 
ground  for  the  issuance  of  an  injunction.  The  party  wronged  has  an 
adequate  remedy  at  law. 

In  all  that  has  been  said  we  have  not  lost  sight  of  the  fact  that  the 
courts  have  sometimes  issued  injunctions  to  restrain  the  publication  of 
false  statements  injurious  to  business  or  property.  The  cases  in  which 
such  a  jurisdiction  has  been  assumed  have  been  those  which  have  in- 
volved conspiracy,  intimidation,  or  coercion.  In  22  Cyc.  900,  it  is  laid 
down : 

"A  court  of  equity  has  no  jurisdiction  to  restrain  a  mere  libel  or  slander. 
Nor  does  the  fact  that  the  false  statement  may  injure  plaintiff  in  his  business 
or  as  to  his  property  constitute  a  sufficient  ground  for  an  injunction,  in  the 
absence  of  acts  of  conspiracy,  intimidation,  or  coercion." 

And  see  Beck  v.  Ry.  Teamsters'  Union,  118  Mich.  497,  77  N.  W. 
13,  42  L.  R.  A.  407,  74  Am.  St.  Rep.  421 ;  Casey  v.  Cincinnati  Typo- 
graphical Union  (C.  C.)  45  Fed.  135,  12  L.  R.  A.  193.  To  this  class 
belongs  the  case  of  Emack  v.  Kane  (C.  C.)  34  Fed.  46  (1888),  where 
District  Judge  Blodgett  issued  an  injunction  to  restrain  one  from  is- 
suing circulars  threatening  to  bring  suits  for  infringements  against  all 
customers  dealing  in  a  competitor's  patented  article.  The  gravamen 
of  that  case  was  the  attempted  intimidation  of  the  complainant's  cus- 
tomers by  threatening  them  with  suits  which  the  defendants  never  in- 
tended to  prosecute.     The  doctrine  announced  in  that  case  has  been 


1134  INJUNCTION    IN   RELATION   TO   TORTS  (Cll.  4 

followed  in  numerous  cases  and  by  this  court  in  Adriance,  Piatt  &  Co. 
v.  National  Harrow  Co.,  121  Fed.  827,  58  C.  C.  A.  163  (1903).  But 
the  complainant  does  not  in  terms  charge  the  defendant  with  being  en- 
gaged in  any  conspiracy  or  in  any  attempt  to  intimidate  or  coerce  the 
complainant  or  its  customers.  And  the  alleged  false  statements  and 
objectionable  matter  contained  in  the  circulars  do  not  amount  to  coer- 
cion or  intimidation  in  law,  either  of  the  complainant  or  its  customers. 
The  customers  may  be  deceived  by  false  statements,  but  they  are  left 
free  to  form  their  own  judgment  and  make  their  own  choice.  They 
are  not  coerced  or  intimidated  or  frightened.  The  circulars  contain  no 
threats  of  violence  to  the  property  of  the  complainant.  He  threatens 
to  bring  no  suits  either  against  the  complainant  or  its  customers.  It 
is  true  that,  where  proper  grounds  exist  for  assuming  jurisdiction, 
equity  does  not  refuse  jurisdiction  because  there  is  incidentally  in- 
volved the  restraining  of  a  libel.  A  court  of  equity  may  restrain  a  boy- 
cott if  the  boycott  is  sought  to  be  accomplished  by  the  publication  of 
circulars  or  printed  matter ;  such  a  publication  may  be  restrained  with- 
out a  violation  of  constitutional  rights.  That  was  made  clear  by  the 
decision  of  the  Supreme  Court  of  the  United  States  in  Gompers  v. 
Buck  Stove  &  Range  Co.,  221  U.  S.  418,  31  Sup.  Ct.  492,  55  L.  Ed. 
797,  34  L-.  R.  A.  (N.  S.)  874. 

It  is  said  that  a  man  has  a  property  right  in  his  business  and  that 
an  injunction  may  issue  to  protect  that  right  against  fraud  and  mis- 
representation, notwithstanding  the  fact  that  the  fraud  and  misrepre- 
sentation may  be  contained  in  a  libelous  publication.  That  was,  as  we 
understand  it,  the  very  question  which  was  submitted  to  the  English 
Court  of  Appeals  in  Chancery  in  1875  in  Prudential  Assurance  Co.  v. 
Knott,  supra.  The  defendant  had  published  a  pamphlet  which  the 
plaintiff  corporation  claimed  falsely  represented  it  as  being  managed 
with  reckless  extravagance  and  as  being  in  a  state  of  insolvency  and 
unable  to  fulfill  its  engagements,  whereas  the  company  was  in  an  ex- 
ceedingly prosperous  and  thriving  condition,  abundantly  solvent  and 
earning  large  profits,  and  was  managed  without  extravagance.  The 
bill  further  charged  that  the  continued  publication  of  the  pamphlet 
would  be  very  injurious  to  the  company's  credit  and  reputation.  It  ac- 
cordingly prayed  that  its  publication  might  be  restrained.  The  in- 
junction was  refused.    Lord  Cairns  said  : 

"It  is  attempted  to  give  a  color  to  the  application  by  saying  that  these  are 
libelous  publications  which  will  injure  property,  and  then,  when  that  proposi- 
tion is  tint  her  defined,  it  is  said  that  the  business  of  the  company,  the  good 
will  of  the  company,  is  property  ;  that  the  company  in  its  trade  will  be  in- 
jured ;  and  that  therefore  the  interference  of  the  court  is  asked  for  the  pro- 
tection of  property.  But,  with  regard  to  nine  out  of  ten  libels,  the  same  thing 
might  be  said.  The  cases  in  which  actions  are  brought  for  libel  are  usually 
cast's  where  things  are  written  of  men  or  corporations  which  have  an  effect 
upon  their  character  and  upon  their  trade  or  business  or  their  character  as 
connected  with  trade  or  business;  but  no  case  can  be  produced  in  which,  in 
these  circumstances,  the  Court  of  Chancery  has  interfered.  Not  merely  is 
there  no  authority  for  this  application,  but  the  books  afford  repeated  instances 
of  the  refusal  to  exercise  jurisdiction." 


Sec.  11)  libel  1135 

He  then  quotes  from  the  decision  of  Vice  Chancellor  Malins  in  Dixon 
v.  Holden,  supra,  this  passage: 

"In  the  decision  I  arrive  at,  I  beg  to  be  understood  as  laying  down  that 
this  court  has  jurisdiction  to  prevent  the  publication  of  any  letter,  advertise- 
ment, or  other  document  which,  if  permitted  to  go  on,  would  have  the  effect 
of  destroying  the  property  of  another  person,  whether  that  consists  of  tangible 
or  intangible  property,  whether  it  consists  of  money  or  reputation." 

And  says,; 

"I  am  unable  to  accede  to  these  general  propositions :  They  appear  to  me  to 
be  at  variance  with  the  settled  practice  and  principles  of  this  court.    *     *     *  " 

Lord  Justice  James  and  Lord  Justice  Mellish  stated  that  they  were 
of  the  same  opinion. 

But  while  the  courts  of  equity  have  no  jurisdiction  to  restrain  the 
publication  of  a  libel  as  such,  and  while  we  do  not  think  the  facts  in 
the  case  take  it  out  of  the  general  rule  because  of  any  conspiracy,  in- 
timidation, or  coercion  or  because  of  any  incidental  injury  to  property 
rights  arising  merely  from  the  publication  of  libelous  matter,  a  court 
of  equity  may  nevertheless  possess  the  power  to  restrain  the  defendant 
from  an  unjustifiable  and  wrongful  interference  with  the  plaintiff's  con- 
tracts, if  it  shall  appear  that  he  is  engaged  in  such  an  undertaking.  See 
Joyce  on  Injunctions,  §  440a.     *     *     * 

The  question,  however,  remains  whether  the  preliminary  injunction 
was  properly  granted  on  the  facts  as  they  appear  in  the  record.  The 
rule  is  that  preliminary  injunctions  will  not  issue  except  in  the  clearest 
cases.  Odgers  on  Libel  and  Slander  (5th  Ed.)  426.  In  Bonnard  v. 
Perryman  (1891)  2  Ch.  269,  t'he  defendant  in  his  affidavit  swore  that  the 
statements  complained  of  were  true,  and  the  court  refused  an  interloc- 
utory injunction.     It  said: 

"We  cannot  feel  sure  that  the  defense  of  justification  is  one  which,  on  the 
facts  which  may  be  before  them,  the  jury  may  find  to  be  wholly  unfounded." 

In  the  present  case  the  defendant  denies  the  plaintiff's  allegations ; 
and  the  supporting  affidavits  presented  on  behalf  of  the  plaintiff  seem 
too  indefinite  to  justify  an  interlocutory  injunction.  The  defendant 
denies,  under  oath,  that  the  circulars  which  he  issued  contained  other 
than  facts.  He  swears  that  they  were  published  without  malice,  in 
good  faith,  and  in  order  to  serve  the  interests  of  the  consumers  of  malt. 
The  bill  is  verified  by  plaintiff's  secretary,  and  an  issue  is  raised  be- 
tween the  two.  The  plaintiff  has  presented,  in  addition  to  the  affi- 
davit of  its  secretary,  the  affidavits  of  three  other  persons.  These  affi- 
davits go  to  show  that  there  are  false  statements  in  the  circulars.  They 
fail  to  show  that  the  false  statements  relate  to  the  complainant.  Mr. 
Loewer's  affidavit  states  that  the  circulars  contained  mistaken  state- 
ments concerning  malt  market  conditions.  Mr.  Bermuth's  affidavit 
refers  to  "false  statements"  but  does  not  specify  that  any  statements 
which  are  false  relate  to  the  plaintiff.  There  are  numerous  statements 
in  the  circulars  reflecting  upon  persons  other  than  plaintiff.  Some  of 
these  statements,  if  false,  are  libelous  upon  the  individuals  named,  but 


1136  INJUNCTION   IN   RELATION  TO  TORTS  (Ch.  4 

that  does  not  help  plaintiff's  case.  Mr.  McCarthy's  affidavit  refers  to 
the  "false  representations"  and  attributes  to  them  a  loss  of  business  on 
the  part  of  the  plaintiff.  He  refers  to  "the  false  information  conveyed 
in  the  circulars  issued  by  the  defendant  Keitel  with  reference  to  the 
plaintiff."  This  is  not  saying  that  "the  false  information"  related  to 
the  plaintiff,  only  that  it  is  contained  in  "the  circulars  issued  by  the  de- 
fendant Keitel  with  reference  to  the  plaintiff."  It  may  have  related 
to  the  American  Malt  Corporation,  which  is  a  distinct  organization  and 
is  mentioned  by  name,  or  to  individuals  who  are  also  assailed  by  name. 
The  plaintiff  is  mentioned  by  name  only  in  rare  instances.  But  the 
court  below  embodied  in  the  injunction  a  clause  to  the  effect  that,  if 
the  defendant  would  accompany  each  future  circular  with  the  state- 
ment that  his  statements  were  not  directed  against  the  plaintiff,  he 
might  continue  his  publications.  Since  one  ground  of  his  defense  is 
that  his  statements  are  not  directed  against  the  plaintiff,  we  cannot  see 
that  he  will  be  in  any  way  harmed  if  the  interlocutory  injunction  con- 
tinues in  force  until  final  hearing.  To  do  so  will  preserve  the  present 
status,  as  he  contends  it  is,  until  at  the  final  hearing  on  the  pleadings 
and  proof  it  can  be  determined  what  the  real  facts  of  the  case  may  be. 

The  disclaimer,  however,  which  the  District  Judge  required  is  too 
broad.  It  requires  the  defendant  to  disclaim  any  charges  against  the 
American  Malt  Corporation.  As  that  corporation  is  not  a  party  to  the 
suit  and  therefore  is  in  no  position  to  ask  for  relief,  the  injunction  or- 
der should  be  modified  by  omitting  any  reference  to  it. 

The  cause  is  remanded  to  the  court  below,  with  directions  to  modify 
the  injunction  order  by  omitting  reference  to  the  American  Malt  Cor- 
poration, and  to  its  officers  and  directors  as  such,  and  to  the  manage- 
ment and  business  of  that  corporation,  as  well  as  all  other  matters  ex- 
cept advices  to  the  plaintiff's  customers  to  break  their  contracts. 


Ch.  5)  BILLS   OF   PEACE  1137 

CHAPTER  V 
BILLS  OF  PEACE 


HOW  v.  TENANTS  OF  BROMSGROVE. 

(In  Chancery  before  Sir  Heneage  Finch,  1681.     1  Vern.  22,  23  E.  R.  277.) 

There  having  been  two  issues  directed,  the  one,  whether  How  the 
lord  of  the  manor  of  Bromsgrove  had  a  grant  of  free  warren ;  and 
the  other,  in  case  he  had  a  grant  of  free  warren,  whether  there  were 
sufficient  common  left  for  the  tenants.  Upon  motion  for  a  new  trial, 
the  Lord  Chancellor  said,  these  matters  were  properly  triable  at 
common  law ;  and  he  did  not  see,  what  jurisdiction  the  chancery  had 
of  this  cause :  but  it  was  urged,  the  bill  was  brought  to  prevent  multi- 
plicity of  suits,  and  was  in  its  nature  a  bill  of  peace :  and  a  new  trial 
was  granted,  upon  payment  of  full  costs.1 

i  In  Randolph  v.  Kinney  et  al.  (1825)  3  Rand.  (Va.)  394,  Carr,  J.,  said:  "A 
bill  of  peace  (say  the  books)  is  made  use  of,  where  a  person  has  a  right  which 
may  be  controverted  by  various  persons,  at  different  times,  and  by  different 
actions  :  or  where  several  persons,  having  the  same  right,  are  disturbed ;  and 
the  Court  will  thereupon  prevent  a  multiplicity  of  suits,  by  directing  an  issue 
to  determine  the  right,  and  ultimately  an  injunction.  Lansdowne  v.  Lans- 
downe  (1815)  1  Madd.  135-137 ;  Devonsher  v.  Newenham  (1804)  2  Sch.  &  Lef r. 
208.  Lord  Redesdale  says:  "If  there  is  an  assertion  of  title  by  suit  at  law,  in 
which  the  party  fails,  but  yet  asserts  it  frequently  in  the  same  manner,  such 
assertion  becomes  oppressive ;  and  as  it  may  be  made  by  ejectment,  (a  pro- 
ceeding which  may  be  repeated  forever,)  Courts  of  Equity  may  interfere  to 
prevent  such  an  oppressive  proceeding.  It  is  on  this  ground,  that  Courts  of 
Equity  have  interfered  by  bills  of  peace.'  In  Tenham  v.  Herbert  (1742)  2  Atk. 
483,  Lord  Hardwicke  says:  'It  is  certain,  where  a  man  sets  up  an  exclusive 
right,  and  where  the  persons  who  controvert  it  with  him,  are  very  numerous, 
and  he  cannot,  by  one  or  two  actions  at  law,  quiet  their  right,  he  may  come 
into  this  Court  first,  which  is  called  a  bill  of  peace ;  and  the  Court  will  di- 
rect an  issue  to  determine  the  right,  as  in  all  disputes  between  lords  of  manors 
and  their  tenants,  and  between  tenants  of  one  manor  and  another;  for  in 
these  cases,  there  would  be  no  end  of  bringing  actions  of  trespass,  since  each 
action  would  determine  only  the  particular  right  in  question,  between  plain- 
tiff and  defendant'  In  Mitford's  Pleadings,  146,  speaking  of  demurrers  for 
joining  distinct  claims  in  one  bill,  it  is  said:  'A  demurrer  of  this  kind  will 
hold  only  where  the  plaintiff  claims  several  matters  of  different  natures:  but 
when  one  general  right  is  claimed  by  the  bill,  though  the  defendants  have  sev- 
eral and  distinct  rights,  a  demurrer  will  not  hold  ;  as  where  a  person  claim- 
ing a  general  right  to  the  sole  fishery  of  a  river,  filed  a  bill  against  several 
persons,  claiming  several  rights  in  the  fishery,  as  lords  of  manors,  occupiers 
of  lands,  or  otherwise.  For  in  this  case,  the  plaintiff  did  not  claim  several 
separate  and  distinct  rights,  in  opposition  to  several  separate  and  distinct 
rights,  claimed  by  the  defendants:  hut  he  claimed  one  general  and  entire 
right,  though  set  in  opposition  to  a  variety  of  distinct  rights,  claimed  by  the 
several  defendants.'  " 

Boke  Eq—  72 


1138  BILLS  OF  PEACE  (Cll.  5 

LORD  TEN  HAM  v.  HERBERT. 
(In  Chancery  before  Lord  Hardwicke,  1742.    2  Atk.  483.) 

The  plaintiff  brought  his  bill,  in  order  to  establish  a  right  to  an 
oyster  fishery,  and  to  be  quieted  in  the  possession  of  it,  against  the 
defendant  Herbert,  who  claims  the  piece  of  ground  where  this  fishery 
is,  as  belonging  to  his  manor. 

The  defendant  demurred  to  this  bill,  as  it  is  a  matter  properly  tri- 
able at  law. 

Lord  Chancellor.  Undoubtedly  there  are  some  cases,  in  which  a 
man  may,  by  a  bill  of  this  kind,  come  into  this  court  first;  and  there 
are  others  where  he  ought  first  to  establish  his  right  at  law. 

It  is  certain,  where  a  man  sets  up  a  general  exclusive  right  and 
where  the  persons  who  controvert  it  with  him  are  very  numerous, 
and  he  cannot,  by  one  or  two  actions  at  law,  quiet  that  right,  he  may 
come  into  this  court  first,  which  is  called  a  bill  of  peace,  and  the  court 
will  direct  an  issue  to  determine  the  right,  as  in  disputes  between  lords 
of  manors  and  their  tenants,  and  between  tenants  of  one  manor  and 
another ;  for  in  these  cases  there  would  be  no  end  of  bringing  actions 
of  trespass,  since  each  action  would  determine  only  the  particular  right 
in  question  between  the  plaintiff  and  defendant. 

As  to  the  case  of  the  Corporation  of  York  and  Sir  Lionel  Pilking- 
ton,  1  Atk.  282,  the  plaintiffs  there  were  in  possession  of  the  right  of 
fishing  upon  the  river  Ousc,  for  nine  miles  together,  and  had  constant- 
ly exercised  that  right;  and  as  this  large  jurisdiction  entangled  them 
with  different  lords  of  manors,  it  would  have  been  endless  for  the  cor- 
poration to  have  brought  actions  at  law. 

But  where  a  question,  about  a  right  of  fishery  is  only  between  two 
lords  of  manors,  neither  of  them  can  come  into  this  court  till  the  right 
is  first  tried  at  law. 

Lord  Tenham  does  not  charge  in  this  case  any  possession  for  the 
last  38  years,  so  that  this  is  in  the  nature  of  an  ejectment  bill;  the 
plaintiff  says,  that  this  piece  of  ground  aqua  cooperta  belongs  to  him ; 
Air.  Herbert  insists  it  belongs  to  him  ;  so  that  this  may  very  properly 
be  determined  at  law,  as  it  is  a  mere  single  question,  to  try  the  right 
between  two  persons ;  and  it  is  not  like  the  case  of  the  corporation 
of  York,  who  must  have  gone  all  round  the  compass  to  have  come  at 
their  right  at  law. 

Therefore  the  demurrer  must  be  allowed.2 

2  In  Eldridge  v.  Hill  and  Murray  (1816),  2  Johns.  Ch.  2S1,  before  Chancellor 
Kent,  the  defendant  liill  had  dug  a  ditch  to  divert  a  water  course  flowing 
through  tlie  defendants'  land  and  thence  through  the  plaintiff's  land.  Said 
defendant  refusing  to  till  up  this  ditch,  the  plaintiff  placed  a  partial  obstruc- 
tion therein  on  his  own  land  to  give  the  defendant  an  opportunity  to  try  his 
right.  rIdie  defendant  then  sued  the  plaintiff  in  the  Supreme  Court,  and  while 
such  action  was  still  at  issue  the  defendants  each  commenced  in  the  Justice's 
Court  an  action  for  the  continuance  of  the  obstruction  (in  all  fifteen  or  twenty 


Ch.  5)  BILLS   OF   PEACE  1139 

LONSDALE  CO.  et  al.  v.  CITY  OF  WOOX SOCKET  et  al. 
(Supreme  Court  of  Rhode  Island,  1899.    21  R.  I.  498,  44  Atl.  929.) 

Suit  by  the  Lonsdale  Company  and  others  against  Samuel  P,  Cook, 
city  treasurer,  and  others. 

MaTTeson,  C.  J.3  We  think  the  complainants,  though  claiming  un- 
der distinct  titles  and  possessing  independent  interests,  have  properly 
joined  in  the  bill,  because  they  have  a  common  interest  in  the  relief 
sought  by  the  bill,  to  wit,  the  prevention  of  the  diversion  of  the  water 
of  Crook  Fall  brook  from  their  mill  privileges.  *  *  *  The  city 
of  YVoonsocket  is  properly  joined  as  a  respondent,  since  an  injunc- 
tion is  sought  against  the  city. 

Inasmuch  as  the  injury  complained  of  is  a  continuing  injury,  to  re- 
dress which  numerous  suits  would  have  to  be  brought  from  time  to 
time,  we  think  the  complainants  are  entitled  to  relief  by  injunction,  to 
prevent  a  multiplicity  of  suits.     *     *     *     Demurrer  overruled. 


WADDIXGHAM  et  al.  v.  ROBLEDO  et  al. 

(Supreme  Court  of  New  Mexico,  1S92.    6  N.  M.  347,  28  Pac.  6G3.) 

LEE,  J.4  *  *  *  The  complainants  alleged  in  their  bill  five 
grounds,  which,  if  supported  by  proper  evidence,  entitled  them  to  re- 
lief in  a  court  of  equity.  These  grounds  were:  (1)  Title  and  posses- 
sion in  themselves  to  the  Antonio  Ortiz  grant,  or  so  much  of  it  as  is 
the  subject  of  controversy  here;   (2)  that  the  Gallinas  river  was  a  nat- 

actions),  and  threatened  to  continue  to  do  so  indefinitely.  The  plaintiff  filed 
a  bill  praying  for  an  injunction  to  restrain  the  defendant  H.  from  further 
prosecuting  the  suits  before  the  justice  already  pending,  and  from  commencing 
any  more,  on  account  of  the  obstruction  aforesaid,  until  the  suit  commenced  by 
tbe  defendant,  Hill,  in  the  supreme  court,  be  determined.  Said  the  Chancellor: 
"A  bill  of  peace,  enjoining  litigation  at  law,  seems  to  have  been  allowed  only 
in  one  of  these  two  cases ;  either,  where  tbe  plaintiff  has  already,  satisfac- 
torily, established  his  right  at  law,  or  where  the  persons  who  controvert  it 
are  so  numerous  as  to  render  an  issue,  under  the  direction  of  this  court,  in- 
dispensable to  embrace  all  the  parties  concerned,  and  to  save  multiplicity  of 
suits.  Lord  Bath  v.  Sherwin  (1709)  1  Bro.  P.  C.  266:  Ewelme  v.  Andover 
(1684)  1  Yern.  266:  Leighton  v.  Leightori  (1720)  1  P.  Win.  671;  Trustees  of 
Huntington  v.  Nicoll  (1808)  3  Johns.  566;  Tenham  v.  Herbert  (1742)  2  Atk. 
483.  In  the  case  in  Atkyns,  Lord  Hardwicke  refused  to  interfere  between  two 
individuals,  until  the  right  was  first  tried  at  law.  In  the  present  case  there 
has  been  but  one  trial  at  law,  and  that  one  was  decided  against  tbe  plaintiff. 
The  controversy  is  between  him  and  a  single  individual,  and  is  pending  for 
decision  in  the  supreme  court.  If  the  defendant  Hill,  continues  to  harass  him 
with  fresh  suits  at  law,  it  is  because  a  new  cause  of  action  (as  he  alleges)  con- 
tinues to  arise  daily,  by  the  continuation  of  the  nuisance.  No  case  goes  so 
far  as  to  stop  these  continued  suits  between  two  single  individuals,  so  long  as 
the  alleged  cause  of  action  is  continued,  and  there  has  been  no  final  or  satis- 
factory trial  and  decision  at  law  upon  the  merits."     Injunction  denied. 

3  Parts  of  the  opinion  are  omitted. 

4  The  court's  statement  of  the  case  and  parts  of  the  opinion  are  omitted. 


1140  BILLS   OF   PEACE  (Ch.  5 

ural  water-course,  flowing  through  the  grant,  essential  to  its  enjoy- 
ment, and  that  the  defendants  were  diverting  the  water  thereof  with- 
out right ;  (3)  that  the  defendants  were  constructing  a  dam  in  the  said 
river,  which  was  a  private  nuisance  to  the  complainants ;  (4)  that  the 
defendants  were  insolvent,  and  were  trespassing  upon  their  title  and 
possession;  and  (5)  that  the  acts  of  the  defendants  and  their  asso- 
ciates, unless  prevented,  would  necessitate  a  multiplicity  of  suits. 

Where  the  right  of  the  complainant  is  clear,  and  he  is  in  possession 
of  the  land  in  controversy,  equity  will,  in  a  proper  case,  protect  that 
possession  by  injunction;  and  where  the  complainant's  right  to  the 
use  and  enjoyment  of  water  is  obstructed,  he  may  have  an  injunction 
without  showing  irreparable  injury.  Mott  v.  Ewing,  90  Cal.  231,  27 
Pac.  194;  Conkling  v.  Improvement  Co.,  S7  Cal.  296,  25  Pac.  399; 
1  High,  Inj.  §  795,  note  6,  and  cases  cited;  Carlisle  v.  Cooper,  21  N. 
J.  Eq.  576;  Weiss  v.  Steel  Co.,  13  Or.  496,  11  Pac.  255.  Courts  of 
equity  have  concurrent  jurisdiction  with  courts  of  law  in  a  case  of 
private  nuisance  by  diverting  or  obstructing  an  ancient  water-course, 
and  may  issue  an  injunction  to  prevent  the  interruption,  though  the 
complainant  has  not  established  his  title  at  law.  Shields  v.  Arndt,  4 
X.  J.  Eq.  234;  1  High,  Inj.  §  14;  Wood,  L.  Nuis.  §  785,  note  2;  Car- 
lisle v.  Cooper,  21  X.  J.  Eq.  576;  Pillsbury  v.  Moore,  44  Me.  154,  69 
Am.  Dec.  91 ;  Parke  v.  Kilham,  8  Cal.  7S,  68  Am.  Dec.  310;  Holsman 
v.  Bleaching  Co.,  14  X.  J.  Eq.  335  ;  Ang.  Water-Courses,  §  444,  and 
cases  cited.  Insolvency  of  the  defendants,  who  are  threatening  to  com- 
mit repeated  trespasses,  has  always  been  recognized  as  a  sufficient 
reason  for  the  interposition  of  equity  by  injunction,  (1  High,  Inj.  § 
717,  and  cases  cited;  Id.  §  727,  and  cases  cited;  10  Amer.  &  Eng. 
Enc.  Law,  835,  note  2;  Id.  881,  note  1;)  as  is  the  prevention  of  a 
multiplicity  of  suits,  (1  High,  Inj.  §  717;  10  Amer.  &  Eng.  Enc.  Law, 
825.) 

It  is  unnecessary  to  decide,  and  we  do  not  intend  to  be  understood 
as  deciding,  that  the  evidence  in  this  case  clearly  establishes  the  exist- 
ence of  all  these  grounds  of  equity;  but,  as  will  hereafter  be  shown, 
it  is  certainly  conclusively  established  that  the  complainants  are  the 
owners  of  the  tract  of  land  known  as  the  "Antonio  Ortiz  Grant,"  un- 
less the  defendants  have  acquired  title  to  some  portion  of  it  by  ad- 
verse possession.  They  have  a  confirmation  of  congress  and  the  pat- 
ent of  the  government.  As  against  them,  the  defendants,  so  far  as  they 
rely  upon  an  inchoate  grant  from  Mexico,  can  have  no  standing  in 
this  court.  Beard  v.  Federy,  3  Wall.  478,  18  L.  Ed.  88;  U.  S.  v. 
Stone,  2  Wall.  525,  17  L.  Ed.  765 ;  Ryan  v.  Carter,  93  U.  S.  78,  23  L. 
Ed.  807 ;  Tameling  v.  Emigration  Co.,  93  U.  S.  644,  23  L.  Ed.  998 ; 
Maxwell  Land-Grant  Case,  121  U.  S.  325,  7  Sup.  Ct.  1015,  30  L.  Ed. 
949;  Id.,  122  U.  S.  365,  7  Sup.  Ct.  1271,  30  L.  Ed.  1211;  Chaves  v. 
Whitney,  4  X.  M.  178,  16  Pac.  608;  Grant  v.  Jaramillo,  6  X.  M.  313, 
28  Pac.  508,  (this  court,  at  this  term.)     It  is  also  conclusively  estab- 


Ch.  5)  BILLS   OF   PEACE  1141 

lished  that  the  Gallinas  river  is  a  natural  water-course,  running  through 
the  grant,  essential  to  its  enjoyment,  and  that  the  defendants  at  the 
time  of  the  filing  of  the  bill  were  diverting  and  attempting  to  divert 
the  waters  thereof  without,  so  far  as  the  extension  of  their  possession 
to  the  new  lands  and  the  water  to  irrigate  them  is  concerned,  any 
other  right  than  such  as  is  derived  under  and  by  virtue  of  an  inchoate 
and  imperfect  grant  from  Mexico.  The  fact  that  a  new  dam  was  be- 
ing constructed  is  admitted,  but  the  insolvency  of  the  defendants  is 
earnestly  disputed.  The  proposition  that  a  multiplicity  of  suits  would 
result  from  the  wrongful  act  of  the  defendants  is  obvious.  *  *  * 
It  is  not  difficult  to  determine  that  a  court  of  equity  ought  to  have 
jurisdiction  to  prevent  by  injunction  such  a  wrong.  The  remedy  at 
law  by  ejectment  would  be  wholly  inadequate.,  because,  by  the  terms 
of  the  statute  cited,  the  complainants  might  be  compelled  to  pay  large 
sums  of  money  for  improvements  which  would  be  wholly  valueless  to 
them.  The  objection  of  an  adequate  remedy  at  law,  while  untenable, 
came  too  late  in  this  case,  even  though,  if  made  at  an  earlier  stage  of 
the  proceeding,  it  might  have  been  entitled  to  some  consideration. 
We  do  not  wish  to  be  understood  as  saying  that,  if  presented  at  an 
earlier  stage  of  the  proceeding,  it  would  or  could  have  been  sustained ; 
on  the  contrary,  we  think  the  complainants  had  no  adequate  remedy  at 
law ;  but,  if  they  had,  it  was  the  duty  of  the  defendants  to  have  raised 
the  question  before  answering.  "Ordinarily,  where  it  is  competent 
for  the  court  to  grant  the  relief  sought,  and  it  has  jurisdiction  of  the 
subject-matter,  the  objection  of  the  adequacy  of  the  remedy  at  law 
should  be  taken  at  the  earliest  opportunity,  and  before  the  defendant 
enters  upon  a  full  defense."  Reynes  v.  Dumont,  130  U.  S.  354,  9  Sup. 
Ct.  486.  32  L.  Ed.  934;  Kilbourn  v.  Sunderland.  130  U.  S.  505,  9  Sup. 
Ct.  594.  32  L,  Ed.  1005  ;  Brown  v.  Iron  Co.,  134  U.  S.  530,  10  Sup. 
Ct.  604,  33  L.  Ed.  1021.  We  think,  indeed,  that  this  bill  might  have 
been  sustained  upon  the  single  equitable  ground  of  the  prevention  of 
a  multiplicity  of  suits,  as  a  bill  of  peace.  Properly  understood,  a  bill 
of  peace,  as  is  said  by  Prof.  Pomeroy,  is  merely  a  part  of  the  general 
jurisdiction  of  equity  to  prevent  multiplicity  of  actions.  1  Pom.  Eq. 
Jur.  §§  243,  275.  In  the  note  to  Woodward  v.  Seely,  50  Amer.  Dec. 
449,  it  is  said: 

"Bills  of  peace  are  of  two  kinds.  To  the  first  class  belong  those  bills  brought 
to  establish  one  general  right  between  a  single  party  on  one  side  and  a  great 
number  of  persons  on  the  other,  where  such  right  could  not  be  determined  by 
sevei-al  suits  between  the  different  parties.  To  the  second  class  belong  bills 
brought  between  two  parties  to  prevent  further  litigation  of  a  right  after  it 
has  been  satisfactorily  established  by  one  or  more  trials  at  law.  *  *  * 
Kills  of  the  first  class  require  that  a  community  of  interest  in  the  subject- 
matter  of  the  controversy,  or  a  common  title  from  which  all  the  separate 
claims  which  are  at  issue  arise,  should  exist  among  the  individuals  composing 
the  numerous  body  on  the  one  side,  or  between  each  of  them  and  his  single 
adversary,  in  order  to  the  exercise  of  the  equity  jurisdiction,  where  the  bill  is 
a  strict,  technical  bill  of  peace." 


1142  BILLS   OF   PEACE  (Ch.  5 

And  among  the  illustrations  cited  are  the  following: 

"It  is  said  that  upon  this  principle  hills  have  been  maintained  upon  the  part 
of  the  lord  of  the  manor  against  his  tenants  to  establish  a  right  of  free  war- 
ren;  or  the  right  to  inclose  a  part  of  a  common;  or  by  tenants  or  copyhold- 
ers, or  one  of  them  suing  for  all,  against  the  lord  of  the  manor,  to  have  a 
right  of  common  established;  or  by  the  tenants  against  the  lord  of  the  manor 
to  establish  the  right  to  the  profits  of  a  fair  held  for  time  out  of  mind  in 
the  manor;  or  by  copyholders  against  their  lord  to  be  relieved  of  a  certain 
general  fine."     *     *     * 

Our  conclusion,  therefore,  is  that  this  case  should  be  reversed  and 
remanded. 


GRAHAM  v.  DAHLONEGA  GOLD  MIXING  CO.  et  al. 
(Supreme  Court  of  Georgia,  1SS3.    71  Ga.  296.) 

Graham  filed  his  bill  against  the  Dahlonega  Gold  Mining  Company 
and  the  Etowah  &  Battle  Branch  Gold  Mining  Company,  alleging,  in 
brief,  as  follows : 

Complainant  is  the  owner  of  certain  lots  in  Lumpkin  county  of  the 
value  of  $10,000,  principally  valuable  for  mining  and  mineral  pur- 
poses, but  also  valuable  for  farming  purposes.  Through  these  lands, 
from  time  immemorial,  have  flowed  two  branches  or  creeks  in  their 
natural  channels,  and  the  water  and  water-power  thereof  are  essential 
to  the  proper  use  and  enjoyment  of  the  lands  for  mining  or  agricul- 
tural purposes.  On  January  1,  1879,  defendants,  or  one  of  them, 
through  their- officers  and  agents,  with  force  and  arms  unlawfully 
entered  on  complainant's  land  and  cut,  dug  and  erected  a  water-ditch, 
flumes  and  trestles  on  adjoining  lands,  so  as  to  carry  the  water  from 
these  creeks  by  a  different  channel,  and  deprive  him  of  its  use,  ren- 
dering his  land  almost  wholly  valueless.  Both  of  defendants  are  claim- 
ing title  to  the  water-ditch  by  which  the  water  is  thus  conveyed  away ; 
and  they  are  engaged  in  litigation  as  to  the  same  in  the  superior  court 
of  Lumpkin  county  and  the  Supreme  Court  of  the  state.  The  record 
in  the  case  is  voluminous,  and  leave  of  reference  is  asked  without  at- 
taching it.  Complainant  does  not  know  which  is  the  owner,  but  both 
have  concluded  to  commit  this  trespass  on  him  for  their  mutual  bene- 
fit. The  damage  is  already  great,  and  if  continued  will  be  irreparable. 
The  remedy  at  law  is  inadequate,  because  the  defendants  are  foreign 
corporations,  have  little  visible  property  in  the  state,  are  engaged  in 
expensive  and  exhaustive  litigation,  and  are  now  insolvent,  or  will  soon 
be  so.  One  of  defendants  has  already  recovered  a  judgment  against 
the  other  for  $7,000  which  would  be  senior  to  a  judgment  for  com- 
plainant for  damages.  Such  a  judgment  would  be  unproductive.  The 
prayers  were  for  the  recovery  of  damages  already  done  for  the  res- 
toration of  the  water  diverted,  and  for  injunction  to  restrain  inter- 
ference therewith. 

Defendants  demurred  to  the  bill  on  the  grounds  stated  in  the  de- 
cision.    The  demurrer  was  sustained,  and  complainant  excepted. 


Cll.  5)  BILLS   OF   PEACE 


1143 


Hall,  J.  This  was  a  bill  to  restrain  a  trespass,  which  consisted  in 
the  continued  and  permanent  diversion  of  a  stream  running  through 
complainant's  land  through  a  ditch  opened  by  the  defendants.  The 
bill  set  forth  that  the  damage  occasioned  by  this  diversion  of  the  wa- 
ter was  irreparable,  in  that  it  deprived  him  of  its  use  for  agricultural, 
domestic  and  mining  purposes,  there  being  valuable  gold  mines  on  the 
premises  which  he  was  unable  to  work  or  otherwise  utilize  for  the  want 
of  this  water  thus  diverted,  used  and  appropriated  by  the  defendants. 
The  insolvency  of  defendants  was  substantially,  though  not  very  dis- 
tinctly charged.  There  was  a  prayer  for  the  restoration  of  the  water 
to  its  natural  channel  and  for  a  perpetual  injunction,  as  also  for  the 
usual  and  ne*cessary  relief. 

A  demurrer  was  filed  to  this  bill  in  the  lower  court,  and  sustained 
upon  the  grounds  following: 

(1)  Because  it  did  not  show  any  cause  of  action  against  defendants, 
or  any  title  to  relief. 

(2)  For  want  of  equity. 

(3)  Because  complainant  had  an  adequate  remedy  at  law. 

(4)  Because  the  bill  was  multifarious  in  joining  the  defendants,  be- 
tween whom  no  combination  of  concert  of  action  was  charged. 

(5)  Because  complainant  has  referred  in  the  bill  to  various  suits  in 
equity  and  decrees,  and  has  failed  to  attach  exhibits  of  the  same  to  his 
bill.     Error  is  assigned  to  the  decree  dismissing  this  bill. 

1.  There  is  nothing  in  the  last  ground  of  the  demurrer.  The  litiga- 
tion between  the  defendants  about  the  ditch  conveying  the  water  of 
this  and  other  streams  is  only  incidentally  referred  to  in  the  stating 
part  of  the  complainant's  bills,  and  is  not  at  all  material  to  any  ques- 
tion raised  by  the  pleadings ;  indeed  it  strikes  us  as  impertinent  to  the 
issues  sought  to  be  made  thereby.  Besides  these  pleadings  are  shown 
to  be  voluminous,  and  the  right  to  refer  them  is  asked,  as  they  are  in 
the  court  where  this  bill  is  pending,  if  it  should  be  deemed  necessary. 

2.  There  is  manifest  equity  in  this  bill,  and  while  there  is  a  remedy 
at  common  law,  the  remedy  is  not  adequate  to  meet  the  exigencies  of 

'the  case  made  here.  The  complaint  is  not  against  a  mere  fugitive  or 
temporary  trespass.  The  damages  would  seem  to  be  irreparable,  in 
that  the  complainant  is  deprived  of  the  full  use  and  enjoyment  of  his 
premises  for  want  of  the  water  diverted;  he  requires  it  for  domestic 
use,  and  agricultural  purposes,  and  without  it  is  unable  to  ascertain 
and  develop  the  mineral  resources  of  his  land ;  besides,  it  sufficiently 
appears  from  the  statements  in  the  bill,  that  if  the  defendants  are  not 
already  insolvent,  they  are  rapidly  approaching  it  by  being  engaged  in 
exhausting  and  expensive  litigation.  Each  day  that  this  diversion  con- 
tinues is  a  fresh  trespass,  and  gives  an  action  for  nominal  damages,  if 
not  something  more,  and  the  court  may  well  interpose  for  the  avoid- 
ance of  circuity  and  multiplicity  of  suits.  Code,  §  3219,  and  cases 
cited  under  this  section.     If  the  trespass  be  destructive  of  the  very 


1144  BILLS   OF   PEACE  (Ch.  5 

nature  and  substance  of  the  estate,  equity  will  grant  relief.  Peterson 
v.  Orr,  12  Ga.  464,  58  Am.  Dec.  484 :  McGinnis  v.  Justices  of  Inferior 
Court  of  Gordon  County,  30  Ga.  47 ;  Griffin  v.  Sketoe.  30  Ga.  300. 
As  to  the  interposition  of  equity  to  quiet  litigation  and  prevent  multi- 
plicity of  suits,  see  Code,  §  3233. 

3.  The  bill  is  certainly  not  multifarious:  distinct  and  independent 
matters  are  not  joined  in  the  same  suit.  Several  matters  of  a  distinct 
and  independent  nature  are  not  therein  joined  against  the  several  de- 
fendants to  the  bill.  The  complainant  here  claims  one  general  right 
against  both  these  respondents.  This  objection  is  not  favored  by 
courts  of  equity,  for  the  sufficient  reason  that : 

'It  is  the  interest  of  the  parties  as  well  as  the  interest  of  the  public,  that 
all  matters  in  controversy  between  them  should  be  settled  by  one  suit,  wben 
it  can  be  done  with  safety  and  without  great  practical  inconvenience."  Nail 
v.  Mobley,  9  Ga.  278,  and  authorities  there  cited. 

To  this  case  may  be  added  many  subsequent  ones  determined  by 
this  court  on  the  same  line  of  policy.  There  is  not  even  a  misjoinder 
of  parties  defendant  in  this  bill.  As  we  have  before  stated,  it  is 
brought  to  enjoin  trespassers  and  to  establish  and  quiet  complainant's 
right  to  the  use  of  this  stream,  which  has  been  appropriated  by  these 
defendants.  Any  participation  in  this  wrong  by  any  party  renders 
him  liable ;  it  extends  to  one  who  procures  it  to  be  done,  whether  he 
subsequently  aids  further  in  its  actual  perpetration  or  not,  and  wheth- 
er it  be  an  actionable  wrong  per  se,  or  grows  out  of  a  breach  of  con- 
tract, and  such  a  person  is  made  liable  to  a  suit  either  alone  or  jointly 
with  the  actor.  Code,  §  3012.  In  suits  at  law,  where  several  tres- 
passers are  sued  jointly,  the  plaintiff  may  recover  against  all  of  them 
damages  for  the  greatest  injury  done  by  either ;  and  for  the  settle- 
ment of  the  portions  of  the  finding,  as  between  themselves,  to  which 
each  is  liable,  the  jury  may  specify  in  their  verdict  the  particular 
amount  to  be  recovered  of  each,  and  in  such  cases  the  judgment  might 
be  entered  severally.  Code,  §  3075.  But  where  the  finding  is  against 
all,  and  the  judgment,  in  accordance  therewith,  is  entered  jointly  against 
them,  and  is  paid  off  by  one,  the  others  are  liable  to  him  for  contribu- 
tion. Id.  §  3076.  Nothing  could  evince  more  strongly  than  this  the 
purpose  of  the  legislature  to  end  by  a  single  suit  the  controversv  grow- 
ing out  of  the  commission  of  such  wrong  between  all  the  parties  par- 
ticipating in  its  commission.  In  reason  and  justice,  and  according  to 
the  very  spirit  of  these  provisions  of  the  law,  this  purpose  is  to  be 
kept  in  view,  whether  the  proceeding  is  at  law  or  in  equity. 

Judgment  reversed. 


Ch.  5)  BILLS   OF   PEACE  1145 

GUESS  et  al.  v.  STONE  MOUNTAIN  GRANITE  &  RY.  CO. 

(Supreme  Court  of  Georgia,  1881.     67  Ga.  215.) 

Jackson,  C.  J.  Sundry  parties  residing  on  Church  street  in  Stone 
Mountain  sued  the  defendant  for  damages  in  the  use  it  made  of  the 
street  as  a  railway  track  in  excavating  and  embanking  thereon,  thus 
rendering  it  well  nigh  useless,  in  running  cars  on  it  at  irregular  times 
and  with  an  incompetent  or  rickety  sort  of  engine,  which  scattered 
cinders,  soot  and  smoke  all  over  their  yards  and  into  their  houses,  de- 
creasing greatly  their  value,  and  in  thus  making  the  business  of  the 
corporation  a  nuisance  to  all  the  neighborhood ;  and  all  this  under  a 
charter  to  do  private  business,  not  in  any  sense  for  the  use  of  the  pub- 
lic, but  for  the  private  emolument  and  gain  of  the  stockholders  only, 
and  that  therefore  it  was  a  mere  trespasser  on  the  street,  and  there 
without  shadow  of  right.  The  bill  was  filed  to  restrain  the  plaintiffs 
in  these  divers  suits  to  settle  the  rights  of  the  railway  company  and  of 
these  plaintiffs,  setting  up  leave  from  the  town  council  to  use  the  street, 
a  charter  from  the  state,  etc.,  alleging  multiplicity  of  suits,  multiplica- 
tion of  suits,  and  repetition  of  suits  from  time  to  time,  and  asking 
that  the  whole  matter  be  settled  in  one  case,  fixing  the  rights  of  all 
parties. 

The  chancellor  granted  the  injunction  with  the  consent  order  that 
the  case  thus  made  be  tried  at  the  next,  March,  term  of  the  court. 
This  grant  is  assigned  as  error. 

We  think  that  if  the  complainant  has  any  chartered  rights  at  all  to 
use  the  street,  by  the  leave  of  the  city  council  of  Stone  Mountain  first 
had  thereto,  the  bill  is  not  without  equity,  but  rests  on  equitable  juris- 
diction of  avoiding  a  multiplicity  of  suits  and  settling  interminable 
litigation  on  one  trial,  fixing  thereby  everybody's  rights,  and  doing  jus- 
tice to  all. 

Whilst  this  private  corporation,  not  being  a  public  carrier,  or  or- 
ganized for  any  great  public  purpose,  like  railways  from  town  to  town, 
could  not  exercise  the  right  to  take  private  property  for  public  use, 
even  with  compensation,  against  the  will  of  the  owner  of  that  prop- 
erty, yet  it  has  the  chartered  right  to  run  a  road  from  Stone  Mountain 
to  the  quarries  at  the  mountain  itself,  to  haul  the  granite  to  the  Georgia 
railroad,  and  to  connect  therewith,  by  the  purchase  or  lease,  or  other 
leave  given  by  the  owners  of  property  along  their  route;  and  as  the 
company  shows  the  grant  of  the  use  of  the  street  in  question  by  the 
town  council  of  the  town  of  Stone  Mountain,  we  cannot  say  that  it  is 
a  mere  interloper  and  trespasser,  so  that  equity  will  shut  its  doors  to 
its  entrance  as  a  suitor. 

The  demurrer  to  the  bill  rested  on  two  grounds.  First,  that  it  was 
brought  too  late,  within  ten  days  of  the  trial  term  of  the  trespass  suits, 
and  secondly,  for  want  of  equity.  The  chancellor  drew  the  sting  of  the 
first  ground  by  requiring  the  complainant  to  try  the  equity  case  on  its 


1146  BILLS   OF  PEACE  (Cll.  5 

merits  at  the  next  term  the  first  to  which  it  was  returnable,  and  as  soon 
as  it  could  be  tried,  if  filed  thirty  days  before  the  court,  according  to 
the  rule.  And  we  have  seen  that  there  is  equity  in  the  bill  under  the 
view  we  take  of  it. 

If  the  present  mode  of  running  these  cars  be  persisted  in,  and  the 
affidavits  and  answer  make  the  true  case  on  the  trial  before  the  jury, 
the  defendants  to  the  bill  will  be  entitled  to  have  such  a  decree  as  will 
constrain  the  complainant  to  improve  the  mode  now  used  in  running 
them,  as  well  as  damages  for  the  past,  as  the  case  now  strikes  us ;  and 
if  their  property  lying  on  the  street  is  so  permanently  injured  as  the 
answer  and  affidavits  allege,  they  will  be  entitled  to  damages  therefor. 
But  we  do  not  now  rule  positively  on  these  points,  preferring,  as  the 
chancellor  did,  it  seems  from  his  interlocutory  injunction  and  order 
thereon,  that  the  case  on  law  and  facts  be  fully  tried  before  the  jury 
on  the  merits,  when,  if  parties  are  not  satisfied  with  the  result  before 
the  court  and  jury,  either  may  have  the  case  reviewed  here  on  the 
full  equities  thereof. 

Within  a  month  or  two  the  trial  will  be  had  and  nobody  can  be  per- 
manently injured  by  the  temporary  injunction. 

We  cannot  say  that  the  chancellor  should  have  absolutely  prohib- 
ited the  running  the  cars  in  the  meantime,  as  the  cross-bill  prayed,  but 
on  a  view  of  the  whole  case,  we  think  that  the  disposition  he  made  of 
it  is  legal,  wise  and  just. 

Let  the  judgment,  therefore,  be  affirmed. 


SMITH  v.  BANK  OF  NEW  ENGLAND. 

(Supreme  Court  of  New  Hampshire,  1898.    69  N.  H.  254,  45  Atl.  1082.) 

Suit  by  Anna  L.  Smith,  on  behalf  of  herself  and  78  others,  against 
the  Bank  of  New  England,  for  breach  of  trust.  To  the  bill  the  de- 
fendant demurred. 

Bill  in  equity,  in  behalf  of  the  plaintiff  and  all  others  of  like  inter- 
est, alleging  that  the  plaintiff  is  the  owner  of  certificates  of  deposit 
issued  by  the  Union  Trust  Company,  which  are  indorsed  by  the  de- 
fendants in  the  manner  stated  below ;  that  on  March  29,  1892,  it  was 
agreed  between  the  trust  company,  a  corporation  organized  under  the 
laws  of  Iowa,  and  doing  business  in  that  state,  and  the  defendants, 
that  the  trust  company  should  issue  certificates  of  deposit  to  an  amount 
to  be  thereafter  fixed,  and  should  assign  and  transfer  to  the  defend- 
ants, to  be  held  by  them  in  trust  to  secure  the  payment  of  the  certifi- 
cates, real  estate  and  other  securities  approved  by  the  defendants  to  an 
amount  exceeding,  at  their  face  value,  by  10  per  cent,  the  amount  of 
the  certificates;  that  the  defendants  should  thereupon  certify  upon 
each  of  the  certificates  that  its  payment  was  so  secured ;  that  the  trust 
company  might  at  any  time  withdraw  any  of  the  securities  upon  sub- 


Cll.  5)  BILLS   OF   PEACE  1147 

stituting  others  of  equal  or  greater  value  ;  that,  under  and  in  pursuance 
of  the  agreement,  the  trust  company  issued  certificates  of  deposit  to 
the  amount  of  $69,000,  and  the  defendants  certified  thereon  that,  to 
secure  the  payment  thereof,  they  held  securities  of  the  full  value  of 
10  per  cent,  in  excess  of  the  amount  of  the  certificates,  though  they 
in  fact  held  only  505  shares  of  bank  stock,  of  the  face  value  of 
$50,500;  that  subsequently  the  trust  company  withdrew  the  bank  stock, 
and  substituted  other  securities,  which  were  accepted  and  approved 
by  the  defendants,  of  the  face  value  of  $91,000,  but  all  of  which,  ex- 
cept 180  shares  of  bank  stock,  of  the  face  value  of  $18,000,  were 
wholly  worthless,  as  the  defendants  then  knew,  or  by  due  care  would 
have  learned;  that  the  defendants  neglected  to  cause  the  180  shares 
of  bank  stock  to  be  properly  transferred  to  them,  in  consequence  of 
which,  upon  a  liquidation  of  the  affairs  of  the  bank,  the  full  value  of 
the  stock  was  paid  to  the  trust  company ;  that  whether  the  trust  com- 
pany paid  this  money,  or  any  part  of  it,  to  the  defendants,  the  plaintiff 
does  not  know,  and  prays  to  be  informed ;  that  78  other  persons 
(whose  names  and  residences  are  stated)  hold  certificates  of  deposit 
similar  in  all  respects  to  those  owned  by  the  plaintiff,  but  that  the 
amount  held  by  each  of  them  and  the  extent  of  their  respective  inter- 
ests are  unknown  to  the  plaintiff,  and  can  only  be  determined  upon 
an  accounting ;  and  that  the  trust  company  is  in  the  hands  of  a  re- 
ceiver, and  has  no  substantial  assets.  The  prayer  of  the  bill  is  (1)  for 
an  order  requiring  all  persons  in  like  interest  to  join  in  the  action  or 
be  barred  from  sharing  in  the  decree;  (2)  for  discovery  and  an  ac- 
counting; and  (3)  for  a  determination  of  the  damage  caused  by  the 
defendants'  negligence  in  the  management  of  the  trust  estate,  and  a 
decree  that  the  defendants  shall  pay  the  same.  The  defendants  de- 
murred because  (1.)  the  bill  is  multifarious;  (2)  the  plaintiff  has  a 
plain  and  adequate  remedy  at  law ;  and  (3)  the  bill  is  without  equity. 
Carpenter,  C.  J.  The  bill  is  not  multifarious,  nor  would  it  be  if 
all  the  holders  of  certificates  were  in  fact  made  parties  to  it  either 
as  plaintiffs  or  defendants.  They  are  all  equally  and  directly  inter- 
ested in  the  disposition  of  any  trust  funds  now  held  by  the  defendants, 
and  in  any  damages  that  may  be  "awarded  against  them  for  a  breach 
of  the  trust.  All  the  matters  in  controversy  relate  exclusively  to  the 
alleged  conduct  and  misconduct  of  the  defendants  as  trustees.  It  not 
only  appears  that  by  the  joinder  of  all  others  of  like  interest  with  the 
plaintiff  the  defendants  will  not  be  embarrassed  or  subjected  to  any 
expense  or  inconvenience  in  making  their  defense,  nor  that  any  in- 
justice will  be  done  them,  but  that  the  matters  in  dispute  can  be  more 
conveniently,  economically,  and  expeditiously  adjusted  in  one  suit. 
Chase  v.  Searles,  45  N.  H.  511 ;  Eastman  v.  Bank,  58  N.  H.  421,  422; 
Page  v.  Whidden,  59  N.  H.  507,  509.  The  prevention  of  useless  liti- 
gation and  a  multiplicity  of  needless  suits  is  a  recognized  ground  of 
equity  jurisdiction.  It  is  upon  this  principle  that  bills  of  peace  are 
sustained.     1  Story,  Eq.  Jur.  §  853.     The  bill  may  be  brought  as  well 


1148  BILLS   OF   PLACE  (Cll.  5 

by  the  numerous  claimants  of  the  right  in  question  as  by  him  against 
whom  the  claim  is  made.  Cowper  v.  Clerk,  3  P.  Wms.  155,  157; 
Convers  v.  Abergavennv,  1  Atk.  285 ;  Powell  v.  Powis,  1  Younge  & 
J.  159;   Phillips  v.  Hudson,  2  Ch.  App.  243. 

The  plaintiff's  bill  is  in  the  nature  of  a  bill  of  peace.  One  if  its 
objects  is  to  obtain  an  adjudication  of  the  rights  of  the  parties  in  one 
suit  instead-  of  79  suits.  For  the  present  purpose  it  may  be  assumed 
that  the  only  cause  of  action  disclosed  by  the  bill  is  for  damages  caused 
by  the  defendants'  negligence,  for  which  the  plaintiff  and  the  other 
holders  of  certificates  have  each  a  plain  and  adequate  remedy  at  law. 
If  the  parties  in  interest  severally  brought  actions  at  law,  the  question 
of  the  defendants'  negligence  would  be  exactly  the  same  in  all  the 
actions,  and  would  necessarily  be  determined  upon  the  same  evidence. 
Substantially,  the  damages  of  the  several  plaintiffs  would  be  assessed 
upon  the  same  principle.  In  each  case  the  same  witnesses  would  have 
to  be  called,  at  the  same  cost.  Each  trial  would  consume  the  same 
length  of  time  and  subject  each  party  to  the  same  expense.  For  the 
determination  of  one  issue  the  public  must  provide  79  sessions  of  the 
court  and  79  juries.  In  short,  a  single  issue,  upon  which  the  rights  of 
all  parties  interested  in  the  controversy  depend,  must  be  tried  79  times, 
and  the  parties  and  the  public  be  subjected  to  the  worse  than  useless 
expense  of  78  trials. 

The  defendants'  position  that  "the  equity  jurisdiction  of  the  court 
to  prevent  a  multiplicity  of  suits  cannot  properly  be  invoked,  except 
by  the  person  who  may  be  subjected  to  them,''  is  supported  by  no 
authority  and  has  no  foundation  in  principle.  A  speedy  and  inexpen- 
sive adjudication  of  their  common  right  is  quite  as  important  to  the 
numerous  plaintiffs  as  to  the  single  defendant,  and  it  may  be  much 
more  so.  Cases  may  often  happen  where  a  rejection  of  their  appli- 
cation for  equitable  intervention  to  prevent  a  multiplicity  of  suits 
would  operate  practically  as  a  denial  of  justice.  Suppose,  e.  g.,  that 
each  of  one  hundred  persons  held  an  interest  coupon  for,  say,  six  dol- 
lars, on  bonds  issued  by  a  town  or  other  corporation,  and  that  the 
only  controverted  question  was  the  validity  of  the  bonds;  each  coupon 
holder  would  have  a  clear,  and,  in  a  legal  sense,  an  adequate,  remedy 
at  law.  But  if  he  recovered  in  an  action  at  law  he  would  realize 
nothing,  as  the  necessary  expenses  of  the  suit  would  exceed  the  amount 
recovered.  If,  on  the  other  hand,  the  question  were  determined  in 
one  suit,  each  might  realize  substantially  the  amount  of  his  demand. 
To  hold  that  equity  will  intervene  in  behalf  of  the  corporation,  but  not 
in  behalf  of  the  coupon  holders,  to  compel  the  issue  to  be  tried  in  one 
suit,  would  bring  deserved  reproach  upon  the  administration  of  jus- 
tice. "The  weight  of  authority,"  says  Mr.  Pomeroy,  "is  simply  over- 
whelming that  the  jurisdiction  may  and  should  be  exercised,  either  on 
behalf  of  a  numerous  body  of  separate  claimants  against  a  single 
part}-,  or  on  behalf  of  a  single  party  against  such  a  numerous  body, 
where  there  is,  and  because  there  is,  merely  a  community  of 


Cll.  5)  BILLS   OF   PEACE 


1149 


interest  among  them  in  the  questions  of  law  and  fact  involved  in  the 
general  controversy,  or  in  the  kind  and  form  of  relief  demanded  and 
obtained  by  or  against  each  individual  member  of  the  numerous  body." 
1  Pom.  Eq.  Jur.  §  269.  Such  would  be  the  doctrine  here,  if  there  were 
no  authority  on  the  subject.  Any  reasonably  necessary  process  for 
conveniently  and  economically  ascertaining  rights  and  furnishing  a 
remedy  for  their  violation  may  be  used.  Webster  v.  Hall,  60  N.  H. 
7;  Metcalf  v.  Gilmore,  59  N.  H.  417,  434,  47  Am.  Rep.  217;  Walker 
v.  Walker,  63  N.  H.  321,  56  Am.  Rep.  514;  Brooks  v.  Howison,  63 
N.  H.  382,  388.  For  the  enforcement  of  the  rights  of  parties  our 
common  law  provides  "the  best  inventible  procedure."  Gage  v.  Gage, 
66  N.  H.  282,  294,  29  Atl.  543,  28  L.  R.  A.  829;  Owen  v.  Weston,  63 
N.  H.  599,  600,  602,  4  Atl.  801,  56  Am.  Rep.  547. 

An  order  may  be  made  at  the  trial  term  (if  the  defendants  desire 
or  deem  it  necessary  for  their  protection  against  other  suits)  that  all 
the  certificate  holders  who,  upon  proper  notice,  fail  to  appear  as  plain- 
tiffs on  or  before  the  time  set  for  the  trial,  or  other  specified  time, 
shall  be  forever  barred  from  participating  in  any  of  the  trust  funds, 
or  in  any  damages  that  may  be  awarded  by  reason  of  the  defendants' 
negligence,  and  from  hereafter  bringing  any  action.  The  bill  may 
be  maintained  to  avoid  a  multiplicity  of  suits.  This  result  makes  it 
unnecessary  to  consider  whether  it  might  be  maintained  upon  other 
grounds.     Demurrer  overruled. 

Parsons,  J.,  did  not  sit.    The  others  concurred. 


SHEFFIELD  WATERWORKS  v.  YEOMANS. 

(In  Chancery,  1S66.     L.  R.  2  Ch.  App.  8.) 

The  bill  in  this  case  was  filed  against  John  Yeomans  and  five  De- 
fendants on  behalf  of  themselves  and  all  other  the  persons  named  in 
any  of  certain  pretended  certificates,  and  stated,  that  in  March,  1864, 
a  reservoir  belonging  to  the  Company  of  Proprietors  of  the  Sheffield 
Waterworks,  the  Plaintiffs  in  this  case,  burst,  and  occasioned  an  in- 
undation, whereby  many  persons  lost  their  lives  and  the  property  of 
very  numerous  persons  was  damaged.  That,  by  the  Sheffield  Water- 
works Act,  1864,  commissioners  were  appointed  who  were  to  inquire 
into  the  damages  occasioned  by  the  inundation,  and  any  person  claim- 
ing damages  under  the  Act  was  directed  to  lodge  a  statement  of  his 
claim  at  the  office  of  the  commissioners.  Where  on  any  claim  dam- 
ages were  assented  to  by  the  company,  or  assessed  by  the  commis- 
sioners, the  costs  of  the  claimants  were  to  be  borne  and  paid  by  the 
company,  and  the  commissioners  were  to  certify  accordingly.  All 
such  costs  were  to  be  payable  by  the  company  at  the  expiration  of 
six  months  after  the  making  of  the  commissioners'  general  certificate, 
but  were,  in  case  of  difference  to  be  taxed  and  settled  on  production 


1150  BILLS   OF   PEACE  (Ch.  5 

of  a  certificate  of  the  commissioners  by  a  Master  of  a  Superior  Court 
of  law  at  Westminster.  If  any  costs  payable  under  the  Act  were 
not  paid  within  twenty-eight  days  after  demand  in  writing,  the  cer- 
tificate of  the  commissioners  respecting  such  costs  should  have  the 
effect,  as  against  the  company,  of  a  judgment  recovered  for  the 
amount  of  such  costs.  That  the  claimants  for  compensation  under 
the  Act  were  7,315. in  number,  and  many  of  them  were  poor  and  ig- 
norant, and  employed  improper  persons  to  represent  them ;  and  the 
commissioners,  therefore,  made  a  regulation  that  no  certificate  should 
be  issued  except  to  the  claimant  in  person.  That  there  was  a  differ- 
ence of  opinion  between  the  commissioners  as  to  whether  the  powers 
of  the  commissioners  had  not  expired,  and  1500  certificates,  which  the 
Plaintiffs  alleged  to  be  invalid,  were  delivered  by  some  of  the  com- 
missioners to  the  Defendant  John  Yeomans,  the  town  clerk  of  Shef- 
field. That  unless  the  Court  interfered,  the  Defendant  John  Yeomans, 
and  other  persons  by  his  permission,  would  produce  these  invalid  cer- 
tificates and  have  them  taxed,  whereupon  judgment  would  be  issued, 
and  such  proceedings  would  seriously  prejudice  the  Plaintiffs,  by 
compelling  them  to  defend  themselves  on  very  numerous  improper 
taxations,  occasioning  them  very  large  costs  and  expenses.  That  the 
question  whether  these  certificates  were  valid  or  invalid  was  the  same 
as  to  all  of  them,  and  that  the  persons  named  therein  were  too  numer- 
ous to  be  made  Defendants,  but  were  properly  represented  by  five  of 
them,  who  were  named  as  Defendants. 

And  the  bill  prayed  that  the  Defendant  John  Yeomans  might  be  re- 
strained from  delivering  these  certificates  except  as  the  Court  should 
direct,  and  that  the  Defendants  and  all  other  persons  named  in  any 
of  these  certificates  might  be  restrained  from  having  them  taxed,  or 
procuring  any  taxation  or  judgment  against  the  Plaintiffs,  and  that 
all  these  certificates  might  be  delivered  up  to  be  cancelled,  and,  if  nec- 
essary, that  it  might  be  declared  that  the  same  were  invalid. 

To  this  bill  the  Defendants,  except  Yeomans,  demurred,  and  the 
Vice-Chancellor  Kindersley  overruled  the  demurrer.5     *     *     * 

Lord  Chelmsford,  L.  C.  The  Vice-Chancellor  appears  to  have  de- 
cided this  case  against  the  Defendants  on  two  grounds:  First:  That 
the  bill  was  a  bill  of  peace,  and  therefore  proper  in  its  form  and 
character.  Secondly  :  That  the  point  raised  by  the  demurrer  depended 
upon  questions  of  fact  which  had  to  be  proved,  and  that  ought  there- 
fore to  be  reserved  for  the  hearing.  His  Honour  accordingly  over- 
ruled the  demurrer,  reserving  to  the  Defendants  the  benefit  of  it  at  the 
hearing,  and  reserving  till  the  hearing  the  costs  of  the  demurrer. 

Perhaps,  strictly  speaking,  this  is  not  a  bill  of  peace,  as  the  rights 
of  the  claimants  under  the  alleged  certificates  are  not  identical ;  but 
it  appears  to  me  to  be  within  the  principle  of  bills  of  this  description. 
The  rights  of  the  numerous  claimants  for  costs  all  depend  upon  the 

■"•  The  statement  of  facts  is  abridged. 


Cll.  5)  BILLS   OF   PEACE  1151 

same  question — the  validity  of  certificates  sealed  under  the  circum- 
stances stated  in  the  bill.  Each  of  the  1500  persons,  if  he  obtained 
the  certificate  from  Mr.  Yeomans,  might  produce  it  to  a  Master  of 
one  of  the  Superior  Courts  of  common  law,  and  obtain  as  a  matter  of 
course  a  taxation  of  the  costs.  He  might  then  enter  up  judgment  and 
sue  out  execution,  and  no  application  could  be  made  in  any  of  the 
common  law  Courts  to  stop  the  proceedings,  although  it  may  turn  out 
in  the  result  of  this  suit  that  the  certificates  are  wholly  invalid.  It  is 
true  that,  if  the  certificates  have  no  validity,  a  motion  might  be  made 
in  the  Court  where  judgment  was  entered  up,  and  from  which  the 
execution  issued,  to  set  aside  that  execution,  bnt  not  until  consider- 
able expense  had  been  incurred,  and  possibly  after  the  same  course  of 
proceeding  to  judgment  and  execution  had  been  taken  by  many  of  the 
claimants.  It  seems  to  me  to  be  a  very  fit  case,  by  analogy,  at  least, 
to  a  bill  of  peace,  for  a  Court  of  equity  to  interpose  and  prevent  the 
unnecessary  expense  and  litigation  which  would  be  thus  occasioned, 
and  to  decide  once  for  all  the  validity  or  invalidity  of  the  certificates 
upon  which  the  claims  of  all  the  parties  depend. 

The  remaining  question  is,  whether  the  question  ought  to  be  decided 
upon  demurrer.  It  was  pressed  very  strongly  upon  me  that  this  was 
always  considered  to  be  a  matter  entirely  for  the  discretion  of  the 
Judge,  and  that  no  case  could  be  produced  in  which,  when  it  had  been 
determined  in  the  Court  below  that  the  question  ought  not  to  be  dis- 
posed of  upon  demurrer,  the  Appeal  Court  had  overruled  that  decision. 
Whether  any  such  case  can  be  found  or  not  (and  none  has  been 
produced),  it  seems  to  me  that  where  a  Judge  of  great  experience  and 
judgment  has  arrived  at  the  conclusion  that  a  case  ought  not  to  be 
decided  upon  demurrer,  whether  on  account  of  its  importance,  or  by 
reason  of  facts  and  circumstances,  which  he  considered  necessary  to 
be  found  in  order  satisfactorily  to  decide  the  question  raised  by  the 
bill,  it  would  not  be  a  proper  exercise  of  the  authority  of  an  appellate 
Court  to  overrule  this  decision,  unless  it  was  satisfied  that  the  whole 
case  was  open  upon  the  demurrer.  I  agree,  however,  with  the  Vice- 
Chancellor,  that  the  question  of  the  validity  of  the  certificates  for 
costs  is  not  capable  of  a  satisfactory  determination  without  the  proof 
of  facts  which  are  not  admitted  by  the  demurrer,  and  I  must  decline 
to  anticipate  such  proof  by  deciding  the  case  upon  the  pleadings  as 
they  stand ;  therefore,  the  Vice-Chancellor's  order  appealed  from 
must  be  affirmed,  and  the  appeal  dismissed  with  costs. 


1152  BILLS   OF   PEACE  (Cll.  5 


CITY  OF  HUTCHINSON  v.  BECKHAM. 

(Circuit  Court  of  Appeals  of  the  United  States,  Eighth  Circuit,  1902. 
118  Fed.  399,  55  C.  C.  A.  333.) 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the  District 
of  Kansas. 

On  September  5,  1901,  James  H.  Beckham  and  James  G.  Mc- 
Knight,  the  appellees,  exhibited  a  bill  of  complaint  against  the  city  of 
Hutchinson,  in  the  state  of  Kansas,  et  al.,  in  the  circuit  court  of  the 
United  States  for  the  district  of  Kansas,  wherein  they  averred,  in 
substance,  that  they  were  engaged  in  business  at  Kansas  City,  in  the 
state  of  Missouri,  of  which  latter  state  they  were  residents  and  cit- 
izens, as  "wholesalers  and  jobbers  of  groceries" ;  that  their  store- 
rooms and  offices  were,  and  for  a  long  time  had  been,  located  at  Kan- 
sas City,  Mo. ;  that  they  were  engaged  in  interstate  commerce,  it 
having  been  their  practice  for  a  long  time  to  sell  groceries  in  many 
cities  and  towns  in  the  state  of  Kansas  and  elsewhere,  and  particu- 
larly to  retail  grocers  doing  business  in  the  city  of  Hutchinson,  Kan., 
and  in  that  vicinity ;  that  in  order  to  make  a  speedy  delivery  of  goods 
sold  in  the  latter  city,  after  they  were  ordered,  they  had  theretofore 
established  and  still  continued  to  maintain  a  depot  for  the  storage  of 
groceries  in  original  packages  in  the  city  of  Hutchinson,  which  depot 
was  in  charge  of  an  agent  of  the  complainants,  who  represented  them 
in  said  city  and  vicinity.  *  *  *  The  bill  further  averred,  in  sub- 
stance, that  the  city  of  Hutchinson,  acting  by  its  mayor  and  council- 
men,  on  June  25,  1900,  had  enacted  a  certain  ordinance  by  the  terms 
of  which  a  license  tax  in  the  sum  of  $1,200  per  annum  was  imposed 
upon  the  complainants  as  well  as  upon  other  jobbers  who  had  goods 
stored  in  the  city  of  Hutchinson  for  distribution  to  retail  dealers,  but 
who  did  not  keep  and  maintain  their  principal  office  for  the  transaction 
of  business  in  said  city  ;  that  by  the  terms  of  said  ordinance  no  persons 
engaged  as  jobbers  of  merchandise  who  did  maintain  their  principal 
office  in  the  city  of  Hutchinson,  and  did  store  goods  therein  for  dis- 
tribution to  retail  dealers,  were  required  to  pay  said  license  tax,  but 
were  wholly  exempt  therefrom;  that  on  August  1,  1900,  the  first  sec- 
tion of  said  ordinance  was  amended  so  as  to  provide  that  licenses 
issued  thereunder  by  the  city  should  expire  on  the  last  day  of  June 
and  the  last  day  of  December  next  after  they  were  issued,  and  that 
the  license  fee  should  be  at  the  rate  of  $1,200  per  year,  or  $100  per 
month.  *  *  *  It  was  further  averred  that  the  complainants  were 
liable  to  be  proceeded  against  and  compelled  to  pay  a  fine  of  not  less 
than  $10  nor  more  than  $100,  and  to  stand  committed  until  the  fine 
was  paid,  or  to  be  con  lined  in  the  city  jail  not  less  than  10  days  nor 
more  than  30  days,  or  to  suffer  both  fine  and  imprisonment,  in  the 
discretion  of  the  police  judge,  if  they  failed  to  comply  with  the  provi- 
sions of  said  ordinance ;    that,  by  reason  of  the  complainants'  failure 


Ch.  5)  BILLS   OF   PEACE  1153 

to  comply  with  the  provisions  of  said  ordinance,  the  defendant  city 
had  instituted  criminal  proceedings  against  their  agents,  and  caused 
them  to  be  imprisoned,  and  had  threatened  and  were  about  to  insti- 
tute a  great  number  of  other  like  prosecutions  against  them,  and  to 
daily  apprehend  and  imprison  the  complainants'  agents  until  they  com- 
plied with  the  provisions  of  the  ordinance.  In  view  of  the  premises, 
the  complainants  charged  that  the  aforesaid  ordinance  was  wholly 
illegal  and  void,  and  they  prayed  that  the  court  would  by  its  decree 
so  declare,  and  perpetually  enjoin  the  defendants  from  attempting  to 
enforce  the  provisions  thereof.  The  defendants  below  filed  a  general 
demurrer  to  the  bill,  which  was  overruled.  Thereupon  the  defendants 
declined  to  plead  further,  and  a  final  decree  was  entered  in  favor  of 
the  complainants  below,  granting  the  relief  prayed  for.  From  such 
decree  the  defendants  prosecuted  an  appeal  to  this  court. 

Before  Sanborn  and  Thayer,  Circuit  Judges,  and  Lochren,  Dis- 
trict Judge. 

Thayer,  Circuit  Judge,6  after  stating  the  case  as  above,  delivered 
the  opinion  of  the  court. 

The  decree  below  is  challenged  in  this  court  on  two  grounds  only, 
the  first  and  principal  contention  being  that  the  lower  court  had  no 
jurisdiction  of  the  controversy  because  the  amount  involved  was,  as 
it  is  said,  less  than  $2,000,  exclusive  of  interest  and  costs.  Incidentally 
it  is  also  claimed  that  the  complainants  had  an  adequate  remedy 
at  law,  and  no  right,  for  that  reason,  to  appeal  to  a  court  of  chan- 
cery for  relief.  Inasmuch  as  no  attempt  has  been  made  in  the  argu- 
ment to  defend  the  validity  of  the  ordinance,  and  as  counsel  for  the 
city  have  based  their  right  to  a  reversal  wholly  on  the  two  grounds 
above  stated,  we  shall  assume  that  the  ordinance  is  invalid,  as  the 
lower  court  held,  and  proceed  to  inquire  whether  the  amount  in- 
volved was  sufficient  to  confer  jurisdiction  and  whether  the  case  was 
properly  cognizable  by  a  court  of  equity. 

Concerning  the  last  of  these  questions,  which  will  be  noticed  first, 
it  is  quite  sufficient  to  say  that  the  complaint  which  was  filed  in  the 
lower  court  may  be  appropriately  termed  a  "bill  of  peace."  Story, 
Eq.  Jur.  §§  852,  853.  It  was  filed  to  obtain  a  definite  determination 
that  the  ordinance  complained  of  was  void,  also  to  prevent  harassing 
litigation,  and  to  establish  the  complainants'  right  to  transact  busi- 
ness in  the  city  of  Hutchinson,  as  it  had  been  doing  for  some  years, 
without  complying  with  the  terms  of  the  ordinance.  One  paragraph 
of  the  bill,  as  heretofore  shown,  alleged  that  the  city  authorities,  for 
the  purpose  of  enforcing  compliance  with  the  ordinance,  had  already 
caused  the  arrest  of  their  agents,  and  were  threatening  to  make  fur- 
ther like  arrests,  and  to  institute  numerous  criminal  prosecutions,  and 
thereby  prevent  them  from  receiving,  storing,  and  making  speedy  de- 

<;  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 
BokeEq. — 73 


1154  BILLS   OF  PEACE  (Ch.  5 

liveries  of  goods,  as  had  been  their  habit.  Now,  conceding  that  the 
validity  of  the  ordinance  might  have  been  tried  in  any  one  of  the 
criminal  prosecutions  thus  brought  by  the  city,  yet,  as  the  right  of 
appeal  existed  from  any  judgment  which  might  have  been  rendered 
therein,  it  is  apparent  that  months,  and  possibly  some  years,  might 
have  elapsed  before  the  invalidity  of  the  ordinance  would  have  been 
definitely  established,  and  that  in  the  meantime  the  complainants 
might  and  probably  would  have  been  compelled  to  defend  a  multi- 
tude of  suits,  and  submit  to  daily  interruptions  of  their  business, 
which  would  have  proven  to  be  very  annoying,  and  probably  dis- 
astrous. In  such  a  case,  the  rule  that  a  suit  in  equity  will  not  lie  to 
restrain  the  collection  of  an  illegal  tax,  merely  on  the  ground  of  its 
illegality,  does  not  apply,  because  circumstances  are  alleged  which 
show  that  if  left  to  their  remedy  at  law  the  complainants  would  prob- 
ably be  subjected  to  numerous  prosecutions,  besides  sustaining  great 
and  irreparable  loss  in  the  prosecution  of  their  business.  When,  in 
addition  to  the  fact  that  an  illegal  tax  has  been  imposed,  it  further 
appears  that  the  persons  or  corporations  upon  whom  it  is  imposed 
will  be  called  upon  to  defend  a  multitude  of  suits,  or  that  they  will 
sustain  great  injury  if  the  state  or  municipality  is  left  free  to  enforce 
the  tax  by  the  usual  remedies,  courts  of  equity  never  hesitate  to 
assume  jurisdiction  and  grant  injunctions  against  those  who  are  seek- 
ing to  enforce  the  collection  of  the  tax  if  it  appears  to  be  clearly 
illegal.  Dows  v.  City  of  Chicago,  11  Wall.  108,  110,  20  L.  Ed.  65; 
Railway  Co.  v.  Cheyenne,  113  U.  S.  516,  525,  5  Sup.  Ct.  601,  28  L. 
Ed.  1098;  City  of  Ogden  v.  Armstrong,  168  U.  S.  224,  239,  240,  18 
Sup.  Ct.  98,  42  L.  Ed.  444 ;  Heywood  v.  City  of  Buffalo,  14  N.  Y. 
534.     *     *     * 

The  decree  below  is  accordingly  affirmed. 


Ch.  6)  BILLS  QUIA   TIMET  Hoi 

CHAPTER  VI 
BILLS  QUIA  TIMET 


MARTIN  et  al.  v.  GRAVES  et  ux. 
(Supreme  Judicial  Court  of  Massachusetts,  1S63.     5  Allen,  601.) 

Bill  in  equity  by  the  residuary  devisees  of  John  Sparhawk,  de- 
ceased, alleging  that  the  defendants  through  fraud  and  undue  influence 
procured  from  Sparhawk  in  his  lifetime,  without  consideration,  the 
execution  of  a  deed  of  land  to  Sarah  Graves,  the  female  defendant, 
in  which  the  right  of  occupying  the  premises  was  reserved  to  Spar- 
hawk and  his  wife,  during  their  joint  lives  and  the  life  of  the  survivor 
of  them ;  and  that  the  defendants  have  refused  to  deliver  up  or  can- 
cel the  deed,  but  claim  title  to  the  premises,  subject  to  the  life  estate 
of  the  widow  of  Sparhawk.     The  defendants  filed  a  general  demurrer. 

J.  H.  Robinson,  for  the  defendants.  The  plaintiffs  have  a  plain, 
adequate  and  complete  remedy  at  law.  Somes  v.  Skinner,  16  Mass. 
348;  Pool  v.  Lloyd,  5  Mete.  525;  Pease  v.  Pease,  8  Mete.  395;  Wil- 
son v.  Leishman,  12  Mete.  316;  Woodman  v.  Saltonstall,  7  Cush. 
181. 

Mp.rrick,  J.  The  defendants  contend  that  upon  the  facts  stated  in 
the  bill  the  plaintiffs  have  a  plain,  adequate  and  complete  remedy  at 
law,  and  therefore  that  their  demurrer  must  be  sustained.  It  is  true 
that  if  the  defendants  were  in  possession  of  the  premises  described 
in  the  bill,  claiming  title  thereto,  and  a  right  to  exclude  the  plain- 
tiffs therefrom,  under  and  by  virtue  of  the  deed  from  John  Sparhawk 
to  Sarah  Graves,  and  that  the  validity  of  this  deed  constituted  the 
only  matter  in  controversy  between  the  parties,  the  plaintiffs  would  be 
afforded  in  proceedings  at  law  an  ample  and  perfect  remedy.  If  they 
could  successfully  contest  the  validity  of  that  deed  by  showing  that 
it  was  obtained  by  fraud  and  imposition  practised  upon  the  grantor, 
they  could  recover  judgment  for  possession  of  their  respective  shares 
of  the  estate  either  in  a  writ  of  entry  or  under  a  petition  for  partition. 
And  the  rendition  of  a  final  judgment  in  their  favor  upon  either  of 
those  processes  would  effectually  protect  them  against  any  alienation 
which  might  be  made  after  the  commencement  and  during  the  penden- 
cy of  such  proceedings.  Thayer  v.  Smith,  9  Mete.  469 ;  Woodman 
v.  Saltonstail,  7  Cush.  181;  Pratt  v.  Pond,  5  Allen,  59;  Clark  v. 
Jones,  5  Allen,  379. 

But  it  appears  from  the  allegations  in  the  bill  that  in  fact  the  de- 
fendants are  not  in  possession  of  the  premises.     In  the  deed  of  John 


1156  BILLS   QUIA  TIMET  (Ch.  6 

Sparhawk  to  Sarah  Graves  he  expressly  reserved  to  himself  and  to 
his  wife  the  right  to  live  upon  and  occupy  the  same  during  their 
joint  lives,  and  the  life  of  the  survivor  of  them.  And  the  plaintiffs 
aver  that  they  have  requested  the  said  Sarah  and  Samuel  to  give  up 
and  cancel  said  deed,  and  to  convey  the  premises  to  them,  but  that 
the  defendants  refuse  to  do  so,  and  claim  title  thereto,  subject  to  the. 
life  estate  of  the  widow  of  John  Sparhawk.  From  these  averments  it 
appears  that  the  defendants  claim  only  a  reversionary  interest  in  the 
estate,  that  they  are  not  in  the  occupation,  and  have  no  right  to  the 
present  possession  of  it.  Under  such  circumstances,  the  plaintiffs  can- 
not maintain  against  them  either  a  writ  of  entry,  or  a  process  under 
the  statute  for  partition.  Their  only  effectual  remedy,  therefore, 
must  at  this  time  be  by  a  bill  in  equity;  and  otherwise  they  might 
be  without  adequate  relief.  Whenever  a  deed  or  other  instrument 
exists  which  may  be  vexatiously  or  injuriously  used  against  a  party 
after  the  evidence  to  impeach  or  invalidate  it  is  lost,  or  which  may 
throw  a  cloud  or  suspicion  over  his  title  or  interest,  and  he  cannot 
immediately  protect  or  maintain  his  right  by  any  course  of  proceed- 
ings at  law,  a  court  of  equity  will  afford  relief  by  directing  the  instru- 
ment to  be  delivered  up  and  cancelled,  or  by  making  any  other  decree 
which  justice  and  the  rights  of  the  parties  may  require.  2  Story  on 
Eq.  §  694. 

It  is  therefore  clear  that  the  objection  taken  by  the  defendants  to 
the  maintenance  of  the  bill  cannot  be  sustained,  and  that  their  demur- 
rer must  be  overruled.1 


BISHOP  v.  MOORMAN  et  al. 

(Supreme  Court  of  Indiana,  1884.     9S  Ind.  1,  49  Am.  Rep.  731.) 

Elliott,  C.  J.  The  complaint  of  the  appellant  alleges  that  the  sher- 
iff is  about  to  levy  upon  lands  owned  by  him  an  execution  issued  upon 
a  judgment  rendered  against  other  persons,  and  in  an  action  to  which 
he  was  not  a  party.  TIt3  prayer  is  for  an  injunction  restraining  the 
sheriff,  one  of  the  appellees,  from  selling  the  land. 

i  See  6  Pomeroy's  Equity  Jurisprudence,  §  725:  "The  distinction  between 
these  (suits  in  chancery  to  quiet  title  in  the  nature  of  bills  of  peace)  and  suits 
to  remove  a  cloud  is  not  always  observed.  The  equitable  relief  to  remove  a 
cloud  from  title  is  'granted  on  tbe  principle  quia  timet,'  that  is,  that  the  deed 
or  other  instrument  or  proceeding  constituting  the  cloud  may  be  used  to  in- 
juriously or  vexatiously  embarrass  or  affect  a  plaintiff's  title" — citing  Hager 
v.  Shindler,  29  Cal.  55,  as  follows:  "A  bill  quia  timet  or  to  remove  a  cloud 
from  the  title  of  real  estate  differed  from  a  bill  of  peace  in  that  it  did  not 
seek  so  much  to  put  an  end  to  vexatious  litigation  respecting  the  property,  as 
to  prevent  future  litigation  by  removing  existing  causes  of  controversy  as  to 
its  title.  It  was  brought  in  view  of  anticipated  wrongs  or  mischiefs,  and  the 
jurisdiction  of  the  court  was  invoked  because  the  party  feared  future  injury 
to  his  rigbts  and  interests.  To  maintain  a  suit  of  that  character  it  was  gen- 
erally necessary  that  the  plaintiff  should  be  in  possession,  and  except  where 
the  defendants  were  numerous,  t li.it  bis  title  should  have  been  established  at 
law  or  be  founded  on  undisputed  evidence  or  long  continued  possession." 


Ch.  6)  BILLS   QUIA   TIMET  1157 

The  appellant  contends  that  his  land  can  not  be  sold  upon  a  judg- 
ment and  execution  against  other  persons,  and  that  he  is  entitled  to  an 
injunction  restraining  the  sheriff  from  selling,  for  the  reason  that  the 
sale  would  cast  a  cloud  upon  his  title.  The  appellees'  position  is  that 
no  case  for  injunction  is  made  because  the  sale  would  be  void,  and  a 
void  sale  would  not  cloud  the  title. 

It  is  perfectly  clear  that  the  appellant's  land  can  not  be  sold  to  pay 
somebody  else's  debt,  but  it  does  not  follow  from  this  that  he  has  no 
right  to  enjoin  the  sheriff  from  selling  his  land.  There  can  be  but  lit- 
tle, if  indeed  any,  doubt  at  all,  that  under  our  decisions  a  case  is  made 
for  an  injunction,  for  they  uniformly  hold  that  a  land-owner  may  re- 
strain an  officer  from  doing,  under  color  of  official  authority,  an  act 
that  may  injure  the  marketable  value  of  his  title  by  clouding  it.  This 
principle  has  found  most  frequent  application  in  cases  of  threatened 
sales  for  taxes,  and  the  uniform  ruling  in  such  cases  has  been  that  a 
sale  for  a  tax  absolutely  void  will  be  enjoined.  Greencastle  Tp.  v. 
Black,  5  Ind.  557;  Riley  v.  Western  Union  Tel.  Co.,  47  Ind.  511 ;  Ab- 
bott v.  Edgerton,  53  Ind.  196;  City  of  Delphi  v.  Bowen,  61  Ind.  29; 
Morrison  v.  Bank  of  Commerce,  81  Ind.  335 ;  Toledo,  etc.,  R.  R.  Co. 
v.  City  of  Lafayette,  22  Ind.  262 ;  Hamilton  v.  Amsden,  88  Ind.  304 ; 
Eversole  v.  Cook,  92  Ind.  222 ;  Goring  v.  McTaggart,  92  Ind.  200. 
We  have  a  great  number  of  cases  holding  that  void  assessments  for 
ditches,  gravel  roads,  and  the  like,  may  be  enjoined,  and  there  are  many 
cases  holding  that  the  enforcement  of  a  void  judgment  may  be  pre- 
vented by  injunction.  It  is  impossible  to  distinguish  in  principle  be- 
tween cases  of  the  character  to  which  we  have  referred  and  such  a  case 
as  the  present,  and  they  should  be  regarded  as  decisive  of  the  question 
here  at  issue,  but  we  have  cases  even  more  closely  resembling  the  pres- 
ent. In  Shaw  v.  Williams,  87  Ind.  158,  44  Am.  Rep.  756,  it  was  held 
that  a  sale  upon  an  illegal  notice  might  be  enjoined,  and  in  Dyer  v. 
Armstrong,  5  Ind.  437,  it  was  said:  "Sales  may  be  restrained  in  all 
cases,  where  they  are  inequitable."  An  injunction  will  lie  to  restrain 
the  collection  of  a  judgment  obtained  without  notice.  Grass  v.  Hess, 
37  Ind.  193. 

The  sale  of  land  under  color  of  judicial  process  is  more  than  a  mere 
fugitive  trespass ;  it  is  the  assertion  of  a  permanent  right  to  the  land 
and  a  full  denial  of  the  owner's  title,  and  the  rule  is,  that  where  there 
is  an  assertion  of  a  permanent  right  to  land  the  owner  may  maintain 
injunction  if  the  right  asserted  is  unfounded.  Erwin  v.  Fulk,  94  Ind. 
235  ;  Kyle  v.  Board,  etc.,  94  Ind.  115.  An  assertion  of  a  right  to  seize 
land,  when  made  under  color  of  official  authority,  clouds  title,  and  it 
has  always  been  a  well  recognized  equity  doctrine  that  injunction  will 
lie  to  prevent  clouds  from  being  cast  upon  an  owner's  title.  It  is  true 
that  there  are  decisions  of  other  courts  holding  that  where  the  act, 
though'  done  under  color  of  authority  is  void,  no  cloud  is  created,  and, 
therefore,  injunction  will  not  lie;  but  the  theory  of  our  cases  has  al- 
ways been  that  a  void  act,  when  done  under  apparent  legal  authority, 


1158  BILLS   QUIA   TIMET  (Ch.  6 

does  cloud  title.  This  rule  is  supported  by  weighty  authority,  and  is  a 
reasonable  one.  It  can  not  be  doubted  that  a  man's  title  is,  as  to  its 
marketable  value,  injured  by  the  deed  of  a  sheriff  conveying  it  to  some 
one  else,  and  a  man  having  a  title  is  entitled  to  it  in  all  its  vigor  and 
value.  Xo  reason  in  law  or  morals  can  be  found  that  will  justly  sup- 
port the  position  of  one  who  resists  an  injunction,  where  he  concedes 
he  is  acting  under  color  of  authority,  but  in  fact  has  none,  and  is  using 
that  authority  to  seize  and  sell  without  right,  or  the  semblance  of  justi- 
fication, the  land  of  another.  Xo  one.  we  suppose,  doubts  that  a  prop- 
erty owner  may  quiet  his  title  against  an  apparent  claim,  though  it  be 
never  so  empty,  and  if  he  may  do  this,  surely  he  may  by  injunction  pre- 
vent that  apparent  claim  from  clouding  his  title,  without  delaying  until 
it  has  assumed  that  shape. 

An  able  author  has  given  this  subject  careful  consideration,  and  he 
fully  sustains  the  doctrine  which  has  found  favor  from  this  court.  In 
speaking  of  the  opposite  view,  he  says : 

"While  this  doctrine  may  he  settled  by  the  weight  of  authority,  I  must  ox- 
press  the  opinion  that  it  often  operates  to  produce  a  denial  of  justice.  It 
leads  to  the  strange  scene,  almost  daily,  in  courts,  of  defendants  urging  that 
the  instruments  under  which  they  claim  are  void,  and  therefore  that  they 
ought  to  be  permitted  to  stand  unmolested ;  and  of  judges  deciding  that  the 
court  can  not  interfere  because  the  deed  or  other  instrument  is  void;  while 
from  a  business  point  of  view,  every  intelligent  person  knows  that  the  instru- 
ment is  a  serious  injury  to  the  plaintiff's  title,  greatly  depreciating  its  market 
value ;  and  the  judge  himself,  who  repeats  the  rule,  would  neither  buy  the 
property  while  thus  affected,  nor  loan  a  dollar  upon  its  security.  This  doc- 
trine is,  in  truth,  based  upon  a  mere  verbal  logic,  rather  than  upon  considera- 
tions of  justice  and  expediency."    3  Porneroy,  Eq.  §  1303. 

It  is  argued  that  the  appellant's  legal  remedy  is  perfect  and  complete, 
and  therefore  he  has  no  right  to  ask  the  assistance  of  a  court  of  equity. 
This  entire  argument  rests  on  an  undue  assumption.  The  law,  using 
that  term  in  a  limited  sense  and  as  opposed  to  equity,  furnishes  no  rein- 
ed)- for  quieting  title.  One  in  possession  could  secure  a  decree  quieting 
title  only  from  a  court  of  chancery,  and  never  from  a  court  of  law ; 
in  such  cases  no  remedy  at  all  was  obtainable  from  the  common  law 
courts.  An  action  of  trespass  might  give  damages,  but  it  could  not 
clear  title.  There  is,  therefore,  no  adequate  legal  remedy.  The  rule 
upon  this  subject  is  thus  stated  by  the  Supreme  Court  of  the  United 
States : 

"It  is  not  enough  that  there  is  a  remedy  at  law;  it  must  be  plain  and  ade- 
quate, or  in  other  words,  as  practical  and  efficient  to  the  ends  of  justice,  and 
its  prompt  administration,  as  the  remedy  in  equity."  Watson  v.  Sutherland, 
5  Wall.  74,  18  L.  Ed.  580. 

In  many  cases  this  rule  has  been  adopted  and  enforced  by  this  court. 
English  v.  Smock,  34  Ind.  115,  7  Am.  Rep.  215,  vide  opinion  page  124; 
Elson  v.  O'Dowd,  40  Ind.  300,  vide  opinion  page  302 ;  Clark  v.  leffer- 
sonville,  etc.,  R.  R.  Co.,  44  Ind.  248;  Thatcher  v.  Humble,  67  Ind. 
444;  Spicer  v.  Hoop,  51  Ind.  365,  see  page  370;  Bonnell  v.  Allen,  53 
Ind.  130.  The  principle  involved  in  the  rule  stated  has  been  carried 
much  further  than  it  is  necessary  for  us  to  carry  it  in  this  case.    Thus, 


Gl.  6)  BILLS   QUIA   TIMET  1159 

it  has  been  held  that  an  injunction  will  lie  to  restrain  the  enforcement 
of  a  judgment  shown  by  the  record  to  have  been  annulled.  Rickets  v. 
Hitchens,  34  Ind.  348.  So,  it  has  been  held  that  a  sale  upon  a  judg- 
ment satisfied  of  record  will  be  enjoined.  Bowen  v.  Clark,  46  Ind.  405. 
A  tenant  by  entirety  may  enjoin  sale  upon  a  judgment  against  his  co- 
tenant  of  the  land  owned  jointly,  although  the  record  discloses  the  char- 
acter of  the  title  and  the  nature  of  the  judgment.  Hulett  v.  Inlow,  57 
Ind.  412,  26  Am.  Rep.  64;  Davis  v.  Clark,  26  Ind.  424,  89  Am.  Dec. 
471. 

The  sale  of  property  not  subject  to  execution,  as,  for  instance,  the 
property  of  a  municipal  corporation,  may  be  enjoined.  President,  etc., 
v.  City  of  Indianapolis,  12  Ind.  620 ;  Lucas  v.  Board,  etc.,  44  Ind.  524, 
553.  Of  the  class  of  cases  just  mentioned  it  may  be  said  that  the  rec- 
ord much  more  clearly  discloses  the  fact  that  no  title  can  pass  than  in 
such  a  case  as  this,  for,  in  the  first  named  class  of  cases,  a  public  law 
notifies  the  world  that  no  title  can  pass  by  the  sale,  and  there  is,  there- 
fore, a  much  stronger  application  of  the  rule  in  such  cases  than  is  re- 
quired in  this.  In  the  case  of  First  Nat.  Bank  v.  Deitch,  83  Ind.  131, 
the  court  quoted,  with  approval  from  a  work  on  Injunctions,  the  fol- 
lowing : 

"And  it  may  he  asserted  as  a  general  proposition,  that  a  sale  of  lands  under 
execution,  which  would  confer  no  title  upon  the  purchaser,  and  whose  only 
effect  would  be  to  cloud  the  title  of  others,  will  be  enjoined."    1  High,  Inj.  242. 

In  view  of  the  cases  we  have  cited,  we  can  not  perceive  that  there 
can  be  any  doubt  that  the  controlling  question  in  this  case  has  been  set 
at  rest  in  this  State. 

Looking  to  the  decisions  of  other  courts,  we  shall  find  that  our  cases 
are  not  without  firm  support.  In  Key  City,  etc.,  Co.  v.  Munsell,  19 
Iowa,  305,  the  case  was  in  all  material  respects  precisely  like  that  under 
discussion,  and  it  was  held  that  injunction  was  the  appropriate  remedy. 
The  opinion  in  that  case  was  written  by  Judge  Dillon,  and  makes  clear 
the  right  there  adjudged  the  plaintiff.  The  Supreme  Court  of  Califor- 
nia, in  Hickman  v.  O'Neal,  10  Cal.  292,  said : 

"The  right  of  a  party  to  enjoin  a  sale  of  his  property  for  another's  debt  is 
not  denied,  and  is  supported  by  several  decisions  of  this  court." 

We  refer,  without  comment,  to  the  following  cases  as  sustaining  our 
views.  Bank  v.  Schultz,  2  Ohio,  471 ;  Norton  v.  Beaver,  5  Ohio,  178; 
Bennett  v.  McFadden,  61  111.  334;  Vogler  v.  Montgomery,  54  Mo.  577; 
Uhl  v.  May,  5  Neb.  157. 

The  case  of  Cartright  v.  Briggs,  41  Ind.  184,  is  not  in  point,  for  the 
facts  are  essentially  different  from  those  before  us.  In  that  case  the 
main  point  of  the  decision  is  that  the  plaintiff  had  no  title  to  the  land 
which  he  sought  to  prevent  the  auditor  from  selling.  The  decision  in 
Trueblood  v.  Hollingsworth,  48  Ind.  537,  in  so  far  as  it  is  in  point  at 
all,  is  against  rather  than  for  the  appellees;  for  the  clear  implication 
from  it  is,  that  a  sale  in  such  a  case  as  this  may  be  enjoined;  but  the 
point  really  decided  in  that  case  was,  that  the  complaint  was  insufficient 


11C0  BILLS   QUIA   TIMET  (Ch.  6 

because  it  did  not  state  such  facts  as  gave  color  of  authority  to  make 
the  sale,  and  only  alleged  "empty  threats."  When  the  case  cited  was 
again  before  this  court,  it  was  expressly  held  that  injunction  would  lie. 
Hollingsworth  v.  Trueblood,  59  Ind.  542.  The  decision  in  Mead  v. 
McFadden,  68  Ind.  340,  is  that  a  widow  can  not  enjoin  the  sale  of 
lands  of  the  husband  upon  executions  received  by  the  sheriff  during  the 
lifetime  of  the  husband,  and  is  not  in  point.  What  is  there  decided  is 
that  executions  bound  the  husband's  interest,  whatsoever  it  was,  and 
did  not  affect  the  widow's  rights,  and  that  the  lien  of  the  judgments 
was  paramount  to  the  widow's  claim  to  the  $500  allowed  by  law.  No 
one  of  these  cases  is  in  conflict  with  those  heretofore  cited ;  nor  can  ei- 
ther of  them  exert  any  influence  upon  the  decision  of  the  present  case. 

The  execution  plaintiffs  were  proper,  if  not  necessary,  parties  to  this 
action,  for  they  were  the  real  parties  in  interest,  and  it  was  proper  to 
bring  them  into  court  for  the  purpose  of  finally  determining  the  con- 
troversy. 

Judgment  reversed,  with  instructions  to  overrule  the  demurrers  to 
the  complaint. 


SCOTT  v.  ONDERDONK  et  al. 

(Court  of  Appeals  of  New  York,  1S56.    14  N.  Y.  9,  G7  Am.  Dec.  106.) 

Appeal  from  a  judgment  of  the  supreme  court  affirming  a  judgment 
of  the  city  court  of  Brooklyn  in  favor  of  the  plaintiff  on  a  demurrer 
to  the  complaint.  The  action  was  brought  in  March,  1852,  against  On- 
derdonk  and  the  city  of  Brooklyn.  The  complaint  stated  that  the  plain- 
tiff was  the  owner  of  two  lots  of  land  situate  in  the  city  of  Brooklyn ; 
that  in  November,  1848,  the  city  sold  the  lots  at  auction  to  pay  an  al- 
leged assessment  thereon  for  constructing  a  well  and  pump  in  one  of 
the  streets,  and  that  Onderdonk  became  the  purchaser  for  the  term  of 
a  thousand  years  at  the  price  of  $23.28;  andi  that  the  common  council 
of  the  city  executed  and  delivered  to  him  a  certificate  of  the  sale.  This 
certificate  was  set  out  in  the  complaint.  It  recited  the  making  of  the 
assessment,  the  proceedings  to  collect  the  same,  and  the  advertisement 
and  sale  of  the  lots  to  Onderdonk,  and  certified  that  at  the  expiration 
of  two  years  from  the  sale  he  would  be  entitled  to  a  conveyance  of  the 
premises  for  the  term  for  which  they  were  sold.  The  complaint  stated 
that  a  copy  of  the  certificate  was  in  March,  1849,  filed  in  the  clerk's  of- 
fice of  Kings  county,  and  entered  in  a  book  kept  by  the  clerk  where 
certificates  of  sales  of  land  for  taxes  were  entered ;   and  then  alleged : 

"That  no  such  assessment  or  tax  as  was  mentioned  in  the  certificate  had 
ever  been  made  and  confirmed;  that  the  proceedings  had  and  taken  by  the 
city  and  ils  officers  in  respect  to  laying  and  imposing  the  assessment,  the  con- 
firmation thereof  and  sale  were  irregular,  illegal,  defective  and  void;  that  the 
resolutions  of  the  common  council  passed  in  respect  to  the  assessment  and 
sale  were  not  presented  to  the  mayor  for  his  approval,  and  that  the  mayor 
did  not  approve  thereof  as  required  by  the  statute." 


Ch.  G)  BILLS   QUIA   TIMET 


1161 


It  was  further  stated  in  the  complaint  that  Onderdonk  claimed  that 
by  virtue  of  the  certificate  he  was  entitled  to  receive  from  the  city  a 
lease  of  the  premises  for  the  period  mentioned  therein,  but  that  as  yet 
no  lease  had  been  executed  to  him ;  that  as  the  plaintiff  was  advised 
the  certificate  by  reason  of  the  filing  and  entry  of  a  copy  thereof  in  the 
clerk's  office  was  presumptively  a  lien  upon  the  premises  or  showed  pre- 
sumptively a  power  in  some  one  other  than  the  plaintiff  to  create  an 
estate  therein,  whereas  in  fact  no  such  power  or  lien  existed,  and  the 
certificate  was  a  cloud  upon  his  title,  diminishing  the  value  of  the  prop- 
erty and  preventing  its  sale.  It  was  averred  that  the  defendant  Onder- 
donk, on  request  to  do  so,  had  refused  to  cancel  the  certificate  or  re- 
lease, his  pretended  rights  under  it.  The  defendant  Onderdonk  ap- 
peared and  demurred  to  the  complaint  on  the  ground  that  it  did  not 
state  facts  sufficient  to  constitute  a  cause  of  action.  The  city  court 
overruled  the  demurrer  and  gave  judgment  for  the  plaintiff,  setting 
aside  the  certificate  of  sale  and  directing  it  to  be  canceled,  declaring 
the  proceedings  and  sale  void,  requiring  Onderdonk  to  release  to  the 
plaintiff  his  pretended  claim  to  the  land,  and  perpetually  enjoining  the 
city  from  executing  any  conveyance  pursuant  to  the  sale.  On  appeal 
the  judgment  was  affirmed  by  the  supreme  court  in  the  second  district. 
The  defendant  Onderdonk  appealed  to  this  court. 

Dexio,  C.  J.2  The  substance  of  the  complaint  is,  that  without  hav- 
ing laid  an  assessment  affecting  the  plaintiff's  lots,  the  corporation  pro- 
ceeded to  sell  them  as  though  they  had  been  legally  assessed ;  that  the 
defendant  Onderdonk  became  the  purchaser  at  the  sale,  receiving  a 
certificate  of  the  purchase,  and  is  seeking  to  consummate  the  trans- 
action by  obtaining  a  conveyance  of  the  property  from  the  corporation 
for  a  long  term  of  years.  Though  it  is  improbable  that  the  sale  was 
made  without  the  pretense  of  a  valid  assessment,  the  defendants  have 
chosen  to  put  themselves  upon  the  naked  case  that  there  was  no  assess- 
ment ;  and  the  question  to  be  determined  is  whether,  conceding  such  a 
state  of  things  to  exist,  the  plaintiff,  before  he  has  been  actually  dis- 
turbed, is  entitled  to  maintain  this  action  and  to  have  a  judgment  ar- 
resting the  proceeding  and  setting  aside  what  has  been  done.  Ordi- 
narily a  party  must  wait  until  his  rights  have  been  actually  interfered 
with  before  he  can  implead  another  from  whom  he  anticipates  an  in- 
jury. But  there  are  several  exceptions  to  this  rule;  and  when  the  ju- 
risdiction in  law  and  equity  was  administered  in  different  courts  and 
by  different  forms  of  proceeding,  it  was  a  common  case  for  a  party 
to  appeal  to  a  court  of  equity  for  relief  against  an  apprehended  injury 
to  be  effected  by  his  adversary  by  some  act  in  pais  or  by  some  legal 
proceeding  which  he  could  not  defend  himself  against  upon  the  princi- 
ples of  the  common  law.  This  class  of  cases  has  been  narrowed  by  the 
law  abolishing  the  distinction  between  the  two  jurisdictions;  and  now, 
as  a  general  rule,  if  the  party  claiming  relief  has  a  good  defense,  wheth- 

-  Part  of  the  opinion  is  omitted. 


1162  BILLS   QUIA  TIMET  (Ch.  G 

er  it  be  of  a  legal  or  equitable  nature,  and  if  he  can  only  be  divested 
of  his  rights  by  some  suit  in  court  instituted  by  his  adversary,  he  must 
wait  until  he  is  thus  challenged,  when  he  will  be  in  time  to  bring  for- 
ward his  defense.     *     *     * 

There  is  a  principle  of  equity  which  remains  in  force  notwithstand- 
ing the  confusion  of  remedies,  by  which  a  person  may  in  certain  cases 
institute  a  suit  to  remove  a  claim  which  is  a  cloud  upon  the  title  to  his 
property.  Hamilton  v.  Cummings,  1  Johns.  Ch.  517;  Story's  Eq.  § 
700  et  seq.  If,  however,  the  claim  is  based  upon  a  written  instrument 
which  is  void  upon  its  face,  or  which  does  not  in  its  terms  apply  to  the 
property  it  is  claimed  to  affect,  there  seems  to  be  no  reason  for  enter- 
taining a  litigation  respecting  it,  before  it  is  attempted  to  be  enforced ; 
for  the  party  apprehending  danger  has  his  defense  always  at  hand.  In 
such  a  case  this  court  has  determined  that  n$  action  at  the  suit  of  the 
party  apprehending  injury  will  lie.  Cox  v.  Clift,  2  N.  Y.  118.  The 
same  reason  applies  to  cases  where  the  claim  requires  the  existence  of 
a  series  of  facts  or  the  performance  of  a  succession  of  legal  acts,  and 
there  is  a  defect  as  to  one  or  more  of  the  links.  The  party  must  in  gen- 
eral wait  until  the  pretended  title  is  asserted.  This  principle  is  also 
very  well  settled  by  authority.  Van  Dpren  v.  Mayor,  etc.,  of  New 
York,  9  Paige,  388;  Mayor,  etc.,  of  Brooklyn  v.  Meserole,  26  Wend. 
132.  In  both  these  classes  of  cases  the  party  whose  estate  is  questioned 
may  naturally  wish  to  have  the  matter  speedily  determined,  as  he  may 
in  the  mean  time  suffer  inconveniences  and  even  actual  damage  on  ac- 
count of  the  discredit  attaching  to  his  title  by  reason  of  the  unfounded 
claim.  But  unless  the  circumstances  are  such  as  to  sustain  an  action 
for  slander  of  title,  the  law  regards  the  injury  too  speculative  to  war- 
rant its  interference.  I  am  able,  therefore,  to  concur  in  the  views  of 
the  City  Court  of  Brooklyn,  contained  in  the  opinion  which  has  been 
laid  before  us,  to  the  effect  that  in  every  case  where  an  instrument  in 
the  hands  of  another  person  is  calculated  to  induce  the  belief  that  the 
title  of  the  plaintiff  is  invalid,  an  action  will  lie  to  set  it  aside.  In  this 
case,  therefore,  if  Onderdonk,  the  purchaser  at  the  corporation  sale,  in 
asserting  his  title  after  he  had  perfected  his  purchase,  would  be  obliged 
to  prove  the  laying  of  the  assessment  as  well  as  the  other  proceedings 
anterior  to  the  conveyance,  I  should  be  of  opinion  that  the  complainant 
had  not  established  a  case  for  relief.  Neither  the  proceedings  of  the 
corporation,  nor  the  conveyance  to  Onderdonk  when  obtained,  would 
constitue  such  a  cloud  upon  the  plaintiff's  title  as  is  contemplated  by 
the  rule.  It  would  be  impossible  for  Onderdonk  to  recover  the  posses- 
sion of  the  lots,  for  he  could  not  establish  the  existence  of  the  assess- 
ment, and  the  plaintiff  might  rest  in  perfect  safety.  But  the  45th  sec- 
tion of  the  charter  of  the  city  of  Brooklyn  provides  that  the  convey- 
ance under  such  a  sale  as  was  made  in  this  case,  which  is  to  be  exe- 
cuted under  the  corporate  seal,  shall  briefly  set  forth  the  proceedings 
had  for  the  sale  of  the  premises,  and  that  by  force  thereof  the  pur- 
chaser shall  be  entitled  to  the  possession  and  to  the  same  remedy  to 


Ch.  6)  BILLS   QUIA   TIMET  1163 

recover  such  possession  as  is  provided  by  law  for  the  removal  of  ten- 
ants who  hold  over  after  the  expiration  of  their  terms,  and  that  such 
"conveyance  shall,  in  any  such  proceeding,  be  deemed  prima  facie  evi- 
dence of  the  facts  therein  recited  and  set  forth."  Laws  1834,  p.  108. 
A  conveyance  properly  prepared  under  this  provision  would  recite  the 
ordinance  or  resolution  of  the  common  council  imposing  the  assess- 
ment, and  such  recital  would  be  presumptive  evidence  of  the  existence 
of  that  ordinance.  It  is  true  the  owner  of  the  land  would  be  at  liberty 
to  disprove  it  if  he  could  obtain  the  evidence ;  but  the  statute  contem- 
plates that  the  purchaser  shall  be  furnished  with  a  document  bearing' 
on  its  face  prima  facie  evidence  of  a  title  in  him,  and  can  only  be  im- 
peached by  proof  aliunde  of  the  falsity  of  its  recital.  The  authorities 
to  which  I  have  referred  admit  that  in  such  cases  the  party  is  not  com- 
pelled to  take  the  hazard  of  the  loss  of  his  evidence,  but  may,  while  it 
is  attainable,  call  the  party  holding  such  a  document  into  court  and 
have  the  matter  determined  at  once,  so  that  the  cloud  upon  his  title 
may  be  dispelled.  If  the  plaintiff  would  be  entitled  to  set  aside  a  con- 
veyance upon  the  facts  stated  in  the  complaint,  if  one  had  been  ob- 
tained, then,  inasmuch  as  the  purchaser  is  seeking  to  obtain  such  a  con- 
veyance and  the  corporation  of  Brooklyn  is  ready  to  execute  one,  as  is 
apparent  from  the  terms  of  the  certificate  of  sale,  it  is  right  that  they 
should  be  enjoined  from  proceeding  further  toward  that  object. 

For  the  single  reason,  therefore,  that  the  statute  gives  to  the  convey- 
ance the  effect  which  has  been  mentioned,  I  am  of  opinion  that  the  City 
Court  was  right  in  overruling  the  demurrer  and  giving  the  plaintiff  the 
relief  which  he  sought.     Judgment  affirmed. 


WATERBURY   SAVINGS    BANK  v.  LAWLER,    Tax   Collector. 
(Supreme  Court  of  Errors  of  Connecticut,  1878.     46  Conu.  243.) 

Bill  in  equity  for  an  injunction  ;  brought  to  the  City  Court  of  the 
city  of  Waterbury,  and  heard  before  Cowell,  J.  Facts  found  and  in- 
junction granted,  and  motion  in  error  by  the  respondent. 

Loomis,  J.3  The  City  Court  of  Waterbury  passed  a  decree  enjoin- 
ing the  respondent  as  tax  collector  from  levying  his  tax  warrant  on 
certain  land  of  the  petitioner,  and  from  selling  the  same  to  collect  sun- 
dry taxes  assessed  on  the  land  against  Richard  Vicars  while  he  owned 
an  equity  of  redemption  in  the  same  subject  to  a  mortgage  to  the  peti- 
tioner, and  the  respondent  seeks  by  motion  in  error  to  reverse  this  de- 
cree for  several  reasons  mentioned  in  his  assignment  of  errors,  which 
may  be  reduced  substantially  to  two : 

(1)  That  the  facts  found  by  the  court  show  that  the  taxes  in  ques- 
tion became  a  lien  on  the  lien  on  the  land  which  continued  more  than 

3  Tarts  of  the  opinion  are  omitted.       * 


1164  BILLS  QUIA   TIMET  (Ch.  G 

a  year  after  the  taxes  had  become  due,  notwithstanding  the  petitioner 
had  foreclosed  the  mortgage,  and  the  title  to  the  premises  had  become 
absolute  by  failure  of  the  respondent  to  redeem. 

(2)  That  the  remedy  by  injunction  will  not  lie  to  arrest  the  collection 
of  public  taxes. 

The  essential  facts  relative  to  the  first  point  are  as  follows:  The 
taxes  in  controversy  were  laid  on  the  annual  town  lists  during 
four  successive  years,  from  1872  to  1875,  inclusive,  and  were  duly  as- 
sessed upon  the  land  against  Vicars,  while  he  was  the  owner  of  the 
equity  of  redemption  subject  to  a  mortgage  to  the  petitioner,  and  was 
in  possession  of  the  premises. 

As  Vicars  had  no  other  property  the  taxes  were  legally  collectible 
out  of  this  land  unless  the  facts  hereafter  mentioned  show  a  transfer 
of  the  land  more  than  one  year  after  the  taxes  had  become  due.  The 
petitioner,  in  March,  1877,  obtained  a  decree  of  foreclosure,  and  in 
April  of  the  same  year,  more  than  a  year  after  all  the  taxes  in  question 
had  become  due,  the  title  to  the  premises  became  absolute  in  the  peti- 
tioner. And  after  this,  in  the  month  of  August,  1877,  the  respondent 
first  undertook  to  collect  the  taxes  by  levying  his  tax  warrant  on  the 
land. 

The  precise  legal  question  which  arises  on  the  facts  just  stated  is, 
whether  the  foreclosure  of  a  mortgage,  and  the  title  becoming  absolute 
in  the  mortgagee  by  neglect  of  the  owner  of  the  equity  to  redeem,  con- 
stitute a  transfer  of  the  land  mortgaged  within  the  meaning  of  the 
General  Statutes  of  1875.     *     *     * 

We  conclude  therefore  that  the  respondent  had  no  right  to  collect 
the  taxes  in  question  out  of  the  land  described,  and  that  there  was  no 
error  in  the  decision  of  the  court  below  in  this  regard. 

And  this  brings  us  to  the  second  question — whether  the  threatened 
wrong  can  be  prevented  by  injunction. 

This  extraordinary  preventive  remedy  of  a  court  of  equity  is  here 
invoked  upon  the  ground,  mainly  that  the  proceedings  already  com- 
menced by  the  levy  of  the  tax  warrant,  if  allowed  to  be  completed, 
would  embarrass  and  becloud  the  petitioner's  title  in  the  land  described 
and  diminished  its  value. 

A  cloud  upon  one's  title  is  something  which  shows  prima  facie  some 
right  of  a  third  person  to  it.  And  in  this  case,  as  the  illegality  of  col- 
lecting the  taxes  out  of  the  identical  property  assessed  would  not  ap- 
pear on  the  face  of  the  record  of  the  proceedings  relative  to  the  laying 
and  collecting  of  the  taxes,  a  prima  facie  right  in  a  third  person  who 
should  receive  a  deed  of  the  land  from  the  tax  collector  would  thereby. 
be  created,  which  would  bring  the  case  apparently  within  an  extensive 
branch  of  equity  jurisdiction.  "But,"  as  Ellsworth,  J.,  remarked  in 
giving  the  opinion  in  Munson  v.  Munson,  28  Conn.  586,  73  Am.  Dec. 
693,  ''the  power  is  not  exercised  as  a  matter  of  course,  nor  under  any 
universal  rule  or  principle  of  law  requiring  its  exercise.  It  is  preven- 
tive, as  we  have  said,  and  very  much  must  depend  upon  the  extent  and 


Ch.  6)  BILLS   QUIA   TIMET  1165 

imminence  of  the  danger  threatened,  and  the  view  which  will  be  taken 
of  the  case  by  a  discreet  judge." 

Although,  as  suggested,  the  facts  of  this  case  may  bring  it  within  the 
ordinary  definition  of  a  threatened  cloud  upon  the  plaintiff's  title,  by 
creating  a  prima  facie  right  which  must  be  overcome  by  evidence  ali- 
unde, yet  there  is  one  element  wanting,  which  in  this  class  of  cases 
always  calls  most  imperatively  for  equitable  interference.  I  refer  to 
the  fact  that  the  evidence  to  rebut  the  prima  facie  title  is  not  in  this 
case  liable  to  be  lost  by  the  unavoidable  death  of  witnesses,  or  any  oth- 
er cause  likely  to  happen ;  for  the  rebutting  facts  relied  upon,  to  wit, 
the  mortgage,  the  foreclosure,  and  the  date  when  the  plaintiff's  title 
became  absolute,  are  all  matters  of  record  and  easily  obtained.  So  that 
ultimately  the  petitioner  will  be  sure  to  vindicate  his  title  in  a  court  of 
law  and  successfully  defend  his  possession.  The  injury  to  be  appre- 
hended therefore  is  by  no  means  irreparable,  and  the  court  might  well 
act  upon  its  discretion  and  deny  the  injunction.     *     *     * 

We  therefore  advise  the  Superior  Court  that  there  was  error  in  the 
City  Court  in  deciding  that  an  injunction  would  lie,  and  that  the  decree 
of  that  court  be  reversed. 

In  this  opinion  the  other  Judges  concurred.4 

*  See  Whitney  v.  City  of  Port  Huron,  (1891),  88  Mich.  268,  50  N.  W.  316,  26 
Am.  St.  Rep.  291,  when  Morse,  J.,  speaking  for  the  court,  said,  in  part:  "The 
plaintiff  sues  to  recover  taxes  paid  by  her  under  protest  on  a  special  assess- 
ment levied  for  the  paving  of  Pine  Grove  avenue,  in  the  city  of  Port  Huron. 
She  had  judgment  in  the  court  below,  the  verdict  of  the  jury  being  directed 
by  the  circuit  judge  in  her  favor.    *     *     *  " 

It  is  also  claimed  that  her  payment  of  the  tax  was  voluntary.  The  tax  was 
paid  April  2,  1SS6,  and  across  the  face  of  the  receipt  was  written  as  follows: 
"Paid  under  protest,  to  protect  the  property  from  being  sold,  and  on  account 
of  taxes  being  illegal."  The  city  treasurer  had  advertised  the  plaintiff's  prop- 
erty for  sale,  and  she  had  the  right  to  presume  that  he  would  proceed  with  the 
sale.  The  fact  that  the  sale  would  have  conveyed  no  title  to  the  purchaser  on 
account  of  the  illegality  of  the  tax,  or  that  she  could  have  removed  the  cloud 
upon  her  title  caused  by  such  sale  by  legal  proceedings,  had  no  bearing  upon 
her  right  to  pay  the  tax  under  protest,  and  thereby  stop  the  sale.  Nor  was 
it  any  the  less  an  involuntary  payment  under  the  law.  *  *  *  If  the  citi- 
zen's property  is  threatened  with  seizure  under  a  tax-warrant,  or  his  real  es- 
tate is  advertised  for  sale  to  collect  delinquent  taxes,  he  is,  equally  in  both 
cases,  entitled  to  free  his  property  by  a  payment  of  the  tax  under  protest,  and 
such  payment  will  not  be  considered  voluntary.  It  was  held  in  Detroit  v.  Mar- 
tin, 34  Mich.  170,  22  Am.  Rep.  512,  that  one  who  has  full  knowledge  of  all 
facts,  being  conclusively  presumed  to  know  the  law,  is  presumed  to  know  that 
an  assessment,  laid  under  a  statute  which  is  unconstitutional  and  void,  cannot 
be  made  the  basis  of  a  sale  that  could  constitute  any  cloud  upon  his  title,  and 
therefore  to  know  that  he  could  not  be  injured  by  it;  and  that  a  payment  of 
a  tax  under  protest,  in  such  a  case,  where  no  seizure  of  goods  or  of  the  person 
had  been  made  or  threatened,  and  where  the  officer  had  no  authority  to  com- 
pel payment  otherwise  than  by  a  sale  of  land,  which  could  injure  no  one,  would 
not  be  other  than  a  voluntary  payment,  as  a  protest  would  not  change  the  char- 
acter of  the  payment.  It  was  held  also  that  a  sale  of  the  land  under  such  cir- 
cumstances would  not  create  a  cloud  upon  the  owner's  title.  This  may  be  good 
law  when  applied  to  proceedings  under  an  unconstitutional  enactment,  which 
is  no  law,  and  is  held  to  confer  no  rights  upon  any  one,  as  all  must  be  pre- 
sumed to  know  that  it  is  unconstitutional  and  void ;  but  it  cannot  be  applied 
to  cases  where  the  statute  under  which  the  proceedings  to  levy  the  tax  are 


HUG  BILLS   QUIA   TIMET  (Ch.  6 

THOMPSON  et  al.  v.  ETOWAH  IRON  CO. 

(Supreme  Court  of  Georgia,  1893.    01  Ga.  53S,  17  S.  E.  663.) 

Error  from  superior  court,  Bartow  county;   T.  W.  Milner,  Judge. 

Action  by  Milton  Thompson  and  others  against  the  Etowah  Iron 
Company  and  others  to  remove  a  cloud  from  title.  Defendants  had 
judgment,  and  plaintiffs  bring  error. 

Lumpkin,  J.  1.  The  principle  upon  which  equity  will  lend  its  aid 
to  remove  a  cloud  upon  title  is  that  one  in  the  rightful  possession  of 
property  is  entitled  to  the  full,  quiet,  and  peaceful  enjoyment  of  the 
same,  without  present  annoyance  and  harassment,  or  threatened  mo- 
lestation. That  timely  and  adequate  protection  in  this  respect  should 
ever  be  afforded,  the  authorities  all  agree.  It  is  only  as  to  what  state 
of  facts  and  circumstances  will  present  a  case  for  equitable  interfer- 
ence that  there  seems  to  be  any  contrariety  of  opinion.  The  granting 
of  the  relief  sought  has  uniformly  been  regarded  as  discretionary,  and 
thus  it  is  that  the  vast  majority  of  the  earlier  decisions  stand  alone 
upon  the  individual  merits  of  the  cases  in  which  they  were  rendered, 
and  in  consequence  are  of  but  little  value  as  establishing  any  general 
rule  which  may  be  universally  followed.  For  a  discussion  of  the  doc- 
trine, and  a  review  of  the  cases  in  which  it  has  been  invoked,  see  2 
Amer.  &  Eng.  Enc.  Law,  298  et  seq. ;  3  Pom.  Eq.  Tur.  §§  1397-1399; 
2  Estee,  PI.  &  Pr.  (3d  Ed.)  §  2510;  11  Cent.  Law  J.  261.  But,  de- 
spite the  want  of  harmony  among  the  decisions,  the  judiciary  both  of 
England  and  of  this  country  acquiesce  in  the  view  that  one  seeking 

taken,  is  constitutional,  and  where  the  illegality  of  the  tax  is  claimed  from  ir- 
regularities or  defects  in  the  statutory  proceedings.  If  it  were  so,  it  would 
require  of  the  land-owner  a  greater  knowledge  of  the  law  than  attorneys,  or 
even  courts,  possess.  For  instance,  in  the  present  case,  able  attorneys  for  the 
defendant  are  claiming  that  the  tax  paid  by  plaintiff  was  a  legal  one,  and  that 
all  the  proceedings  in  assessing  it  were  lawful;  yet  at  the  same  time  they 
argue  that,  if  it  should  be  determined  by  this  court  to  be  illegal  for  any  rea- 
son, then  the  plaintiff's  payment  must  be  considered  a  voluntary  one,  and  she 
cannot  recover  what  she  has  paid,  because  she  and  every  one  else  are  pre- 
sumed to  know  that  the  tax  is  void,  and  that  a  sale  under  it  could  convey 
no  title,  and  therefore  cast  no  cloud  over  her  title.  But  the  fact  remains,  as 
every  one  knows,  that  a  tax-deed  or  any  other  purported  conveyance  of  land 
does  cloud  the  title,  and  that  it  can  never  be  sold  or  exchanged  as  readily, 
and  seldom  for  as  great  a  price,  as  when  unincumbered,  although  it  may  be 
pat  cut  to  the  courts  that  such  deed  or  conveyance  is  void  and  of  no  conse- 
qu<  nee,  as  far  as  the  holding  of  the  title  is  concerned;  and,  in  my  opinion, 
the  owner  of  the  land  had  the  right,  in  law  and  equity,  to  treat  every  such  tax- 
deed  or  other  conveyance  as  a  cloud  upon  his  title,  and  to  take  such  steps  to 
get  rid  of  it,  or  to  prevent  its  issue  or  record,  as  the  law  authorizes,  when  the 
title  is  actually  clouded,  as  defined  by  some  of  the  authorities.  A  cloud  upon 
a  title  is  but  an  apparent  defect  in  it.  If  the  title,  sole  and  absolute  in  fee, 
is  really  in  the  person  moving  against  the  cloud,  the  density  of  the  cloud  can 
make  no  difference  in  the  right  to  have  it  removed.  Anything  of  this  kind  that 
has  a  tendency,  even  in  a  slight  degree,  to  cast  doubt  upon  the  owner's  title, 
and  to  stand  in  the  way  of  a  full  and  free  exercise  of  his  ownership,  is,  in  my 
judgment,  a  cloud  upon  his  title  which  the  law  should  recognize  and  remove. 
*     *     *    The  judgment  is  affirmed,  with  costs.    The  other  justices  concurred. 


Ctl.  G)  BILLS   QUIA   TIMET  ll*i" 

such  aid  of  a  court  of  equity  should  affirmatively  show  (1)  that  he  can- 
not immediately  or  effectually  maintain  or  protect  his  rights  by  any 
other  course  of  proceedings  open  to  him ;  (2)  that  the  instrument 
sought  to  be  canceled  is  such  as  would  operate  to  throw  a  cloud  or 
suspicion  upon  his  title,  and  might  be  vexatiously  or  injuriously  used 
against  him;  and  (3)  that  he  either  suffers  some  present  injury  by 
reason  of  a  hostile  claim  of  right,  or,  though  such  claim  be  not  asserted 
adversely  or  aggressively,  he  has  reason  to  apprehend  that  the  evidence 
upon  which  he  relies  to  impeach  or  invalidate  the  same  as  a  cloud  upon 
his  title  may  be  lost  or  impaired  by  lapse  of  time. 

What  is  a  "cloud,''  such  as  equity  will  undertake  to  remove,  has  been 
the  subject  of  much  difference  of  opinion,  and  is  a  question  upon  which 
many  of  the  courts  seem  to  have  agreed  to  disagree.  It  is  not  many 
years  since  Mr.  Justice  Selden,  in  dealing  with  the  question  as  pre- 
sented in  the  case  of  Ward  v.  Dewey,  16  N.  Y.  519,  commented  upon 
the  fact  that: 

"None  of  the  cases  define  what  is  meant  by  a  cloud  upon  title,  nor  attempt 
to  lay  down  any  general  rules  by  which  what  will  constitute  such  a  cloud  may 
be  ascertained." 

Some  of  the  later  American  cases  have  endeavored  to  formulate 
rules  which  would  relieve  the  matter  of  difficulty;  but  to  Mr.  Justice 
Field,  now  on  the  supreme  bench  of  the  United  States,  is  probably  due 
the  credit  of  first  defining,  accurately  and  precisely,  the  correct  test 
which  should  govern  in  all  cases.  Discussing  at  length  this  question  in 
Pixley  v.  Huggins,  15  Cal.  133,  he,  being  then  chief  justice  of  Cali- 
fornia, said : 

"The  true  test,  as  we  conceive,  by  which  the  question  whether  a  deed  would 
cast  a  cloud  upon  the  title  of  the  plaintiff  may  be  determined,  is  this:  Would 
the  owner  of  the  property,  in  an  action  of  ejectment  brought  by  the  adverse 
party,  founded  upon  the  deed,  be  required  to  offer  evidence  to  defeat  a  recov- 
ery? If  such  proof  would  be  necessary,  the  cloud  would  exist.  If  the  proof 
would  be  unnecessary,  no  shade  would  be  cast  by  the  presence  of  the  deed. 
If  the  action  would  fall  of  its  own  weight,  without  proof  in  rebuttal,  no  oc- 
casion could  arise  for  the  equitable  interposition  of  the  court,  as  in  the  case 
of  a  deed  void  upon  its  face,  or  which  was  the  result  of  proceedings  void  upon 
their  face,  requiring  no  extrinsic  evidence  to  disclose  their  illegality.  All  ac- 
tions resting  upon  instruments  of  that  character  must  necessarily  fail." 

It  is  from  this  opinion  that  the  rule  stated  in  2  Estee,  PI.  &  Pr.  (3d 
Ed.)  §  2510,  is  taken.  In  the  subsequent  case  of  Lick  v.  Ray,  43  Cal. 
83,  Wallace,  J.,  employs  much  the  same  language  as  that  used  by  Chief 
Justice  Field,  and  says  the  rule  stated  is  supported  by  a  long  line  of 
decisions  by  that  court.  Such  is  the  test  which  has  long  been  recog- 
nized by  the  supreme  court  of  Alabama.  Rea  v.  Longstreet,  54  Ala. 
291 ;  Lytle  v.  Sandefur,  93  Ala.  396,  9  South.  260,  and  cases  cited.  In 
Florida  it  was  first  adopted  in  Davidson  v.  Seegar,  15  Fla.  671,  and  has 
since  been  recognized  and  followed  by  the  supreme  court  of  that  state. 
Barnes  v.  Mayo,  19  Fla.  542;  Shalley  v.  Spillman,  19  Fla.  500;  Ben- 
ner  v.  Kendall,  21  Fla.  584.  Employing  language  used  in  the  case  last 
cited,  Beach,  in   his   recent  work   on   Modern  Equity  Jurisprudence, 


11GS  •  BILLS   QUIA   TIMET  (Cll.  ft 

(volume  2,  §  558,)  gives  the  following  abbreviated  statement  of  the 
rule  which  now  obtains: 

"If  it  is  insufficient  to  make  a  prima  facie  case  in  an  action  of  ejectment, 
and  would  fall  of  its  own  weight,  without  proof  in  rebuttal,  it  does  not  amount 
to  a  cloud,  and  equitable  interference  is  unnecessary." 

The  reasoning  employed  in  the  cases  cited  cannot  but  prove  con- 
vincing that  the  test  announced  is  the  correct  solution  of  the  difficulty 
presented ;  and  in  its  practical  application,  we  apprehend,  little  or  no 
serious  trouble  or  embarrassment  can  arise. 

In  view  of  the  above-cited  authorities,  there  can  scarcely  be  a  doubt 
that  under  the  terms  of  our  ruling,  as  announced  in  the  first  headnote, 
no  instrument  which  may  properly  be  regarded  as  a  cloud  upon  title 
can  ever  be  treated  as.  insufficient  in  this  respect,  because  we  some- 
what extend  the  general  rule  above  stated  by  holding  that  a  convey- 
ance, in  itself  not  enough  to  constitute  a  cloud,  may,  in  connection  with 
alleged  extrinsic  facts,  become  a  cloud.  By  such  extrinsic  facts  we 
mean  possession  by  a  former  occupant,  or  anything  else  which,  taken 
to  be  true,  would,  in  connection  with  the  paper  in  question,  give  to  the 
holder  of  the  paper  an  apparent  legal  title,  upon  which  a  recovery  could 
be  had.  No  such  extrinsic  facts  appeared  on  the  trial  of  the  present 
case.  It  was  shown  that  Green  L.  Thompson  died-  seised  of  land  lot 
Xo.  257,  in  Bartow  county,  which  he  held  by  virtue  of  a  grant  from 
the  state  made  in  the  year  1836.  Petitioners  derive  title  through  him, 
as  his  only  surviving  children.  The  premises  in  question  are  wild  and 
unimproved  lands,  unoccupied,  and  in  the  actual  possession  of  no  one. 
The  instruments  which  are  sought  to  be  canceled,  as  constituting  a 
cloud  upon  petitioners'  title,  consist  of  certain  deeds  and  mortgages  ap- 
pearing of  record  in  the  office  of  the  clerk  of  the  superior  court  of 
Bartow  county,  the  first  of  which  is  a  deed  dated  April  13,  1S83.  So 
far  as  appears,  all  these  conveyances  were  executed  by  entire  strangers 
to  the  original  and  paramount  title.  It  was  neither  alleged  nor  proved 
that  any  of  the  parties  named  therein  ever  had  possession  of  the  prem- 
ises, or  claimed  the  same  by  virtue  of  any  conveyance  or  color  of  title 
from  the  state,  or  from  any  one  connected  with  the  true  title,  or  from 
any  one  who  ever  had  actual  possession,  or  any  better  right  than  they. 
Xor  were  any  special  facts  and  circumstances  alleged  or  shown  upon 
the  trial  establishing  any  present  or  prospective  injury  to  the  true 
owners. 

Petitioners,  by  reason  of  the  fact  that  they  have  the  legal  title,  now 
hold  constructive  possession  of  the  premises.  Rogers  v.  Hoskins,  15 
Ga.  276;  Royall  v.  Lisle's  Lessee,  15  Ga.  545,  60  Am.  Dec.  712;  Mor- 
rison v.  Hays,  19  Ga.  294;  Stamper  v.  Griffin,  20  Ga.  312,  65  Am.  Dec. 
628.  That  possession  has  never,  so  far  as  they  alleged  or  proved,  in 
any  manner  been  interfered  with,  nor  are  the  conveyances  in  question 
being  used  vexatiously  to  deprive  them  of  the  full,  peaceable,  and  un- 
interrupted enjoyment  of  their  rights.     Should  any  of  the  defendants 


Ch.    6)  BILLS   QUIA   TIMET  11G9 

subsequently  unlawfully  enter  upon  the  land,  no  reason  appears  why 
they  may  not  be  summarily  expelled  by  a  proceeding  in  ejectment. 
If,  at  any  future  time,  petitioners  themselves  desire  to  enter  into  actual 
possession,  they  may  do  so  without  the  fear  of  being  successfully  re- 
sisted or  disturbed;  for  it  is  clear  that,  in  any  action  of  ejectment 
brought  against  them  by  the  defendant,  such  proceeding  would  '.'fall 
of  its  own  weight,"  without  any  proof  being  offered  in  rebuttal.  It  is 
not  shown  that  petitioners  desire  to  part  with  their  interest  in  the  lands, 
or  that  even  the  most  timorous  of  purchasers  have  been,  or  would 
have  reason  to  be,  frightened  away  by  reason  of  the  alleged  cloud.  If 
any  cloud  at  all  exists,  it  is  but  the  translucent  mist  which  adorns  a 
summer's  sky,  not  one  which  wears  upon  its  face  the  menace  of  a 
threatened  storm.  There  is  a  vast  distinction  between  a  deed  which 
purports  to  have  derived  its  existence  through  the  true  owner  of  the 
original  and  paramount  title,  and  a  deed  executed  by  one  unconnected 
with,  and  an  entire  stranger  to,  such  title.  There  would  be  abundant 
reason  to  regard  with  apprehension  a  conveyance  which,  though  really 
void  because  of  some  latent  infirmity,  bears  apparently  the  stamp  of 
force  and  validity,  and  assumes  to  trace  its  way  through  connecting 
links  back  to  the  fountain  head  from  which  flowed  the  original  title. 
On  the  other  hand,  an  instrument  which  springs  from  no  definite  source 
of  right  whatsoever  can  never  properly  be  considered  a  cloud  upon 
title.  In  announcing  the  test  quoted  from  Pixley  v.  Huggins,  supra, 
Chief  Justice  Field  seems  to  have  had  in  mind  just  such  a  case  as  the 
present.    As  an  illustration  of  the  application  of  the  rule,  he  says : 

••Every  deed  from  the  same  source  through  which  the  plaintiff  derives  his 
real  property  must,  if  valid  on  its  face,  necessarily  have  the  effect  of  casting 
such  a  cloud  upon  the  title ;"  but  "a  conveyance  not  falling  in  the  chain  of 
title,  as  from  one  who  never  had  any  connection  with  the  property,  would  not 
constitute  a  cloud  upon  the  title.  No  action  could  be  supported  upon  such  a 
conveyance,  even  in  the  absence  of  rebutting  proof,  any  more  than  upon  so 
much  waste  paper." 

In  Rea  v.  Longstreet,  54  Ala.  291,  Chief  Justice  Brickell  says: 
"A  court  of  equity  will  not  interfere  to  prevent  or  remove  a  cloud  which  can 
only  be  shown  to  be  prima  facie  a  good  title  by  leaving  the  plaintiff's  title  en- 
tirely out  of  view.  *  *  *  A  sale  of  the  land  of  the  true  owner  as  the 
property  of  a  mere  stranger,  with  whom  he  is  not  connected,  from  whom  he 
does  not  mediately  or  immediately  trace  title,  cannot  cast  a  cloud  on  his  title." 

And,  quoting  this  language  approvingly,  it  was  accordingly  held  by 
the  same  court  in  the  later  case  of  Lytle  v.  Sandefur,  93  Ala.  396,  9 
South.  260,  already  cited,  that  where  the  grantor  of  a  deed  included 
therein,  by  mistake,  lands  to  which  she  had  no  title,  and  over  which 
she  never  exercised  any.  acts  of  ownership,  such  instrument  would  con- 
stitute no  cloud  upon  the  title  of  the  true  owners,  such  as  a  court  of 
equity  would  undertake  to  remove.  In  the  above-cited  case  of  Ward 
v.  Dewey,  16  X.  Y.,  on  page  529,  we  find : 

"If  an  entire  stranger  assumes  to  convey  the  premises,  to  which  he  has  no 
shadow  of  title,  and  of  which  another  is  in  possession,  no  real  cloud  is  thereby 
Boke  Eq. — 74 


1170  BILLS   QUIA  TIMET  (Ch.  6 

created.  There  is  nothing  to  give  such  a  deed  even  the  semhiance  of  force. 
It  can  never  be  used  to  the  serious  annoyance  or  injury  of  the  owner.  A  word 
of  explanation  would  dissipate  the  apparent  cloud." 

Similar  expressions  might  be  quoted  from  others  of  the  earlier  de- 
cisions. Defining  the  powers  of  a  court  of  equitable  jurisdiction  to 
cause  to  be  delivered  up  and  canceled  such  instruments  in  writing  as 
operate  injuriously  to  the  rights  of  persons  other  than  the  holders 
thereof,  the  statute  of  this  state  which  authorizes  the  proceeding  quia 
timet  expressly  enumerates : 

"Any  instrument  which  has  answered  the  object  of  its  creation,  or  any  forged 
or  other  iniquitous  deed,  or  other  writing  which,  though  not  enforced  at  the 
time,  either  casts  a  cloud  over  complainant's  title,  or  otherwise  subjects  him 
to  future  liability  or  present  annoyance,  and  the  cancellation  of  which  is  neces- 
sary to  his  perfect  protection."    Code,  §  3232. 

In  none  of  the  essential  particulars  thus  designated  do  the  present 
complainants  make  out  a  case  for  equitable  interference.  The  convey- 
ances sought  to  be  delivered  up  and  canceled  are  not  shown  to  be 
either  "forged"  or  "iniquitous,"  nor,  as  has  been  seen,  do  they  cast  "a 
cloud  over  complainants'  title."  It  is  not  shown  that  complainants  are 
subjected  to  any  "future  liability,  or  present  annoyance,"  nor  that  the 
cancellation  of  the  instruments  in  question  is  necessary  to  their  per- 
fect protection.5 

s  In  Pixley  v.  Huggins  et  al.  (1S60)  15  Cal.  128,  at  132,  133,  134,  Field,  C.  J., 
delivering  the  opinion  of  the  court,  said:  "The  jurisdiction  of  the  Court  to  en- 
join a  sale  of  real  estate  is  coextensive  with  its  jurisdiction  to  set  aside  and 
order  to  be  cancelled  a  deed  of  such  property.  It  is  not  necessary  for  its  as- 
sertion in  the  latter  case  that  the  deed  should  be  operative,  if  suffered  to  re- 
main uncancelled,  to  pass  the  title,  or  that  the  defence  to  the  deed  should  rest 
in  extrinsic  evidence,  liable  to  loss,  or  be  available  only  in  equity.  It  is  suffi- 
cient to  call  into  exercise  the  jurisdiction  of  the  Court,  that  the  deed  casts  a 
cloud  over  the  title  of  the  plaintiff.  As  in  such  case  the  Court  will  remove  the 
cloud,  by  directing  a  cancellation  of  the  deed,  so  it  will  interfere  to  prevent 
a  sale,  from  which  a  conveyance  creating  such  cloud  must  result.  Pettit  v. 
Shepherd,  5  Paige  (N.  Y.)  501,  28  Am.  Dec.  437.  And  every  deed  from  the 
same  source  through  which  the  plaintiff  derives  his  real  property  must,  if  valid 
on  its  face,  necessarily  have  the  effect  of  casting  such  cloud  upon  the  title. 
Such  deed  is  calculated  to  create  uneasiness  in  the  owner,  and  to  awaken  suspi- 
cions in  others  of  the  existence  of  concealed  defects  in  the  title,  which  may,  at 
some  day,  be  developed,  and  must  thus  tend  to  depreciate  the  value  of  the 
property  in  the  market,  and  to  embarrass  the  owner  in  its  sale  or  use  as  se- 
curity. *  *  *  The  true  test,  as  we  conceive,  by  which  the  question,  whether 
a  deed  would  cast  a  cloud  upon  the  title  of  the  plaintiff,  may  be  determined,  is 
this:  Would  the  owner  of  the  property,  in  an  action  of  ejectment  brought  by 
the  adverse  party,  founded  upon  the  deed,  be  required  to  offer  evidence  to  de- 
feat a  recovery?  If  such  proof  would  be  necessary,  the  cloud  would  exist:  if 
the  proof  would  be  unnecessary,  no  shade  would  be  cast  by  the  presence  of 
the  deed.  If  the  action  would  fall  of  its  own  weight,  without  proof  in  rebuttal. 
no  occasion  could  arise  for  the  equitable  interposition  of  the  Court;  as  in 
the  case  of  a  deed  void  upon  its  face,  or  which  was  the  result  of  proceedings 
void  upon  their  face,  requiring  no  extrinsic  evidence  to  disclose  their  illegality. 
All  actions  resting  upon  Instruments  of  that  character  must  necessarily  fail. 
"That  can  never  be  considered  a  legal  cloud,'  says  Chancellor  Walworth,  in 
Van  Doren  v.  Mayor,  etc.,  of  New  York,  9  Paige  (N.  Y.)  388,  'winch  cannot 
for  a  moment  obstruct  the  unaided  rays  of  legal  science,  when  they  are  brought 
to  bear  upon  the  supposed  obscurity.  But  where  the  claim  of  the  adverse 
party  to  the  land  is  valid  npun  the  face  of  the  instrument,  or  the  proceedings 


Ch.  C)  BILLS   QUIA   TIMET  1171 

PARKER  et  al.  v.  SHANNON. 
(Supreme  Court  of  Illinois,  1887.     121  111.  4.32,  13  N.  E.  155.) 

Error  to  circuit  court,  Du  Page  county ;   C.  W.  Upton,  Judge. 

This  suit  was  originated  by  a  bill  in  chancery  by  James  S.  Shan- 
non against  John  Parker  and  Caroline  M.  B.  Parker,  his  wife,  setting 
forth  that  Shannon  was  the  owner  and  entitled  to  the  exclusive  pos- 
session of  certain  lots;  that  said  Parker  was  the  former  owner  of  the 
lots,  and  they  were  sold  under  execution  upon  a  judgment  against  him, 
and,  no  redemption  having  been  made,  that  a  sheriff's  deed  for  the  lots 
was  duly  executed  to  one  Dunne,  the  purchaser  at  the  execution  sale, 
and,  through  mesne  conveyances,  the  title  to  the  lots  became  vested  in 
complainant,  subject  to  a  possible  right  of  dower  in  Parker's  wife  in 
two  of  the  lots;  that  Parker  and  his  wife  conveyed  to  one  Munson 
their  right  to  two  of  the  lots,  subject  to  said  execution  sale,  and  that 
Munson  conveyed  his  interest  in  these  two  lots  to  the  complainant ; 
that  in  this  mode  the  complainant  derived  his  title  to  the  four  lots. 
The  bill  alleges  that  Parker  claims  to  be  the  owner  of  or  interested  in 
the  premises,  claims  that  he  has  the  right  of  possession,  and  has  at- 
tempted to  exercise  acts  of  ownership,  and  to  take  possession  of  the 
premises ;  that  Parker  is  pecuniarily  irresponsible,  and  that  the  in- 
juries about  to  be  committed  by  him  to  the  premises  will  be  irrepara- 
ble; and  prays  for  an  injunction,  and  that  complainant  may  be  decreed 
to  be  the  owner  in  fee-simple  of  the  premises,  and  that  the  defendants 
be  perpetually  enjoined  from  exercising  any  acts  of  ownership  over 
the  premises,  etc.  A  temporary  injunction  was  awarded.  Defendants 
demurred  to  the  bill.  The  court  overruled  the  demurrer,  and  ordered 
the  defendant  to  plead  or  answer  instanter,  and,  no  plea  or  answer 
being  filed,  the  defendants  were  defaulted,  and  the  court  entered  a  de- 
cree finding  that  the  complainant  was  the  owner  of  the  premises,  and 
ordering  that  he  have  exclusive  possession  of  the  premises,  and  per- 
petually enjoining  the  defendants  from  exercising  any  acts  of  own- 
ership over  the  premises.  Defendants  sued  out  a  writ  of  error.  The 
supreme  court  reversed  the  decree  of  the  circuit  court.  The  case  was 
reinstated  in  the  lower  court,  and  there  was  a  second  decree  for  de- 
fendant in  error,  and  a  second  writ  of  error  was  sued  out  by  plaintiffs 
in  error. 

sought  to  be  set  aside,  as  where  the  defendant  has  procured,  and  put  upon 
record  a  deed  obtained  from  the  complainant  by  fraud,  or  upon  an  usurious 
consideration,  which  requires  the  establishment  of  extrinsic  facts  to  show  the 
supposed  conveyance  to  be  inoperative  and  void — a  Court  of  equity  may  in- 
terfere, and  set  it  aside  as  a  cloud  upon  the  real  title  to  the  land)  wiggin 
v.  Mayor,  etc.,  of  New  York,  9  Paige  (N.  Y.)  23;  Livingston  v.  Hollenbeck,  4 
Barb.  (N.  Y.)  16.  So,  too,  a  conveyance  not  falling  in  the  chain  of  title,  as 
from  one  who  never  had  any  connection  with  the  property,  would  not  consti- 
tute a  cloud  upon  such  title.  No  action  could  be  supported  upon  such  a  con- 
veyance, even  in  the  absence  of  rebutting  proof,  any  more  than  upon  so  much 
waste  paper." 


1172  BILLS   QUIA  TIMET  (Ch.  6 

Magruder,  J.6  This  case  is  now  before  us  for  the  second  time. 
The  former  opinion  in  it  is  reported  in  114  111.  192,  28  N.  E.  1099. 
We  there  held  that  the  circuit  court  should  not  have  passed  upon  the 
legal  title,  and  should  have  gone  no  further  than  to  stay  temporarily 
the  doing  of  any  irreparable  injury,  until  a  trial  and  determination  of 
the  question  of  title  could  be  had  in  a  court  of  law;  and  the  cause 
was  remanded  for  further  proceedings  consistent  with  that  opin- 
ion.    *     *     * 

After  the  remanding  order  was  filed  in  the  circuit  court  an  amended 
bill  was  filed,  which  omitted  any  statement  as  to  the  mode  in  which 
complainant  derived  his  title,  or  as  to  the  character  of  the  claim  set  up 
by  defendants.  The  amended  bill  simply  alleged  that  complainant  was 
the  owner  in  fee  of  the  premises,  and  in  the  possession  thereof,  and 
that  defendants  were  giving  out  and  pretending  that  John  Parker  was 
"the  owner  of,  or  in  some  manner  interested  in,  or  entitled  to  the  pos- 
session of,  the  said  premises,  or  some  part  thereof,"  and  that,  under 
such  pretended  claim,  defendants  were  committing  trespasses,  etc. 
It  also  alleged  that  said  pretended  claims  of  the  defendants  operated 
as  a  cloud  upon  the  title  of  complainant,  and  prayed  that  said  cloud 
might  be  removed.  The  decree,  besides  the  findings  already  men- 
tioned, found  that  the  claims  in  question  did  operate  as  a  cloud,  and 
decreed  that  such  cloud  be  removed.  It  was  rendered  after  default 
taken  against  the  defendants  below,  who  did  not  plead,  answer,  or 
demur  to  the  amended  bill,  nor  in  any  way  enter  their  appearance, 
after  it  was  filed. 

The  amended  bill  sets  up  no  other  or  different  claim,  on  the  part  of 
the  defendant  Parker,  than  that  which  is  alleged  in  the  original  bill, 
referred  to  in  our  former  opinion.  A  bill  will  not  lie  to  remove  a  mere 
verbal  claim  or  oral  assertion  of  ownership  in  property  as  a  cloud  upon 
the  title.  Such  clouds  upon  title  as  may  be  removed  by  courts  of  eq- 
uity are  instruments  or  other  proceedings  in  writing  which  appear 
upon  the  records,  and  thereby  cast  doubt  upon  the  validity  of  the  rec- 
ord title.     *     *     * 

The  second  decree  entered  by  the  circuit  court  is  reversed,  and  the 
cause  is  remanded,  with  directions  to  proceed  as  indicated  in  Parker 
v.  Shannon,  114  111.  192,  28  N.  E.  1099. 

8  Parts  of  the  opinion  .are  omitted. 


Ch.  6)  BILLS   QUIA   TIMET  1173 

WOOD  v.  NICOLSON. 

(Supreme  Court  of  Kansas,  1890.    4:J  Kan.  461,  23  Pac.  587.) 

Horton,  C.  J.  On  the  19th  day  of  August,  1887,  Malcolm  Nicolson 
procured  from  the  county  clerk  of  Wabaunsee  county  the  assignment 
of  three  tax  certificates  held  by  the  county.  One  of  the  certificates 
covered  the  N.  E.  *4  °f  section  31,  township  13,  range  10;  one  the 
N.  W.  ^4  °f  section  32,  township  12,  range  10;  and  one  the  S.  E. 
14  of  section  32,  township  12,  range  10.  These  certificates  were  for 
the  sale  of  1873,  for  the  tax  of  1872.  Nicolson  took  out  a  tax-deed  to 
the  land  described,  based  upon  the  tax  certificates,  the  consideration 
for  the  deed  being  $145.65.  He  commenced  this  action  to  quiet  title 
against  Harriet  H.  Wood  on  September  7,  1887.  The  service  obtained 
was  by  publication,  and  by  the  terms  of  the  publication  notice  the  de- 
fendant was  required  to  answer  the  petition  on  or  before  October  28, 
1887.  On  the  27th  day  of  October,  1887,  Nicholson  obtained  leave  to 
file  a  supplemental  or  amended  petition  to  his  original  petition.  On 
the  29th  day  of  October,  1887,  he  took  judgment  quieting  his  title. 
Harriet  H.  Wood  brings  the  case  here,  and  alleges  that  the  petition  did 
not  state  facts  sufficient  to  constitute  a  cause  of  action  against  her, 
therefore  that  the  judgment  rendered  is  erroneous. 

Any  material  error  apparent  in  the  final  judgment  of  a  district  court 
may  be  corrected  by  proceedings  in  error  in  this  court,  although  no  ex- 
ception was  taken  by  the  party  complaining,  and  no  appearance  by  him 
at  the  trial  and  judgment,  and  no  motion  made  to  set  aside  the  judg- 
ment. Koehler  v.  Ball,  2  Kan.  160,  83  Am.  Dec.  451 ;  Lender  v.  Cald- 
well, 4  Kan.  339.  It  seems  to  be  conceded  that  the  original  petition 
was  fatally  defective.  The  amendment  was  intended  to  cure  the  de- 
fect, but  as  the  defendant  was  served  by  publication  only,  and  had 
never  appeared  or  answered  in  the  case,  and  was  not  present  at  the 
time  the  amendment  was  asked  for,  allowed,  or  filed,  the  action  of 
the  trial  court  in  permitting  an  amendment  so  material  to  the  petition 
to  be  filed,  and  in  rendering  judgment  thereon,  in  the  absence  of  the 
defendant,  was  error.  Haight  v.  Schuck,  6  Kan.  192;  Alvey  v.  Wil- 
son, 9  Kan.  401 ;  Railroad  Co.  v.  Van  Riper,  19  Kan.  317.  The  peti- 
tion alleges  that  the  lands  described  are  "wild,  open,  uncultivated,  and 
unoccupied,"  and  sets  forth  that  the  plaintiff's  title  is  based  upon  a 
tax-deed,  referred  to  and  made  a  part  of  the  petition  as  "Exhibit  A." 
The  granting  clause  of  the  deed  is  as  follows:  "Now  therefore,  I,  G. 
W.  French,  county  clerk  of  the  county  aforesaid,  for  and  in  considera- 
tion of  the  sum  of  one  hundred  and  forty-five  dollars  and  sixty-five 
cents,  ($145.65,)  taxes,  costs,  and  interest  due  on  said  land  for  the 
year  A.  D.  1872,  to  the  treasurer  paid  as  aforesaid,  and  by  virtue  of  the 
statute  in  such  case  made  and  provided,  have  granted,  bargained, 
and  sold,  and  by  these  presents  do  grant,  bargain,  and  sell,  unto  the 


1174  BILLS   QUIA   TIMET  (Cll.  G 

said  Malcolm  Nicolson,  his  heirs  and  assigns  forever,  subject,  how- 
ever, to  all  the  rights  of  redemption  provided  by  law."  The  statutory 
form  of  a  tax-deed  has  not  been  followed,  nor  is  the  deed  in  substan- 
tial compliance  with  the  statute.  Section  138,  c.  107,  Gen.  St.  1889. 
In  the  granting  clause  of  the  deed  there  is  nothing  sold  or  conveyed, 
no  property  described.     The  deed  is  therefore  void  upon  its  face. 

Before  an  action  to  quiet  title  can  be  maintained,  the  plaintiff  must 
have  either  the  actual  possession  or  the  legal  title.  Eaton  v.  Giles,  5 
Kan.  24;  O'Brien  v.  Creitz,  10  Kan.  202;  Douglass  v.  Nuzum,  16 
Kan.  515.  The  petition  shows  that  Nicolson  did  not  have  actual  pos- 
session of  the  land,  and,  as  the  tax-deed  upon  which  his  title  is  based 
is  void,  he  has  no  legal  title.  The  purpose  of  the  amendment,  which 
was  allowed  without  notice  and  in  the  absence  of  the  defendant,  was 
to  attach  to  the  petition  a  tax-deed  which  had  been  issued  after  the 
commencement  of  the  action,  and  in  this  way  to  cure  the  defective 
tax-deed  originally  attached  to  the  petition.  There  is,  however,  but 
one  tax-deed  in  the  record,  and  this  tax-deed  is  the  one  referred  to  as 
fatally  defective.  This  tax-deed  was  not  issued  until  the  26th  day  of 
October,  1887,  nearly  two  months  after  the  action  was  commenced. 
It  is  possible  that  there  was  some  mistake  in  the  preparation  of  the 
record,  and  that  a  valid  tax-deed  was  filed  with  the  supplemental  or 
amended  petition,  but  the  transcript  purports  to  be  a  full  and  complete 
one,  and  only  one  tax-deed  is  embraced  therein ;    that  is  a  void  one. 

On  account  of  the  errors  referred  to,  we  cannot  sustain  the  judg- 
ment of  the  trial  court.  The  judgment  must  be  reversed.  All  the 
Justices  concurring.7 

i  In  Teal  v.  Collins  (1881)  9  Or.  89,  the  opinion  of  the  court,  by  Lord,  C.  J.. 
was  as  follows:  "This  is  a  suit  to  quiet  title.  The  complaint  alleges  that  the 
plaintiff  is  the  owner  in  fee  and  in  possession  of  certain  lands  therein  particu- 
larly described,  situated  in  Polk  county,  Oregon,  and  their  proceeds.  'That 
the  defendant  claims  to  be  the  owner  of  said  premises  by  a  chain  of  con- 
veyances from  the  U.  S.  Government.  That  said  claim  of  said  defendant  is 
wrongful  and  untrue,  and  a  cloud  on  plaintiff's  title.  That  plaintiff  is  the 
owner  in  fee  of  said  premises  by  a  good  and  sufficient  chain  of  conveyances 
from  the  U.  S.  Government,  which  are  prior  in  their  execution  and  record  to 
the  pretended  conveyances  under  which  said  defendant  claims  title  thereto 
adverse  to  the  plaintiff.'  To  this  complaint  the  defendant  demurred  on  the 
following  grounds:  (1)  That  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  suit.  (2)  That  the  complaint  does  not  show  that  the 
plaintiff  is  entitled  to  any  equitable  relief.  The  circuit  court  overruled  the 
demurrer,  and  the  defendant  appeals  to  this  court.  This  suit  is  brought  to 
quiet  title  under  section  500  of  the  civil  code,  which  provides  that  'any  per- 
son in  possession  by  himself,  or  bis  tenant,  may  maintain  a  suit  in  equity 
against  another,  who  claims  an  estate  or  interest  therein  adverse  to  him,  for 
the  purpose  of  determining  such  claim,  estate,  or  interest.'  This  section  con- 
fers a  jurisdiction  beyond  that  ordinarily  exercised  by  courts  of  equity  to 
afford  relief  in  quieting  title  and  possession  of  real  property.  It  recognizes 
Dot  only  ;i  well  established  principle  of  equity  practice  to  remove  clouds  upon 
title — which  courts  of  equity  bad  exercised  long  prior  to  tins  section — but  also 
provides  a  remedy  where  a  party  out  of  possession  claims  an  estate  or  interest 
adverse  to  the  party  in  possession,  and  injurious  to  his  rights,  for  determining 
the  same.  In  such  case  it  seems  it  is  sufficient  that  the  party  in  possession 
is  incommoded  or  damnified  by  the  assertion  of  some  claim  or  interest  in  the 


Ch.  6)  BILLS   QUIA   TIMET  1175 


WEHRMAN  v.  CONKLIN. 

(Supreme  Court  of  the  United  States,  1S94.    135  U.  S.  314,  15  Sup.  Ct.  129, 

39  L.  Ed.  1G7.) 

This  was  a  bill  in  equity  brought  by  the  appellees,  Conklin  and  wife, 
to  enjoin  the  appellant,  Wehrman,  from  prosecuting  an  action  of 
ejectment  in  the  court  below,  against  the  appellees,  to  recover  posses- 
sion of  the  lands  in  controversy.     *     *     * 

Mr.  Justice  Brown;8  after  stating  the  facts  in  the  foregoing  lan- 
guage, delivered  the  opinion  of  the  court. 

This  is  a  bill  in  equity,  not  only  to  stay  an  action  in  ejectment  at  law, 
but  to  remove  a  cloud  cast  upon  the  Conklins'  title  to  the  lands  in  ques- 
tion, created  by  a  deed  from  Adolph  Wehrman  to  Frederick  Wehrman, 
appellant  and  defendant  in  the  bill,  and  to  quiet  their  own  title  thereto. 

1.  Defendant's  principal  contention  is  that  equity  has  no  jurisdic- 
tion of  the  case,  for  the  reason  that  the  contest  concerns  the  legal  title 
only,  and  that  plaintiffs  have  a  plain,  adequate,  and  complete  remedy  at 
law.  It  is  undisputed  that  Carlos  S.  Greeley,  a  member  of  the  firm  of 
Greeley,  Gale  &  Co.,  bought  the  lands  in  question  at  a  sheriff's  sale 
which  took  place  on  July  31,  1862,  and  that  for  about  20  years  there- 
after, when  the  lands  were  sold  to  Conklin,  he  paid  the  taxes  upon  the 
land.  That  the  Conklins,  upon  their  purchase  of  the  several  parcels, 
took  immediate  possession,  and  that  they  have  since  been  in  full,  open, 

property  adverse  to  him.  He  may  not  know  the  nature  or  ground  upon  which 
such  adverse  claim  or  interest  is  asserted — only  that  such  claim  to  an  estate 
or  interest  adverse  to  him  is  made,  whereby  the  value  of  his  property  is  de- 
preciated, or  its  sale  injured  or  prevented.  He  can  then  commence  his  suit, 
and  require  the  nature  and  character  of  such  adverse  estate  or  interest  to  be 
set.  forth  and  judicially  determined.  But  when  the  suit  is  brought  to  remove 
a  cloud  upon  the  title — which  is  an  old  and  recognized  head  of  equity  juris- 
prudence— the  cause  of  the  suit  cousists  in  the  invalidity  of  the  defendant's 
claim,  which  is  not  apparent  on  its  face.  A  cloud  upou  title  is  a  title,  or  in- 
cumbrance, apparently  valid,  but,  in  fact,  invalid.  Bissell  v.  Kellogg,  60  Barb. 
(N.  Y.)  629.-  In  such  suits  it  has  been  held  that  there  can  be  no  question  but 
that  the  facts  which  show  the  apparent  validity  of  the  instrument  which  is 
said  to  constitute  the  cloud,  and  also  the  facts  showing  its  invalidity,  ought 
to  be  stated.  Hibernia  S.  &  L.  v.  Ordway,  38  Cal.  6S1.  It  is  an  elementary 
rule  that  'every  fact  essential  to  the  plaintiff's  title,  to  maintain  the  bill  and 
obtain  relief,  ought  to  be  stated  in  the  bill,  otherwise  the  defect  will  be  fatal.' 
Story's  Eq.  PI.  §  257.  In  declaring  the  requisites  of  a  complaint  to  remove 
cloud  upon  title  under  a  statute  somewhat  similar  to  our  own,  it  is  said,  in 
Wals  v.  Grosvenor,  31  Wis.  6S4,  that  'the  complaint  ought  to  disclose  the 
nature  of  the  defendant's  claim  which  has  a  tendency  to  throw  a  cloud  over 
the  title,  and  state  such  facts  and  circumstances  in  respect  to  such  claim  as 
show  its  invalidity,  before  a  court  of  equity  will  interfere  and  direct  it  to  be 
released  and  canceled.'  Collart  v.  Fisk,  38  Wis.  243.  Before  suit  is  brought 
to  remove  a  cloud  upon  the  title,  the  plaintiff  ought  to  know  there  is  one,  and 
in  what  it  consists,  and  state  the  facts.  For  these  reasons  we  think  the  com- 
plaint is  fatally  defective  in  not  stating  the  nature  of  the  defendant's  claim,  or 
chain  of  conveyances,  showing  in  what  their  invalidity  consists.  The  judg- 
ment of  the  court  below  is  reversed." 
s  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


1176  BILLS   QUIA   TIMET  (Ch.  6 

and  adverse  possession  and  occupancy  of  the  same ;  have  made  large 
and  valuable  improvements  thereon  by  putting  some  600  acres  under 
cultivation,  and  by  erecting  substantial  buildings  and  fences,  digging 
wells,  and  otherwise  improving  the  premises,  making  the  same  more 
valuable,  and  have  expended  $1,000  in  such  improvements,  in  good 
faith  and  full  reliance  upon  such  title  being  good  and  valid.  That  the 
defendant  during  such  time,  and  for  more  than  27  years,  has  never  done 
any  act  or  taken  any  step  to  have  the  records  corrected,  or  to  assert 
any  claim  on  his  part  to  such  lands,  or  to  notify  purchasers  of  his  in- 
terest in  the  same,  until  he  began  his  action  of  ejectment. 

The  general  principles  of  equity  jurisprudence,  as  administered  both 
in  this  country  and  in  England,  permit  a  bill  to  quiet  title  to  be  filed 
only  by  a  party  in  possession  against  a  defendant  who  has  been  in- 
effectually seeking  to  establish  a  legal  title  by  repeated  actions  of  eject- 
ment, and  as  a  prerequisite  to  such  bill  it  was  necessary  that  the.  title  of 
the  plaintiff  should  have  been  established  by  at  least  one  successful 
trial  at  law.  Pom.  Eq.  Jur.  §§  253,  1394,  1396.  At  common  law  a 
party  might  by  successive  fictitious  demises  bring  as  many  actions  of 
ejectment  as  he  chose,  and  a  bill  to  quiet  title  was  only  permitted  for 
the  purpose  of  preventing  the  party  in  possession  being  annoyed  by  re- 
peated and  vexatious  actions.  The  jurisdiction  was,  in  fact,  only  an- 
other exercise  of  the  familiar  power  of  a  court  of  equity  to  prevent  a 
multiplicity  of  suits  by  bills  of  peace.  A  statement  of  the  underlying 
principles  of  such  bills  is  found  in  the  opinion  of  this  court  in  Holland 
v.  Challen,  110  U.  S.  15,  19,  3  Sup.  Ct.  495,  28  L.  Ed.  52,  in  which  it 
is  said : 

"To  entitle  the  plaintiff  to  relief  in  such  cases,  the  concurrence  of  three 
particulars  was  essential:  He  must  have  been  in  possession  of  the  property; 
he  must  have  been  disturbed  in  its  possession  by  repeated  actions  at  law ; 
and  he  must  have  established  his  right  by  successive  judgments  in  his  favor. 
Upon  these  facts  appearing,  the  court  would  interpose  and  grant  a  perpetual 
injunction  to  quiet  the  possession  of  the  plaintiff  against  any  further  litigation 
from  the  same  source.  It  was  only  in  this  way  that  adequate  relief  could  be 
afforded  against  vexatious  litigation  and  the  irreparable  mischief  which  it 
entailed." 

This  method  of  adjusting  titles  by  bill  in  equity  proved  so  convenient 
that  in  many  of  the  states  statutes  have  been  passed  extending  the  juris- 
diction of  a  court  of  equity  to  all  cases  where  a  party  in  possession,  and 
sometimes  out  of  possession,  seeks  to  clear  up  his  title  and  remove  any 
cloud  caused  by  an  outstanding  deed  or  lien  which  he  claims  to  be  in- 
valid, and  the  existence  of  which  is  a  threat  against  his  peaceable  oc- 
cupation of  the  land,  and  an  obstacle  to  its  sale.  The  inability  of  a 
court  of  law  to  afford  relief  was  a  strong  argument  in  favor  of  extend- 
ing the  jurisdiction  of  a  court  of  equity  to  this  class  of  cases. 

The  statute  of  Iowa,  upon  which  this  bill  is  based,  is  an  example  of 
this  legislation,  and  provides  (Code,  §  3273)  that  "an  action  to  determine 
and  quiet  title  to  real  property  may  be  brought  by  any  one  having,  or 
claiming  an  interest  therein,  whether  in  or  out  of  possession  of  the 


Ch.  6)  .  BILLS   QUIA   TIMET  1177 

same,  against  any  person  claiming  title  thereto,  though  not  in  posses- 
sion." 

It  will  be  observed  that  this  statute  enlarges  the  jurisdiction  of  courts 
of  equity  in  the  following  particulars  : 

(1)  It  does  not  require  that  plaintiff  should  have  been  annoyed  or 
threatened  by  repeated  actions  of  ejectment. 

(2)  It  dispenses  with  the  necessity  of  his  title  having  been  previously 
established  at  law. 

(3)  The  bill  may  be  filed  by  a  party  having  an  equitable  as  well  as 
a  legal  title.  Grissom  v.  Moore,  105  Ind.  296,  6  N.  E.  629,  55  Am. 
Rep.  742;  Stanley  v.  Holliday,  130  Ind.  464,  30  N.  E.  634;  Echols  v. 
Hubbard,  90  Ala.  309,  7  South.  817. 

(4)  In  some  states  it  is  not  even  necessary  that  plaintiff  should  be 
in  possession  of  the  land  at  the  time  of  filing  the  bill. 

These  statutes  have  generally  been  held  to  be  within  the  constitu- 
tional power  of  the  legislature ;  but  the  question  still  remains,  to  what 
extent  will  they  be  enforced  in  the  federal  courts,  and  how  far  are  they 
subservient  to  the  constitutional  provision  entitling  parties  to  a  trial  by 
jury,  and  to  the  express  provision  of  Rev.  St.  §  723,  inhibiting  suits  in 
equitv  in  any  case  where  a  plain,  complete,  and  adequate  remedy  may 
be  had  at  law?  These  provisions  are  obligatory  at  all  times,  and  un- 
der all  circumstances,  and  are  applicable  to  every  form  of  action,  the 
laws  of  the  several  states  to  the  contrary  notwithstanding.  Section  723 
has  never  been  regarded,  however,  as  anything  more  than  declaratory 
of  the  existing  law  (Boyce's  Ex'rs  v.  Grundy,  3  Pet.  210,  7  L.  Ed.  655), 
and,  as  was  said  in  New  York  Guaranty  &  Indemnitv  Co.  v.  Memphis 
Water  Co.,  107  U.  S.  205,  210,  2  Sup.  Ct.  279,  27  L.  Ed.  484,  "was  in- 
tended to  emphasize  the  rule,  and  to  impress  it  upon  the  attention  of 
the  courts."  It  was  not  intended  to  restrict  the  ancient  jurisdiction  of 
courts  of  equity,  or  to  prohibit  their  exercise  of  a  concurrent  jurisdic- 
tion with  courts  of  law  in  cases  where  such  concurrent  jurisdiction 
had  been  previously  upheld. 

The  question  of  enforcing  these  state  statutes  was  first  considered 
in  Clark  v.  Smith,  13  Pet.  195,  10  L.  Ed.  123,  in  which  a  bill  was  filed 
by  a  party  in  possession  to  compel  the  defendant  to  release  a  pretended 
title  to  certain  lands  claimed  by  him  under  patents  from  the  state  of 
Kentucky.  The  conveyance  asked  by  the  bill  was  sought  to  be  in  con- 
formity with  the  provisions  of  an  act  of  the  assembly  of  Kentucky 
giving  jurisdiction  to  courts  of  equity  in  such  cases.  It  was  held  that, 
the  legislature  "having  created  a  right,  and  having  at  the  same  time 
prescribed  the  remedy  to  enforce  it,  if  the  remedy  prescribed  is  con- 
sistent with  the  ordinary  modes  of  procedure  on  the  chancery  side  of 
the  federal  courts,  no  reason  exists  why  it  should  not  be  pursued  in 
the  same  form  as  in  the  state  courts.  On  the  contrary,  propriety  and 
convenience  suggest  that  the  practice  should  not  materially  differ  where 
titles  to  land  are  the  subjects  of  investigation."  This  case  was  cited 
and  approved  in  Parker  v.  Overman,   18  How.   137,   15  L.  Ed.  318, 


1178  BILLS   QUIA   TIMET  (Ch.  6 

where  a  proceeding  under  a  statute  of  Arkansas  prescribing  a  special 
remedy  for  the  confirmation  of  sales  of  land  by  a  sheriff  was  held  to 
be  enforceable  in  the  federal  courts. 

In  Holland  v.  Challen,  110  U.  S.  15,  3  Sup.  Ct.  495,  28  L.  Ed.  52, 
the  principle  of  this  case  was  extended  to  one  of  wild  land,  of  which 
neither  plaintiff  nor  defendant  was  in  possession.  Plaintiff  claimed  un- 
der a  tax  title,  and  the  property  was  described  in  the  bill  as  unoccupied, 
wild,  and  uncultivated  land.  The  question  was  elaborately  examined, 
and  the  jurisdiction  sustained  upon  the  ground  that  an  enlargement 
of  equitable  rights  by  state  statutes  may  be  administered  in  the  federal 
courts  as  well  as  in  the  courts  of  the  state ;  citing  Clark  v.  Smith,  and 
the  case  of  Broderick's  Will,  21  Wall.  520,  22  L.  Ed.  599.  The  case 
was  treated  as  one  where  the  plaintiff  had  no  remedy  at  law  against  the 
defendant,  who  claimed  an  adverse  interest  in  the  premises.  In  de- 
livering the  opinion,  however,  it  was  intimated  (page  25,  110  U.  S.,  and 
page  495,  3  Sup.  Ct.  [28  L.  Ed.  52])  that  if  a  suit  were  brought!'  in  the 
federal  court,  under  the  Nebraska  statute,  against  a  party  in  possession, 
"there  would  be  force  in  the  objection  that  a  legal  controversy  was 
withdrawn  from  a  court  of  law ;  but  that  is  not  this  case,  nor  is  it  of 
such  cases  we  are  speaking."  Another  step  in  the  same  direction  was 
taken  in  Reynolds  v.  Bank,  112  U.  S.  405,  5  Sup.  Ct.  213,  28  L.  Ed.  733, 
in  which  a  bill  was  sustained  upon  an  equitable  title,  although  it  would 
appear  from  the  report  of  the  case  that  such  title  was  not  fortified  by 
an  actual  possession  ;  and  in  Chapman  v.  Brewer,  114  U.  S.  158,  5  Sup. 
Ct.  799,  29  L.  Ed.  83,  a  similar  suit  was  upheld  under  a  statute  of 
Michigan  permitting  bills  to  quiet  title  to  be  filed  by  any  person  in  pos- 
session. 

Subsequent  cases,  however,  denied  the  power  of  the  federal  courts  to 
afford  relief  under  such  statutes  where  the  complainant  was  not  in  pos- 
session of  the  land,  and  in  Whitehead  v.  Shattuck,  138  U.  S.  146,  11 
Sup.  Ct.  276,  34  L.  Ed.  873,  particularly,  it  was  held  that  where  the  pro- 
ceeding is  simply  for  the  recovery  and  possession  of  specific  real  or 
personal  property,  or  for  the  recovery  of  a  money  judgment,  the  ac- 
tion is  one  at  law.  "The  right  which  in  this  case  the  plaintiff  wishes 
to  assert  is  his  title  to  certain  real  property ;  and  the  remedy  which  he 
wishes  to  obtain  is  its  possession  and  enjoyment ;  and  in  a  contest  over 
the  title  both  parties  have  a  constitutional  right  to  call  for  a  jury."  The 
case  of  Holland  v.  Challen  was  distinguished  as  one  where  neither 
party  was  in  possession  of  the  property,  and  it  was  further  said  that 
in  the  case  of  Reynolds  v.  Bank  the  question  did  not  arise  as  to  whether 
the  plaintiff  had  a  remedy  at  law,  but  whether  a  suit  to  remove  the 
cloud  mentioned  would  lie  in  a  federal  court.  The  case  of  U.  S.  v. 
Wilson,  118  U.  S.  86,  6  Sup.  Ct.  991,  30  L.  Ed.  110,  was  really  to  the 
same  effect,  though  not  cited  in  Whitehead  v.  Shattuck.  See,  also, 
Frost  v.  Spitley,  121  U.  S.  552,  7  Sup.  Ct.  1129,  30  L.  Ed.  1010.  Hut 
nothing  was  said  in  either  of  these  to  disturb  the  harmony  of  the  previ- 
ous cases. 


Cll.  6)  BILLS   QUIA   TIMET  1179 

The  real  question,  then,  to  be  determined  in  this  case,  is  whether  the 
plaintiffs  have  an  adequate  remedy  at  law.  If  they  have,  then  section 
723  is  controlling,  and,  notwithstanding  a  local  practice  under  the  Code, 
where  no  discrimination  is  made  between  actions  at  law  in  equity,  may 
authorize  such  suit,  the  federal  courts  will  not  entertain  the  bill,  but 
will  remit  the  parties  to  their  remedy  at  law.  The  bill  under  consider- 
ation alleges  the  plaintiffs  to  be  the  "absolute  owners"  of  the  premises, 
and  then  sets  forth  certain  proceedings  by  which  it  is  alleged  they  be- 
came such ;  but  it  is  claimed  and  substantially  admitted  in  the  bill  that, 
by  reason  of  certain  irregularities  in  these  proceedings,  it  is  doubtful 
whether  the  legal  title  ever  became  vested  in  the  plaintiffs.  The  bill  then 
sets  up  the  long  possession  of  the  plaintiffs  and  their  grantors,  large 
outlays  by  them  in  improvements  upon  the  land,  and  the  practical  aban- 
donment of  the  same  by  the  defendant,  all  of  which,  it  is  claimed,  con- 
stitute an  estoppel  in  pais.  Plaintiffs  also  rely  upon  the  laches  of 
Wehrman  in  bringing  the  action  in  ejectment,  and  allege  a  failure  to 
bring  his  suit  within  the  period  prescribed  by  the  statute  of  limitations. 
It  is  entirely  clear  that,  if  no  action  in  ejectment  had  been  begun  at  law, 
the  long-continued  adverse  possession  of  the  plaintiffs,  and  the  equitable 
title  set  up  in  the  bill,  would  have  been  a  sufficient  basis  for  the  main- 
tenance of  the  suit ;  and  it  is  not  easy  to  see  why  the  commencement  of 
such  action  should  place  them  in  a  worse  position  than  they  were  in 
before,  or  oust  them  of  their  remedy  in  equity. 

If  the  only  contest  in  this  case  were  as  to  whether  the  legal  title  to 
these  lands  was  in  the  plaintiffs  or  defendant,  it  may  be  that  a  court  of 
law  would  be  the  only  proper  forum  for  the  settlement  of  this  dispute ; 
but  the  plaintiffs  further  claim  that,  by  reason  of  certain  defects  in  the 
proceedings  by  which  they  acquired  title,  such  title  is  doubtful  at  law, 
'but  that  the  long  delay  of  the  plaintiff  at  law  in  the  assertion  of  his 
rights  establishes  a  defense  of  laches,  and  his  failure  to  set  up  his  title, 
and  his  long  acquiescence  in  the  Conklins'  possession  of  the  lands,  estop 
him  from  proceeding  either  at  law  or  in  equity  to  oust  them.     *     *     * 

Considering  all  the  facts  of  this  case,  it  is  not  a  matter  of  surprise 
that,  when  charged  in  this  bill  with  having  received  his  deed  without 
consideration,  and  with  intent  to  defraud  the  creditors  of  his  brother 
Adolph,  the  defendant  should  not  have  been  called  to  testify  in  rela- 
tion to  the  transaction.  In  short,  it  would  be  difficult  to  conceive  of  a 
clearer  case  of  estoppel  in  pais. 

The  decree  of  the  court  is  therefore  affirmed. 


HSU  BILLS  QUIA   TIMET  (Ch.  6 

DAY  LAND  &  CATTLE  CO.  v.  STATE. 

(Supreme  Court  of  Texas,  1SS7.    68  Tex.  526,  4  S.  W.  865.) 

Stayton,  J.°  This  action  was  brought  by  the  state  of  Texas, 
through  the  attorney  general  and  the  district  attorney  of  the  judicial 
district  in  which  Greer  county  is  embraced.  The  purpose  of  the  suit 
is  to  establish  the  right  of  the  state  to  144,640  acres  of  land,  situated 
in  Greer  county,  and  to  cancel  the  patents  under  which  the  appellant 
asserts  title  to  the  land.  The  land  was  located  and  patented  by  virtue 
of  land  certificates  issued  under  the  act  of  March  15,  1881,  (Gen.  Laws, 
35,)  which  provided  for  the  issuance  of  land  certificates  in  favor  of  the 
surviving  soldiers  of  the  Texas  revolution  and  others.  It  is  claimed  by 
the  state  that  the  several  grants  under  which  the  appellant  claims  are 
invalid  because  all  the  land  within  the  limits  of  Greer  county  was  ap- 
propriated by  the  act  of  February  25,  1879,  (Gen.  Laws,  16,)  to  other 
purposes,  and  was  therefore  not  subject  to  location  by  virtue  of  the 
certificates  under  which  the  appellant  claims  or  any  other.     *     *     * 

It  is  urged  that  the  general  and  special  demurrers  to  the  petition 
should  have  been  sustained,  and  that  the  petition  does  not  state  a  cause 
of  action.  The  main  objections  raised  by  the  assignments  relating  to 
this  matter  are  that  the  petition  does  not  allege  that  the  state  was  in 
possession  of  the  land,  and  ousted  by  the  defendant,  nor  that  the  state 
is  entitled  to  the  possession  of  the  land,  and  the  defendant  a  trespasser, 
and  that  the  petition  is  not  indorsed  as  the  statute  requires  a  petition 
in  trespass  to  try  title  to  be.  There  was  no  exception  based  on  the  fact 
that  the  petition  was  not  indorsed  as  the  statute  requires  petitions  to  be 
in  actions  of  trespass  to  try  title;  and  the  answer  of  the  defendant  pre- 
sents defenses  applicable  to  that  character  of  action,  thus  evidencing 
that  the  defendant  was  not  misled  as  to  the  character  of  the  action  by 
the  want  of  such  an  indorsement.  Such  an  objection  cannot  be  raised 
by  a  general  demurrer,  and,  when  presented  here  for  the  first  time,  can- 
not be  considered.  Bone  v.  Walters,  14  Tex.  567 ;  Shannon  v.  Taylor, 
16  Tex.  423  ;  Wade  v.  Converse,  18  Tex.  234. 

The  petitioner  alleges  that  the  lands  belong  to  the  state;  that  they 
are  claimed  by  the  defendant,  and  gives  the  origin  and  nature  of  the 
claim  thus  asserted.  It  prays  for  general  relief,  and  that  the  patents 
under  which  the  defendant  claims  be  canceled,  and  the  cloud  thereby 
placed  on  the  state's  title  it  asks  to  have  removed.  The  first,  second, 
and  third  requirements  in  a  petition  in  trespass  to  try  title  are  fully 
complied  with.  The  petition  states  facts  which,  if  the  grants  through 
which  the  defendant  claims  are  invalid,  entitles  the  state  to  the  posses- 
sion, and  that  there  was  not  an  averment  in  terms  that  the  state  was  so 
entitled  is  a  matter  of  no  importance.  The  petition  does  not  state  that 
the   defendant    unlawfully   entered   upon   and    dispossessed   the    state 

s  Parts  of  the  opinion  are  omitted. 


Ch.  6)  BILLS   QUIA  TIMET 


118.1 


of  the  premises,  and  that  the  defendant  withholds  the  possession ;  but 
there  is  no  exception  which  questions  the  sufficiency  of  the  petition  on 
the  ground  that  no  such  averments  are  made.  The  eighth  and  ninth 
exceptions  reach  no  such  question.  While  the  statute  seems  to  con- 
template that  in  an  action  of  trespass  to  try  title  such  averments  must 
be  made,  it  is  certainly  true  that  it  is  not  necessary  to  allege  any  fact 
which  it  is  not  necessary  to  prove.  It  is  not  necessary  to  prove  that  the 
owner  of  land  ever  was  in  actual  possession  of  it,  or  that  the  defendant 
was  in  possession,  in  order  to  sustain  even  an  action  of  trespass  to  try 
title ;  and  it  is  therefore  unnecessary  to  allege  these  things  unless  some 
relief  be  sought  against  the  defendant  based  on  the  fact  that  he  has 
been  in  possession.  Under  the  former  law  it  was  held  that  a  plaintiff 
in  an  action  of  trespass  to  try  title  must  show  that  the  defendant  was 
in  possession ;  but  under  the  present  law  the  action  may  be  maintained 
against  a  defendant  who  never  has  occupied  the  premises,  if  he  claims 
title  thereto.    Rev.  St.  art.  4790. 

Whether,  as  the  petition  in  this  case  was  framed,  the  action  is  to  be 
deemed  technically  an  action  of  trespass  to  try  title,  in  which  the  re- 
spective parties  would  be  entitled  to  all  the  statutory  rights  to  which 
parties  to  such  actions  are  entitled,  we  need  not  determine,  for  it  is  too 
clear  that  the  petition  states  facts  which  empowered  the  court  to  in- 
quire and  determine  whether  the  state  was  the  owner  of  the  land  as  it 
claimed  to  be. 

It  is  urged,  if  this  be  treated  as  a  suit  to  remove  cloud,  that  the  peti- 
tion is  not  sufficient,  in  that  there  is  no  averment  that  the  state  was  in 
possession  of  the  lands.  The  rule  here  invoked  has  doubtless  been  rec- 
ognized by  many  courts  exercising  only  an  equitable  jurisdiction;  but 
it  may  be  doubted  if  it  can  be  said  ever  to  have  been  a  rule  well  estab- 
lished even  in  such  tribunals.  When  recognized,  it  was  upon  the  ground 
that  a  court  of  equity  would  refuse  to  act  when  the  party  seeking 
equitable  relief  had  a  full  and  adequate  remedy  at  law.  Whatever  the 
rule  may  be  elsewhere,  the  rule  invoked  can  have  no  application  in  the 
courts  of  this  state,  which  are  not  only  empowered,  but  required,  in 
every  case,  to  give  such  relief  as  the  facts  presented  may  authorize  or 
require,  without  reference  to  whether  the  relief  be  such  as  a  court  of 
equity  or  a  court  of  law  may  give.  In  the  same  case  legal  and  equitable 
relief  may  be  given.  Allen  v.  Stephanus,  18  Tex.  659;  Magee  v.  Cha- 
doin,  44  Tex.  488;  Grimes  v.  Hobson,  46  Tex.  416;  Dangerfield  v. 
Paschal,  20  Tex.  537;  State  v.  Snyder,  66  Tex.  687,  18  S.  W.  106; 
Thomson  v.  Locke.  66  Tex.  383,  1  S.  W.  112.     *     *     * 

There  is  no  error  in  the  judgment  of  the  district  court,  and  it  will 
be  affirmed. 


1182  BILLS   QUIA  TIMET  (Ch.  G 


PERKINS  v.  WAKEHAM  et  al. 

(Supreme  Court  of  California,  1S90.     SG  Cal.  5S0,  25  Pac.  51, 
21  Am.  St.   Rep.  67.) 

Department  1.  Appeal  from  superior  court,  Los  Angeles  county; 
W.  P.  Gardiner,  Judge. 

PaTKRSOX,  J.  The  appeal  from  the  order  denying  the  motion  for  a 
new  trial,  so  far  as  it  affects  the  respondent,  town  of  Santa  Ana,  must 
be  dismissed.  The  notice  of  intention  to  move  for  a  new  trial  was  not 
served  on  said  respondent.  There  was  an  attempt  to  serve  the  state- 
ment, but  the  attorney  upon  whom  it  was  served  had  no  authority  to 
accept  service,  which  fact  was  known  to  appellant  at  the  time  of  serv- 
ice. The  motion  of  respondent,  the  town  of  Santa  Ana,  to  dismiss 
the  appeal  from  the  order  denying  a  new  trial  is  granted,  and  said  ap- 
peal, in  so  far  as  it  affects  said  respondent,  is  dismissed.  A  motion 
was  made  on  various  grounds,  also,  to  dismiss  the  appeal  from  the 
judgment,  but  as  the  findings  support  the  judgment,  and  no  error 
appears  on  the  face  of  the  roll,  we  deem  it  best  not  to  pass  on  the  mo- 
tion to  dismiss,  but  to  affirm  the  judgment.  The  court  found  that  in 
a  former  action,  brought  by  Wakeham  against  Perkins  and  others  to 
determine  all  adverse  claims  to  the  property  described  in  the  complaint 
herein,  judgment  was  entered  in  favor  of  said  Wakeham,  defendant 
herein,  adjudging  him  to  be  the  owner  of  the  property.  It  is  claimed 
by  appellant  that  the  decree  in  the  former  action  to  quiet  title  is  in 
personam,  and  not  in  rem,  and  that  as  the  service  of  summons  was  by 
publication  while  he  was  absent  from  the  state,  and  as  he  did  not  an- 
swer or  appear,  the  judgment  is  void.  If  it  be  true  that  a  state  has  no 
power  by  statute  to  provide  for  the  determination  of  adverse  claims 
to  real  estate  lying  within  its  limits,  as  against  non-resident  claimants, 
who  can  be  brought  into  court  only  by  publication ;  if  the  state  in  her 
sovereignty  is  impotent  to  protect  the  title  of  citizens  to  her  soil 
against  the  asserted  claims  of  non-residents,  who  will  not  voluntarily 
submit  their  claims  to  her  courts  for  adjudication, — great  evil  must 
result.  Certainty  and  security  in  the  titles  of  real  estate,  and  con- 
venient and  effective  procedure  for  the  determination  of  individual 
rights  in  such  property,  are  essential  to  the  prosperity  of  the  com- 
munity. If  those  who  cannot  be  reached  by  the  process  of  the  courts 
may  assert  adverse  claims  to  real  estate,  and  hold  unlawful  clouds 
over  the  title  of  the  owner,  every  homestead  and  lot  in  the  state  may 
have  a  cloud '  cast  upon  it  for  all  time.  We  do  not  think  that  a 
sovereign  state  is  so  limited  in  its  power.  The  state  is  paramount  in 
power  over  all  things  real  within  its  territorial  boundaries,  except  so 
far  as  its  authority  is  limited  by  the  constitution  and  laws  of  the  United 
States;  and  the  courts  of  the  state,  acting  within  that  limitation,  have 
and  may  exercise  all  the  jurisdiction  over  all  persons  and  things  which 
the  constitution  and  laws  of  the  state  confer  upon  them.     The  man- 


Ch.  6)  BILLS   QUIA  TIMET  1183 

ner  of  obtaining  such  jurisdiction,  and  the  procedure  for  its  exercise, 
are  matters  of  state  legislation.  The  legislature  of  this  state  has  pro- 
vided that : 

"An  action  may  be  brought  by  any  person  against  another  who  claims  an 
estate  or  interest  in  real  property  adverse  to  him.  for  the  purpose  of  deter- 
mining such  adverse  claim."    Section  738,  Code  Civil  Proc. 

It  has  also  provided : 

"Where  the  person  on  whom  the  service  is  to  be  made  resides  out  of  the 
state,  or  has  departed  from  the  state,  or  cannot,  after  due  diligence,  be  found 
within  the  state,  or  conceals  himself  to  avoid  the  service  of  summons,  or  is  a 
foreign  corporation,  having  no  managing  or  business  agent,  cashier,  or  secre- 
tary within  the  state,  and  the  fact  appears  by  affidavit  to  the  satisfaction 
of  the  court,  or  a  judge  thereof,  and  it  also  appears  by  such  affidavit,  or  by 
the  verified  complaint  on  file,  that  a  cause  of  action  exists  against  the  de- 
fendant in  respect  to  whom  the  service  is  to  be  made,  or  that  he  is  a  neces- 
sary or  proper  party  to  the  action,  such  court  or  judge  may  make  an  order 
that  the  service  be  made  by  the  publication  of  the  summons.  The  order  must 
dii-ect  the  publication  to  be  made  in  a  newspaper,  to  be  designated,  as  most 
likely  to  give  notice  to  the  person  to  be  served,  and  for  such  length  of  time  as 
may  be  deemed  reasonable, — at  least  once  a  week;  but  publication  against 
a  defendant  residing  out  of  the  state,  or  absent  therefrom,  must  not  be  less 
than  two  months."     Sections  412,  413,  Id. 

Unless  the  method  of  giving  notice  above  prescribed  is  unreasonable, 
or  is  in  conflict  with  some  provision  of  the  constitution  or  principle 
of  natural  justice,  it  cannot  be  held  invalid.  In  determining  the  ques- 
tion of  its  validity,  the  nature  of  the  action  and  the  effect  of  the 
judgment  must  be  considered.  While  it  is  true,  as  a  general  proposi- 
tion, that  an  action  to  quiet  title  is  an  action  in  equity,  which  acts 
upon  the  person,  it  is  also  true  that  the  state  has  power  to  regulate 
the  tenure  of  immovable  property  within  its  limits,  the  conditions  of 
its  ownership,  and  the  modes  of  establishing  the  same,  whether  the 
owner  be  citizen  or  stranger.  U.  S.  v.  Fox,  94  U.  S.  315,  24  L.  Ed. 
192.  While  a  decree  quieting  title  is  not  in  rem,  strictly  speaking,  it 
fixes  and  settles  the  title  to  real  estate,  and  to  that  extent  certainly 
partakes  of  the  nature  of  a  judgment  in  rem.  But  it  is  not  necessary, 
in  support  of  a  judgment  in  such  an  action,  where  service  has  been 
had  by  publication,  to  determine  the  question  whether  it  is  a  judg- 
ment in  personam  or  one  in  rem.  This  precise  point  has  recently 
been  decided  by  the  supreme  court  of  the  United  States.  Mr.  Justice 
Brewer,  speaking  for  the  court,  said  : 

"The  question  is  not  what  a  court  of  equity,  by  virtue  of  its  general  powers, 
and  in  the  absence  of  a  statute,  might  do,  but  it  is  what  jurisdiction  has  a 
state  over  titles  to  real  estate  within  its  limits,  and  what  jurisdiction  may  it 
give  by  statute  to  its  own  courts  to  determine  the  validity  and  extent  of  the 
claims  of  non-residents  to  such  real  estate?"  Arndt  v.  Griggs,  134  U.  S.  320, 
10  Sup.  Ct.  557,  33  L.  Ed.  91S. 

There  the  power  of  the  state  to  quiet  title  as  against  non-residents 
by  constructive  service  is  upheld,  and  the  cases  upon  which  appellant 
herein  chiefly  relies  are  fully  considered  and  elaborately  reviewed. 
In  that  case,  it  is  true,  the  statute  of  the  state  of  Nebraska,  which  was 
under  consideration,  expressly  provided  for  service  by  publication  "in 


11S4  BILLS   QUIA   TIMET  (Cll.  6 

actions  which  relate  to,  or  the  subject  of  which  is,  real  or  personal 
property  in  this  state,  where  any  defendant  has  or  claims  a  lien  or 
interest,  actual  or  contingent,  therein,  or  the  relief  demanded  consists 
wholly  or  partially  in  excluding  him  from  any  interest  therein,  and 
such  defendant  is  a  non-resident  of  the  state  or  foreign  corporation," 
but  the  authority  conferred  by  the  legislature  of  this  state  in  section 
412,  supra,  is  as  great  as  that  given  by  the  Nebraska  statute.  While 
our  statute  is  general,  and  in  terms  applies  to  all  actions,  it  is  not 
invalid  because  it  includes  in  its  provisions  proceedings  purely  in  per- 
sonam. If  the  judgment  in  the  action  of  Wakeham  is  valid  and  bind- 
ing,— and  we  hold  that  it  is, — other  questions  raised  by  appellant  need 
not  be  noticed.  The  judgment  and  order  are  affirmed. 
We  concur:    Fox,  J.;   Works,  J. 


SCOTT  v.  TOWN  OF  MENASHA. 

(Supreme  Court  of  Wisconsin,  1S93.    Si  Wis.  73,  54  N.  W.  263.) 
Appeal  from  circuit  court,  Winnebago  county ;   George  W.  Burnett, 
Judge. 

Action  by  Libbie  A.  Scott,  as  administratrix  of  Reuben  M.  Scott, 
deceased,  against  the  town  of  Menasha,  to  recover  on  certain  cou- 
pons alleged  to  have  been  attached  to  certain  municipal  bonds  issued 
by  defendant.  From  an  order  sustaining  plaintiffs  demurrer  to  the 
answer,  defendant  appeals.     Reversed. 

Winslow,  J.  The  action  was  brought  by  Reuben  M.  Scott  to  re- 
cover upon  certain  coupons  alleged  to  have  been  attached  to  certain 
municipal  bonds  issued  by  defendant  town.  The  complaint  set  forth 
the  issuance  and  delivery  by  the  town  to  the  Wisconsin  Central  Rail- 
road Company  of  a  number  of  municipal  negotiable  bonds  to  which 
the  coupons  in  suit  were  attached,  and  alleged  ownership  of  the  cou- 
pons before  maturity,  demand,  and  nonpayment.  The  complaint  did 
not  allege  ownership  of  the  bonds.  The  answer  alleged,  by  way  of 
counterclaim,  a  large  number  of  facts  tending  to  show  that  the  bonds 
in  question  were  issued  without  legal  authority,  and,  though  apparent- 
ly valid,  were  void  in  their  inception,  because  of  failure  by  the  railroad 
company  to  perform  the  conditions  upon  which  their  validity  depend- 
ed ;  that  all  such  facts  were  well  known  to  Reuben  M.  Scott,  and  to 
all  parties  who  ever  owned  or  held  said  bonds ;  and  that  Scott  is  the 
owner  and  holder  of  all  said  bonds  and  their  coupons,  and  threatens 
to  dispose  of  the  same  to  innocent  purchasers, — and  prays  that  the 
same  be  adjudged  void  and  canceled,  and  that  Scott  be  enjoined  from 
transferring  the  same,  Scott  died  pendente  lite,  and  the  action  was 
revived  in  the  name  of  his  administratrix.  The  bonds  had  more  than 
a  year  to  run  before  maturity  when  the  answer  was  served.  To  this 
counterclaim  plaintiff  demurred  (1)  because  it  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action ;    (2)  because  it  is  not  plead- 


Ch.  6)  BILLS   QUIA   TIMET  1185 

able  as  a  counterclaim.    From  an  order  sustaining  this  demurrer,  de- 
fendant appeals. 

It  seems  apparent  that  the  counterclaim  states  a  cause  of  action  in 
equity.  The  jurisdiction  of  courts  of  equity  to  entertain  an  action  to 
compel  cancellation  and  delivery  of  negotiable  instruments  apparently 
valid,  but  in  fact  invalid,  while  in  the  hands  of  holders  with  notice 
before  maturity,  is  well  settled.  3  Pom.  Eq.  Jur.  §  1377.  In  fact,  it 
was  not  contended,  either  in  the  brief  or  upon  the  oral  argument,  that 
the  first  ground  of  demurrer  was  well  taken.  We  shall,  therefore, 
spend  no  time  on  that  point. 

The  question  whether  the  facts  are  pleadable  as  a  counterclaim 
presents  more  difficulty,  but  we  think  it  must  be  answered  in  the 
affirmative.  It  being  established  that  the  facts  stated  would  show  a 
cause  of  action  in  equity  for  the  cancellation  of  the  void  bonds  in 
plaintiff's  hands,  the  principal  question  under  this  head  is  whether 
this  cause  of  action  comes  within  the  provisions  of  subdivision  1,  § 
2656,  Rev.  St.,  i.  e.  whether  it  is  "a  cause  of  action  arising  out  of 
the  contract  or  transaction  set  forth  in  the  complaint  as  the  founda- 
tion of  the  plaintiff's  claim,  or  connected  with  the  subject  of  the 
action."  It  may  well  be  urged  that  the  bond  itself  is  the  contract 
which  is  the  foundation  of  plaintiff's  claim ;  but  whether  it  be  held  that 
the  bond  or  the  coupon  alone  is  the  foundation  of  his  claim,  within  the 
meaning  of  the  law,  it  would  seem  quite  evident  that  a  cause  of  action 
which  attacks  both  the  bond  and  coupons  as  void  because  of  fraud, 
and  total  want  of  consideration,  in  their  issuance,  must  be  a  cause 
of  action  arising  out  of  the  contract  which  is  the  foundation  of  plain- 
tiff's claim.  The  bond  and  coupons  are  simultaneously  executed,  the 
coupon  being  simply  an  incident  to  the  bond,  and  are  based  upon  the 
same  consideration,  and  are  the  result  of  the  same  negotiations. 

It  seems  to  us  that  this  cause  of  action  fulfills  both  clauses  of  the 
section  under  consideration.  It  arises  out  of  the  contract  which  is 
the  foundation  of  the  plaintiff's  claim,  and  it  is  connected  with  the 
subject  of  the  action.  It  was  argued  that  this  counterclaim  does  not 
come  within  the  rule  stated  in  Dietrich  v.  Koch,  35  Wis.  618,  viz.  "a 
claim  which,  if  established,  will  defeat,  or  in  some  way  qualify,  the 
judgment  to  which  a  plaintiff  is  otherwise  entitled."  This  is  unten- 
able, because,  if  the  bonds  are  invalid  by  reason  of  the  facts  stated 
in  the  counterclaim,  the  coupons  sued  on  are  also  invalid,  and  both 
bonds  and  coupons  are  alleged  to  be  held  by  the  plaintiff  with  notice 
of  their  invalidity.  So  if  defendants  prove  their  counterclaim,  as  al- 
leged, they  will  defeat  the  judgment  to  which  plaintiff  is  otherwise 
entitled.  Because  they  propose  to  go  further,  and  obtain  some  affirma- 
tive relief,  is  no  objection  to  the  counterclaim.  Wilson  v.  Hooser, 
76  Wis.  387,  45  N.  W.  316. 

Order  reversed,  and  cau.se  remanded  for  further  proceedings  ac- 
cording to  law. 

Boke  Eq.— 75 


11S6  BILLS   QUIA   TIMET  (Ch.  6 

FULLER  v.  PERCIVAL  et  al.  (two  cases). 
(Supreme  Judicial  Court  of  Massachusetts,  1879.    126  Mass.  3S1.) 

Colt,  J.  These  are  two  bills  in  equity,  originally  brought  by  Henry 
D.  Fuller.  On  his  death  his  administrator  was  admitted  to  prosecute 
them.  In  both  of  the  bills  it  is  alleged  that  the  notes  to  which  they 
relate  were  given  by  the  defendant  Gustavus  Percival,  who  with 
Henry  D.  Fuller  composed  the  firm  of  Percival,  Fuller  &  Company ; 
that  they  were  given  in  the  name  of  the  firm,  by  Gustavus,  without 
the  knowledge  of  his  copartner,  in  fraud  of  the  firm ;  and  that  this 
fraud  was  known  to  and  participated  in  by  the  defendant  John  P.  T. 
Percival.  The  two  notes  for  $2500  each,  for  relief  against  which  the 
first  suit  is  brought,  were  notes  payable  on  demand,  and  are  still  re- 
tained by  John.  The  note  for  $5000,  to  which  the  second  suit  relates, 
was  payable  in  ninety  days,  and  was  passed  by  John  to  third  parties, 
who  claim  to  be,  and  upon  the  allegations  in  the  bill  must  be  taken  to  be, 
innocent  holders.  The  latter  have  brought  an  action  at  law  upon  the 
note  against  the  firm,  which  is  now  pending,  but  they  are  not  made 
parties  to  the  bill. 

The  oath  of  the  defendants  in  each  case  is  waived.  The  prayer  in 
the  first  case  is,  that  John  may  be  ordered  to  produce  and  cancel 
the  two  first-named  notes,  and  may  be  restrained  from  enforcing 
them ;  and  in  the  second,  that  he  may  be  ordered  to  pay,  take  up  and 
cancel  the  larger  note,  and  be  restrained  from  enforcing  it.  In  each 
case,  a  demurrer  for  want  of  equity  was  overruled,  and  the  order 
appealed  from,  and  a  decree  for  the  plaintiff  on  the  final  hearing 
was  also  appealed  from. 

The  weight  of  modern  authority  supports  the  jurisdiction  in  equity 
of  suits  for  the  cancellation  of  written  instruments  obtained  by  fraud. 
It  is  exercised  for  the  purpose  of  affording  relief  against  invalid 
executory  contracts  in  the  possession  of  another,  where  the  invalidity 
is  not  apparent  on  the  instrument  itself,  and  where  the  defence  may 
be  nullified  by  intentional  delay  to  sue  until  the  evidence  in  support  of 
it  is  lost.  Adams,  Eq.  174.  In  Hamilton  v.  Cummings,  1  Johns.  Ch. 
(X.  Y.)  517,  Chancellor  Kent,  after  a  full  and  critical  examination  of 
the  English  cases,  declares  that  he  is  inclined  to  the  opinion,  that  the 
jurisdiction  is  to  be  upheld  whether  the  instrument  is  or  is  not  void 
at  law,  and  whether  it  be  void  from  matter  appearing  on  its  face,  or 
from  proof  taken  in  the  cause.    But  further  on  he  adds  that : 

"Perhaps  the  cases  may  all  be  reconciled  ou  the  general  principle,  that  the 
exercise  of  this  power  is  to  be  regulated  by  sound  discretion,  as  the  circum- 
stances of  the  individual  case  may  dictate :  and  that  the  resort  to  equity,  to 
be  sustained,  must  be  expedient,  either  because  the  instrument  is  liable  to 
abuse  from  its  negotiable  nature,  or  because  the  defence  not  arising  on  its 
face  may  be  difficult  or  uncertain  at  law,  or  from  some  other  special  cir- 
cumstances  peculiar  to  the  case,  and  rendering  a  resort  here  highly  proper, 
and  clear  of  all  suspicion  of  any  design  to  promote  expense  and  litigation." 


Ch.  0)  BILLS   QUIA   TIMET  1187 

This  doctrine  was  recognized  by  this  court  in  Commercial  Ins.  Co. 
v.  McLoon,  14  Allen,  351,  where  a  bill  alleging  that  the  defendant 
had  obtained  a  policy  of  insurance  by  fraud,  which  gave  him  an  ap- 
parent cause  of  action,  from  which  the  plaintiff  was  in  danger,  and 
praying  that  the  policy  might  be  given  up  and  cancelled,  was  sus- 
tained. See,  also,  Martin  v.  Graves,  5  Allen,  601 ;  Peirsoll  v.  Elliott, 
6  Pet.  95,  8  L.  Ed.  332;   Story,  Eq.  Jur.  §§  694,  700. 

As  to  the  first  case,  the  plaintiff  upon  the  allegations  in  the  bill 
comes  within  the  recognized  jurisdiction  of  the  court.  The  notes  are 
in  the  possession  of  a  fraudulent  holder,  who  has  demanded  payment 
of  the  plaintiff;  they  are  negotiable,  and  although  overdue  may  be 
sued  by  such  holder,  or  by  others  to  whom  he  may  hereafter  trans- 
fer them,  to  the  embarrassment  of  the  plaintiff,  and  no  suit  at  law  has 
yet  been  commenced  upon  them.  The  partnership  is  dissolved  and 
its  affairs  are  in  course  of  settlement  in  this  court,  its  effects  being 
in  the  hands  of  a  receiver.  The  plaintiff  cannot  try  the  question  of 
the  partnership  liability  at  law  until  such  time  as  John  P.  T.  Percival 
may  see  fit  to  bring  his  action.  The  settlement  of  the  affairs  of  the 
firm  must  be  delayed  until  the  question  is  settled.  And,  upon  the 
whole,  we  are  of  opinion  that  the  plaintiff  is  entitled  to  the  relief  he 
seeks.  It  is  more  effectual  than  it  can  be  at  law,  because  it  is  more 
speedily  afforded,  and  enables  the  plaintiff  to  protect  himself  before 
the  evidence  is  lost. 

In  this  case  the  entry  must  be :   Decree  affirmed. 

But  different  considerations  apply  to  the  second  suit.  An  action 
at  law  is  now  pending  against  the  firm  upon  the  note  to  which  the 
second  suit  relates,  in  favor  of  the  present  holders  of  that  note.  It  is 
not  alleged  in  this  bill  that  the  plaintiff  has  any  defence  which  can 
be  availed  of  against  the  .holders  of  that  note.  The  allegation  is  that 
John  P.  T.  Percival  fraudulently  negotiated  it  to  the  present  holders 
for  the  purpose  of  enabling  them  to  collect  it  out  of  the  property  of 
the  firm.  The  plaintiff  cannot  escape  his  liability  to  the  holders. 
Upon  the  payment  of  the  note  he  may  at  once  commence  an  action  at 
law  in  his  own  name  alone  to  recover  for  the  fraud  alleged  to  have 
been  practised  upon  him,  and  in  that  action  his  remedy  is  full,  ade- 
quate and  complete  against  the  parties  to  the  fraud.  Longman  v. 
Pole,  Mood  &  Malk.  223;  Story,  Part.  §  256.  The  remedy  at  law 
would  be  as  speedy  and  as  effectual  as  a  remedy  by  decree  in  this  suit 
requiring  the  defendant  John  P.  T.  Percival  to  give  bond  for  the 
payment  of  the  judgment  to  be  recovered  in  the  pending  action  at 
law,  or  to  pay  the  note  and  surrender  it  for  cancellation. 

And  in  this  second  case  the  entry  must  be :   Bill  dismissed. 


1188  INTERPLEADER  (Cll.  7 

CHAPTER  VII 
INTERPLEADER 


WINCx  v.  SPAULDING  et  al. 
(Supreme  Court  of  Vermont,  1891.    64  Yt.  83,  23  Atl.  615.) 

This  was  a  bill  of  interpleader  and  was  heard  upon  the  pleadings 
and  a  master's  report  at  the  March  term,  1891,  Washington  county. 
Munson,  Chancellor,  decreed  pro  forma,  that  the  orator  be  discharg- 
ed upon  payment  of  the  fund  into  court,  and  that  the  fund  belonged 
to  Mrs.  Robinson.    The  defendants  Spaulding  appeal. 

The  orator  was  the  administrator  of  Mary  A.  Spaulding,  and  as 
such  had  collected  $472,  which  was  the  fund  in  question,  upon  a  non- 
negotiable  instrument  payable  to  his  intestate.  This  fund  was  claimed 
by  the  defendant,  Mrs.  Robinson,  for  the  reason  that  Mrs.  Spaulding 
had  given  the  instrument  to  her  in  her  lifetime,  and  by  the  other 
defendants  as  the  heirs  of  Mrs.  Spaulding,  who  claimed  that,  if  the 
gift  was  ever  made,  it  was  void  by  reason  of  the  mental  incapacity 
of  the  donor. 

All  the  defendants,  except  the  Robinsons,  joined  in  an  answer 
denying  the  gift,  and  setting  forth  that  Mrs.  Robinson  was  indebted 
to  the  orator,  and  had  put  this  instrument  into  his  hands  to  collect 
with  the  understanding  that  whatever  was  realized  should  be  applied 
on  that  indebtedness,  wherefore  this  bill  of  interpleader  would  not 
lie. 

The  case  was  referred  to  a  master  and  a  full  hearing  was  had  upon 
all  the  issues  of  the  fact  involved.  The  master  found,  among  other 
things,  that  the  orator  received  the  instrument  from  Mrs.  Robinson 
upon  the  understanding  that  he  should  apply  whatever  he  collected 
upon  her  indebtedness. 

RowDLL,  J.1  This  is  a  bill  of  interpleader  brought  to  compel  the 
defendants  to  interplead  in  respect  of  money  collected  by  the  orator 
on  behalf  of  the  defendant  Mrs.  Robinson  on  a  non-negotiable  obliga- 
tion given  to  her  mother,  the  intestate,  by  her  brothers,  Christopher 
C.  Spaulding  and  Nathan  R.  Spaulding,  who  are  defendants,  and  who 
claim  that  the  money  belongs  to  their  mother's  estate  and  not  to 
Mrs.  Robinson,  who  claims  it  by  gift  from  her  mother  in  her  life- 
time. The  bill  does  not  allege  that  the  orator  has  no  interest  in  the 
money,  nor  was  there  annexed  to  it  an  affidavit  that  the  orator  was 
not  in  collusion  with  any  of  the  defendants;  but  no  demurrer  was  filed. 
Interpleader  was  not  decreed,  but  the  bill  was  answered,  and  all  the 

i  Part  of  the  opinion  is  omitted. 


Ch.  7)  INTERPLEADER  1189 

defendants  except  Mrs.  Robinson  and  her  husband  alleged  interest 
in  the  orator,  and  collusion  by  him  with  the  Robinsons.  The  case  was 
referred  to  a  special  master  to  ascertain  and  report  the  facts  on  the 
issues  raised  by  the  answers,  and  on  the  coming  in  of  the  report  the 
case  was  set  down  for  hearing  on  bill,  answers,  and  the  master's 
report,  and  a  decree  was  entered  that  the  orator  pay  the  money  into 
court,  and  thereupon  be  discharged  from  further  liability  in  respect 
thereof,  with  costs  to  be  paid  out  of  the  fund,  and  that  the  fund  be- 
longed to  Mrs.  Robinson,  and  be  paid  to  her.  The  master  finds  that, 
when  the  orator  took  said  obligation  from  Mrs.  Robinson  to  collect, 
she  verbally  turned  it  out  to  him  to  apply,  when  collected,  on  her  in- 
debtedness to  him ;  and  it  is  objected  that  the  bill  cannot  be  main- 
tained because  oT  such  interest  in  the  orator. 

The  remedy  of  interpleader  is  intended  for  the  relief  of  those  only 
who  occupy  the  position  of  mere  stakeholders,  and  are  in  danger  of 
being  drawn  into  a  controversy  in  which  they  have  no  concern.  It 
is,  therefore,  of  the  essence  of  an  interpleader  suit  that  the  orator 
should  be  entirely  indifferent  between  the  conflicting  claims  ;  having 
no  interest  himself  in  the  fund  or  other  thing  in  dispute.  Story,  Eq. 
PI.  §  297;  3  Daniell,  Ch.  Pr.  &  PI.  *1754.  The  attitude  of  the  orator 
in  such  a  bill  is  thus  defined  by  Lord  Chancellor  Cottenham  in  Hog- 
gart  v.  Cutts,  Craig  &  P.  197: 

"The  definition  of  'interpleader'  is  not,  and  cannot  be,  disputed.  It  is 
where  the  plaintiff  says,  'I  have  a  fund  in  my  possession  in  which  I  claim  no 
personal  interest,  and  to  which  you,  the  defendants,  set  up  conflicting  claims. 
Pay  me  my  costs,  and  I  will  bring  the  money  into  court,  and  you  shall  contest 
it  between  yourselves.' " 

His  relation  to  the  controversy  must  be  such  that  on  interpleader 
decreed,  he  can  step  out  of  the  case  altogether.  When,  therefore,  the 
orator  has  a  personal  interest  in  the  fund,  his  position  is  not  one  of 
indifference,  and  he  cannot  maintain  his  bill.  And  not  only  must  he 
be  disinterested  when  he  brings  his  bill,  but  he  must  continue  to  be 
disinterested.     His  position  must  be  one  of  "continuous  impartiality." 

But  it  is  claimed  that  the  objection  of  interest  in  the  orator  cannot 
be  made  now,  but  should  have  been  made  at  an  earlier  stage  of  the 
case,  before  answer  and  trial  on  the  merits.  But,  in  the  absence  of  a 
decree  of  interpleader,  we  think  the  objection  can  be  taken  at  the 
hearing.  How  it  would  be  if  such  a  decree  had  been  made,  we  have  no 
occasion  to  determine.  In  this  connection  it  must  be  remembered  that 
interest  or  want  of  interest  is  not  mere  formal  matter,  but  goes  to  the 
very  right  of  maintaining  the  bill.     *     *     *      , 

We  hold,  therefore,  that  in  the  case  before  us  the  orator  cannot 
maintain  his  bill,  because  of  his  interest  in  the  money  in  controversy. 
No  costs  in  this  court  will  be  allowed  the  defendants  Robinson,  be- 
cause they  knew  of  the  orator's  interest,  but  did  not  disclose  it.  De- 
cree reversed  and  cause  remanded,  with  directions  to  dismiss  the  bill, 
with  costs  in  this  court  to  all  the  defendants  except  the  Robinsons. 
Costs  in  the  court  below  to  be  determined  by  that  court. 


1190  INTERPLEADER  (Ch.  7 

BRAINE  v.  HUNT  et  al. 
(Court  of  Exchequer,  1S34.    2  Dowl.  391.) 

This  was  a  motion  made  by  Cooper,  under  the  Interpleader  Act, 
on  behalf  of  the  sheriff  of  Oxford.  The  writ  was  delivered  to  the 
sheriff  on  the  12th  of  December.  The  goods  were  seized  on  the  26th: 
On  the  28th,  a  notice  was  sent  of  a  claim  under  a  bill  of  sale.  On 
the  1st  oi"  January,  the  sheriff  was  ruled  to  return  the  writ.  On  shew- 
ing cause,  it  appeared  that  all  the  property  seized,  except  a  fly,  had 
been  since  delivered  up  by  the  sheriff  to  the  claimant. 

Bayley,  B.  The  sheriff  says  he  has  the  goods  in  his  possession,  and 
now  it  appears  that  part  have  been  given  up.  I  think  he  does  not 
act  fairly  if  he  gives  up  part  of  the  goods;  in  fact,  he  colludes  with 
the  party  to  whom  he  delivers  them  up.  The  object  of  the  act  was. 
by  means  of  a  suit  and  one  suit  only,  and  that  between  the  parties 
really  interested,  the  question  of  right  should  be  tried,  and  the  sheriff 
exonerated.  Here  the  claimant  might  try  his  right  in  an  action  against 
the  execution  creditor,  but  he  would  have  a  right  to  sue  the  sheriff 
for  the  goods  delivered  up,  and  for  returning  nulla  bona  as  to  part. 
I  therefore  think  that  the  sheriff  is  not  entitled  to  the  protection  of 
the  act,  and  that  the  rule  should  be  discharged. 

Vaughan,  B.  The  sheriff  ought  to  have  a  control  over  the  goods 
the  whole  time.    The  costs  will  fall  on  the  officer. 

Rule  discharged  with  costs,  and  ten  days  allowed  to  return  writ. 


ANONYMOUS. 

(Iu  Chancery,  1685.     1  Veru.  351,  23  E.  R.  516.) 

Upon  a  motion  it  was  declared  by  the  court  that  a  cause  having 
been  heard  upon  a  bill  of  interpleader,  and  a  trial  at  law  directed 
to  settle  the  right  between  the  defendants,  there  is  an  end  of  the  suit 
as  to  the  plaintiff;  so  that  if  he  afterwards  dies,  the  cause  shall  still 
proceed,  and  there  needs  no  revivor,  each  defendant  being  in  the 
nature  of  a  plaintiff. 


CRAWSHAY  v.  THORNTON. 

(In  Chancery  before  Lord  Cottenham,  1S36.    2  Mylne  &  C.  1.) 

This  was  a  bill  of  interpleader.  The  plaintiffs  were  the  persons 
who,  for  some  years  previously  to  the  month  of  August,  1834,  con- 
stituted, together  with  William  Crawshay,  since  deceased,  the  firm  of 
Richard  &  William  Crawshay  &  Co.,  but  who  now  constituted  the 
linn  of  Richard,  William  &  George  Crawshay  &  Co.  The  defendants 
were  Henry  Sykes  Thornton  and  Pavel  Daniloff  Daniloff.     The  bill 


Ch.  7)  INTERPLEADER  1191 

stated,  that  the  plaintiffs  had  for  some  years  carried  on  business  as 
iron  merchants  in  London,  in  partnership,  and  that  they  had  and  have 
a  bonded  yard  for  foreign  iron,  and  have  also  acted  as  wharfingers  ;  and 
that  in  and  prior  to  the  year  1831,  the  persons  constituting  the  firm  of 
W.  &  T.  Raikes  &  Co.,  of  London,  were  in  the  habit  of  depositing  for- 
eign iron  in  the  plaintiffs'  yard  for  safe  custody,  the  bill  then  stated, 
that,  in  the  year  1832,  certain  specified  parcels  of  iron  were  deposited 
with  the  plaintiffs  by  W.  &  T.  Raikes  &  Co.,  and  that,  in  the  early  part 
of  the  year  1833,  an  order  in  writing  was  brought  to  the  plaintiffs, 
signed  by  W.  &  T.  Raikes  &  Co.,  requiring  the  plaintiffs  to  weigh  and 
deliver  the  iron ;  that  the  order  did  not  specify  the  name  of  the  person 
to  whom  the  iron  was  to  be  delivered,  but  that  a  verbal  message  was 
left  that  the  same  "was  for  Mr.  Thornton."  The  bill  then  stated,  that  no 
application  having  been  made  for  the  delivery  of  the  iron,  one  of  the 
plaintiffs  wrote,  in  pencil,  in  the  book  of  his  firm  which  contained  an 
account  of  the  iron,  the  name  "Thornton"  against  each  of  the  parcels 
mentioned  in  the  order.  The  bill  further  stated,  that,  in  March,  1834, 
application  was  made  to  the  plaintiffs  by  Henry  Sykes  Thornton,  to 
know  the  particulars  of  the  iron  which  the  plaintiffs  held  on  his  ac- 
count; and  that  one  of  the  plaintiffs  having  thereupon  ascertained 
from  Richard  Mee  Raikes,  who  then  carried  on  the  business  of  the 
firm  of  W.  &  T.  Raikes  &  Co.,  that  H.  S.  Thornton  was  the  person 
in  whose  favor  the  order  for  delivery  had  been  given,  wrote  in  the 
book  of  the  plaintiffs'  firm,  which  contained  the  particulars  of  the  iron, 
against  the  entry  of  each  of  the  parcels,  the  following  words  and 
figures,  viz.  "8th  March,  1834,  transferred  to  H.  S.  Thornton;"  and 
that  the  plaintiffs,  at  the  same  time,  wrote  or  caused  to  be  written  to 
Thornton  a  letter  in  the  following  words : 

"George  Yard,  8th  March,  1S34. 
"Sir:    In  compliance  with  your  request,   we  annex  a  note  of  the  landing 
weights  of  the  various  parcels  of  cc  kd  iron,  transferred  into  3'our  name  by 
Messrs.  W.  &  T.  Raikes  &  Co.,  and  now  held  by  us  at  your  disposal. 

"We  are,  &c,  Richard  &  W.  Crawshay  &  Co. 

"H.  S.  Thornton,  Esq." 

The  bill  then  stated  that  R.  M.  Raikes  became  bankrupt  in  October, 
1834,  but  that  neither  he  nor  his  assignees  claimed  any  interest  in 
the  matters  in  question.  The  bill  then  stated,  that  on  the  8th  of 
October,  1834,  the  plaintiffs  received  from  Messrs.  Lemme  &  Co., 
merchants,  a  letter  in  the  following  words : 

"Messrs.  R.  &  W.  Crawshay  &  Co. 

"1  Finsbury  Circus,  1834. 
"Gentlemen:  You  will  please  to  take  notice  that  the  whole  of  the  cc  nd  iron, 
lying  at  your  wharf,  is  the  property  of  Messrs.  P.  Daniloff  and  A.  Lubiuoff, 
of  St.  Petersburgh,  and  that  Messrs.  W.  &  T.  Raikes  &  Co.  were  agents  to 
them  for  the  sale  thereof,  and  had  no  power  to  pledge  the  same.  Learning 
however  that  Messrs.  W.  &  T.  Raikes  have  pledged  certain  part  of  the  above 
iron  to  Messrs.  Williams,  Deacon,  Labouchere  &  Co.  [H.  S.  Thornton  was  a 
partner  in  this  firm],  and  that  you  have  the  authority  of  the  latter  to  hold  such 
iron  at  their  disposal,  we  beg  to  inform  you  that  the  authority  is  nugatory, 
and  you  are  hereby  required  to  treat  it  as  a  nullity,  and  not  to  part  with  the 


1192  INTERPLEADER  (Ch.  7 

possession  of  any  part  of  such  cc  nd  iron,  but  hold  the  whole  thereof  at  the 
disposal  of  Messrs.  P.  Daniloff  &  A.  Lubinoff,  for  whose  house  we  have  the 
honor  to  be,  &c.  John  Louis  Lemme  &  Co." 

The  bill  then  alleged,  that  Pavel  Daniloff  Daniloff,  being  the  P.  Dani- 
loff mentioned  in  the  letter  of  Lemme  &  Co.,  carries  on  business  at  St. 
Petersburg  under  the  firm  of  P.  Daniloff  &  A.  Lubinoff,  and  claims 
the  said  iron,  and  is  now  resident  out  of  the  jurisdiction  of  the  court. 
The  bill  went  on  to  state  that,  in  the  month  of  December,  1834,  Thorn- 
ton attended  at  the  plaintiff's  counting  house,  and  tendered  to  the 
plaintiffs  their  charges  in  respect  of  the  iron,  and  demanded  the  de- 
livery of  it;  and  that,  on  the  22d  of  January,  1835,  Lemme,  as  the 
agent  on  behalf  of  Daniloff,  attended  at  the  plaintiffs'  counting  house, 
and  delivered  to  the  plaintiffs  the  following  notice  in  writing : 

"To  Messrs.  R.  &  W.  Crawshay  &  Co. 

'•Gentlemen:  As  the  agent  for  and  on  the  behalf  of  Pavel  Daniloff,  of  St. 
Petersburgh,  in  the  empire  of  Russia,  trading  under  the  style  or  firm  of  P. 
Daniloff  &  A.  Lubinoff,  I  hereby  demand  of  you  the  delivery  of  the  under  men- 
tioned goods,  the  property  of  the  said  Pavel  Daniloff  Daniloff,  viz."  [here  fol- 
lowed the  particulars  of  the  iron]  "and  I  hereby  tender  you,  as  such  agent  of 
the  said  Pavel  Daniloff  Daniloff,  the  sum  of  £200,  and  such  other  sum  or  sums 
of  money  as  may  be  due  or  owing  to  you  in  respect  of  the  said  goods ;  and  in 
the  event  of  your  refusing  to  deliver  the  same  to  me  as  such  agent  as  afore- 
said, I  hereby  give  you  notice  that  I  shall  forthwith  cause  an  action  of  trover 
to  be  commenced  against  you  for  the  conversion  of  the  said  goods,  and  shall 
hold  you  responsible  in  respect  thereof.  Dated  this  22d  day  of  January,  1835. 
"Yours,  &c.  John  Louis  Lemme." 

The  bill  stated  that  Lemme  at  the  time  of  the  demand,  tendered  and 
offered  to  pay  any  further  amount  of  charges  of  the  plaintiffs  in 
respect  of  the  iron,  if  the  same  should  exceed  £200.  The  bill  further 
stated  that  on  the  1st  of  January,  1835,  Thornton  commenced  an  action 
of  trover  against  the  plaintiffs,  to  recover  the  iron,  in  which  action 
a  declaration  was  delivered  on  the  24th  January,  1835,  and  that  an 
action  of  trover  against  the  plaintiffs  for  the  recovery  of  the  iron  was 
also  commenced  by  Daniloff,  on  the  23d  of  January,  1835. 

The  bill  alleged  that  the  warehouse  rent,  charges,  and  expenses  on 
the  iron  due  to  the  plaintiffs,  amount  to  the  sum  of  £160  15s.  6d.,  and 
that  the  plaintiffs  claim  no  interest  or  right  in  or  to  the  iron,  except 
in  respect  of  their  charges,  their  right  to  which  is  admitted  by  the 
defendants;  and  that  in  manner  aforesaid  the  .iron  is  claimed  by 
Thornton  and  Daniloff.  The  bill  charged  that  the  plaintiffs  do  not 
collude  with  Daniloff  and  Thornton  or  either  of  them,  but  are  ready 
to  dispose  of  the  iron  as  the  court  may  direct;  that  Daniloff  alleges 
and  insists  that  he  claims  the  iron  by  a  title  paramount  to  the  title  of 
Thornton,  or  the  persons  under  whom  Thornton  claims  the  same. 

The  prayer  of  the  bill  was,  that  Thornton  and  Daniloff  might  be 
decreed  to  interplead  together,  and  that  it  might  be  ascertained  to  which 
of  them  the  iron  belongs  and  ought  to  be  delivered  over;  and  that 
whatever  order  the  court  might  make  respecting  the  iron,  proper  di- 
rections might  be  given  with  respect  to  the  lien  which  the  plaintiffs 
have  upon  the  same,  and  as.  to  preserving  such  lien  for  the  plaintiffs ; 


Ch.  7)  INTERPLEADER  119-' 

and  that  in  the  mean  time  Thornton  and  Daniloff  might  be  restrained 
from  prosecuting  their  actions  at  law  so  commenced  as  aforesaid,  and 
from  commencing  any  other  actions  or  proceedings  at  law  or  in  equity 
against  the  plaintiffs  touching  the  matters  aforesaid. 

The  bill  was  accompanied  by  the  usual  affidavit  negativing  fraud 
or  collusion,  or  any  other  intent  than  to  avoid  being  molested  by  the 
defendants'  proceedings  at  law. 

To  this  bill  the  defendant  Thornton  put  in  a  general  demurrer,  which 
was  allowed  by  the  Vice-Chancellor  on  the  11th  of  May,  1835.  The 
plaintiffs  now  appealed  from  his  Honor's  decision. 

1837,  January  3. — The  Lord  Chancellor.2  This  was  an  appeal 
from  an  order  of  the  Vice-Chancellor,  allowing  a  demurrer  of  the  de- 
fendant, Henry  Sykes  Thornton,  to  the  bill,  which  is  a  bill  of  inter- 
pleader against  this  defendant  so  demurring,  and  one  Pavel  Daniloff. 

The  question,  therefore,  turns  entirely  upon  this,  whether  the  state- 
ment in  the  bill  constitutes  such  a  case  against  the  defendant  Thorn- 
ton as  entitles  the  plaintiffs  to  the  ordinary  protection  afforded  by  a 
bill  of  interpleader.  [His  Lordship  then  stated  the  allegations  and  the 
prayer  of  the  bill.] 

The  case  tendered  by  every  such  bill  of  interpleader  ought  to  be,  that 
the  whole  of  the  rights  claimed  by  the  defendants  may  be  properly  de- 
termined by  litigation  between  them,  and  that  the  plaintiffs  are  not  un- 
der any  liabilities  to  either  of  the  defendants  beyond  those  which  arise 
from  the  title  to  the  property  in  contest;  because,  if  the  plaintiffs  have 
come  under  any  personal  obligation,  independently  of  the  question  of 
property,  so  that  either  of  the  defendants  may  recover  against  them  at 
law,  without  establishing  a  right  to  the  property,  it  is  obvious  that  no 
litigation  between  the  defendants  can  ascertain  their  respective  rights 
as  against  the  plaintiffs;  and  the  injunction,  which  is  of  course  if  the 
case  be  a  proper  subject  for  interpleader,  would  deprive  a  defendant, 
having  such  a  case  beyond  the  question  of  property,  of  part  of  his  legal 
remedy,  with  the  possibility  at  least  of  failing  in  the  contest  with  his 
co-defendant;  in  which  case  the  injunction  would  deprive  him  of  a 
legal  right,  without  affording  him  any  equivalent  or  compensation. 
Such  a  case,  undoubtedly,  would  not  be  a  case  for  interpleader.  A 
party  may  be  induced  by  the  misrepresentation  of  the  apparent  owner 
of  property,  to  enter  into  personal  obligations  with  respect  to  it,  from 
which  he  may  be  entitled  to  be  released  by  a  court  of  equity ;  but 
such  a  case  could  not  be  a  subject  for  interpleader  between  the  real 
and  pretended  owners.  In  such  a  case,  the  plaintiff  would  be  assert- 
ing an  equity  for  relief  from  a  personal  contract  against  one  of  the 
defendants,  with  which  the  other  would  have  nothing  to  do. 

It  is  familiarly  said  that  there  is  no  interpleader  between  landlord 
and  tenant,  or  principal  and  agent ;  but  it  will  be  found  that  the  rea- 
son for  this  lies  deeper  than  might  be  inferred  from  the  statement  of 

2  Parts  of  the  opinion  are  omitted. 


1194  INTERPLEADER  (Ch.  7 

this  rule ;  and  that  it  is  to  be  considered  not  so  much  as  an  inde- 
pendent rule,  as  a  necessary  consequence  of  the  principle  of  all  inter- 
pleading. In  both  these  cases,  rights  and  liabilities  exist  between  the 
parties,  independent  of  the  title  to  the  property,  or  to  the  debt  or 
duty  in  question,  and  which  may  not  depend  upon  the  decision  of 
the  question  of  title.  It  is  true  that  in  this  case  both  the  actions  are 
actions  of  trover;  but  it  was  most  properly  admitted  by  the  counsel 
for  the  plaintiffs,  that  the  dealings  of  the  plaintiffs  with  Mr.  Thorn- 
ton would  be  evidence  for  him  in  his  action.  Suppose  then,  that  those 
acts,  the  transferring  the  iron  into  his  name  in  the  plaintiffs'  books, 
and  the  letter  of  the  8th  of  March,  1834,  should  be  held  sufficient  to 
procure  for  Mr.  Thornton  a  judgment  in  his  action,  without  inquiring 
whether  Messrs.  Raikes  had  or  had  not  a  legal  right  to  exercise  do- 
minion over  the  property  as  they  did,  by  ordering  the  transfer  of  it  to 
Mr.  Thornton,  how  could  such  a  right  be  the  subject  of  interpleader 
between  Mr.  Thornton  and  Mr.  Daniloff  ?  In  such  a  case  there  would 
be  no  question  in  common,  and  therefore  nothing  to  be  tried  between 
them ;  Mr.  Daniloff  might  obtain  a  verdict  upon  showing  his  title  to 
the  iron;  and  Mr.  Thornton,  upon  showing  that  Messrs.  Crawshay 
had  come  under  a  personal  liability  by  their  dealings  with  him,  in- 
dependently of  the  question  of  title.  This  court  cannot  take  from  Mr. 
Thornton  a  right  he  may  have  obtained  against  Messrs.  Crawshay, 
without  substituting  some  mode  of  litigation  by  which  he  may  enforce 
all  his  rights.  In  the  case  supposed,  this  could  not  be  done  in  any 
litigation  with  Mr.  Daniloff.     *     *     * 

The  interpleader  at  law  was  where  there  was  a  joint  bailment  by 
both  claimants. 

In  equity,  it  is  defined  to  be  where  two  or  more  persons  claim  the 
same  debt  or  duty. 

It  is  no  exception  to  the  rule  that  a  tenant  or  an  agent  cannot  file 
a  bill  of  interpleader  against  his  landlord  or  his  principal,  that  where 
the  landlord  or  the  principal  has  created  a  subsequent  interest  in  some 
other  person,  the  tenant  or  agent  may  maintain  such  a  bill ;  because, 
in  such  case,  the  same  debt  or  duty  is  claimed,  and  it  is  the  act  of 
the  person  entitled  to  such  debt  or  duty  which  creates  the  equity  of 
the  party  owing  it.     *     *     * 

The  appeal  must  be  dismissed  with  costs. 


Ch.  7)  INTERPLEADER  1195 

ST.  LOUIS  LIFE  INS.  CO.  v.  ALLIANCE  MUT.  LIFE  INS. 

CO.  et  al. 

(Supreme  Court  of  Minnesota,  1S76.    23  Minn.  7.) 

The  St.  Louis  Mutual  Life  Insurance  Company  (to  whose  business 
and  liabilities  the  plaintiff  has  succeeded)  issued  a  policy  of  insurance 
for  $2,000,  on  the  life  of  Henry  Young,  payable  to  the  defendant 
Magdalena  Young.  Upon  the  death  of  Henry  Young,  the  Alliance 
Company,  defendant,  claimed  the  insurance  money,  as  assignee  of 
Magdalena  Young.  The  plaintiff  thereupon  brought  this  action  in 
the  district  court  for  Ramsey  county,  alleging  that  it  was  ready  to  pay 
the  money  to  the  party  rightfully  entitled ;  that  the  alleged  assignment 
was  obtained  by  the  Alliance  Company  by  fraudulent  practices,  and 
was  void,  and  praying  that  that  company  and  Magdalena  Young  be 
compelled  to  interplead  concerning  their  claims  to  the  fund  in  dispute. 
The  defendants  separately  answered,  asserting  their  respective  claims, 
and  the  action  was  referred,  by  consent,  to  Geo.  L.  Otis,  Esq.,  upon 
whose  report  judgment  was  entered  for  the  Alliance  Company,  and 
against  the  plaintiff,  for  the  amount  of  the  policy,  with  interest  and 
costs.  A  new  trial  was  refused  by  Wilkin,  J.,  and  the  plaintiff  ap- 
pealed. 

Cornell,  J.  The  complaint  in  this  action  is  in  the  nature  of  a  bill 
of  interpleader  in  equity,  as  known  and  understood  prior  to  the  adop- 
tion of  the  code  practice.  To  determine,  therefore,  the  status  and 
rights  of  plaintiff  in  this  action,  it  is  necessary  to  refer  to  the  nature  of 
a  suit  in  equity  under  the  former  practice,  commenced  by  such  a  bill, 
and  the  rules  and  principles  governing  it. 

As  to  the  complainant,  the  sole  office  and  purpose  of  such  a  bill  was 
to  relieve  him  from  the  risk,  uncertainty,  and  expense  of  determining, 
by  litigation  or  otherwise,  as  to  which  of  several  conflicting  complain- 
ants he  was  owing  and  ought  to  pay  an  acknowledged  debt  or  duty,  his 
obligation  and  readiness  to  pay  or  discharge  the  same,  upon  the  settle- 
ment of  such  question,  being  fully  conceded.  Hence,  in  a  bill  of  this 
character,  it  was  necessary  for  it  to  appear  that  the  complainant  had 
no  personal  interest  in  such  debt  or  duty,  or  the  fund  in  his  possession. 
He  could  not  claim  any  relief  against  any  of  the  claimant  defendants, 
but  could  only  ask  leave  of  the  court  to  pay  the  money  or  deliver  the 
property  to  the  one  to  whom  it  rightfully  belonged,  in  order  that  he 
might  thereafter  be  protected  against  the  claims  of  all.  The  only  de- 
cree the  complainant  was  entitled  to  was  one  of  interpleader,  and  that 
the  bill  was  properly  filed.  This  being  obtained,  he  was  thenceforth 
altogether  out  of  the  suit,  the  defendants  alone  being  left  to  contest 
their  conflicting  claims,  without  any  aid  or  interference  on  his  part. 
2  Daniel  Ch.  Pr.  1659,  1660,  1675,  1680,  and  notes;  2  Barb.  Ch.  Pr. 
117,  and  cases  cited  in  notes. 


1196  INTERPLEADER  (Cll.  7 

It  is  apparent  from  these  considerations  that,  with  the  exception  of 
the  question  of  costs,  none  of  the  questions  sought  to  be  raised  and 
discussed  by  plaintiff  on  this  appeal  are  properly  before  us  for  consid- 
eration. They  all  relate  solely  to  matters  in  controversy  between  the 
defendants,  and  which  they  alone  are  interested  in  litigating  and  set- 
tling. The  decision  of  the  referee  in  favor  of  the  assurance  company 
against  the  other  defendant,  acquiesced  in,  as  it  seems,  by  her,  entitles 
it  to  the  money  paid  into  court  by  the  plaintiff,  under  its  order,  for  the 
benefit  of  the  successful  litigant  defendant,  and  constitutes  full  pro- 
tection to  plaintiff  against  any  claim  on  her  part.  Plaintiff  has  no  in- 
terest, and  is  under  no  duty  or  obligation  to  prosecute  an  appeal  in 
her  sole  interest  and  behalf,  and  will  not  be  heard  in  the  assertion  of 
any  of  her  rights. 

In  the  matter  of  costs,  there  was  sufficient  in  the  evidence,  and  the 
conduct  of  the  plaintiff  during  the  trial,  to  justify  the  referee  in  ar- 
riving at  the  conclusion  that  the  controversy  nominally  litigated  be- 
tween the  defendants  had  its  origin  and  support  with  the  plaintiff,  and 
that  the  action  was  instituted  in  bad  faith,  with  the  view  of  hindering 
and  delaying  the  defendant  company  in  the  collection  of  its  claim,  and 
not  for  the  sole  purpose  of  self-protection.  Under  these  circumstances 
it  cannot  be  said  that  the  referee  erred  in  awarding  costs  against  the 
plaintiff. 

Order  affirmed. 


MURIETTA  et  al.  v.  SOUTH  AMERICAN,   ETC.,  CO.,  Limited 
(DEVER  et  al.,  Claimants). 

(Court  of  Appeal,  1893.    62  Law  J.  Q.  B.  [N.  S.]  396.) 

This  was  an  appeal  from  an  order  of  Bruce,  J.,  at  Chambers  di- 
recting an  interpleader  issue. 

The  action  out  of  which  these  proceedings  arose  had  been  brought 
by  the  plaintiffs  as  individuals  upon  an  agreement  between  the  plain- 
tiffs and  the  defendants,  dated  the  18th  of  March,  1892,  to  recover  a 
first  instalment  of  £10,000.  Negotiations  were  at  that  time  already  on 
foot  with  the  view  to  effect  an  amalgamation  between  the  company 
of  Messrs.  Murietta  &  Co.  and  the  South  American  Company,  which, 
would  be  at  an  end  if  the  company  of  Murietta  &  Co.  went  into  liq- 
uidation. One  of  the  terms  of  the  agreement  of  the  18th  of  March 
was,  in  effect,  that  if  the  defendants  would  pay  certain  unsecured  cred- 
itors of  the  plaintiffs  some  £100,000,  the  plaintiffs  would  influence 
their  firm  to  release  the  defendants  from  any  liabilities  they  might  have 
incurred  in  the  course  of  the  negotiations  for  amalgamation.  Soon 
after  this  the  plaintiffs'  company  went  into  liquidation.  A  subsequent 
agreement  was  arrived  at  in  January,  1893,  by  which  the  original  £100,- 
000  was  to  be  reduced  by  £20,000  if  the  claims  of  the  receivers  in  the 


Ch.  7)  INTERPLEADER  1197 

liquidation  could  be  resisted,  and  the  defendants  agreed  to  join  the 
plaintiffs  in  opposing  their  claims. 

The  claimants,  the  receivers,  gave  notice  that  they  should  dispute 
the  validity  of  the  agreement,  upon  the  grounds  that  it  amounted  to  a 
fraudulent  preference.  Upon  this  the  defendants  obtained,  under  the 
provisions  of  Order  LVII,  the  interpleader  issue,  the  subject  of  the 
present  appeal. 

Order  LVII,  rule  2,  is  as  follows : 

"The  applicant  must  satisfy  the  Court  or  a  Judge  by  affidavit  or  otherwise — 
(a)  That  the  applicant  claims  no  interest  in  the  subject-matter  in  dispute  other 
than  for  charges  or  costs ;  and  (b)  That  the  applicant  does  not  collude  with 
any  of  the  claimants." 

Wills,  J.3  I  am  of  opinion  that  the  claimant  is  entitled  to  an  order 
dismissing  the  application  for  an  interpleader,  upon  the  short  ground 
that  the  applicants  have  disentitled  themselves  to  an  interpleader  order 
by  their  own  conduct.  The  rule  provides  that  the  applicant  must  sat- 
isfy the  Court  that  he  has  no  claim  or  no  interest  in.  the  subject-matter 
in  dispute,  and  that  he  does  not  collude  with  any  of  the  claimants.  In 
one  sense  it  may  be  said  that  here  the  applicant  has  no  interest  in  the 
subject-matter  in  dispute,  because  he  lays  no  claim  to  any  specific 
portion  of  it ;  but  he  does  possess  this  very  substantial  interest  in  it, 
that  if  one  party  succeed,  he  will  have  to  pay  £  10,000,  and  ultimately 
nearly  £100,000;  whilst  if  the  other  party  succeed,  he  will  have  to  pay 
very  much  less,  perhaps  £8,000  and  £80,000.  Therefore,  to  the  extent 
of  the  difference  between  these  two  larger  sums,  he  is.  very  much  inter- 
ested in  the  subject-matter,  because  in  the  event  of  one  party  succeed- 
ing he  is  entitled  to  a  large  amount  which  he  may  keep  for  himself. 

But  perhaps  the  stronger  ground  is  that  there  has  been  collusion 
within  the  meaning  of  the  rule.  The  applicant  has  made  an  agreement 
with  one  of  the  parties,  by  which  he  has  bound  himself  to  do  every- 
thing he  legally  can  to  defeat  the  claim  of  the  receiver.  Can  it  be  said 
under  those  circumstances  that  he  does  not  collude  with  the  Muriettas? 
Colluding  may  be  said  to  be  an  equivalent  for  playing  the  same  game. 
That  is  the  literal  meaning  of  the  word.  Here  the  applicant  has  iden- 
tified himself  in  interest — he  has  a  strong  interest  that  one  side  should 
succeed  rather  than  the  other.  In  my  opinion  one  of  the  things  in- 
tended when  these  rules  were  drawn  was  that  the  stakeholder  who 
claimed  the  benefit  of  the  Act  should  be  in  a  real  position  of  impar- 
tiality between  the  parties.  It  is  impossible,  of  course,  to  control  hu- 
man nature  and  the  natural  affinities  of  men  for  people  they  know,  and 
whom  they  make  like  or  dislike ;  but  in  the  present  case  there  is  some- 
thing very  tangible  to  lay  hold  of,  which  does  not  depend  upon  any 
consideration  of  that  kind,  and  which,  in  my  opinion,  the  rule  intended 
to  exclude.  Where  the  applicant  for  relief  has  bound  himself  to  the 
other  party  by  an  agreement,  for  which  the  consideration  is  very  large 

3  The  concurring  opinion  of  Charles,  J.,  is  omitted. 


1193  INTERPLEADER  (Cll.  7 

in  point  of  money — amongst  other  things,  to  do  whatever  he  properly 
can  to  defeat  the  claim  of  the  receivers,  he  is,  under  the  express  words 
of  the  rule,  colluding  with  one  of  the  parties,  and  fails  to  bring  him- 
self under  the  condition  by  which  alone  he  can  have  relief. 

I  am,  therefore,  of  opinion  that  the  proper  order  is  that  the  appli- 
cation for  interpleader  be  dismissed  simpliciter. 

Appeal  allowed.    Order  discharged. 


ALECK  v.  JACKSON  et  al. 
(Court  of  Chancery  of  New  Jersey,  1892.    40  N.  J.  Eq.  507,  23  Atl.  TOO.) 

Greex,  V.  C*  This  bill  is  filed  by  Theresa  Aleck,  and  alleges  that 
on  February  25,  1890,  she  made  an  agreement  in  writing  with  one 
Joseph  S.  Jackson,  whereby  Jackson  agreed  to  build  for  her,  in  the  city 
of  Camden,  five  brick  buildings  on  the  south  side  of  Spruce  street,  east 
of  Broadway,  and  two  brick  buildings  on  the  east  side  of  Broadway, 
south  of  Spruce  street.  A  copy  of  the  contract  is  annexed  to  the  Jaill. 
The  contract  was  filed  in  the  clerk's  office  of  Camden  county,  February 
25,  1890.  The  bill  alleges  that  notices  have  been  served  on  the  com- 
plainant by  12  creditors  of  Jackson  for  materials,  etc.,  furnished  for 
the  houses,  whose  claims  aggregate  $4,597.06.  Complainant  alleges 
that  there  was  due  from  her  to  Jackson  on  account  of  the  agreement 
the  sum  of  $3.593.83 ;  that  certain  of  the  creditors  of  Jackson  intend 
to  sue  her,  and  some  have  already  commenced  legal  proceedings  against 
her,  claiming  certain  amounts  due  to  them,  respectively;  that  she  is 
ready  and  willing  to  pay,  but  cannot  safely  do  so ;  and  she  seeks,  there- 
fore, to  have  the  defendants  interplead.  On  filing  the  bill  and  affida- 
vits, it  was  ordered  that,  on  complainant's  paying  the  money  stated  to 
be  due  into  court,  an  injunction  issue  restraining  the  prosecution  of 
suits  against  her  by  the  defendant  Jackson  or  the  lien  claimants.  Such 
deposit  was  made,  and  the  injunction  issued.  The  contractor  Jackson 
has  answered,  and  denies  that  the  complainant  has  correctly  stated  the 
amount  due  from  her  to  him.  He  claims  that  he  has  completed  his  con- 
tract according  to  its  terms,  and  that  there  is  due  to  him  the  whole  of 
the  last  payment  of  $4,500,  as  well  as  the  sum  of  $393.06  for  extra 
work;  making  the  sum  of  $4,893.06.  He  has  filed  a  mechanic's  lien, 
and  commenced  suit  in  the  Camden  county  circuit  court  to  recover 
that  amount,  and  claims  that  he  should  not  be  restrained  from  pros- 
ecuting it. 

The  dispute  as  to  the  amount  due  from  the  complainant  to  the  de- 
fendant Jackson  on  the  contract  destroys  the  character  of  the  bill  as 
one  of  strict  interpleader.  It  is  claimed  that  the  question  should  be 
decided  in  this  court  on  the  ground  that  the  bill  is  one  in  the  nature 
of  a  bill  of  interpleader.     Bills  of  strict  interpleader  are  those  filed  by 

*  The  statement  of  facts  is  omitted. 


Ch.  7)  INTERPLEADER  1109 

a  mere  stakeholder,  who  claims  no  interest  in  the  subject-matter  over 
which  there  are  conflicting  demands ;  he  asks  no  relief,  and  seeks  only 
to  be  relieved  from  loss  by  the  decree  of  the  court  determining  which 
claimant  is  entitled  to  receive  the  matter  in  dispute.  In  a  bill  in  the 
nature  of  a  bill  of  interpleader  the  complainant  seeks  some  relief  for 
himself,  but  the  facts  on  which  he  relies  for  such  relief  must  be  such 
as  to  entitle  him  to  it  in  a  court  of  equity ;  the  case,  as  made,  must  be 
one  of  equity  jurisdiction.  This  is  evident  from  the  illustrations  in 
Story,  Eq.  PL  §  297;  Bedell  v.  Hoffman,  2  Paige  (N.  Y.)  199;  Wake- 
man  v.  Kingsland,  46  N.  J.  Eq.  113,  117,  18  Atl.  680. 

In  this  case  the  complainant  insists  that  the  amount  of  the  final  pay- 
ment named  in  the  contract  should  be  reduced  by  the  amount  she  al- 
leges she  was  forced  to  expend,  after  she  took  possession,  in  the  com- 
pletion of  the  houses,  so  as  to  make  them  conform  to  what  she  claims 
the  contract  required.  Jackson  demands  the  whole  amount  of  the  final 
payment,  and  also  $393  for  extra  work.  He  says  he  completed  the 
houses  according  to  contract,  plans,  and  specifications,  and  that  her 
expenditure  was  not  required  by  the  condition  she  names.  She  de- 
nies that  she  is  liable  under  the  contract  for  what  he  claims  as  extra 
work.  These  are  not  questions  of  equity  cognizance;  they  raise  no 
issue  to  be  presented  to  this  court  for  solution ;  they  are  properly  to 
be  settled  by  a  court  of  law.  The  defendant  Jackson  had  submitted 
them  to  the  proper  tribunal  for  determination,  and  rightly  claims  in  his 
answer  that  he  should  not  be  restrained  from  prosecuting  his  suit. 
The  complainant,  however,  was  being  subjected  to  numerous  lawsuits 
by  those  who  had  furnished  materials  and  labor  in  the  construction  of 
her  houses.  Her  liability  to  these  persons  arises  under  the  mechanic's 
lien  law,  and  is  limited  in  aggregate  amount  to  what  may  be  due  from 
her  to  Jackson.  She  could  not  safely  pay  these  claims  until  that  amount 
was  ascertained,  and  her  bill,  as  filed,  presented  a  clear  case  of  inter- 
pleader.   Its  character  as  such  is  changed  by  the  position  of  Jackson. 

I  think  she  is  entitled  to  have  the  case  retained  until  the  amount  of 
her  indebtedness  to  Jackson  is  ascertained  by  the  trial  of  his  suit  at 
the  circuit,  and,  to  that  end,  that  the  injunction  be  dissolved  as  to  Jack- 
son's prosecuting  that  suit,  but  retained  as  to  the  other  defendants.  I 
will  advise  such  an  order. 


HIRSCH  et  al.  v.  MILITARY-NAVAL  CORPORATION. 

(Supreme  Court  of  New  York,  Appellate  Term,  First  Department,  1913. 
138  N.  Y.  Supp.  1076.) 

Appeal  from  Municipal  Court,  Borough  of  Manhattan,  Fifth  Dis- 
trict. 

Action  by  Charles  S.  Hirsch  and  others,  partners  as  Hirsch.  Lilien- 
thal  &  Co.,  against  the  Military-Naval  Corporation.  From  a  judg- 
ment for  plaintiffs,  defendant  appeals,  also  bringing  up  for  review  an 


1200  INTERPLEADER  (Ch.  7 

order  denying  its  motion  to  interplead  Edward  Farrow  in  its  place 
and  stead,  on  its  paying  into  court  the  amount  claimed. 

Argued  December  term,  1912,  before  Seabury,  Guy,  and  Ger- 
ard, J  J. 

Gerard,  J.5  This  action  was  brought  by  plaintiffs,  who  claimed  to 
be  the  holders  of  ten  bonds  of  the  defendant  corporation,  to  recover 
$250,  the  amount  due  on  coupons  detached  from  said  bonds  and  past 
due.  The  defendant  also  states  in  its  notice  of  appeal  that  it  intends 
to  bring  up  for  review  the  denial  of  a  motion,  made  by  defendant,  in 
which  defendant  asked  to  be  permitted  to  pay  the  money  into  court 
and  to  interplead  one  Farrow  in  place  of  defendant.     *     *     * 

It  was  shown  on  the  motion  for  interpleader  that  the  bonds,  the 
coupons  of  which  were  sued  on,  were  originally  issued  by  defendant  to 
one  Farrow ;  that  Farrow  had  made  a  claim  on  defendant  for  the 
amount  of  the  coupons,  Farrow  claiming  that  he  had  intrusted  these 
bonds  to  one  Novelly,  who  had  agreed  to  return  them  in  a  week  ; 
that  Novelly  put  up  the  bonds  with  plaintiffs,  who  were  stockbrokers, 
as  margin  for  a  stock  speculative  account ;  and  that  Farrow,  learning 
of  this,  and  before  plaintiffs  had  sold  Novelly  out,  had  notified  them 
that  there  were  a  number  of  bonds  "out  on  trust  receipts,  and  such 
bonds  manifestly  cannot  be  sold."' 

Whether  this  constituted  any  notice  to  plaintiffs  of  any  infirmity  in 
Novelly' s  apparent  title  to  a  negotiable  bond  is  a  question  that  Far- 
row should  be  permitted  to  try  out.  It  may  well  be  that  Farrow 
cannot  succeed  on  such  issue;  but,  at  any  rate,  defendant  should  have 
been  permitted  to  pay  the  amount  of  the  coupons  into  court,  and  Far- 
row and  plaintiffs  could  have  then  tried  the  title  to  the  bonds. 

Judgment  reversed,  and  new  trial  ordered,  with  costs  to  appellant. 
Order  denying  motion  for  interpleader  reversed,  and  Edward  S.  Far- 
row interpleaded  in  place  of  the  defendant,  on  defendant's  paying  the 
amount  of  the  coupons  into  court.    All  concur. 


KEUPLER  et  al.  v.  EISELE  et  al. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1912.     79  N.  J.  Eq.  651,* 

83  Atl.  999.) 

Appeal  from  Court  of  Chancery. 

Bill  of  interpleader  by  Stephen  Keupler  and  another  against  An- 
drew Eisele  and  others.  From  an  order  of  the  Court  of  Chancerv 
denying  a  motion  to  dismiss  the  bill  and  overruling  a  demurrer  there- 
to, defendants  appeal. 

s  Part  of  the  opinion  is  omitted. 


Ch.  7)  INTERPLEADER  1201 

The  following  is  the  opinion  of  Vice  Chancellor  Learning : 

*K  -J*  -K  *i~  »>»  -H  *(*  -i»  *i» 

"On  Motion  to  Dismiss  Bill  of  Interpleader. 

"As  the  present  motion  is,  in  effect,  a  demurrer  to  the  bill,  the  single  ques- 
tion here  presented  is  whether  the  bill  on  its  face  discloses  facts  sufficient  to 
sustain  a  bill  of  interpleader. 

"<>n  August  12,  1910,  the  day  the  building  was  completed,  complainants  were, 
by  the  terms  of  the  contract,  required  to  be  in  possession  of  the  final  install- 
ment of  the  contract  price,  the  amount  of  which  was  $1,616.  Complainants 
were  on  that  day  entitled  to  pay  that  money  to  the  contractor,  except  as 
against  such  rights  in  that  fund  as  had  at  that  time  arisen  in  behalf  of  others. 
An  advance  payment  made  by  complainants,  as  owners,  to  the  contractor  or  to 
his  order  prior  to  that  date  is  necessarily  treated  as  made  on  that  date  and 
will  discharge  the  owners  to  the  amount  of  such  advance  payment,  except  as 
against  rights  of  others  which,  prior  to  that  date,  have  arisen  in  tbe  fund.  A 
stop  notice  served  subsequent  to  the  time  the  last  installment  became  due  is 
operative  only  against  such  part  of  the  last  installment  as  remains  unpaid  or 
unappropriated  at  the  time  such  sut  sequent  stop  notice  is  served.  Taylor  v. 
Reed,  6S  N.  J.  Law,  ITS.  52  Atl.  579.  There  can  be  no  doubt,  therefore,  touch- 
ing the  right  of  complainants  to  interplead  so  far  as' the  objection  is  concerned, 
that  they  should  pay  into  court  the  full  amount  of  the  last  installment  without 
first  deducting  the  sum  of  $496  which  was  paid  on  contractor's  order  May  25, 
1910,  for  the  stop  notices  served  have  no  rights  as  against  that  payment. 

"Complainants  also  deduct  from  the  amount  of  the  last  contract  installment 
$53  which  was  paid  by  complainants  December  23,  1910,  to  the  Haney-White 
Company  by  virtue  of  a  guarantee  made  by  complainants  to  that  company 
May  21,  1910,  wherein  complainants  guaranteed  the  payment  of  an  order  is- 
sued to  that  company  by  the  contractor  on  that  date  against  complainants  for 
money  due  that  company  \inder  that  contract.  With  such  an  accepted  or 
guaranteed  order  outstanding  at  the  time  the  last  installment  fell  due,  the  or- 
der clearly  at  this  time  became  fully  operative  in  favor  of  the  person  holding 
the  order  as  an  equitable  assignment  of  the  fund  to  the  amount  of  the  order, 
as  against  all  persons  who  at  that  time  had  no  prior  rights.  It  therefore  be- 
comes immaterial  as  to  such  subsequent  claims  whether  that  order  was  paid 
by  complainant  on  the  day  the  installment  fell  due  or  at  a  subsequent  day, 
for  the  holder  of  the  order  was  entitled  to  the  money  on  that  day. 

"I  am  also  satisfied  that  the  bill  discloses  sufficient  uncertainty  as  to  the 
rights  of  the  several  claimants  to  entitle  complainants  to  file  the  bill.  The  bill 
alleges  that  the  several  claimants  to  the  fund  have  made  claims  on  complain- 
ants to  the  exclusion  of  other  claimants,  and  sets  forth  the  substance  of  the 
stop  notices  in  a  manner  which  may  he  said  to  create  substantial  doubts  as  to 
the  sufficiency  of  some  of  the  notices.  These  averments  I  think  sufficient  to 
sustain  the  bill." 

PER  Curiam.6  The  order  appealed  from  will  be  affirmed  for  the 
reasons  stated  in  the  opinion  filed  in  the  court  below  by  Vice  Chan- 
cellor Learning. 

e  The  opinion  of  Vice  Chancellor  Learning  on  demurrer  to  bill  of  inter- 
pleader is  omitted. 

Bok£  Eq. — 76 


1202  INTERPLEADER  (Cll.  7 

THIRD    NAT.    BANK   OF   BOSTON   v.    SKILLINGS, 
WHITNEYS  &  BARNES  LUMBER  CO.  et  al. 

(Supreme  Judicial  Court  of  Massachusetts,  1SS2.     132  Mass.  410.) 

Morton,  C.  J.  This  is  a  bill  of  interpleader,  the  substantial  allega- 
tions of  which  are  that  Edward  Babson,  Jr..  delivered  a  draft  upon 
New  York  to  the  plaintiff  bank  for  collection ;  that  it  collected  the 
draft  and  placed  the  amount  to  the  credit  of  said  Babson,  who  had 
an  open  account  with  the  bank;  that  the  Skillings.  Whitneys  &  Barnes 
Lumber  Company  contends  that  said  draft  was  held  by  Babson  as  its 
agent,  and  was  its  property,  and  that  the  proceeds  belong  to  it;  and 
that  the  executrix  of  said  Babson,  who  has  deceased,  contends  that 
the  proceeds  belong  to  his  estate. 

We  are  of  opinion  that  this  does  not  present  a  proper  case  for  a  bill 
of  interpleader. 

There  is  no  privity  between  the  plaintiff  and  the  Skillings,  Whit- 
neys &  Barnes  Lumber  Company.  That  corporation  does  not  claim 
the  fund  in  the  hands  of  the  plaintiff  through  any  privity  with  Babson, 
but  by  a  title  paramount  and  adverse  to  his.  The  bank  is  not  a  mere 
stakeholder,  but  is  the  debtor  of  Babson,  standing  in  privity  with  him 
alone.    Carr  v.  National  Security  Bank,  107  Mass.  45,  9  Am.  Rep.  6. 

The  authorities  support  the  rule  that  in  such  a  case  a  bill  of  inter- 
pleader will  not  lie,  but  the  remedy  of  the  parties  is  at  law.  Such 
bill  will  lie  only  when  two  parties  claim  of  a  third  the  same  duty  or 
debt  by  virtue  of  some  privity  existing  between  them. 

Thus,  if  a  person  deposit  property  or  money  in  the  hands  of  an- 
other, not  as  a  stakeholder  for  both  parties,  but  as  his  agent  or  bailee, 
and  the  property  is  claimed  by  a  third  person  under  an  independent 
title,  the  agent  or  bailee  cannot  maintain  a  bill  of  interpleader.  2 
Story,  Eq.  Jur.  §,§  816,  817,  and  cases  cited. 

So  where  a  tenant  is  liable  to  pay  rent,  and  a  third  person  claims 
it  by  a  title  independent  of  the  landlord,  the  tenant  cannot  maintain  a 
bill  of  interpleader.  But  if  the  third  person  claims  under  the  land- 
lord, so  that  the  question  arises  from  the  act  of  the  landlord,  this 
creates  a  privity  with  the  tenant,  and  the  bill  will  lie.  Dungey  v. 
Angove,  2  Ves.  Jr.  304;  Cowtan  v.  Williams,  9  Ves.  107;  Clarke  v. 
Byne,  13  Ves.  383. 

So  a  sheriff,  who  has  seized  property  upon  execution,  cannot  main- 
tain  a  bill  of  interpleader  to  determine  whether  the  execution  debtor 
or  a  third  person  claiming  it  is  entitled  to  the  property,  as  their 
claims  against  him  are  not  of  the  same  character  or  in  the  same 
right.    Shaw  v.  Coster,  8  Paige  (N,  Y.)  339.  35  Am.  Dec.  690. 

Mr.  Justice  Story,  in  his  Commentaries  on  Equity  Jurisprudence, 
after  reviewing  the  authorities,  says : 

••The  true  doctrine,  supported  by  the  authorities,  would  seem  to  be,  that,  in 
cases  of  adverse  independent  titles,  the  party  holding  the  property  must  de- 
fend himself  as  well  as  he  can  at  law  ;   and  he  is  not  entitled  to  the*  assistance 


Cll.  7)  INTERPLEADER  1203 

of  a  court  of  equity ;  for  that  would  be  to  assume  the  right  to  try  merely  legal 
titles  upon  a  controversy  between  different  parties,  where  there  is  no  privity 
of  contract  between  them  and  the  third  person  who  calls  for  an  interpleader." 
2  Story,  Eq.  Jur.  §  S20. 

This  rule  is  applicable  in  the  case  at  bar.  The  only  relation  of  the 
plaintiff  to  the  defendants  is  that  it  is  the  debtor  of  one  of  them.  A 
debtor  cannot  deprive  his  creditor  of  his  remedies  at  law,  and  force 
him  into  equity,  merely  because  a  third  person  claims  the  fund  or 
debt  by  a  title  not  derived  from  the  creditor.  His  remedy  is  at  law, 
and  it  would  seem  that,  if  either  of  the  claimants  should  sue  him,  he 
could  protect  himself  by  notifying-  the  other  claimant  to  come  in  and 
defend  the  suit ;  and  that  he,  being  the  real  party  in  interest,  would  be 
bound  by  the  judgment. 

The  plaintiff  contends  that  this  bill  may  be  maintained  under  Gen. 
Sts.  c.  113,  §  2,  cl.  6.  But  this  statute  does  not  apply.  It  was  not 
intended  to  enlarge  the  right  to  bring  a  bill  of  interpleader  strictly  so 
called,  but  to  enable  a  party  to  a  controversy  to  bring  a  bill  in  the 
nature  of  a  bill  of  interpleader,  to  adjust  the  whole  matter  in  con- 
troversy in  a  case  where  a  judgment  at  law  between  two  of  the  par- 
ties would  leave  open  to  one  or  both  a  controversy  with  a  third  party. 
Angell  v.  Stone,  110  Mass.  54;  McNeil  v.  Ames,  120  Mass.  481. 

Bill  dismissed. 


MACY  v.  INHABITANTS  OF  NANTUCKET  et  al. 
(Supreme  Judicial  Court  of  Massachusetts,  1S76.     121  Mass.  351.) 

Bill  in  equity,  in  the  nature  of  a  bill  of  interpleader,  against  the 
town  of  Nantucket  and  the  city  of  Boston  alleging  that  the  plaintiff 
was,  on  May  1,  1875,  trustee  under  the  will  of  Selina  Herring,  late  of 
Boston,  deceased,  to  hold  the  estate  as  an  accumulating  fund  until 
the  decease  of  Thomas  J.  Herring,  son  of  the  testatrix,  and  upon  his 
decease  to  divide  the  same  among  the  grandchildren  of  the  testatrix ; 
that  the  plaintiff  was  a  resident  of  Nantucket  on  that  day,  and  that 
Thomas  J.  Herring  was  a  resident  of  Boston ;  and  that  taxes  had  been 
assessed  upon  the  personal  estate  of  the  trust  fund,  and  were  about  to 
be  collected  both  in  Nantucket  and  in  Boston;  and  praying  that  the 
two  defendants  might  interplead  together  touching  their  right  to  the 
said  taxes,  and  that  it  might  be  ascertained  to  which  of  them  the  taxes 
ought  to  be  paid,  and  that  the  plaintiff  might  pay  the  same  into  court, 
and  for  further  relief. 

The  city  of  Boston  filed  a  demurrer  to  the  bill,  on  the  ground  that 
the  plaintiff  had  a  plain,  adequate  and  complete  remedy  at  law.  Ames, 
J.,  sustained  the  demurrer ;   and  the  plaintiff  appealed. 

Gray,  C.  J.  By  the  law  of  this  Commonwealth,  the  prompt  and  un- 
embarrassed collection  of  taxes  is  deemed  to  be  so  necessary  for  the 
support  of  the  government,  that  the  collection  of  taxes  on  personal 
property   is  enforced  by   distress   or   imprisonment,   and   in    no  other 


1204  INTERPLEADER  (Ch.  7 

manner,  except  in  the  peculiar  cases  in  which  the  collector  is  allowed 
to  maintain  an  action  for  them,  such  as  where  the  person  taxed  re- 
moves from  the  town,  or  dies,  or  being  an  unmarried  woman,  mar- 
ries, after  the  assessment  of  the  tax,  or  where  the  tax  is  upon  the 
personal  estate  of  a  deceased  person.  Gen.  Sts.  c.  12,  §§  3,  4,  7,  13, 
18-20;  Crapo  v.  Stetson,  8  Mete.  393.  The  remedy  of  a  person  ille- 
gally taxed  is  by  paying  the  amount,  and  suing  the  town  or  city  to 
recover  it  back;  and  this  court,  sitting  in  equity,  has  no  jurisdiction  to 
determine  whether  or  to  whom  it  is  due,  or  to  restrain  its  collection. 
Loud  v.  Charlestown,  99  Mass.  208;  Norton  v.  Boston,  119  Mass. 
194.    This  bill  cannot  therefore  be  maintained. 

In  Hardy  v.  Yarmouth,  6  Allen,  277,  in  which  the  court,  on  a  sim- 
ilar bill,  expressed  an  opinion  upon  the  merits  of  the  case,  no  ques- 
tion of  jurisdiction  was  raised  or  considered. 

Bill  dismissed. 


DORN  v.  FOX  et  al. 
(Commission  of  Appeals  of  New  York,  1S74.    61  N.  Y.  264.) 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  fourth  judicial  department,  reversing  a  judgment  in  favor  of 
plaintiff  entered  on  the  report  of  a  referee.  Reported  below,  6  Lans. 
162. 

This  action  was  brought  to  compel  the  collectors  of  the  towns  of 
Ava  and  Boonville,  in  Oneida  county,  to  interplead,  each  of  said  collec- 
tors having  a  tax  on  his  tax  list,  and  a  warrant  against  the  plaintiff, 
who  owned  a  farm  lying  partly-  in  each  of  said  towns. 

The  complaint  stated,  in  substance,  that,  prior  to  and  during  the  year 
1869,  the  plaintiff  was  the  owner  and  occupant  of  400  acres  of  land,  oc- 
cupied by  him  as  an  entire  farm,  which  was  partly  situated  in  Ava 
and  partly  in  Boonville,  no  portion  of  it  being  unoccupied.  Prior  to 
April  30,  1863,  he  resided  on  that  part  of  the  farm  lying  in  Ava;  since 
that  time  he  has  resided  on  that  portion  of  his  land  situated  in  Boon- 
ville. In  the  year  1869,  the  assessors  of  the  town  of  Ava  assessed  the 
plaintiff  for  the  whole  value  of  his  farm,  though  he  presented  the  req- 
uisite affidavit  that  his  residence  was  not  in  the  town.  This  assess- 
ment was  delivered  to  the  board  of  supervisors  of  the  county,  who  is- 
sued a  warrant  for  the  collection  of  his  tax,  amounting  to  forty-one 
dollars  and  eighty-five  cents.  The  warrant  was  thereupon  delivered 
to  the  defendant,  Fox,  collector  of  the  town  of  Ava,  who,  in  that  char- 
acter, claims  payment  of  such  tax  and  his  fees,  and  is  about  to  proceed 
to  enforce  such  payment  by  levy  and  sale  of  the  plaintiff's  property. 
In  the  same  year  the  assessors  of  the  town  of  Boonville  assessed  the 
plaintiff  for  the  same  property,  on  the  ground  that  his  residence  was  in 
that  town,  whereupon  similar  proceedings  on  the  part  of  the  officers 
took  place  as  in  the  town  of  Ava,  for  the  collection  of  a  tax  amounting 


Ch.  7)  INTERPLEADER  1205 

to  the  sum  of  sixty-one  dollars.  Each  of  these  are  the  annual  tax  for 
the  farm  of  the  plaintiff  for  the  year  1869.  The  complaint  further  set 
forth  that  the  plaintiff  was  ignorant  of  the  respective  rights  of  the  de- 
fendants as  collectors,  and  that  he  was  willing  to  pay  the  tax  to  either 
of  the  defendants,  as  the  court  might  direct,  and  offered  to  pay  the 
money  into  court.  There  was  also  an  allegation  that  the  action  was  not 
brought  by  collusion  with  either  of  the  defendants. 

On  this  state  of  facts  the  plaintiff  prayed  for  an  injunction  restrain- 
ing the  defendants  from  taking  any  proceedings  in  relation  to  the  tax 
or  its  collection,  and  for  a  direction  that  the  defendants  should  inter- 
plead. 

The  referee  found  the  facts  substantially  as  set  forth  in  the  com- 
plaint, except  as  to  the  plaintiff's  ignorance  of  the  rights  of  the  collec- 
tors, as  to  which  there  was  no  finding,  and  decided,  as  matter  of  law, 
that  the  plaintiff  has  no  cause  of  action  against  the  defendant  Graff, 
collector  of  the  town  of  Boonville,  but  that  the  defendant  Fox,  col- 
lector of  the  town  of  Ava,  should  be  restrained  from  enforcing  the  col- 
lection of  the  tax  under  his  warrant. 

judgment  was  entered  on  the  report  of  the  referee  accordingly, 
awarding  a  perpetual  injunction,  and  declaring  the  said  tax  and  the 
warrant  last  mentioned  void  and  of  no  effect  against  the  plaintiff  or  his 
property. 

DwighT,  Com.7  The  defendant  claims  that  a  bill  of  interpleader  will 
not  lie  in  the  present  case,  on  two  grounds.  One  is,  that  the  plaintiff 
was  not  ignorant  of  his  rights ;  and  another,  that  on  the  merits  of  his 
case,  he  has  no  right  of  action. 

It  is  only  necessary  to  consider  whether  a  bill  of  interpleader  will  lie 
as  against  the  two  collectors,  to  establish  his  rights.  That  the  assessors 
of  the  town  of  Ava  have  violated  them  has  already  been  affirmed  in  a 
case  decided  at  the  present  term  of  this  conrt.  Dorn  v.  Backer,  61  N. 
Y.  261.  It  is  now  settled  law  that  assessors  act  at  their  peril  in  de- 
termining a  jurisdictional  fact.  By  finding  that  the  plaintiff  resides  in 
Ava  they  gain  no  control  over  the  subject,  unless  he  does,  in  fact,  re- 
side there.  When  that  point  is  in  dispute,  it  must  ultimately  be  decided 
by  the  courts.  The  referee  has  found,  as  a  fact,  in  the  present  case, 
on  undisputed  evidence,  that  the  plaintiff,  when  the  tax  was  levied,  re- 
sided in  Boonville.  The  assessors  of  the  town  of  Ava  therefore  had 
no  power  to  assess  a  tax  over  the  plaintiff's  farm,  and  their  proceeding 
was  wholly  void. 

The  action  of  interpleader  was  well  brought.  The  authorities  upon 
this  subject  distinguish  between  a  strict  bill  of  interpleader  and  a  bill 
in  the  nature  of  an  interpleader.  These  are  governed  by  rules  differ- 
ing to  some  extent.  In  a  strict  bill  of  interpleader  the  following  in- 
gredients are  necessary:  1.  Two  or  more  persons  must  have  preferred 
a  claim   against  the   plaintiff.     2.  They  must  claim   the   same   thing, 

i  Part  of  the  opinion  is  omitted. 


1206  INTERPLEADER  (Cll.  7 

whether  it  be  a  debt  or  duty.  3.  The  plaintiff  must  have  no  beneficial 
interest  in  the  thing  claimed.  4.  It  must  appear  that  he  cannot  deter- 
mine, without  hazard  to  himself,  to  which  of  the  defendants  the  thing, 
of  right,  belongs.  There  must  also  be  an  offer  to  bring  the  money  or 
thing  in  dispute  into  court. 

In  the  bill,  "in  the  nature  of  an  interpleader,"  the  same  strictness  is 
not  required.  Other  elements  of  an  equitable  nature  may  enter  into  the 
case,  and  the  jurisdiction  of  the  court  may  be  derived  from  these.  The 
distinction  is  well  pointed  out  in  Mohawk  &  Hudson  R.  R.  Co.  v.  Clute, 
4  Paige,  385,  392,  393.  The  present  action  was  brought  upon  the  theory 
of  a  strict  bill  of  interpleader.  There  was  an  allegation  in  the  com- 
plaint that  the  plaintiff  was  ignorant  of  the  respective  rights  of  the  col- 
lectors. This  statement  was  denied  in  the  answer,  and  the  referee 
made  no  finding  upon  the  subject.  Such  ignorance  must  be  shown,  or, 
at  least,  it  must  appear  that  there  is  some  doubt  to  which  of  such  claim- 
ants the  debt  or  duty  belongs,  so  that  he  cannot  safely  pay  or  render 
it  to  one  without  some  risk  of  subsequently  being  made  liable  for  the 
same  debt  or  duty  to  the  other.  Mohawk  &  Hudson  R.  R.  Co.  v.  Clute, 
supra. 

I  think  that  as  matter  of  law  there  was  sufficient  doubt  upon  this 
question,  when  the  action  was  commenced,  to  bring  it  within  the  rule. 
At  that  time,  according  to  the  test  suggested  in  Mohawk  &  Hudson  R. 
R.  Co.  v.  Clute,  supra,  392,  the  plaintiff  could  not  have  safely  rendered 
the  tax  to  one  of  the  collectors  without  some  risk  of  subsequently  be- 
ing made  liable  to  pay  the  tax  to  the  other.  It  is  true  that  the  amount 
of  the  tax  was  not  the  same  in  the  two  towns.  In  one  of  them  it  was 
$41.85,  and  in  the  other  $61.  The  duty  is  however  the  same,  as  it  grows 
out  of  the  statutory  power  of  assessors  to  levy  taxes.  The  same  fact 
existed  in  the  case  just  cited;  and  the  court  presumed  that  the  plaintiff 
had  paid  into  court  the  largest  sum  assessed  upon  him,  so  as  not  to 
violate  the  settled  rule  in  this  class  of  cases,  that  he  cannot  litigate  any 
part  of  the  claim  of  either  defendant.  Page  391.  To  show  that  the  au- 
thority of  assessors  to  decide  a  jurisdictional  fact  was  not  fully  settled 
when  this  action  was  brought,  reference  may  be  had  to  the  following 
cases:  Weaver  v.  Devendorf,  3  Denio,  117;  Crown  v.  Smith,  24  Barb. 
419 ;  Barhyte  v.  Shepherd,  35  N.  Y.  238,  and  Dorn  v.  Backer,  supra. 

In  this  last  case  the  General  Term  of  the  fourth  department- — Justice 
Tohnson  delivering  an  elaborate  opinion — held,  in  1872,  upon  this  very 
question  now  under  consideration,  that  the  action  of  the  assessors  of 
the  town  of  Ava  was  final.  He  distinguished  the  case  from  that  of 
People  v.  Supervisors  of  Chenango,  11  N.  Y.  563,  and  Mygartt  v.  Wash- 
burn, 15  N.  Y.  316.  His  view  was,  that  as  the  assessors  had  jurisdic- 
tion over  the  subject-matter  (a  large  portion  of  the  farm  lying  in  that 
town),  and  that  as  they  were  called  in  the  discharge  of  their  duty  to 
decide  the  fact  of  Dorn's  residence,  they  were  not  liable  to  an  action 
for  a  redress  of  any  injury  occasioned  by  their  error  of  judgment.    On 


Ch.  7)  INTERPLEADER  1207 

the  other  hand  he  claimed  that  in  Mygatt  v.  Washburn  the  person  who 
was  assessed  was  in  fact  a  non-resident,  and  therefore  the  assessors 
acted  wholly  without  jurisdiction.  Though  this  distinction  is  now  un- 
tenable, it  could  not  be  considered  as  clearly  so  when  this  action  was 
brought  in  1870,  since  it  was  maintained  by  persons  of  so  much  judicial 
experience  and  ability  as  Judges  J.  A.  Johnson,  Talcott  and  Mullin,  and 
had  not  then  been  passed  upon  and  discarded  by  the  appellate  court. 
The  rule  requiring  that  in  actions  of  interpleader  the  plaintiff  should  be 
in  doubt  as  to  which  of  the  claimants  is  in  the  right,  must  be  construed 
in  a  reasonable  manner.  It  of  course  excludes  all  cases  where  the  rights 
of  parties  are  clearly  settled.  On  the  other  hand,  so  long  as  a  principle 
is  still  under  discussion,  and  the  appellate  branch  of  the  Supreme  Court 
has  reached  conflicting  opinions,  it  would  seem  fair  to  hold  that  there 
was  sufficient  doubt  and  hazard  to  justify  the  protection  which  is  af- 
forded by  the  beneficent  action  of  interpleader. 

If  however  I  am  wrong  in  this  view  of  the  case,  there  is  sufficient 
authority  for  holding  that  the  plaintiff  may  sustain  his  action  as  a  "bill 
in  the  nature  of  an  interpleader."  There  are  sufficient  allegations  in 
the  complaint  for  that  purpose.  The  plaintiff  in  that  action  does 
not  simply  claim  that  he  is  a  stockholder,  or  that  he  owes  a  duty  to  one 
or  two  distinct  claimants.  He  may  show,  in  such  a  case  as  is  now  under 
discussion,  that  by  reason  of  conflicting  claims  his  property  is  in  dan- 
ger of  being  sacrificed.  He  may  insist  that  he  has  an  equitable  right 
to  have  relief  from  the  effects  on  his  property  of  an  illegal  assessment. 
If  the  statute  makes  the  tax  a  lien  on  his  land,  he  may  urge  that  it  is 
a  cloud  on  his  title.  If  it  be  personal  property,  he  may  assert  that  it  is 
in  danger  from  the  rival  claims  of  the  collectors.  Assuming  that  the 
warrants  are  regular  in  point  of  form,  each  collector  would  be  protected 
as  to  his  acts  done  under  them.  Should  it  be  said  that  the  plaintiff 
may  sue  the  assessor  for  his  wrongful  act,  the  answer  is  that  the  law 
does  not  confine  him  to  so  uncertain  a  remedy.  Complete  justice  is 
done  by  bringing  both  claimants  before  the  court,  ordering  the  amount 
of  the  lawful  tax  to  be  paid  over  to  the  party  who  turns  out  to  be  in 
the  right,  restraining  the  rival  collector  from  further  proceedings,  and 
declaring  the  unauthorized  tax,  as  well  as  the  warrant  for  its  collection, 
illegal  and  void.     *     *     * 

On  the  whole,  the  result  is  that  the  present  action  may  be  supported 
either  as  a  strict  action  of  interpleader  or  as  one  in  the  nature  of  an 
interpleader;  and  the  plaintiff,  having  offered  to  pay  the  money  into 
court,  was  entitled  to  relief  in  accordance  with  his  proof.  The  testi- 
mony having  clearly  shown  that  his  residence  was  in  Boonville,  he  was 
rightfully  taxed  there,  and  the  assessment  in  Ava  was  illegal  and  void. 

The  regular  course  in  the  present  case,  considered  as  a  strict  bill  of 
interpleader,  would  seem  to  have  been  not  to  have  dismissed  the  ac- 
tion as  against  the  collector  of  the  town  of  Boonville,  but  to  have  en- 
tered judgment  in  his  favor  for  the  amount  of  the  tax.    The  bill  should 


1208  INTERPLEADER  (Ch.  7 

pray  that  the  defendants  may  interplead,  so  that  the  court  may  adjudge 
to  whom  the  money  or  property  belongs.  2  Barb.  Ch.  Pr.  122;  Redfield 
v.  Supervisors,  1  Clarke  Ch.  49.  All  the  parties  were  before  the  court, 
and  the  cause  was  heard  on  its  merits,  and  the  whole  subject  should 
have  been  disposed  of  according  to  the  equities  of  the  case.  The  suc- 
cessful contestant  thus  has  the  benefit  of  a  judgment,  and  may  receive 
his  lawful  dues  by  force  of  it.  On  any  other  theory,  there  appears  to 
be  no  reason  for  requiring,  on  the  part  of  the  plaintiff,  an  offer  to  pay 
the  money  into  court.  That  would  indeed  be  an  idle  ceremony  if  the 
plaintiff  is  not  to  pay  it  over  to  the  party  who  is  found  to  be  entitled 
to  it.  And  yet  it  is  a  condition  precedent  to  relief  that  the  money 
should  be  brought  in.  2  Barb.  Ch.  Pr.  122,  and  cases.  This  view  is 
not  in  opposition  to  the  result  in  Mohawk  &  Hudson  R.  R.  Co.  v.  Clute, 
since  in  that  case  there  was  no  decision  at  the  hearing,  but  only  upon 
an  order  to  show  cause.  That  part  of  the  judgment  in  the  present  ac- 
tion which  dismissed  it  as  against  the  collector  of  Boonville  was  how- 
ever not  appealed  from,  and  there  appears  to  be  nothing  to  prevent  the 
collector  of  that  town  from  enforcing  the  tax  in  such  manner  as  he  may 
be  advised. 

The  judgment  of  the  General  Term  should  be  reversed,  and  that 
entered  on  the  report  of  the  referee  should  be  affirmed.    All  concur. 

Judgment  accordingly. 


Ch.  8)  BILLS   OF  ACCOUNT 

CHAPTER  VIII 
BILLS  OF  ACCOUNT 


1209 


EARL  OF  SALISBURY  v.    CECIL. 

(In  Chancery  before  Lord  Thurlow,  17SG.  1  Cox,  277,  29  E.  R.  1165.) 
This  bill  was  filed  (amongst  other  things)  for  an  account  from  one 
Wilkinson,  who  was  chief  auditor  and  steward  of  the  late  Earl  of  Salis- 
bury, of  all  sums  of  money  received  by  him  on  account  of  the  said 
late  Earl,  and  that  he  might  account  for  the  profits  made  by  him  of  the 
said  Earl's  money,  which,  as  was  charged  by  the  bill,  was  from  time  to 
time  laid  out  by  him  in  the  funds  and  other  securities  at  interest.  Wil- 
kinson, by  his  answer,  admitted  that  his  agents  from  time  to  time  re- 
mitted very  large  sums  of  money  belonging  to  the  said  Earl  to  his 
(Wilkinson's)  bankers,  but  said  that  the  same  was  mixed  with  his  own 
money,  by  which  means  he  was  unable  to  set  forth  what  profits  had 
been  made  of  the  said  Earl's  money.  Wilkinson  afterwards  died  be- 
fore the  hearing  of  the  cause,  which  was  revived  against  his  represent- 
atives. And  it  was  now  moved  that  the  defendant,  the  representatives 
of  Wilkinson,  "might  produce  at  the  hearing  of  the  cause  all  books  kept 
by  Wilkinson  at  his  banker's  during  the  time  he  was  chief  auditor  and 
steward  of  the  said  late  Earl :"  which  motion  was  made  with  a  view 
of  shewing  from  the  banker's  books  that  Wilkinson  did  from  time  to 
time  draw  out  the  Earl's  money  for  the  purpose  suggested  by  the  bill. 

Lord  Chancellor.  From  the  circumstance  of  Wilkinson  having 
mixed  the  money  of  the  late  Lord  Salisbury  with  his  own,  which  fact 
is  admitted  by  his  answer,  I  am  of  opinion  that  these  books  ought  to  be 
produced,  and  such  parts  selected  at  the  hearing  as  shall  appear  to  ap- 
ply to  the  subject  before  us.  The  objection  made  is  that  the  books  are 
improper  to  be  produced  on  other  accounts,  but  a  man  shall  never  be 
at  liberty  so  to  fence  with  justice  as  to  shelter  himself  under  a  cir- 
cumstance arising  from  his  own  improper  behaviour  in  mixing  the 
money  with  his  own.  And  his  Lordship  made  the  order  as  prayed. — 
Reg.  Lib.  A.  1786,  Mich.  Term. 


DINWIDDIE  v.  BAILEY. 

(In  Chancery  before  Lord  Eldon,  1801.    6  Yes.  137,  31  E.  R.  979.) 

The  bill  stated,  that  the  plaintiff  carried  on  the  business  of  insur- 
ance broker  at  Manchester ;  and  was  employed  by  the  defendants  from 
time  to  time  to  effect  insurances  upon  ships,  goods,  wares,  and  mer- 
chandize ;  and  paid  divers  sums  of  money  on  account  thereof ;  and  be- 
came entitled  as  such  insurance  broker  to  divers  sums  of  monev  for  his 


1210  bills  of  AcrorxT  (Ch.  8 

commission  upon  effecting  such  insurances,  and  otherwise  respecting 
the  same,  and  the  money  received  on  account  thereof,  and  for  postage 
of  letters,  and  upon  sums  of  money  paid,  laid  out,  and  expended,  on 
account  of  the  defendants  in  effecting  the  insurances,  &c.  and  that  the 
defendants  were  also  indebted  in  divers  sums  of  money  upon  promis- 
sory notes  indorsed  to  the  plaintiff  in  the  usual  course  of  business. 

The  bill  further  stated,  that  the  plaintiff  received  some  money  from 
the  underwriters  in  respect  of  losses  upon  some  ships ;  but  that  it  hath 
constantly  been  the  universal  custom  of  persons,  who  carry  on  the 
business  of  insurance  brokers  at  Lloyd's  Coffee-House,  at  Liverpool, 
and  for  all  other  persons,  who  carry  on  the  trade  of  insurance  brokers, 
in  the  business,  which  they  transact  for  merchants  at  Liverpool,  or  in 
any  other  part  of  the  county  of  Lancaster,  to  be  allowed  one  month 
from  the  day,  upon  which  the  loss  upon  ships  or  goods,  which  are  in- 
sured, is  ascertained,  and  the  documents  respecting  such  loss  found  to 
be  satisfactory,  to  obtain  the  signatures  of  the  underwriters  to  the  ad- 
justment of  the  policy,  and  to  apply  to  such  underwriters  for  payment 
of  their  proportions;  and  at  the  end  of  that  month,  and  not  before,  to 
accept  bills,  drawn  upon  them  by  the  persons,  for  whom  they  effected 
such  insurances,  for  the  amount  of  such  loss,  until  the  end  of  four 
months  from  the  day,  upon  which  the  loss  was  ascertained,  and  the 
documents  found  satisfactory ;  and  such  custom  has  been  always 
adopted,  and  acted  upon,  by  the  plaintiff  in  all  his  dealings  with  the 
defendants ;  and  they  have  constantly  allowed  the  plaintiff  the  said 
space  of  four  months  for  the  payment  of  the  amount  of  the  losses  until 
the  commencement  of  the  action. 

The  bill  then  stated  losses  upon  ships  under  insurances  effected  by 
the  plaintiff  for  the  defendants  :  one  settled  upon  the  7th,  another  upon 
the  11th  of  October,  1800;  which  according  to  the  said  custom  would 
be  payable  three  months  from  the  7th  and  11th  of  November;  that 
no  account  of  the  said  dealing  was  stated  between  the  plaintiff  and  de- 
fendants ;  but  an  action  was  brought  by  the  defendants  in  December ; 
in  which  they  held  the  plaintiff  to  bail  for  £1192.  5s.  lid.  though  the 
money  due  in  respect  of  the  said  losses  was  not  due  until  February ; 
and  the  defendants  had  not  drawn  upon  the  plaintiff ;  and  the  defend- 
ants at  the  time  of  the  action  brought  were,  and  now  are,  indebted  to 
the  plaintiff  in  a  much  larger  sum  on  the  accounts  before  mentioned, 
and  also  by  virtue  of  three  promissory  notes ;  one  dated  the  19th  of 
October,  1799,  at  12  months  after  date,  for  £600,  another  of  the  same 
date  and  for  the  same  time  for  £650,  another,  dated  the  18th  of  No- 
vember, 1799,  at  15  months  after  date,  for  £1440.  16s.  all  indorsed  to 
the  plaintiff;  and  on  account  a  large  balance  would  be  found  due  to 
the  plaintiff.  The  bill  then  stated  applications  for  the  sums  paid  for 
premiums,  commission,  &c.  that  the  defendants  threaten  to  proceed  to 
trial ;  well  knowing,  that  the  plaintiff  cannot  obtain  adequate  justice 
in  the  said  action  without  an  account,  and  cannot  recover  therein  the 
balance  due  to  him   from  them,  as  aforesaid  ;    and  prayed  an  account 


Ch.  8)  BILLS   OF   ACCOUNT  1211 

of  the  sums  of  money  paid  by  the  plaintiff  for  and  on  account  of  the 
defendants  in  respect  of  the  insurances  effected,  also  the  money  due 
to  him  for  commission,  and  otherwise,  respecting  the  same,  and  the 
money  received  on  account  thereof,  postage  of  letters,  and  the  other 
sums  of  money,  paid,  laid  out  and  expended,  by  him  on  their  account 
about  the  same,  and  also  an  account  of  the  money  due  to  him  in  respect 
of  the  promissory  notes;  of  the  several  sums  of  money  he  received  from 
the  underwriters  or  others  on  account  of  the  losses  ;  and  all  other  sums 
due  to  them  from  him ;  and  a  decree  for  payment ;  offering  to  pay 
what  shall  be  due  from  him;  and  an  injunction  to  restrain  proceedings 
at  law. 

The  defendants  put  in  a  general  demurrer  to  the  discovery  and  re- 
lief. 

Lord  Chancellor.  I  should  feel  infinite  reluctance  in  supporting 
such  a  bill.  It  contains  rather  a  statement  of  facts,  the  effect  of  which 
it  is  a  little  difficult  to  collect.  With  regard  to  all  these  allegations, 
some  of  which  import,  that  he  has  received,  some,  that  he  has  paid, 
money,  he  does  not  go  on  to  allege,  that  upon  the  effect  of  the  whole, 
taken  together,  they  are  indebted  to  him.  The  only  allegation  of  debt, 
that  I  can  find,  is  with  regard  to  the  money  due  upon  the  promissory 
notes.  With  respect  to  the  allegation  of  a  universal  custom,  if  the  fact 
is  true,  there  can  be  no  manner  of  difficulty  in  the  proof :  so  that,  if 
an  action  was  brought  before  the  end  of  the  four  months,  it  would  be 
a  complete  defence  to  say,  according  to  this  general,  notorious,  custom, 
very  capable  of  proof,  that  it  was  brought  too  soon.  With  respect  to 
this  particular  fact,  it  does  not  proceed  upon  any  alleged  special  agree- 
ment, the  proof,  and  therefore  the  discovery,  of  which  might  be  neces- 
sary to  sustain  the  defence  to  an  action.  The  bill  applies  itself,  not  to 
a  special  agreement,  but  to  a  fact,  capable  of  proof ;  out  of  which  it 
might  be  for  a  jury  to  infer,  that  there  was  a  special  agreement  con- 
formable to  the  custom.  The  allegation  is,  that,  taking  the  whole  to- 
gether, this  custom  does  exist  at  Lloyd's  Coffee-House,  at  Liverpool, 
and  in  every  part  of  Lancashire ;  and  that  conformably  to  that  custom 
the  plaintiff  was  constantly  allowed  four  months  credit ;  which  is  a 
fact  to  be  evidenced  by  some  transaction ;  and  the  gravamen  of  the  bill 
is,  that  the  action  was  brought  too  soon ;  the  four  months  not  being 
expired.  He  alleges  further,  that  these  promissory  notes  form  a  coun- 
ter-demand ;  and  upon  the  whole  alleges,  that  a  considerable  sum  of 
money  is  due  to  him;  and  in  the  sense,  in  which  such  words  are  used, 
the  bill  must  be  taken  to  be  true. 

It  is  clear,  this  case  might  be  disposed  of  altogether  at  law.  It  is 
another  question,  whether  the  jurisdiction  of  this  Court  might  not  at- 
tach upon  it :  but  it  is  beyond  all  doubt,  it  might  be  disposed  of  at  law ; 
for  every  fact  alleged  is  a  fact,  with  regard  to  which  it  is  impossible, 
that  the  plaintiff  must  not  be  in  possession  of  proof.  He  must  know, 
what  he  paid  for  premiums  of  insurance ;  for  postage ;  what  was  due 
to  him  for  commission ;  which  is  settled  by  the  law  and  usage  of  mer- 


1212  BILLS  OF  ACCOUNT  (Ch.  8 

chants  ;  unless  there  is  a  special  agreement ;  which  is  not  alleged.  All 
these  particulars  are  known  to  himself.  If  an  action  was  brought 
therefore,  he  would  have  had  only  to  prove  what  is  here  stated ;  which 
would  be  easy.  He  has  a  set-off;  the  ordinary  case  of  set-off,  of  a 
sum  of  money,  which  he  says  is  not  only  equal  to  their  demand,  but 
gives  him  a  right  to  sustain  himself  as  a  plaintiff  for  the  balance  due 
to  him.  It  is  not  to  be  said,  that  in  every  case,  where  the  defendant 
owes  more  to  the  plaintiff,  that  is  a  ground  for  a  bill.  There  must  be 
mutual  demands,  forming  the  ground.  The  case  of  dower  is  always 
considered  a  case  standing  upon  its  own  specialties.  So  is  the  case  of 
the  steward.  The  nature  of  his  dealing  is,  that  money  is  paid  in  con- 
fidence, without  vouchers  ;  embracing  a  great  variety  of  accounts  with 
the  tenants;  and  nine  times  in  ten  it  is  impossible  that  justice  can  be 
done  to  the  steward.  If  I  sustain  this  bill,  there  never  would  be  an 
action  in  the  city  against  a  broker  without  a  bill  in  equity.  I  hesitate 
excessively  in  permitting  such  a  bill ;  and  the  strong  inclination  of  my 
opinion  is,  that  the  demurrer  ought  to  be  allowed.  I  feel  great  sanc- 
tion for  the  doubt  I  entertained,  from  the  opinion  of  Lord  Chief  Jus- 
tice Eyre  in  the  case  cited :  a  Judge,  whose  habit  was  not  to  express 
doubts,  where  he  had  a  clear  opinion.  That  case  is  very  different,  as 
being  the  case  of  an  executor  upon  payments  made  to  his  testator,  not 
of  the  party  himself  coming  for  relief.  The  executor  can  only  go  upon 
conjecture  as  to  the  amount  of  the  money  paid;  and  therefore  would 
go  to  law1  completely  at  his  peril.  There  is  hardly  a  case  of  set-off,  in 
which  a  bill  might  not  be  sustained,  if  this  may. 

The  cause  having  stood  over  for  the  purpose  of  searching  for  prec- 
edents, Mr.  Agar  said,  there  were  numerous  cases  of  accounts  sought 
by  a  principal  against  a  factor,  and  one  upon  the  bill  of  a  factor  against 
the  principal,  Chapman  v.  Derby,  2  Yern.  117,  which  was  disposed  of 
upon  another  point :  but  he  could  not  find  any  case  of  an  insurance 
broker. 

Lord  Chancellor  said,  it  was  impossible  to  sustain  the  bill,  with- 
out laying  down,  that  wherever  a  person  is  entitled  to  a  set-off,  he  may 
come  into  this  Court. 

The  demurrer  was  afterwards  allowed. 


CORPORATION  OF  CARLISLE  v.  WILSON. 

(In  Chancery  before  Lord  Erskine,  1807.     13  Ves.  270,  33  E.  R.  297.) 

The  bill  stating  the  right  of  the  Corporation  of  Carlisle  to  toll-thor- 
ough for  all  merchandise  carried  through  that  city,  originally  levied 
upon  goods,  carried  on  the  backs  of  men  and  horses,  afterwards  in 
waggons  and  carts ;  that  great  quantities  of  merchandise  are  conveyed 
through  the  kingdom  in  stage-coaches ;   that  the  defendant  has  refused 


Ch.  S)  BILLS  OF  ACCOUNT  1213 

to  pay  the  toll  accrued  due  to  the  plaintiffs  for  goods  conveyed  by  the 
stage-coaches,  of  which  they  are  proprietors ;  that  in  consequence  of 
an  agreement  to  try  the  right,  an  action  was  brought  in  the  year  1802 : 
which  was  tried  in  August,  1804,  and  a  verdict  was  found  for  the  plain- 
tiffs with  nominal  damages.  The  bill  prayed  an  account  of  the  tolls, 
confining  it  to  six  years. 

To  this  bill  a  general  demurrer  was  put  in. 

The  Lord  Chancellor.  The  question  is,  whether  upon  the  facts 
stated  by  this  bill,  this  Court  ought  to  decree  an  account.  The  objec- 
tion is,  that  the  right  to  take  these  tolls  is  undoubtedly  a  merely  legal 
right ;  that  the  plaintiffs  therefore  may  have  a  discovery,  and  having 
obtained  that,  cannot  also  have  relief ;  but  should  use  the  discovery  in 
an  action,  which  undoubtedly  might  be  brought.  The  principle  upon 
which  Courts  of  Equity  originally  entertained  suits  for  an  account, 
where  the  party  had  a  legal  title,  is,  that  though  he  might  support  a 
suit  at  law,  a  Court  of  Law  either  cannot  give  a  remedy,  or  cannot 
give  so  complete  a  remedy,  as  a  Court  of  Equity ;  and  by  degrees 
Courts  of  Equity  assumed  a  concurrent  jurisdiction  in  cases  of  ac- 
count; for  it  cannot  be  maintained,  that  this  Court  interferes  only 
when  no  remedy  can  be  had  at  law.  The  contrary  is  notorious.  The 
same  species  of  relief  is  given  at  law  in  the  action  of  account  as  under 
a  bill  in  this  Court,  but  the  great  advantage  of  the  latter,  and  the  diffi- 
culty and  delay  when  the  account  comes  before  auditors,  has  brought 
that  action  into  disuse,  as  is  observed  by  Lord  Hardwicke  in  Ex  parte 
Bax,  2  Ves.  388. 

The  proposition  asserted  against  this  bill,  is,  that  this  Court  ought 
to  refuse  to  interfere  by  directing  an  account ;  if  an  action  for  money 
had  and  received,  or  indebitatus  assumpsit  can  be  maintained.  That 
proposition  cannot  be  supported.  In  Lewes  v.  Sutton,  5  Ves.  683,  the 
Chancellor's  doubt  was,  not  whether  an  account  could  be  decreed; 
but  whether  the  plaintiff  could  recover  at  law.  The  proposition  is,  not 
that  an  account  may  be  decreed  in  every  case,  where  an  action  for 
money  had  and  received,  or  indebitatus  assumpsit  may  be  brought,  and 
certainly  indebitatus  assumpsit  lies  for  tolls ;  but,  that  where  the  sub- 
ject cannot  be  so  well  investigated  in  those  actions,  this  Court  exer- 
cises a  sound  discretion  in  decreeing  an  account.  It  is  true,  in  Mil- 
bourn  v.  Fisher,  5  Yes.  685,  note,  there  was  no  demurrer ;  but,  if  the 
proposition  that  an  account  cannot  be  decreed  upon  such  a  subject,  is 
so  clear,  I  cannot  think  the  Court  would  have  done  what  was  done  in 
that  instance,  and  in  the  case  before  the  House  of  Lords  (The  City 
of  London  v.  Perkins,  4  Bro.  P.  C.  157) ;  where  no  question  was  made 
as  to  the  jurisdiction  of  a  Court  of  Equity,  which  upon  those  cases 
must  be  considered  established ;  a  concurrent  jurisdiction  with  a  Court 
of  Law  upon  the  subject  of  account;  that  therefore,  though  an  action 
might  be  maintained,  yet,  if  it  appears,  it  would  not  be  tried  without 
great  difficulty,  and  the  verdict  could  not,  from  the  nature  of  the  case, 


1214  BILLS   OF  ACCOUNT  (Ch.  8 

be  equally  satisfactory  with  the  proceedings  under  a  decree,  an  ac- 
count shall  be  decreed. 

The  objection,  that  these  plaintiffs  omitted  to  exert  their  right  to 
take  a  distress,  is  answered  by  the  circumstances.  These  tolls  were 
originally  levied  upon  goods,  carried  by  men  and  horses ;  afterwards 
upon  the  owners  of  waggons,  and  carts ;  and  since,  in  consequence  of 
the  improvement  of  the  roads,  the  claim  is  made  upon  the  proprietors 
of  stage-coaches ;  but,  the  right  being  disputed,  it  was  fairly  consid- 
ered, that  to  enforce  the  payment  by  distress,  would  have  been  too 
strong  a  measure.  That  led  to  the  agreement  to  try  the  right,  and,  in 
the  mean  time,  to  forbear  to  exercise  it.  That  suit  being  merely  to 
try  the  right,  nominal  damages  were  taken.  How  can  a  case  of  this 
kind  be  tried  at  the  assises ;  an  account,  to  be  surcharged,  upon  which 
every  inhabitant  of  Carlisle  might  be  examined? 

Overrule  the  demurrer. 


O'CONNOR  v.  SPAIGHT. 
(In  Chancery  in  Ireland  before  Lord  Eedesdale,  1S01.     1  Sen.  &  L.  305.) 

The  Defendant  by  indenture  bearing  date  31st  March,  1780,  de- 
mised certain  premises  to  the  Plaintiff  for  three  lives,  at  a  rent  of  20s. 
per  acre  for  every  acre  the  demised  premises  should  or  might  contain, 
under  which  demise  the  Plaintiff  entered  into  possession ;  the  num- 
ber of  acres  was  not  ascertained,  nor  did  Plaintiff  appear  to  have  made 
any  regular  payments  of  rent  eo  nomine,  nor  had  Defendant  given  him 
any  receipts  in  full  or  for  precise  gales;  but  from  1780  down  to  1796, 
the  Plaintiff  had  been  in  the  constant  habit  of  accepting  Defendant's 
bills,  of  paying  money  on  his  order,  of  selling  him  goods  on  credit,  and 
supplying  him  and  his  family  with  money,  the  particulars  of  which 
several  sums  were  set  out  in  a  schedule  annexed  to  the  Bill,  and  for 
which  the  Plaintiff  insisted  that  if  credit  were  given,  a  balance  would 
appear  due  to  him.  The  Defendant  brought  his  Ejectment  for  non- 
payment of  rent,  as  of  Michaelmas  Term,  1796;  in  April,  1797,  Plain- 
tiff filed  his  Bill,  setting  forth  the  particulars  of  the  various  dealings 
between  the  parties,  and  praying  an  account  on  the  foot  thereof,  and 
that  Defendant  should  pay  Plaintiff  the  balance  due  to  him  after  de- 
ducting such  sum  as  might  appear  due  to  the  Defendant  on  account  of 
rent;  and  praying  an  Injunction  against  the  Ejectment.  On  29th 
May,  1797,  consent  for  judgment  was  given,  and  on  1st  July,  the  Land- 
lord, by  his  affidavit  according  to  the  statute,  claimed  a  sum  of 
i216:8:0,  due  to  him  for  rent  above  all  just  allowances. 

The  Defendant's  answer  submitted  to  the  account,  but  refused  cred- 
it for  most  of  the  items  set  forth  by  the  Bill,  denying  the  facts  as  to 
some,  and  alleging  that  as  to  others  there  were  double  charges ;  and 
insisted,  that  so  far  from  there  being  a  balance  due  to  Plaintiff,  a  sum 


Ch.  S)  BILLS   OF   ACCOUNT  1215 

of  £216  (which  was  considerably  more  than  a  year's  rent)  was  due 
by  him  at  the  time  of  the  Ejectment  brought,  after  making  all  just 
allowances.  An  Injunction  had  been  obtained  for  want  of  an  answer, 
and  upon  the  coming  in  of  the  answer,  an  order  was  made  to  continue 
the  Injunction  till  the  hearing,  on  Plaintiff's  bringing  in  the  sum  sworn 
due  within  40  days  from  the  day  of  filing  the  answer  (see  11  Anne, 
c.  2,  §4);  this  order  not  having  been  complied  with,  the  Injunction 
was  dissolved,  and  the  Defendant  executed  his  habere:  the  Plaintiff 
proceeded  to  examine  witnesses,  and  proved  several  items  in  his  ac- 
count which  had  been  denied  by  the  answer.     *     *     * 

Upon  the  opening  of  the  case  the  Lord  Chancellor  put  the  Plaintiff 
on  shewing  that  there  was  a  complicated  account  depending  between 
him  and  the  Defendant;  and  to  falsify  Defendant's  answer  as  to 
some  material  items  in  the  account  as  sworn  to  by  him.  This  having 
been  done,  his  Lordship  directed  the  account,  observing  as  follows : 

Lord  Chancellor.1  *  *  *  The  ground  on  which  I  think  that 
this  is  a  proper  case  for  Equity,  is,  that  the  account  has  become  so 
complicated  that  a  Court  of  Law  would  be  incompetent  to  examine  it 
upon  a  trial  at  Nisi  Prius,  with  all  necessary  accuracy,  and  it  could 
appear  only  from  the  result  of  the  account  that  the  rent  was  not  due. 
This  is  a  principle  on  which  Courts  of  Equity  constantly  act  by  taking 
cognizance  of  matters,  which,  though  cognizable  at  Law,  are  yet  so  in- 
volved with  a  complex  account  that  it  cannot  properly  be  taken  at  Law, 
and  until  the  result  of  the  account,  the  justice  of  the  case  cannot  ap- 
pear. Matter  of  account  may  indeed  be  made  the  subject  of  an  action, 
but  an  account  of  this  sort  is  not  a  proper  subject  for  this  mode  of  pro- 
ceeding: the  old  mode  of  proceeding  upon  the  writ  of  accounts  shews 
it:  the  only  judgment  was  that  the  party  "should  account/''  and  then 
the  account  was  taken  by  the  auditor:    the  Court  never  went  into  it. 

The  Decree  directed: 

"That  it  be  referred  to  the  Master  to  take  an  account  of  the  rent  of  the 
premises,  and  for  that  purpose  that  a  survey  should  be  made  of  said  premises 
according  to  the  terms  of  the  leas?,  by  such  proper  Surveyor  as  the  Master 
should  appoint,  and  that  it  be  referred  to  said  Master  to  approve  a  proper  per- 
son for  that  purpose:  And  that  the  Master  should  take  an  account  on  the  foot 
of  all  dealings  and  transactions  between  the  Plaintiff  and  the  Defendant,  in- 
cluding the  rents  of  said  premises  as  they  should  be  ascertained  by  said  Sur- 
veyor :  and  that  in  taking  such  account,  the  Master  should  report  particularly 
the  balance  due  at  the  time  of  bringing  the  said  Ejectment;  and  also  the  bal- 
ance appearing  clue  at  the  time  of  making  his  report:  And  reserved  all  fur- 
ther consideration  of  costs,  and  ordered  that  the  Plaintiff  should  speed  his 
cause  and  proceed  on  the  account,  &c." 

i  The  statement  of  facts  is  abridged  and  part  of  the  opinion  is  omitted. 


11*16  BILLS   OF   ACCOUNT  (Ch.  8 

HEMINGS  v.  PUGH. 

(In  Chancery  before  Sir  John  Stuart,  1S63.    4  Giff.  456.  66  E.  R.  7S5.) 

This  was  a  demurrer. 

The  bill  prayed  for  an  account  of  all  moneys  received  by  the  De- 
fendant on  behalf  of  the  Plaintiff. 

That  the  Defendant  might  make  a  full  discovery  of  all  sums  receiv- 
ed by  the  Defendant  for  or  on  account  of  the  Plaintiff,  and  might  pro- 
duce and  leave  with  the  Clerk  of  Records  and  Writs  all  books,  papers, 
accounts  and  other  documents  containing  any  entries  of  any  sums 
charged  by  the  Defendant  to  any  persons  as  paid  to  the  Plaintiff,  and 
wholly  or  partially  paid  to  the  Defendant  by  any  such  persons,  or 
otherwise  received  by  the  Defendant  for  or  on  account  of  the  Plain- 
tiff ;  and  that  the  Defendant  might  pay  to  the  Plaintiff  what  on  taking 
such  account  might  be  found  due  to  the  Plaintiff  from  the  Defendant 
in  respect  of  the  receipts  by  the  Defendant  for  or  on  account  of  the 
Plaintiff:  the  Plaintiff  being  ready  and  willing  to  make  all  just  al- 
lowances. 

The  bill,  as  amended,  alleged  that  the  Defendant  had  received  on  the 
Plaintiff's  account  numerous  sums  of  money  of  which  the  amounts  and 
particulars  were  unknown  to  the  Plaintiff.  The  bill  charged  that  it 
was  the  duty  of  the  Defendant  to  have  accounted  for  and  paid  such 
sums  received  by  him  as  aforesaid  to  the  Plaintiff;  that  the  Defend- 
ant had  neglected  to  pay  such  sums  to  the  Plaintiff  or  to  render  any 
account  for  the  same,  though  the  Plaintiff  had  made  numerous  appli- 
cations for  an  account  and  payment.  The  bill  charged  that  the  De- 
fendant, being  pressed  to  examine  his  books  and  documents  on  the 
9th  November,  1862,  did  pay  to  the  Plaintiff  the  sum  of  £9.  3s.  on  ac- 
count of  the  sums  which  Defendant  stated  he  had  discovered  that  he 
had  received  on  account  of  the  Plaintiff.  The  bill  charged  that  the 
Defendant  on  that  occasion  told  the  Plaintiff  that  he  would  make  fur- 
ther search  among  his  books  and  documents,  but  the  Defendant  had 
neglected  to  do  so;  but  sometimes  alleged  he  had  not  time,  and  at 
other  times  that  he  had  put  the  books  and  papers  away,  and  he  would 
not  have  put  them  away  if  they  had  been  required  for  any  purpose, 
and  that  therefore  nothing  would  be  found  due  to  the  Plaintiff. 

The  bill  also  alleged  that  the  Defendant,  on  the  8th  May,  1863,  on 
being  informed  that  the  Plaintiff  had  filed  this  bill,  paid  to  the  Plaintiff 
a  further  sum  of  £20.  15s.  6d.,  which  the  Defendant  on  that  occasion 
stated  to  the  Plaintiff  he  had  on  a  further  search  (which  the  bill  al- 
leged to  be  a  partial  search)  ascertained  to  be  due.  The  bill  alleged 
that  the  Defendant  had  neglected  to  make  further  searches,  or  he 
would  have  ascertained  that  he  had  received  other  sums  on  account 
of  the  Plaintiff. 

The  bill  charged  that,  if  the  Defendant  would  produce  such  books, 
papers,    accounts    and    other   documents,    and   discover    the    truth,    it 


Cll.  8)  BILLS   OF   ACCOUNT  1217 

would  appear  that  a  considerable  amount  had  been  received  by  the 
Defendant  on  the  Plaintiff's  account,  which  he  had  failed  to  pay  to 
the  Plaintiff,  as  he  ought  to  have  done.  The  bill  alleged  that  such 
sum  was  unknown  to  the  Plaintiff  and  could  only  be  discovered  by  the 
evidence  of  the  Defendant,  by  the  production  of  the  accounts  and 
papers. 

The  VicB-Chaxcfxlor.  This  demurrer  must  be  allowed.  The  bill 
contains  a  mere  averment  of  the  receipt  of  money  by  an  agent,  but 
that  has  never  been  held  enough  to  sustain  a  bill.  There  is  also  a 
simple  bald  statement  that  without  the  evidence  of  the  Defendant  and 
the  production  of  the  books  the  Plaintiff  is  unable  to  obtain  an  ac- 
count. Why  the  Plaintiff  cannot  obtain  that  evidence  in  an  action  is 
not  stated. 

In  the  case  of  Smith  v.  Leveaux  Vice-Chancellor  Wood,  in  noticing 
the  cases  of  Dinwiddie  v.  Baily,  6  Ves.  136,  and  Phillips  v.  Phillips, 
9  Hare,  471.  appears  to  have  treated  them  as  authorities  to  shew  that 
this  Court  will  not  interfere  when  the  receipts  and  payments  are  all 
on  one  side.  But  I  doubt  whether  that  be  the  law  of  this  Court.  There 
are  many  cases  between  principal  and  agent,  where  the  receipts  and 
payments  are  wholly  on  one  side,  in  which,  however,  this  Court  has 
exercised  its  jurisdiction.  In  the  case  of  a  steward  or  land  agent  the 
receipts  and  payments  are  almost  necessarily  on  one  side ;  that  is,  no 
mutual  payments  and  receipts.  Yet  that  is  a  case  in  which  this  Court 
from  the  most  ancient  times  (and  more  recently  during  the  times  of 
Lord  Rosslyn,  Lord  Thurlow  and  Lord  Eldon)  has  exercised  this  juris- 
diction. That  jurisdiction  still  remains,  and  wherever  an  agency  par- 
takes of  a  fiduciary  character  this  Court  has  jurisdiction,  and  will  di- 
rect an  account,  although  the  receipts  and  payments  are  all  on  one  side, 
and  there  are  no  mutual  payments  between  the  parties. 

That  rule  has  not  been  shaken  by  the  decision  in  Phillips  v.  Phillips, 
though  there  are  passages  in  the  judgment  in  that  case  which  may  seem 
at  first  to  be  inconsistent  with  the  principle  to  which  I  have  adverted. 

Here  there  is  no  allegation  of  any  mutual  dealings,  or  of  anything 
fiduciary  in  the  relation  of  the  parties,  who  on  the  bill  are  stated  as 
mere  principal  and  agent.     The  demurrer  must  be  allowed  with  costs. 


KING  v.  ROSSETT  et  al. 
(Court  of  Exchequer  iu  Equity,  1S27.    2  Younge  &  J.  32.) 

The  bill  in  this  case,  which  was  filed  by  the  plaintiff,  as  principal, 
against  the  defendants,  his  agents,  in  the  character  of  stock-brokers, 
stated  that  the  plaintiff  had  employed  the  defendants  in  the  sale,  and 
afterwards  in  the  repurchase  of  the  sum  of  £40,000  three  per  cent. 
Consolidated  Annuities,  leaving  the  entire  matter  in  their  hands,  and 
Boke  Eq. — 77 


1218  BILLS  OF  ACCOUNT  (Cll.  8 

to  their  discretion.  That  in  consequence  of  such  employment,  they 
had  sold  and  afterwards  re-purchased  the  said  sum  of  £40,000  in 
several  parcels,  to  and  from  various  persons,  and  had  employed  the 
proceeds  of  the  sale  in  the  re-purchase  of  stock.  That  the  defendants 
afterwards  had  sent  to  the  plaintiff  an  account  in  writing  of  such  sales 
and  purchases,  in  which  the  prices  at  which  the  same  were  respectively 
effected,  were  stated,  and  by  which  the  plaintiff  was  made  a  debtor  to 
the  defendants  in  the  sum  of  £625  ;  upon  the  faith  of  which,  and  be- 
lieving the  same  to  be  just  and  true  in  every  particular,  the  plaintiff 
wrote  to  the  defendants,  enclosing  a  check  for  £50,  and  promising  to 
pay  the  balance  of  £575,  which  he  owed  by  instalments  of  £60,  before 
the  6th  of  each  successive  month,  until  the  whole  sum  was  liquidated. 
The  plaintiff  subsequently  discovered  the  account  to  be  very  errone- 
ous and  inaccurate,  the  sales  having  been  effected  at  a  much  higher, 
and  the  purchases  at  a  much  lower  rate  than  were  represented  by 
the  account,  the  result  of  which  was,  that  the  plaintiff  was  a  creditor 
of  the  defendants  to  the  amount  of  £1000;  notwithstanding  which  the 
defendants  commenced  an  action  at  law  against  the  plaintiff  for  the 
recovery  of  the  balance  of  £575.  It  charged,  amongst  other  things, 
that  the  defendants  had  not  delivered  to  the  plaintiff  the  bank  receipts 
upon  the  several  purchases,  which  were  still  in  their  possession ; 
and  praved  a  discovery  ;  an  account  of  the  true  and  real  prices  at  which 
the  stock  was  sold  and  purchased,  the  plaintiff  offering  to  pay  what 
should  be  found  to  be  legally  due  to  the  defendants ;  an  injunction  to 
restrain  the  proceedings  at  law,  and  such  further  and  other  relief  as 
the  circumstances  of  the  case  might  require. 

The  defendants  put  in  a  general  demurrer  for  want  of  equity. 

Alexander,  L.  C.  B.  I  can  entertain  no  doubt  whatever  as  to  the 
course  which  ought  to  be  pursued  in  this  case,  and  am  clearly  of  opin- 
ion that  the  demurrer  should  be  allowed.  The  bill  is  filed  by  a  prin- 
cipal against  his  agents,  and  it  is  said  that  that  fact  alone  is  sufficient 
to  sustain  the  bill.  Undoubtedly,  a  principal  is  entitled  to  an  account 
from  his  agent,  and  may  apply  to  a  Court  of  Equity  for  that  purpose ; 
but,  as  I  conceive,  before  that  Court  will  interfere,  a  ground  for  its 
interposition  must  be  laid,  by  showing  an  account  which  cannot  fairly 
be  investigated  by  a  Court  of  Law.  Unless  Courts  of  Equity  were  to 
put  that  limit  to  their  interference,  no  case  of  this  description  would 
ever  be  tried  in  a  Court  of  Law,  and  wherever  a  person  was  entitled  to 
a  set-off,  a  bill  might  be  sustained.  But  it  is  objected  that  the  demur- 
rer is  too  extensive,  and  covers  too  much.  If  a  plaintiff  asks  for  relief, 
and  for  discovery  as  ancillary  only  to  that  relief,  where  the  Court  is 
of  opinion  that  the  ground  for  the  relief  fails,  he  is  not  entitled  to  the 
discovery,  and  must  file  another  bill  for  that  purpose.  Although, 
under  a  prayer  for  general  relief,  if  the  specific  relief  prayed  cannot 
be  given,  the  Court  will  assist  the  party,  yet  the  facts,  to  warrant  that 
assistance,  should  be  clearly  and  fully  stated,  so  that  the  defendant 
may  know  what  is  sought  by  the  bill.    That  is  not  the  case  here,  for 


Ch.  8)  .  BILLS  OF  ACCOUNT  1219 

the  statement  respecting  the  stock  receipts  is  evidently  a  mere  pre- 
tence. I  feel  no  doubt  that  the  demurrer  in  this  particular  also  should 
be  allowed. 

Demurrer  allowed   with   costs,   according  to   the   practice   of   the 
Court. 


FOWLE  v.  LAWRASON. 

(Supreme  Court  of  the  United  States,  1831.    30  U.  S.  [5  Pet.]  405,  8  L.  Ed.  201.) 

Marshall,  C.  J.,2  delivered  the  opinion  of  the  court. 

James  Lawrason,  in  his  lifetime,  filed  his  bill  in  the  circuit  court  of 
the  United  States,  sitting  in  chancery  for  the  county  of  Alexandria, 
stating  that  being  seised  of  a  warehouse  and  one  moiety  of  a  wharf 
in  the  town  of  Alexandria,  of  which  his  son,  Thomas  Lawrason  was 
seised  of  the  other  moiety,  he  agreed  to  rent  the  premises  to  Lawra- 
son and  Fowle,  a  commercial  house  in  the  said  town,  of  which  the  de- 
fendant, William  Fowle,  is  the  surviving  partner;  the  said  Lawrason 
and  Fowle  entered  into  the  premises  under  the  contract,  and  retained 
possession  thereof  several  years.  The  plaintiff  says,  he  understood 
and  supposed  that  he  was  to  receive  $1,600  each  year  for  the  property, 
and  that  it  was  reasonably  worth  that  sum,  but  that  no  express  stipu- 
lation was  entered  into  fixing  the  amount  of  rent.  The  plaintiff  also 
had  other  dealings  with  Lawrason  and  Fowle,  and  the  account  re- 
mained unsettled  until  the  death  of  Lawrason,  who  was  the  son  of  the 
plaintiff. 

The  bill  states  that  the  parties  agreed  to  leave  the  whole  subject  to 
arbitration,  and  that  the  arbitrators  reported  a  large  sum  in  his  favor. 
A  suit  was  instituted  on  this  award,  and  the  court  being  of  opinion 
that  it  was  void  in  law,  for  informality,  gave  judgment  for  the  defend- 
ant. This  suit  is  brought  to  establish  the  settlement  of  the  accounts 
between  the  parties  which  was  made  by  the  arbitrators,  or,  if  that  can- 
not be  done,  for  a  settlement  of  them  under  the  authority  of  a  court 
of  chancery. 

The  suit  abated  by  the  death  of  the  plaintiff,  and  was  revived  in  the 
name  of  his  executor.  It  appearing  that  the  representatives  of  Thom- 
as Lawrason,  the  son,  who  owned  a  moiety  of  the  wharf  occupied  by 
Lawrason  and  Fowle,  were  interested  in  the  controversy,  they  were 
made  parties.  The  answers  were  then  filed.  The  defendant,  Fowle, 
admits  the  occupation  of  the  premises  without  any  specific  agreement 
as  to  the  amount  of  rent,  and  admits  the  reference  to  arbitrators  after 
the  death  of  his  partner. 

He  understood  that  the  whole  rent,  payable  for  both  warehouse 
and  wharf,  was  claimed  by  James  Lawrason,  until  after  the  award 

2  The  statement  of  facts  is  omitted. 


1220  BILLS   OF   ACCOUNT  (Ch.  8 

was  made  :  and  the  arbitrators,  he  is  satisfied,  made  the  award  under 
this  impression.  On  understanding  that  Thomas  Lawrason's  execu- 
tors asserted  a  right  to  so  much  of  the  rent  as  was  equivalent  to  his 
interest  in  the  wharf,  the  defendant  requested  that  it  might  be  ap- 
portioned between  them,  and  then  discovered  that  James  Lawrason 
claimed  the  whole  rent  awarded  as  being  for  his  interest,  leaving  the 
defendant  liable  to  the  executors  of  Thomas  Lawrason.  Every  effort 
to  adjust  this  difference  having  proved  unavailing,  the  defendant  re- 
fused to  perform  the  award,  and  the  suit  instituted  thereon  by  James 
Lawrason  was  decided  against  the  plaintiff. 

The  answer,  of  Thomas  Lawrason's  administrators  asserts  the  right 
of  their  intestate  to  so  much  of  the  rent  as  will  be  a  just  compensation 
for  his  interest  in  the  wharf. 

The  accounts  were  referred  to  a  commissioner,  who  reported  the 
sum  of  $2,638.83,  with  interest  from  the  26th  day  of  August,  1819, 
to  be  due  to  the  executors  of  James  Lawrason,  should  he  be  entitled  to 
the  whole  rent  accruing  on  the  demised  premises ;  should  the  rent 
on  the  moiety  of  the  wharf  owned  by  Thomas  Lawrason  be  deducted, 
the  plaintiffs  were  entitled  to  nothing. 

The  court  decreed  the  sum  reported  by  the  commissioner,  without 
prejudice  to  any  claim  which  the  representatives  of  Thomas  Lawra- 
son, deceased,  may  make  upon  the  estate  of  James  Lawrason,  deceas- 
ed, for  any  portion  of  the  rents  decreed  to  be  paid  by  the  defendant, 
Fowle. 

From  this  decree  the  defendants  appealed  to  this  court.  Two 
errors  have  been  assigned. 

1.  The  party  complaining  had  a  plain  and  adequate  remedy  at  law. 

2.  The  decree  ought  to  have  settled  finally  the  rights  of  Thomas 
Lawrason's  executor. 

That  a  court  of  chancery  has  jurisdiction  in  matters  of  account  can- 
not be  questioned,  nor  can  it  be  doubted  that  this  jurisdiction  is  often 
beneficially  exercised ;  but  it  cannot  be  admitted  that  a  court  of  equity 
may  take  cognizance  of  every  action  for  goods,  wares,  and  mer- 
chandise sold  and  delivered,  or  of  money  advanced,  where  partial  pay- 
ments have  been  made;  or  of  every  contract,  express  or  implied,  con- 
sisting of  various  items,  on  which  different  sums  of  money  have 
become  due,  and  different  payments  have  been  made.  Although  the 
line  may  not  be  drawn  with  absolute  precision,  yet  it  may  be  safely 
affirmed  that  a  court  of  chancery  cannot  draw  to  itself  every  trans- 
action between  individuals  in  which  an  account  between  parties  is 
to  be  adjusted.  In  all  cases  in  which  an  action  of  account  would  be 
the  proper  remedy  at  law,  and  in  all  cases  where  a  trustee  is  a  party, 
the  jurisdiction  of  a  court  of  equity  is  undoubted.  It  is  the  appropri- 
ate tribunal.  But  in  transactions  not  of  this  peculiar  character,  great 
complexity  ought  to  exist  in  the  accounts,  or  some  difficulty  at  law 
sh(  iuld  interpose,  some  discovery  should  be  required,  in  order  to  in- 
duce a  court  of  chancery  to  exercise  jurisdiction.     Brookes  v.  Lord 


Ch.  8)  BILLS   OF   ACCOUNT  lL'21 

Whitworth,  1  Mad.  Chan.  8(5;   Hodson  v. ,  6  Ves.  136;   Powers 

v.  Burdett,  9  Yes.  437.  In  the  case  at  bar  these  difficulties  do  not  oc- 
cur. The  plaintiff  sues  on  a  contract  by  which  real  property  is  leased 
to  the  defendant,  and  admits  himself  to  be  ir.  full  possession  of  all  the 
testimony  he  requires  to  support  his  action.  The  defendant  opposes  to 
this  claim  as  an  offset,  a  sum  of  money  due  to  him  for  goods  sold  and 
delivered,  and  for  money  advanced,  no  item  of  which  is  alleged  to  be 
contested.  We  cannot  think  such  a  case  proper  for  a  court  of  chan- 
cery. We  are,  therefore,  of  opinion  that  the  decree  of  the  circuit  court 
ought  to  be  reversed,  and  the  cause  remanded  with  directions  to  dismiss 
the  bill,  the  court  having  no  jurisdiction.3 


ALMY  et  al.  v.  DANIELS. 
(Supreme  Court  of  Rhode  Island,  1887.    15  R.  I.  312,  10  AH.  654.) 

PER  Curiam.4  When  this  case  was  before  the  court  upon  petition 
for  new  trial,  the  court  held  that  the  plaintiff's  intestate  had  the  right 
to  use  the  entire  strip  in  common  with  the  defendant,  and  that  the  de- 
fendant's exclusive  possession  and  ouster  of  his  co-tenant  of  any  por- 
tion was,  ipso  facto,  a  use  of  a  greater  portion  than  his  interest  therein, 
which  entitled  the  plaintiff  to  an  account.  That  decision  did  not  de- 
pend upon  the  use  which  it  was  claimed  had  been  made  of  the  balance 
of  the  land  in  connection  with  the  plaintiff's  estate,  because  the  defends 
ant's  occupancy  of  the  half  covered  by  his  building  was  such  an  ouster 
of  the  plaintiff  as  to  interfere  with  his  rights  as  a  tenant  in  common, 
and  thus  to  entitle  him  to  an  account. 

The  question  now  comes  upon  the  right  to  charge  the  plaintiff  with 
the  use  which  he  had  made  of  the  other  half  of  the  land.  The  land  in 
question  is  40  feet  on  Custom-House  street  and  36  feet  deep.  A  strip 
20  feet  wide  on  Custom-House  street  is  covered  by  the  defendant's 
building,  and  the  remaining  20  feet  is  and  has  been  used  as  a  gangway. 
On  the  plaintiff's  side  is  a  sidewalk  four  feet  wide,  and  on  the  defend- 
ant's side  one  which  is  two  and  a  half  feet  wide.  Each  of  these  has 
been  used  from  time  to  time  by  the  tenants  of  the  adjoining  buildings 
for  storing  oil  barrels.  We  are  now  asked  to  instruct  the  auditor 
whether  he  is  to  consider  such  use  in  making  up  the  account.    We  think 

s  See  New  Federal  Equity  Rule  (1913)  33  Sup.  Ct.  xxxvii: 
Rule  63.  Form  of  Accounts  before  Master 

All  parties  accounting  before  a  master  shall  bring  in  their  respective  ac- 
counts in  the  form  of  debtor  and  creditor;  and  any  of  the  other  parties  who 
shall  not  be  satisfied  with  the  account  so  brought  in  shall  be  at  liberty  to  ex- 
amine the  accounting  party  viva  voce,  or  upon  interrogatories,  as  the  master 
shall  direct. 

4  Part  of  the  opinion  is  omitted. 


1222  BILLS   OF   ACCOUNT  (Cll.  8 

the  following  rules,  derived  from  decided  cases,  will  sufficiently  answer 
the  question : 

1.  When  a  tenant  in  common  has  the  entire  and  exclusive  occupation 
of  the  whole  or  any  part  of  the  common  estate,  he  is  liable  to  account 
therefor. 

2.  When  he  has  the  income  or  profit  of  more  than  his  share,  he  is 
liable  to  account  for  the  excess. 

3.  When  he  uses  the  estate  only  to  an  extent  less  than  his  share,  and 
not  to  the  extent  of  an  ouster  or  denial  of  right  of  his  co-tenant,  he  is 
not  liable  to  account ;  and  therefore  such  use  cannot  be  offset  against 
the  excessive  use  by  his  co-tenant.  A  charge  for  such  use  would  be  a 
charge  for  the  use  of  one's  own  property,  and  for  the  exercise  of  his 
legal  right.  See  Almy  v.  Daniels,  Index  Y,  15,  15  R.  I.  312,  4  Atl.  753, 
10  Atl.  654;  Knowles'  Adm'r  v.  Harris,  5  R.  I.  402,  73  Am.  Dec.  77; 
Hayden  v.  Merrill,  44  Vt.  336,  8  Am.  Rep.  372;  Edsall  v.  Merrill.  37 
N.  J.  Eq.  114;  Colburn  v.  Mason,  25  Me.  434.  43  Am.  Dec.  292.  The 
question  of  exclusive  occupation  calls  for  a  finding  of  fact,  in  regard 
to  which  it  is  not  the  province  of  the  court  to  instruct  the  audi- 
for* 

We  therefore  think  the  plaintiff  is  entitled  to  an  account,  under  the 
rules  we  have  laid  down,  for  the  period  of  six  years  prior  to  the  date 
of  his  action,  but  not  beyond  that.  We  see  no  other  conclusion  that  is 
consistent  with  the  record,  as  it  stands,  upon  this  somewhat  extraordi- 
nary state  of  pleadings  and  finding. 


GARR  v.  REDMAN. 
(Supreme  Court  of  California,  1856.    6  Cal.  574.) 

Appeal  from  the  District  Court  of  the  Third  Judicial  District,  Coun- 
ty of  Santa  Clara. 

The  plaintiff  filed  his  bill  for  a  settlement  and  account  against  J.  W. 
Redman  and  G.  E.  Brittain,  setting  forth  in  his  complaint  a  contract 
of  partnership,  made  between  the  parties  in  the  S.tate  of  Missouri,  to 
the  performance  of  the  conditions  of  which  the  parties  bind  themselves 
in  the  penal  sum  of  $50,000,  and  which  recites  that  the  plaintiff  had 
made  a  certain  advance  of  money  for  the  outfit  of  defendants  to  enable 
them  to  come  to  California,  in  consideration  of  which  the  plaintiff  was 
to  have  one-third  of  the  profits  arising  from  all  the  labors,  speculations, 
and  undertakings  of  the  defendants  for  two  years,  the  defendants 
agreeing  to  devote  their  labor  and  attention  for  that  time  to  the  co- 
partnership adventure,  and  the  defendant  Redman  agreeing  to  refund 
one-third  of  the  outfit. 

The  bill  sets  forth  that  the  defendants  have  acquired  property,  both 
real  and  personal,  during  said  partnership,  and  also  since  its  expiration, 
by  using  the  proceeds  of  the  property  acquired  during  its  existence; 


Ch.  8)  BILLS  OF  ACCOUNT  1223 

and  prays  for  an  account,  and  for  judgment  for  the  amount  found  due. 

Redman  demurred  to  the  complaint  as  not  setting  forth  any  cause  of 
action,  there  not  appearing  therein  that  any  co-partnership  existed  be- 
tween the  parties,  and  also  for  a  misjoinder  of  cause  of  action. 

The  Court  below  sustained  the  demurrer,  and  entered  judgment  dis- 
missing plaintiff's  bill.    Plaintiff  appealed. 

The  opinion  of  the  Court  was  delivered  by  Mr.  Justice  Hf,ydf,n- 
FELdt.    Mr.  Chief  Justice  Murray  and  Mr.  Justice  Terry  concurred. 

The  Court  erred  in  sustaining  the  demurrer  to  the  bill  of  complaint. 

It  was  properly  filed  for  an  account,  whether  the  parties  were  tech- 
nically partners  or  not.  The  character  of  the  contract  set  out  in  the  bill 
made  an  account  necessary  to  determine  their  respective  rights. 

Nor  is  there  any  misjoinder  of  causes  of  action.  The  claim  which, 
it  is  urged,  is  single  against  one  of  the  defendants,  forms  part  of  the 
same  subject  matter,  arising  as  it  does  out  of  the  joint  contract. 

The  judgment  is  reversed,  and  the  cause  remanded. 


ESCAMBIA  COUNTY  v.  BLOUNT  CONST.  CO. 

(Supreme  Court  of  Florida,  1913.     66  Fla.  129,  62  South.  650.) 

Appeal  from  Circuit  Court,  Escambia  County;  J.  Emmet  Wolfe, 
Judge. 

Bill  in  equity  by  the  Blount  Construction  Company  against  the  Coun- 
ty of  Escambia.  From  orders  overruling  demurrers  to  the  bill,  defend- 
ant appeals. 

Whitfield,  J.5  This  appeal  is  from  orders  overruling  demurrers 
to  a  bill  in  equity  brought  by  the  Blount  Construction  Company  against 
the  county.  The  bill  in  substance  alleges  that  pursuant  to  a  contract 
duly  made  with  the  county  commissioners  of  the  county,  the  construc- 
tion company  erected  and  constructed  a  jail  building  for  the  county, 
for  which  an  agreed  consideration  was  to  be  paid ;  that  in  the  course 
of  such  erection  and  construction  of  the  building  a  stated  large  number 
of  changes  and  alterations  agreed  on  were  made  in  the  contract  plans 
and  specifications,  for  which  proper  amounts  were  to  be  paid  in  addi- 
tion to  the  original  contract  amount ;  that  the  building  has  been  com- 
pleted and  accepted  by  the  county,  but  a  large  number  of  the  items  for 
alterations  and  changes  agreed  on  are  now  disputed  by  the  county,  and 
counterclaims  are  asserted  by  the  county  and  a  settlement  in  full  has 
not  been  made;  that  many  separate  and  distinct  claims  for  compensa- 
tion for  changes  in  the  contract  plans  and  counterclaims  by  the  county 
that  are  given  in  detail  are  contested  by  the  county.  The  prayer  is  for 
an  accounting  and  settlement.  A  general  demurrer  and  also  a  special 
demurrer  to  the  bill  of  complaint  were  overruled.     Under  the  general 

5  Part  of  the  opinion  is  omitted. 


1224  .  BILLS   OF   ACCOUNT  (Cll.  S 

demurrer  the  contention  is  that  the  bill  does  not  show  a  right  to  an 
accounting  in  equity. 

While  courts  of  law  have  jurisdiction  to  enforce  contract  demands 
that  involve  an  accounting,  yet  courts  of  equity  also  take  cognizance 
of  cases  in  which  contract  demands  between  litigants  involve  extensive 
mutual  or  complicated  accounts,  where  it  is  not  clear  from  the  facts 
alleged  in  the  particular  case,  that  the  remedy  at  law  is  as  full,  ade- 
quate, and  expeditious  as  it  is  in  equity. 

As  it  cannot  be  said  with  confidence  that  the  allegations  of  the  bill 
of  complaint  in  this  case,  considered  with  the  exhibits  made  a  part 
thereof,  show  demands  and  contentions  that  may  be  as  expeditiously 
and  accurately  adjudicated  in  a  court  of  law  as  in  a  court  of  equity,  it 
should  not  be  held  contrary  to  the  ruling  of  the  chancellor  that  a  court 
of  law  should  have  exclusive  jurisdiction  of  the  cause.  The  general 
demurrer  was  therefore  properly  overruled.     *     *     * 

The  orders  overruling  the  demurrers  to  the  bill  of  complaint  are  af- 
firmed. 

Shackleford,  C.  J.,  and  Taylor,  Cockrfj.l,  and  Hocker,  JJ., 
concur. 


LEE  v.  WASHBURN  et  al. 

0 

(Supreme  Court  of  New  York,  Appellate  Division,  Second  Department,  1903. 
SO  App.  Div.  410,  SO  N.  Y.  Supp.  1010.) 

Appeal  from  Trial  Term,  Kings  County. 

Action  by  Thomas  F.  Fitzhugh  Lee  against  Cyrus  V.  Washburn  and 
another.  From  an  interlocutory  judgment  in  favor  of  plaintiff,  de- 
fendants appeal. 

Argued  before  BartlUTT,  Jlnks,  Woodward,  Hirschberg,  and 
Hooker,  JJ. 

Woodward,  J.  The  complaint  in  this  action  alleges  that  the  plain- 
tiff entered  into  the  employment  of  the  defendants  under  the  terms  of 
a  written  agreement  on  or  about  the  1st  day  of  January,  1900,  and 
that  between  that  date  and  the  1st  day  of  June,  1901,  he  procured  much 
valuable  business  and  litigation,  and  rendered  much  valuable  service 
and  labor  for  the  defendants  herein,  from  which  has  accrued  a  large 
amount  of  net  profits,  now  in  the  hands  of  the  defendants,  and  there 
is  now  due  and  owing  this  plaintiff  from  the  defendants  a  large  amount 
of  money  under  the  agreement  to  divide  'the  net  profits,  entered  into 
on  the  29th  day  of  December,  1899.  The  contract  or  agreement  pro- 
vides that  the  plaintiff  is  to  enter  the  employ  of  the  defendants  at  a 
salary  of  $18  per  week,  and  is  to  use  his  best  endeavors  to  bring  busi- 
ness and  litigation  into  the  office  of  the  defendants,  and,  in  addition'to 
the  compensation  mentioned,  he  "is  to  receive  as  a  further  compensa- 
tion one-third  of  the  net  profits  of  all  the  litigation  that  he  may  bring 


Ch.  S)  BILLS  OF  ACCOUNT 


1225 


into  the  office."  The  complaint  alleges  demand  for  an  accounting,  and 
demands  judgment  that  the  defendants  render  to  him  an  account  in 
full  of  all  the  business  brought  into  the  office  of  said  defendants  by 
said  plaintiff,  in  pursuance  of  said  agreement,  with  a  statement  show- 
ing the  net  profits  accrued  thereon;  and  that  he  have  judgment  for 
one-third  thereof,  with  interest  from  the  various  dates;  and  for  such 
other  and  further  relief  as  may  be  just,  besides  the  costs  of  the  action. 
The  action  was  noticed  for  trial  by  the  plaintiff  at  the  equity  term,  and 
upon  the  case  being  called  for  trial,  before  any  witnesses  were  sworn, 
the  defendants  moved  that  the  case  be  sent  to  the  jury  calendar,  claim- 
ing that  a  suit  in  equity  did  not  lie,  and  that  the  action  is  one  at  law. 
Decision  upon  this  motion  was  reserved,  and  the  trial  proceeded,  re- 
sulting in  an  interlocutory  judgment  directing  an  accounting  on  the 
part  of  the  defendants,  from  which  the  latter  appeal. 

There  is  no  allegation  in  the  complaint,  nor  do  the  facts  pleaded 
show  that  the  plaintiff  has  not  a  full  and  adequate  remedy  at  law 
under  his  contract  of  employment.  He  is  not  a  partner  in  the  busi- 
ness. He  has  assumed  none  of  the  reciprocal  responsibilities  which 
make  him  a  quasi  partner,  where  he  would,  under  the  authorities,  be 
entitled  to  an  accounting  (Parker  v.  Pullman  &  Co.,  36  App.  Div. 
208,  215,  56  X.  Y.  Supp.  734,  and  authorities  there  cited);  and,  aside 
from  the  fact  that  the  plaintiff  does  not  appear  to  know  the  amount  of 
the  net  profits,  we  discover  no  reason  why  a  court  of  equity  should 
have  taken  jurisdiction  of  this  action.  The  plaintiff  does  not  allege 
that  the  accounts  are  complicated,  or  of  great  length.  There  is  no  pro- 
vision in  the  contract,  as  in  the  case  of  Parker  v.  Pullman  &  Co.,  su- 
pra, for  an  accounting  and  an  ascertainment  of  the  profits,  and  it  re- 
quires a  long  stretch  of  the  imagination  to  bring  the  plaintiff  and  de- 
fendants into  a  fiduciary  relation  under  the  provisions  of  a  contract  of 
employment  such  as  is  set  forth  in  the  pleadings.  In  speaking  of  an 
equitable  jurisdiction  to  grant  an  accounting,  the  Court  of  Appeals,  in 
Marvin  v.  Brooks,  94  N.  Y.  71,  80,  say  that: 

"The  best-considered  review  of  the  authorities  puts  the  equitable  jurisdic- 
tion upon  three  grounds,  viz.,  the  complicated  character  of  the  accounts,  the 
need  of  a  discovery,  and  the  existence  of  a  fiduciary  or  trust  relation.  The 
necessity  for  a  resort  to  equity  for  the  first  two  reasons  is  now  very  slight, 
if  it  can  be  said  to  exist  at  all,  since  a  court  of  law  can  send  to  a  referee  a 
long  account,  too  complicated  for  the  handling  of  a  jury,  and  furnishes  by  an 
examination  of  the  adverse  party  before  trial,  and  the  production  and  de- 
posit of  books  and  papers,  almost  as  complete  a  means  of  discovery  as  could 
be  furnished  by  a  court  of  equity." 

Uhlman  v.  New  York  Life  Ins.  Co.,  109  X.  Y.  421,  433,  17  N.  E. 

363,  4  Am.  St.  Rep.  482.     The  same  case  says : 

"Judges  in  the  English  equity  courts  have  been  somewhat  slow  to  maintain 
jurisdiction  in  a  case  where  the  ground  thereof  was  solely  that  the  account 
was  complicated,  and,  although  there  are  very  many  cases  in  which  the  state- 
ment has  been  made  that  equity  would  sometimes  take  jurisdiction  on  that  ac- 
count, yet  in  most  of  them  it  is  seen  that  there  were  added  to  that  other 
grounds  making  it  proper  for  equity  to  assume  cognizance  of  the  cases."  Page 
433,  10!)  X.  Y.,  and  page  367,  17  N.  E.  (4  Am.  St.  Rep.  4S2). 


1226  BILLS   OF   ACCOUNT  (Cll.  8 

This,  it  will  be  observed,  was  the  situation  in  the  case  of  Parker  v. 
Pullman  &  Co.,  supra,  relied  upon  by  the  plaintiff.  See  middle  of 
page  217,  36  App.  Div.,  and  pages  739,  740,  56  N.  Y.  Supp. 

To  affirm  the  interlocutory  judgment  now  before  us  is  to  extend 
the  jurisdiction  of  equity  beyond  the  extreme  limit  marked  by  the  ad- 
judicated cases,  and  to  give  the  plaintiff  a  remedy  different  from  that 
accorded  to  other  litigants  in  actions  of  which  courts  of  law  have  ju- 
risdiction; and  the  mere  fact  that  the  plaintiff  does  not  know  the 
amount  of  his  claim  is  of  no  importance,  as  he  may  name  an  arbitrary 
amount,  and  recover  within  the  limit  thus  fixed.  Brummer  v.  Cohen, 
47  App.  Div.  470,  62  N.  Y.  Supp.  241.  The  plaintiff  sets  forth  in  his 
complaint  a  cause  of  action  at  law,  and  the  motion  of  the  defendants 
to  send  the  case  to  the  jury  calendar  for  trial  should  have  been  granted. 
See  Everett  v.  De  Fontaine,  78  App.  Div.  219,  79  N.  Y.  Supp.  692,  for 
a  discussion  of  the  general  subject. 

The  interlocutory  judgment  should  be  reversed,  and  the  case  sent 
to  the  jury  calendar  for  trial. 

Interlocutory  judgment  reversed,  and  case  sent  to  the  jury  calendar 
for  trial ;  costs  to  abide  the  event.    All  concur.6 

6  In  Freeman  v.  Miller  (1913)  157  App.  Div.  715,  142  N.  Y.  Supp.  800,  the 
court  said:  "The  trial  court  found  that  the  parties  were  not  copartners,  but 
that  the  defendant  employed  the  plaintiff  and  agreed  to  pay  him  'as  compen- 
sation' for  his  services  'one-quarter  of  the  net  profits'  of  the  business  for  the 
first  period  and  'one-third  of  the  net  profits'  during  the  remainder  of  the  time. 
The  learned  trial  justice  evidently  was  of  the  opinion  that  this  gave  the  plain- 
tiff an  interest  in  the  profits  of  the  business  as  such,  and  entitled,  him  to  main- 
tain this  action  for  an  accounting  with  respect  to  the  profits,  and  such  an  ac- 
counting was  decreed  by  the  interlocutory  judgment.  We  are  of  opinion  that 
the  evidence  upon  which  this  finding  is  based  does  not  show  an  agreement  be- 
tween the  parties  by  which  the  defendant  was  to  have  an  interest  in  the  busi- 
ness or  in  the  profits  as  such,  but  merely  that  his  compensation  was  to  be 
measured  by  profits  and  the  findings  should  be  so  construed.  Unlike  the  case 
of  Weldon  v.  Brown,  84  App.  Div.  482,  82  N.  Y.  Supp.  1051,  which  the  ma- 
jority of  this  court  regarded  as  a  suit  in  equity,  the  parties  here  were  not 
jointly  interested  in  the  venture,  for  there  was  necessarily  risk  of  loss  in  the 
business  in  question  and  the  plaintiff  incurred  no  liability  with  respect  thereto, 
and,  moreover,  in  the  case  at  bar,  it  was  evidently  understood  from  the  outset 
that  the  plaintiff  was  to  have  a  drawing  account,  so  that  compensation  for  his 
services  did  not  depend  entirely  upon  whether  or  not  profits  were  realized,  and 
the  percentage  of  the  profits  which  the  defendant  agreed  to  give  to  the  plaintiff 
merely  represented  the  maximum  compensation  which  the  plaintiff  should  re- 
ceive. The  case  fairly  falls  within  the  well-established  rule  that  an  action  for 
compensation  measured  by  the  profits  of  a  business  is  an  action  at  law  and 
not  a  suit  in  equity  in  which  the  plaintiff  is  entitled  to  an  accounting,  and,  al- 
though it  becomes  necessary  to  take  an  account  to  determine  the  amount  which 
the  plaintiff  is  entitled  to  recover,  that  is  incidental  and  is  not  an  equitable 
accounting." 


Ch.  8)  .  BILLS  OF  ACCOUNT  1227 


UHLMAN  v.  NEW  YORK  LIFE  INS.  CO. 

(Court  of  Appeals  of  New  York,  1888.    109  N.  Y.  421,  17  N.  E.  363, 
4  Am.  St.  Rep.  482.) 

Appeal  from  general  term,  court  of  common  pleas,  city  and  county 
of  New  York. 

Action  by  Frederick  Uhlman  against  the  New  York  Life  Insurance 
Company  for  an  account  of  the  receipts,  etc.,  under  the  tontine  plan,  of 
which  plaintiff  was  a  policy-holder.  At  the  special  term  an  interlocu- 
tory order  was  made  directing  an  account.  Upon  appeal  to  the  gen- 
eral term,  this  order  was  set  aside,  and  a  new  trial  awarded,  from 
which  judgment  of  the  general  term  plaintiff  has  appealed. 

Peckham,  J.7  The  plaintiff  commenced  this  action  for  the  purpose 
of  obtaining  an  accounting  from  the  defendant  in  regard  to  matters 
stated  in  the  complaint.  It  was  therein  alleged  that  on  the  29th  of 
December,  1871,  the  defendant  issued  to  the  plaintiff  a  certain  policy  of 
insurance,  and  that  the  plaintiff  had  duly  complied  with  all  the  condi- 
tions of  said  policy ;  that  it  was  a  policy  known  as  the  "Ten- Year  Div- 
idend System  Policy,"  and  that  the  ten  years  expired  in  December, 
1881 ;  that  all  the  premiums  had  been  paid  by  the  plaintiff  during  that 
time,  and  the  policy  was  in  force  at  the  time  of  the  commencement  of 
this  action.  The  plaintiff  then  alleged,  upon  information  and  belief, 
that  the  defendant,  during  this  time,  had  wrongfully  appropriated  the 
surplus  and  profits,  or  a  large  portion  thereof,  belonging  to  the  plain- 
tiff under  the  policy,  and  had  diverted  the  same  to  other  purposes 
than  the  benefit  of  the  plaintiff,  and  that  it  had  not  kept  the  fund 
and  its  accumulations  separate,  and  that  defendant  refused,  for  dis- 
honest and  unlawful  reasons,  to  furnish  the  plaintiff  with  an  account, 
as  demanded.  Plaintiff  also  alleged  that  defendant  became  a  trustee 
of  the  various  moneys  that  were  paid  to  it  on  account  of  the  policies 
of  the  class  to  which  the  plaintiff's  policy  belonged,  and  that  plaintiff, 
relying  upon  the  terms  of  said  policy  and  the  supposed  honesty  of  the 
defendant  as  a  trustee  of  the  funds  above  mentioned,  took  out  the  said 
policy,  and  paid  the  premiums  required,  and  assumed  the  risks  and 
conditions  mentioned  therein,  and  that  he  had  in  all  things  duly  per- 
formed all  the  conditions  of  the  policy.  The  plaintiff  then  prayed 
judgment  that  the  defendant  be  compelled  to  render  a  true  and  just 
account  to  the  plaintiff  of  the  names  of  the  parties  insured  by  it  under 
the  system  in  which  the  plaintiff  had  been  insured,  the  amount  of  each 
and  every  policy  thus  issued,  a  detailed  account  of  premiums  paid  into 
and  received  by  the  defendant  on  account  of  said  policies,  the  amount 
of  surplus  and  profits  which  each  of  said  policies  had  earned,  to- 
gether with  a  number  of  other  details  in  regard  to  the  accumulation 

7  Parts  of  the  opinion  are  omitted. 


122S  BILLS   OF   ACCOUNT  (Ch.  8 

and  disposition  of  such  fund.  Judgment  was  also  demanded  that  the 
defendant  be  compelled  to  make  good  and  pay  all  such  sums  which  it 
had  unlawfully  misappropriated  or  expended  out  of  said  fund,  and 
that  it  be  compelled  to  issue  to  the  plaintiff  an  annuity  bond  of  the 
amount  to  which  he  is  entitled,  or,  at  his  option,  to  pay  the  value  in 
cash  to  him;  and  that  a  receiver  of  the  fund,  and  all  the  books  and 
papers  connected  therewith,  be  appointed,  pending  this  action,  as  well 
as  after  judgment,  if  it  is  deemed  advisable  and  proper.  A  copy  of  the 
policy  issued  by  the  defendant  to  the  plaintiff  was  attached  to  and 
formed  a  part  of  the  complaint,  by  which  it  appeared  that  on  the  29th 
of  December,  1871,  the  defendant  insured  the  life  of  the  plaintiff  in 
the  amount  of  $5,000,  for  the  term  of  his  natural  life,  commencing  at 
noon  on  that  day;  that  the  policy  was  issued  to  and  accepted  by  the 
assured  "(l)-on  the  special  agreement  and  conditions  relative  to  pol- 
icies on  the  ten-year  dividend  system."  *  *  *  The  defendant  an- 
swered this  complaint,  and  denied  all  the  allegations  of  in  ^appropria- 
tion or  wrong-doing,  and  alleged  the  proper  and  equitable  apportion- 
ment of  the  fund,  and  an  offer  to  give  to  the  plaintiff  what  lie  was  en- 
titled to  therein,  either  in  cash  or  in  shape  of  an  annuity  bond. 

The  issues  thus  joined  came  on  for  trial  at  a  special  term,  and  upon 
the  trial  plaintiff  abandoned  all  allegations  as  to  any  misappropria- 
tion of  the  fund  or  any  wrong-doing  whatever  in  regard  thereto,  and 
based  his  cause  of  action  upon  his  right  to  an  accounting  from  the 
nature  of  the  transaction,  as  appearing  in  the  contract  evidenced  by 
the  policy  of  insurance  issued  to  him.  The  plaintiff  claimed  that,  upon 
the  mere  proof  of  the  issuing  of  a  policy  such  as  was  issued  to  him,  and 
that  it  had  been  kept  alive  during  the  10-year  period,  and  was  in  full 
force  at  the  time  the  dividend  was  payable,  gave  him  the  right  to  de- 
mand from  the  defendant  a  full  and  complete  accounting  of  the  debit 
and  credit  items  of  what  he  terms  the  "Tontine  Account."'  with  a  list 
of  the  members  entitled  to  participate  therein,  and  also  all  the  details 
demanded  in  his  prayer  for  judgment  in  the  complaint.  He  maintained 
that  it  was  unnecessary  to  prove  any  of  the  allegations  of  misappro- 
priation or  improper  action,  or  even  any  mistake  in  relation  to  the  prin- 
ciples upon  which  the  apportionment  had  been  made :  but  that,  from 
the  mere  nature  of  the  transaction  itself,  he  had  the  right  to  main- 
tain an  action  to  compel  the  defendant  to  make  a  full  accounting  in 
regard  to  all  the  matters  spoken  of.  The  special  term  substantially  held 
with  the  plaintiff,  and  granted  an  interlocutory  judgment,  providing 
for  the  taking  of  an  account,  and  for  the  entry  of  a  judgment  thereon 
for  the  amount  of  cash  which  should  be  found  to  be  due  the  plaintiff, 
or,  at  his  option,  an  annuity  bond  for  an  equal  amount.  The  defend- 
ant, under  section  1001  of  the  Code,  upon  a  case  made,  moved  for 
a  new  trial  at  the  general  term,  and,  after  argument  of  that  motion, 
the  general  term  granted  the  new  trial,  and  vacated  the  judgment 
above  mentioned. 


Ch.  S)  BILLS   OF   ACCOUNT  1229 

From  the  order  granting  a  new  trial  the  plaintiff  has  appealed  here, 
giving  the  usual  stipulation  in  such  cases.  He  claims  now  to  main- 
tain the  action,  and  to  have  the  right  to  an  accounting,  upon  the  ground 
(1)  that  the  relation  between  the  plaintiff  and  defendant  is  not  one 
solely  of  contract,  but  that,  as  to  the  participation  in  the  profits  of  this 
tontine  system,  that  relation  is  similar  to  one  of  trustee  and  cestui  que 
trust ;  (2)  on  the  ground  that  the  account  itself,  although  there  is  but 
one  side  to  it,  is  of  a  nature  so  difficult  and  complicated  that  it  cannot 
be  properly  tried  in  an  action  at  law,  and  hence  this  action  is  the  ap- 
propriate remedy.  The  right  to  maintain  this  equitable  action,  based 
upon  either  or  both  these  grounds,  will  therefore  be  discussed. 

As  to  the  first.  We  are  convinced,  after  a  careful  examination  of 
the  character  of  the  relations  existing  between  these  parties,  that  it 
cannot  be  said  that  the  defendant  is  in  any  sense  a  trustee  of  any  par- 
ticular fund  for  the  plaintiff,  or  that  it  acts,  as  to  him  and  in  relation 
to  any  such  fund,  in  a  fiduciary  capacity.  It  has  been  held  that  the 
holder  of  a  policy  of  insurance,  even  in  a  mutual  company,  was  in  no 
sense  a  partner  of  the  corporation  which  issued  the  policy,  and  that  the 
relation  between  the  policy-holder  and  the  company  was  one  of  con- 
tract, measured  by  the  terms  of  the  policy.  See  Cohen  v.  Insurance 
Co.,  50  N.  Y.  610,  10  Am.  Rep.  522 ;  People  v.  Insurance  Co.,  78  N. 
Y.  1 14,  34  Am.  Rep.  522.     *     *     * 

The  second  ground  upon  which  an  accounting  was  claimed,  was  that 
the  account  was  complicated.  There  are  undoubtedly  many  expres- 
sions in  the  books  stating  that,  where  accounts  are  so  difficult  and  com- 
plicated that  it  would  be  impracticable  to  examine  them  upon  a  trial  at 
nisi  prius,  equity  takes  jurisdiction  of  an  action,  even  on  that  ground 
alone.  To  this  effect  are  1  Story,  Eq.  Jur.  §  445;  Will.  Eq.  Jur.  91  ; 
3  Pom.  Eq.  Jur.  §  1421.  In  note  4  of  the  last  above  cited  section,  after 
stating  the  rule  as  above  mentioned,  (that  the  account  should  be  so 
complicated  that  a  court  of  law  would  be  incompetent  to  examine  it  at 
nisi  prius  with  the  necessary  accuracy,)  it  is  said : 

"But,  under  the  present  practice  in  England,  matters  of  account  may  now 
be  referred  to  officers  or  referees,  so  that  the  rule,  as  above  stated,  can  now 
hardly  be  followed." 

See  Railway  Co.  v.  Nixon,  1  H.  L.  Cas.  119-121. 

In  speaking  of  an  equitable  jurisdiction  to  grant  an  accounting,  this 

court,  in  Marvin  v.  Brooks,  94  N.  Y.  71,  stated  (per  Finch,  J.)  that: 

"The  Liest-considered  review  of  the  authorities  puts  the  equitable  jurisdic- 
tion upon  three  grounds,  viz.:  The  complicated  character  of  the  accounts,  the 
need  of  a  discovery,  and  the  existence  of  a  fiduciary  or  trust  relation.  The 
necessity  for  a  resort  to  equity  for  the  first  two  reasons  is  now  very  slight, 
if  it  can  be  said  to  exist  at  all,  since  a  court  of  law  can  send  to  a  referee  a 
long  account,  too  complicated  for  the  handling  of  a  jury,  and  furnishes,  by  an 
examination  of  the  adverse  party  before  trial,  and  the  production  and  deposit 
of  books  and  papers,  almost  as  complete  a  means  of  discovery  as  could  be  fur- 
nished by  a  court  of  equity." 

Judges  in  the  English  equity  courts  have  been  somewhat  slow  to 
maintain  jurisdiction  in  a  case  where  the  ground  thereof  was  solely 


1230  BILLS  OF  ACCOUNT  (Ch.  8 

that  the  account  was  complicated;  and,  although  there  are  very  many 
cases  in  which  the  statement  has  been  made  that  equity  would  some- 
times take  jurisdiction  on  that  account,  yet  in  most  of  them  it  is  seen 
that  there  were  added  to  that  other  grounds  making  it  proper  for  eq- 
uity to  assume  cognizance  of  the  cases.  However  it  may  be,  it  has  at 
least  been  stated  that  whether  or  not  the  court  would  take  jurisdiction 
upon  the  sole  ground  of  the  account  being  complicated  was  a  matter 
largely  within  the  discretion  of  the  court.  See  Railway  Co.  v.  Martin, 
2  Phil.  Ch.  758;  also  Phillips  v.  Phillips,  9  Hare,  471,  and  Bliss  v. 
Smith,  34  Beav.  508.  We  are  not  inclined  to  enlarge  the  principle,  or 
to  hold  that  in  all  cases  the  mere  fact  of  a  complicated  account  being 
at  issue  will  oblige  the  court  to  take  jurisdiction.  Considering  the  fact 
as  stated  by  Finch,  J.,  in  the  case  above  alluded  to,  that  the  plaintiff 
has  now  all  the  facilities  for  examining  a  complicated  account  in  an 
action  at  law  that  he  would  have  in  equity,  if  there  are  other  reasons — 
important  and  material  ones — existing  against  the  assumption  of  juris- 
diction by  a  court  of  equity  of  an  action  of  this  nature,  those  reasons 
should  have  their  full  weight ;  and  if,  after  giving  due  effect  to  all  the 
circumstances,  it  appears  that  there  would  be  a  balance  of  very  great 
inconvenience  and  possible  oppression  to  the  defendant,  the  plaintiff 
should  be  remitted  to  his  action  at  law  to  recover  his  damages,  in  which 
action,  if  the  taking  of  an  account  becomes  necessary,  it  may  be  easily 
taken. 

In  such  a  case  as  this,  we  think  there  is  such  balance  of  inconvenience 
existing  in  favor  of  the  defendant.  Upon  the  theory  of  the  plaintiff, 
every  one  of  the  policy-holders  of  his  class  has  a  right  of  action  such 
as  this  against  the  defendant  to  call  it  to  an  account,  and  to  cause  it  to 
give,  in  the  trial  of  the  action,  a  detailed  account  of  every  transaction 
(proved  by  reference  to  or  the  production  of  its  books,  and  by  the 
oaths  of  its  officers)  which  took  place,  from  the  commencement  to  the 
termination  of  the  tontine  period,  in  regard,  to  those  matters  material 
to  be  known  upon  the  question  of  an  equitable  apportionment  of  the 
fund.  There  would  be  no  necessity  for  an  allegation,  much  less  the 
slightest,  even  prima  facie,  proof  of  wrong-doing,  or  that  there  had 
been  any  mistake  made  by  the  company  in  the  apportionment  made  by 
it.  But  the  mere  fact  that  an  individual  was  the  owner  of  one  of  those 
policies  in  force  at  the  termination  of  the  tontine  period  would  give 
him  a  right  of  action,  and  a  right  to  demand  this  proof  from  the  de- 
fendant. The  mere  statement  of  such  a  fact,  it  seems  to  us,  is  conclu- 
sive against  the  existence  of  any  such  right.  Of  course,  it  is  not  to  be 
supposed  that  each  individual  policy-holder  would  avail  himself  of  this 
right ;  but  the  fact  that  each  one  might  would  place  the  company  in 
the  power  of  unscrupulous  parties  to  take  advantage  of  it  for  the  pur- 
pose of  endeavoring  to  levy  contribution  from  it,  which  it  might  pay 
in  order  to  secure  freedom  to  itself  from  troublesome,  expensive,  un- 
necessary, and  wholly  disingenuous  investigations  (and  made  in  numer- 
ous suits)  into  the  affairs  of  the  company,  and  its  accounts,  running 


Ch.  8)  BILLS   OF   ACCOUNT  1231 

through  many  years.  That  this  should  be  permitted  without  an  alle- 
gation, even  on  information  and  belief,  that  any  fraud,  mistake,  or  im- 
propriety in  the  accounts,  or  in  the  manner  of  their  statement,  or  in 
the  result  attained,  had  been  made  by  the  officers  or  agents  of  the  com- 
pany, would  seem  to  be  intolerable.  Our  attention  has  been  called  to 
a  decision  by  the  Massachusetts  court  of  Pierce  v.  Society,  145  Mass. 
56,  12  N.  E.  858,  1  Am.  St.  Rep.  433.  That  case  was  decided  under 
the  peculiar  wording  of  a  statute  of  Massachusetts  in  regard  to  com- 
plicated accounts,  and  we  do  not  think  it  should  be  followed  by  the 
courts  of  this  state. 

Having  examined  the  two  grounds  upon  which  the  plaintff  based  his 
right  to  maintain  this  action,  and  coming  to  the  conclusion  that  neither 
is  tenable,  it  follows  that  the  general  term  of  the  common  pleas  cor- 
rectly granted  a  new  trial,  and  that  its  order  to  that  effect  should  be 
affirmed,  and  judgment  absolute  given  against  the  plaintiff,  with  costs. 
All  concur,  except  Rugf,r,  C.  J.,  not  voting.8 

s  In  Randolph  v.  Tandy  (1900)  9S  Fed.  939,  at  940,  39  C.  C.  A.  351,  at  352, 
Shelby,  Circuit  Judge,  said:  "This  ease  was  determined  in  the  court  below  on 
a  question  of  equitable  jurisdiction.  The  case  was  on  trial  at  law,  and  the 
court  was  of  opinion  that  it  'involved  an  accounting,  and  was  therefore  equita- 
ble in  its  nature,  and  could  not  be  entertained  in  a  suit  at  law.'  It  is  true 
that  in  the  United  States  courts  the  distinction  between  common  law  and  eq- 
uity is  maintained.  This  distinction  must  be  observed,  even  if  it  be  abolished 
by  the  code  procedure  of  the  state  in  which  the  federal  court  is  sitting.  In  re 
Sawyer,  124  U.  S.  200,  209,  8  Sup.  Ct.  4S2,  31  L.  Ed.  402;  Fenn  v.  Holme,  21 
How.  481,  16  L.  Ed.  19S.  Many  cases  of  accounting  arise  of  which  an  equity 
court  alone  has  jurisdiction.  But,  if  the  case  is  one  of  accounting  only,  it  will 
be  found  that  the  complicated  nature  of  the  accounts  constitutes  the  ground 
for  going  into  equity.  Kirby  v.  Railroad  Co.,  120  U.  S.  130,  134,  7  Sup.  Ct. 
430,  30  L.  PJd.  569.  The  bill  which  invokes  this  jurisdiction  is  insufficient  if 
it  only  alleges  that  the  accounts  are  of  an  intricate  and  complicated  na- 
ture. It  must  descend  to  particulars,  and  state  the  facts  showing  the  intricate 
and  complex  nature  of  the  accounts.  3  Daniell,  Ch.  PI.  &  Prac.  (4th  Am. 
Ed.)  p.  1929,  and  note  1.  It  cannot  be  maintained  that  a  court  of  equity  has 
jurisdiction  of  every  action  for  goods  sold  or  money  advanced,  where  partial 
payments  have  been  made,  or  of  every  contract,  express  or  implied,  where  dif- 
ferent sums  of  money  have  become  due,  and  different  payments  have  been 
made.  In  Fowle  v.  Lawrason,  5  Pet.  495,  503,  8  L.  Ed.  204,  Marshall,  C.  J., 
said,  'Although  the  line  may  not  be  drawn  with  absolute  precision,  yet  it  may 
be  safely  affirmed  that  a  court  of  chancery  cannot  draw  to  itself  every  trans- 
action between  individuals  in  which  an  account  between  parties  is  to  be  ad- 
justed.' In  the  absence  of  other  matters  of  equitable  cognizance,  the  unques- 
tioned rule  is  that  courts  of  equity  will  not  take  jurisdiction  unless  great  com- 
plexity exists  in  the  accounts." 


1232  BILLS  OF  ACCOUNT  (Ch.  8 

OPPENHEIMER  v.  VAN  RAALTE  et  al. 

(Supreme  Court  of  New  York,  Appellate  Division.  First  Department,  1912. 
151  App.  Div.  601,  136  N.  Y.  Supp.  197.) 

Appeal  from  Special  Term,  New  York  County. 

Action  by  Louis  Oppenheimer  against  Emanuel  \Tan  Raalte  and  an- 
other, partners  as  S.  Oppenheimer  &  Levy.  From  an  order  vacating 
an  order  for  examination  of  defendants  before  trial,  plaintiff  appeals. 

Argued  before  Ingraham,  P.  J.,  and  Laughlin,  Clarke,  Miller, 
and  Dowling,  JJ. 

Ingraham,  P.  J.9  This  action  was  to  recover  the  balance  of  salary 
due  to  the  plaintiff  under  a  written  contract  by  which  the  plaintiff  was 
employed  for  the  years  1908  and  1909  and  was  to  receive  as  salary  3 
per  cent,  of  the  net  profits  of  the  business  of  the  defendants  for  each 
of  said  years ;  the  defendant  guaranteeing  that  plaintiff  should  at  least 
receive  $6,000  each  year.  For  the  year  1908  the  plaintiff  was  paid 
$11,847.31,  which  would  show  a  net  profit  for  that  year  of  nearly 
$400,000.  For  the  second  year,  although  the  plaintiff  swears  that  the 
business  had  continued  without  substantial  decrease,  the  defendants 
claimed  that  their  profits  were  not  in  excess  of  $200,000,  and  refused 
to  make  any  payment  above  the  $6,000,  which  the  plaintiff  was  paid. 
The  plaintiff  alleges  that  the  profits  for  the  year  1909  were  in  excess 
of  $400,000,  and  that  he  was  entitled  to  receive  $6,000  in  addition  to 
the  amount  that  was  paid  him  as  salary  for  that  year. 

The  mere  statement  of  this  cause  of  action  is  sufficient  to  establish 
that  the  only  method  the  plaintiff  has  of  proving  his  cause  of  action 
is  to  examine  the  defendants  before  trial.  The  plaintiff  has  no  rec- 
ords of  the  defendants'  business,  and  the  defendants  alone  can  supply 
the  legal  proof  to  show  what  their  net  profits  were  for  the  year  1909 
to  which  the  plaintiff  was  entitled  to  a  percentage.  The  plaintiff  can- 
not maintain  an  action  for  an  accounting  under  such  a  contract,  but  is 
required  to  bring  an  action  at  law,  and  for  the  court  to  refuse  to  allow 
him  to  examine  the  defendants  before  trial  so  as  to  prove  his  cause 
of  action  would  be  to  prevent  the  plaintiff  from  having  a  recovery,  al- 
though if  such  testimony  had  been  allowed  he  would  have  a  good  cause 
of  action.  It  is  conceded  that  upon  these  papers  the  materiality  of  the 
testimony  of  the  defendants  clearly  appears,  and  that  the  plaintiff 
would  certainly  be  entitled  to  subpoena  the  defendants  at  the  trial  and 
to  prove  by  the  testimony  of  his  witnesses  or  by  the  enforced  produc- 
tion of  the  defendants'  books  what  the  actual  net  profits  of  the  busi- 
ness for  the  year  1909  were.  Section  870  of  the  Code  of  Civil  Proce- 
dure provides  that  a  deposition  of  a  party  to  an  action  pending  in  a 
court  of  record  may  be  taken  at  his  own  instance  or  at  the  instance  of 
an  a  Iverse  party  at  any  time  before  or  during  the  trial  as  prescribed  in 
this  article.  Section  872  provides  that  the  person  desiring  to  take  a 
deposition  as  prescribed  in  this  article  may  present  to  a  judge  of  the 

■'  Part  of  the  opinion  is  ormtifl. 


Ch.  8)  BILLS   OF   ACCOUNT  1233 

court  in  which  the  action  is  pending  an  affidavit  setting  forth,  among 
other  things,  the  name  and  residence  of  the  person  to  be  examined,  and 
that  the  testimony  of  such  person  is  material  and  necessary  for  the 
party  making  such  application  or  the  prosecution  or  defense  of  such 
action.  Section  875  provides  that  the  judge  to  whom  such  an  affidavit 
•  is  presented  must  grant  an  order  for  the  examination  if  an  action  is 
pending.  I  think  the  plaintiff  in  this  case  has  brought  himself  clearly 
within  these  sections  of  the  Code  of  Civil  Procedure  and  is  therefore 
entitled  as  a  matter  of  right  to  examine  the  defendants  before  trial. 
The  facts  and  circumstances  showing  the  materiality  of  the  defend- 
ants' evidence  are  stated,  and  it  is  apparent  from  the  nature  of  the 
action  and  the  facts  stated  that  the  evidence  of  the  defendants  upon 
this  examination  is  necessary  to  enable  plaintiff  to  prove  the  amount 
to  which  he  was  entitled.  I  think  the  plaintiff  was  therefore  enti- 
tled to  the  order  that  was  granted,  and  it  should  not  have  been  va- 
cated.    *     *     * 

It  follows,  therefore,  that  the  order  appealed  from  must  be  reversed, 
with  $10  costs  and  disbursements,  and  the  motion  to  vacate  the  order 
for  the  examination  of  the  defendants  denied,  with  $10  costs. 

Laughlin,  Clarke,  and  Miller,  JJ.,  concur.  Dowling,  J.,  dis- 
sents. 


INHABITANTS  OF  CRANFORD  TP.  v.  WATTERS. 

(Chancery  Court  of  New  Jersey,  1901.     61  N.  J.  Eq.  284,  48  Atl.  316.) 

Heard  on  bill,  answer,  and  proofs. 

The  object  of  the  bill  is  to  withdraw  from  the  jurisdiction  of  the 
law  court,  and  procure  the  final  determination  in  this  court,  of  a  cause 
of  action  which  the  defendant,  Watters,  claims  to  have  against  the 
complainant,  the  township  of  Cranford,  by  reason  of  the  performance 
by  him  for  the  complainant  of  divers  works,  being  part  and  parcel  of 
a  sewer  system  installed  by  the  complainant  within  its  territorial  lim- 
its. The  work  was  mainly  done  under  written  contract  which  was 
entered  into  in  the  year  1894.  There  are  also  claims  on  the  part  of 
Watters  (1)  for  extra  work;  (2)  for  the  increased  cost  of  work  done 
under  the  contract,  by  reason  of  failure  of  the  corporation  to  per- 
form its  part  of  the  contract;  and  (3)  for  variations  made  in  the  spec- 
ifications of  the  work  to  be  done  as  provided  in  the  contract.  The  de- 
fendant's claim  is  that  work  was  done  to  the  amount  of  about  fifty 
thousand  dollars,  and  that  he  had  been  paid  twenty-three  thousand 
and  odd  dollars,  leaving  a  balance  of  about  twenty-six  thousand  dol- 
lars due.  To  recover  that  balance  he  brought  an  action  against  the 
complainant  in  the  year  1897  in  the  circuit  court  of  the  county  of 
Union.  The  bill  of  particulars  contained  several  hundred  items.  The 
complainant  pleaded  to  the  action,  and  the  court  referred  it  to  a 
referee  to  hear  the  cause  and  state  an  account  between  the  parties. 
Boke  Eq.— 78 


1234  BILLS   OF   ACCOUNT  (Cll.  8 

Both  parties  dissented  to  the  reference,  thereby  reserving  to  them- 
selves the  right,  under  the  statute,  to  a  trial  by  jury.  The  cause  was 
tried  before  the  referee,  who  by  his  report  dealt  with  all  the  items 
in  the  bill  of  particulars,  and  by  condensation  reduced  the  number  to 
88,  amounting,  as  claimed  by  the  defendant  herein,  to  $47,491.12,  for 
which  he  allowed  him  a  total  of  $34,159.77,  disallowing  some  of  the 
items  altogether,  and  allowing  only  a  portion  of  others.  After  cred- 
iting him  with  payments,  he  found  a  balance  due  of  $11,435.54.  After 
the  bill  was  filed,  the  complainant,  by  leave  of  the  court,  paid  $8,000 
on  account,  which  the  defendant  accepted.  To  this  report  each  party 
filed  divers  exceptions.  Watters'  exceptions  were  14  in  number.  The 
exceptions  of  the  complainant  (the  defendant  below)  were  much  more 
numerous,  but  in  the  argument  they  were  all  considered  under  9  heads. 
Some  of  the  exceptions  of  complainant  referred  to  the  same  items  ex- 
cepted to  by  defendant,  leaving  about  20  disputed  matters,  disconnected 
with  each  other,  and  depending  for  their  solution  upon  different  evi- 
dence and  variant  considerations.  After  these  exceptions  were  taken 
the  complainant  filed  its  bill  herein,  setting  out  the  facts,  and  praying 
for  an  injunction.  It  was  granted  upon  the  strength  of  the  case  of 
Shove  v.  Lathrop  Co.,  in  which  Chancellor  Runyon  granted  an  injunc- 
tion under  somewhat  similar  circumstances,  but  gave  no  reasons  in 
writing.  The  defendant,  Watters,  answered,  but  in  his  answer  set  up 
the  want  of  jurisdiction  in  this  court,  and  claimed  the  right  to  a  trial 
by  jury.  The  cause  was  brought  to  hearing  upon  the  evidence  (which 
is  voluminous)  taken  and  exhibits  made  before  the  referee,  and  with 
one  or  two  additional  exhibits. 

Pitney,  V.  C.10  (after  stating  the  facts).  The  serious  question  in 
the  cause  is  whether  the  court  ought  to  take  jurisdiction  of  it.  It  is 
urged — First,  that  it  is  not  a  cause  in  which  the  court  ought  to  have 
assumed  jurisdiction  if  that  jurisdiction  had  been  sought  before  any 
action  at  law  had  been  commenced ;  and,  second,  granting  that  the 
court  would  ever  have  taken  jurisdiction,  it  is  contended  that,  having 
permitted  the  court  of  law  to  proceed  and  deal  with  the  cause  to  the 
extent  of  a  reference,  it  is  now  too  late  for  the  defendant  at  law  to  ask 
this  court  to  withdraw  the  cause  from  the  jurisdiction  of  that  court. 

Dealing  with  the  second  ground  first,  I  come  to  the  conclusion  that 
it  is  not  well  taken.  Supposing  it  was  a  proper  case  for  the  jurisdic- 
tion of  this  court  under  the  old  practice,  and  before  the  legislature  had 
invested  the  court  of  law  with  power  to  refer  causes  of  this  kind  to  a 
referee  to  hear  and  determine  the  same,  including  the  taking  and  stat- 
ing of  accounts,  I  think  that  the  vesting  of  the  courts  of  law  with  that 
jurisdiction  ought  to  have  the  effect  of  making  this  court  more  cautious 
in  assuming  jurisdiction  in  such  cases  when  sought  before  suit  at  law- 
is  commenced.  The  primary  statement  of  the  case,  as  presented  in  a 
bill  in  chancery,  showing  a  large  number  of  items  and  a  prima  facie 

ifi  Part  of  the  opinion  is  omitted. 


Ch.  8)  BILLS  OF  ACCOUNT  1235 

case  for  the  interference  of  the  court,  still  leaves  it  practicable  for  jus- 
tice to  be  done  in  a  court  of  law  under  the  modern  practice  of  a  refer- 
ence. When  the  matter  has  been  subjected  to  the  examination  of  a  ref- 
eree, and  he  has  made  his  report,  it  may  and  often  does  prove  that 
the  items  actually  in  dispute  are  few  and  easily  dealt  with  by  a  jury. 
And  I  am  of  the  opinion  that  it  is  quite  proper  for  this  court  in  a  cer- 
tain class  of  causes,  to  refuse  to  take  jurisdiction  until  at  least  an  at- 
tempt has  been  made  to  obtain  justice  by  the  machinery  of  a  reference 
in  a  court  of  law.  The  various  powers  to  compel  the  production  of 
papers  and  the  examination  of  the  parties  now  possessed  by  a  court  of 
law  gives  that  court  facility  for  dealing  with  such  cases  almost  if  not 
quite  equal  to  that  of  the  court  of  chancery.  And  I  think  that,  if  the 
case  as  presented  by  the  Watters  bill  of  particulars  of  his  demand 
against  the  township  had  been  presented  to  a  court  of  equity  before 
the  suit  at  law  had  been  commenced,  it  might  well  have  said — I  do  not 
mean  to  declare  that  it  ought  to  have  said — to  the  township : 

"Let  Watters  bring  his  suit.  Xon  constat  but  that  the  result  of  a  trial  be- 
fore a  referee  will  be  entirely  satisfactory  to  all  parties,  or  reduce  the  points 
in  dispute  to  so  few  in  number  and  such  simple  dimensions  that  a  jury  can 
deal  with  it." 

This  view  was  taken  by  Vice  Chancellor  Reed  in  Bellingham  v.  Pal- 
mer, 54  N.  J.  Eq.  136,  33  Atl.  199.  And,  were  it  not  for  the  provision 
in  the  practice  act  for  the  right  of  each  party  to  dissent  from  the  refer- 
ence at  law  and  to  demand  a  trial  by  jury,  I  should  think  the  remedy 
at  law  would  be  quite  equal  to  that  in  this  court.  For  if  the  referee 
mistook  the  law,  or  made  a  clear  error,  in  his  deductions  of  fact,  his 
findings  would  be  open  for  examination  and  review  by  the  court.  And 
such  I  understand  to  be  the  English  practice,  and  also  that  of  the  state 
of  Xew  York.  But  the  defendant,  Watters,  still  demands  a  trial  by 
jury;  and  when  the  parties  appear  before  the  jury  the  only  advantage 
that  either  party  will  have  from  the  report  will  be  that  it  will  be  prima 
facie  evidence  of  the  truth  of  his  findings,  and  all  the  items  that  are 
excepted  to  will  still  be  open  for  examination  before  the  jury.  Hence 
the  delay  in  coming  to  this  court  does  not  seem  to  me  to  be  fatal  to  the 
complainant's  right. 

In  the  present  case,  Watters,  the  party  who  is  objecting  to  the  juris- 
diction of  this  court,  makes  14  distinct  and  separate  exceptions  to  the 
findings  of  the  referee,  and  is  entitled  to  have  those  examined  in  detail 
by  the  jury.  To  these  may  be  added  several  of  the  exceptions  taken 
by  the  complainant  (the  defendant  below),  which  are  equally  separate 
and  distinct,  making  about  20  different  items.  And  so  it  seems  to  me 
that  we  come  at  last  to  the  question  whether,  with  these  different  items 
to  be  examined  and  determined,  the  parties  can  obtain  justice  in  a  court 
of  law,  or  are  the  items  so  numerous  and  difficult,  and  the  evidence 
which  must  determine  their  solution  so  technical  and  complicated  in  its 
character,  as  that  a  jury  cannot  give  it  such  attention  and  consideration, 
with  the  opportunity  afforded  them  in  the  consideration  of  a  case  in 


1236  BILLS   OF   ACCOUNT  (Cll.  8 

the  jury  room,  as  to  enable  them  to  come,  with  any  degree  of  certainty, 
to  a  just  conclusion?  Or,  in  other  words,  if  the  case  is  one  which,  if 
presented  to  the  court  upon  the  exceptions  taken  by  the  several  parties 
to  the  items,  is  such  that  it  would  have  originally  withdrawn  it  from 
the  jurisdiction  of  the  court  of  law,  it  seems  to  me  that  it  ought  to  do 
it,  even  at  this  late  stage  of  the  controversy. 

In  determining  this  question  I  have  taken  the  pains  to  examine  with 
some  care  the  grounds  on  which  courts  of  equity  proceed  in  exercising 
what  is  called  their  concurrent  jurisdiction  with  courts  of  law  over 
matters  of  this  kind.  The  usual  ground  stated  is  that  of  complicated 
accounts.  But  this  classification  is  not  confined  to  those  cases  of  ac- 
counts where  something  more  than  an  account  between  the  immediate 
parties  must  be  taken,  as  in  the  settlement  of  partnership  affairs,  trus- 
tees' accounts,  and  the  like ;  but  it  also  includes  a  large  class  of  cases 
where  the  matters  of  account  are  between  the  individual  contestants, — 
the  plaintiff  and  defendant.  A  consideration  of  the  cases  has  led  me 
to  the  conclusion  that  the  true  ground  of  equity  jurisdiction  in  such 
cases  is  that  the  issues  necessary  to  be  determined  in  order  to  arrive  at 
a  just  conclusion  are  so  numerous,  and  dependent  upon  such  a  variety 
of  evidence,  or  of  evidence  of  such  technical  character,  as  that  it  is 
substantially  impossible  for  a  jury,  retiring  in  the  ordinary  way  to  a 
jury  room,  and  obliged  to  carry  all  the  oral  evidence  in  their  memo- 
ries, to  come,  at  one  session,  to  anything  like  a  just  and  proper  conclu- 
sion. Such  a  state  of  affairs  produces  what  is  meant  by  the  term  "com- 
plicated" used  in  this  connection. 

The  leading  case  on  this  subject  is  O'Connor  v.  Spaight,  1  Schoales 
&  L.  305,  decided  by  Lord  Redesdale,  in  Ireland,  in  1804.  The  case 
is  thus  stated  by  the  reporter : 

'"The  defendant,  by  indenture,  bearing  date  31st  March,  17S0,  demised  cer- 
tain premises  to  the  plaintiff  for  three  lives,  at  a  rent  of  20  shillings  per  acre 
for  every  acre  the  demised  premises  should  or  might  contain,  under  which  de- 
mise the  plaintiff  entered  into  possession.  The  number  of  acres  was  not  as- 
certained, nor  did  plaintiff  appear  to  have  made  any  regular  payments  of  rent 
eo  nomine,  nor  had  defendant  given  him  any  receipts  in  full  or  for  precise 
gales ;  1  ut  from  1780  down  to  1798  the  plaintiff  had  been  in  the  constant  habit 
of  accepting  defendant's  bills,  of  paying  money  to  his  order,  of  selling  him 

g Is  on  credit,  and  supplying  him  and  his  family  with  money,  the  particulars 

of  which  several  sums  were  set  out  in  a  schedule  annexed  to  the  bill,  and  for 
which  the  plaintiff  insisted  that,  if  credit  were  given,  a  balance  would  appear 
due  to  him." 

At  the  end  of  16  years  the  landlord  claimed  that  a  year's  rent  was 
due  and  unpaid,  and  brought  his  action  of  ejectment,  based  on  such  ar- 
rearage.  The  tenant  filed  his  bill  to  enjoin  the  ejectment  and  for  an 
accounting  in  the  court  of  chancery.  There  was  nothing  in  the  nature 
of  the  accounts  to  make  it  difficult  for  a  jury  to  determine  each  one  of 
the  items  claimed,  and  for  a  great  many  of  them  there  must  have  been 
vouchers.  The  number  of  acres  for  which  rent  was  to  be  paid  was 
easily  ascertained  by  a  survey.  So  that  there  was  really  nothing  in  the 
case  which  a  jury  might  not  have  dealt  with,  and  the  only  ground  for 
holding  the  jurisdiction  was  the  great  number  of  different  items  which 


Ch.  8)  BILLS  OF   ACCOUNT 


1237 


were  to  be  passed  upon.    Lord  Redesdale,  in  delivering  judgment,  used 
the  following  language : 

•The  ground  on  which  I  think  that  this  is  a  proper  case  for  equity  is  that 
the  account  has  become  so  complicated  that  a  court  of  law  would  be  incom- 
petent to  examine  it  upon  a  trial  at  nisi  prius  with  all  necessary  accuracy, 
and  it  could  appear  only  from  the  result  of  the  account  that  the  rent  was  not 
due.  This  is  a  principle  on  which  courts  of  equity  constantly  act,  by  taking 
cognizance  of  matters  which,  though  cognizable  at  law,  are  yet  so  involved 
with  a  complex  account  that  it  cannot  properly  be  taken  at  law,  and  until  the 
result  of  the  account  the  justice  of  the  case  cannot  appear." 

It  is  manifest  that  the  words  "complex"  and  "complicated"  are  here 
used  in  the  sense  I  have  above  stated.  This  meager  statement  of  the 
rule  has  been  cited  with  approval  in  a  number  of  instances  by  Eng- 
lish judges,  both  in  the  courts  of  first  instance  and  in  those  of  ap- 
peal.    *     *     * 

In  Marvin  v.  Brooks,  94  N.  Y.  71,  Justice  Finch  says: 
"That  the  necessity  for  a  resort  to  equity  is  now  very  slight,  if  it  can  be 
said  to  exist  at  all,  since  a  court  of  law  can  send  to  a  referee  a  long  account, 
too  complicated  for  the  handling  of  a  jury,  and  furnishes,  by  the  examination 
of  the  adverse  witnesses  before  trial,  and  the  production  and  deposit  of  books 
and  papers,  almost  as  complete  a  means  of  discovery  as  can  be  furnished  by  a 
court  of  equity." 

That  remark  applies  with  great  force  to  those  jurisdictions  where, 
when  a  cause  is  once  sent  by  a  common-law  court  to  a  referee,  it  is 
finally  taken  from  the  cognizance  of  a  jury.  Such  is  the  case  in  New 
York,  and  it  may  be  in  other  states.  It  is  not  applicable  in  its  full 
force  to  this  state,  or  to  the  present  situation,  where  the  machinery  of 
a  reference  has  been  resorted  to  and  has  expended  its  force,  and,  after 
all,  has  left  the  cause  in  such  a  situation  that  it  must  still  be  sent  to  a 
jury  by  the  common-law  court.  As  before  remarked,  I  think  that  if 
it  were  not  for  the  fact  that  the  parties  may,  under  our  practice,  after 
the  cause  has  run  the  gauntlet  of  the  referee,  demand  a  trial  by  jury, 
then  there  would  be  little  or  no  occasion  for  the  intervention  of  a  court 
of  equity  upon  the  single  ground  of  complexity  of  accounts.  And  so 
it  seems  to  me  that  the  case  comes  back  to  where  it  would  have  stood  if 
there  had  been  no  practice  of  the  common-law  court  of  ordering  a  ref- 
erence, and  such  a  reference  had  not  been  had.  And  the  question  now 
is  whether  it  is  such  a  one  as  this  court  would,  in  that  state  of  the  law, 
withdraw  from  the  jurisdiction  of  a  court  of  law ;  and  on  that  question 
I  think  the  authorities  establish  the  conclusion  above  stated,  namely, 
the  test  is,  are  the  issues  so  numerous  and  so  distinct,  and  the  evidence 
to  sustain  them  so  variant,  technical,  and  voluminous,  that  a  jury  is 
incompetent  to  intelligently  deal  with  them  and  come  to  a  just  conclu- 
sion ?  An  examination  of  the  several  exceptions  and  the  evidence  bear- 
ing upon  them  leads  me  to  the  conclusion  that  it  is  the  duty  of  the  court 
to  assume  jurisdiction. 

[Here  follows  an  elaborate  discussion  of  the  facts  and  the  conclusion 
that  the  referee  had  arrived  at  a  just  result,  which  is  omitted  by  direc- 
tion of  the  Vice  Chancellor.] 

* 


APPENDIX    I 

POSITION  OF  EQUITY  IN  THE   LEGAL  SYSTEM 


JUSTICE  STORY'S  DEFINITION  OF  EQUITY 

Equity  Jurisprudence  may  therefore  properly  be  said  to  lie  that  portion  of 
remedial  justice  which  is  exclusively  administered  by  a  Court  of  Equity  as 
contradistinguished  from  that  portion  of  remedial  justice  which  is  exclusively 
administered  by  a  Court  of  Common  Law. 

Story's  Equity  Jurisprudence,  vol.  1,  p.  20. 


STORY'S  ANALYSIS  OF  JURISDICTION 

The  next  inquiry  which  will  occupy  our  attention  is  to  ascertain  the  true 
boundaries  of  the  jurisdiction  at  present  exercised  by  Courts  of  Equity.  The 
subject  here  naturally  divides  itself  into  three  heads — the  concurrent,  the  ex- 
clusive, and  the  auxiliary  or  supplemental  jurisdiction.  As  the  concurrent 
jurisdiction  is  that  which  is  of  the  greatest  extent  and  most  familiar  occur- 
rence in  practice,  I  propose  to  begin  with  it. 

The  concurrent  jurisdiction  of  Courts  of  Equity  may  be  truly  said  to  em- 
brace, if  not  all,  at  least  a  very  large  portion  of  the  original  jurisdiction  in- 
herent in  the  court  from  its  very  nature,  or  first  conferred  upon  it  upon  the 
dissolution  or  partition  of  the  powers  of  the  Great  Council,  or  Aula  Regis,  of 
the  king.  We  have  already  seen  that  it  did  not  take  its  rise  from  the  intro- 
duction of  technical  uses  or  trusts,  as  has  sometimes  been  erroneously  sup- 
posed. Its  original  foundation  then  may  be  more  fitly  referred  to  what  Lord 
Coke  deemed  the  true  one,  fraud,  accident,  and  confidence. 

Story's  Equity  Jurisprudence,  vol.  1,  p.  82. 


THE  RELATION  BETWEEN  LAW  AND  EQUITY 

The  relation  between  law  and  equity  is  found  difficult  of  final  statement. 
Against  the  theory  of  Professor  Maitland  that  equity  is  but  a  gloss  upon  the 
common  law  without  conflict  with  the  law,  there  is  the  view  recently  published 
by  Professor  Wesley  Newcomb  Hohfeld  of  the  Yale  Law  School,  taking  strict 
issue  with  Professor  Maitland.     Professor  Hohfeld  thus  presents  his  thesis: 

"  *  *  *  Despite  what  has  thus  far  been  said,  there  would  be  considerable 
hesitation  in  presenting  these  mere  working  materials,  were  it  not  for  those 
parts  relating  to  'the  conflict  between  equity  and  law'  and  'the  supremacy  of 
equity  over  law.'  It  is  only  in  these  matters  that  the  writer  finds  it  neces- 
sary to  take  issue  with  the  views  expressed  by  Professor  Maitland  and  other 
well-known  writers.  Our  distinguished  English  author,  throughout  his  enter- 
taining series  of  lectures,  maintains,  with  ever-recurring  emphasis,  that  the 
relation  between  the  rules  of  equity  and  the  rules  of  law,  with  only  one  or  two 
possible  exceptions,  'was  not  one  of  conflict.'     *     *     * 

"The  same  views  seem  to  have  been  entertained  by  Professor  Langdell,  in 
whose  Summary  of  Equity  Pleading,  we  find  the  following:  'Indeed,  it  may  be 
said  without  impropriety  that  equity  is  a  great  legal  system,  which  has  grown 

(1239) 


1240  APPENDIX    I 

up  by  the  side  of  the  common  law,  and  which,  while  consistent  with  the  lat- 
ter, is  in  a  great  measure  independent  of  it.'     *     *     * 

"So,  also,  similar  ideas  seem  to  have  been  expressed  by  Mr.  Adams  in  his 
treatise  on  Equity.     *     *     * 

"As  against  the  proposition  of  these  various  scholars  that  there  is  no  ap- 
preciable conflict  between  law  and  equity,  the  thesis  of  the  present  writer  is 
this:  While  a  large  part  of  the  rules  of  equity  harmonize  with  the  various 
rules  of  law,  another  large  part  of  the  rules  of  equity — more  especially  those 
relating  to  the  so-called  exclusive  and  auxiliary  jurisdictions  of  equity — con- 
flict with  legal  rules  and,  as  a  matter  of  substance,  annul  or  negative  the  latter 
pro  tanto.  As  just  indicated,  there  is,  it  is  believed,  a  very  marked  and  con- 
stantly recurring  conflict  between  equitable  and  legal  rules  relating  to  various 
jural  relations;  and  whenever  such  conflict  occurs,  the  equitable  rule  is.  in 
the  last  analysis,  paramount  and  determinative.  Or,  putting  the  matter  in 
another  way,  the  so-called  legal  rule  in  every  such  case  has,  to  that  extent, 
only  an  apparent  validity  and  operation  as  a  matter  of  genuine  law.  Though 
it  may  represent  an  important  stage  of  thought  in  the  solution  of  a  given  prob- 
lem, and  may  also  connote  very  important  possibilities  as  to  certain  other, 
closely  associated  (and  valid)  jural  relations,  yet  as  regards  the  very  relation 
in  which  it  suffers  direct  competition  with  a  rule  of  equity,  such  a  conflicting 
rule  of  law  is,  pro  tanto,  of  no  greater  force  than  an  unconstitutional  stat- 
ute.    *     *     * 

"The  conflict  between  the  equitable  and  the  legal  rule  as  regards  'equitable 
waste'  is,  with  some  hesitation,  conceded  by  Professor  Maitland,  at  page  157  of 
his  Lectures,  this  being  one  of  the  two  or  three  instances  in  which  alone  any 
opposition  between  law  and  equity  is  admitted  by  the  learned  author:  Was 
there  a  conflict  about  (so-called)  equitable  waste?  Perhaps  there  was.  If  a 
tenant  for  life,  made  unimpeachable  for  waste,  cut  down  ornamental  timber, 
he  could  not  be  made  to  pay  damages  in  au  action  at  law.  but  equity  would 
prevent  him  from  so  doing  by  injunction,  or  if  he  did  it  would  call  him  to  ac- 
count. So  we  might  here  say  that  equity  did  consider  that  he  must  pay  for  his 
act,  while  law  held  that  he  need  not.  But  it  is  needless  to  speculate  about  this 
matter  for  the  (Judicature)  Act  specially  provided  for  it.' 

'•Just  why  Maitland  should  have  any  hesitation  as  to  this  case  is  not  clear. 
Suppose  that  a  statute  of  yesterday  provided  that  a  tenant  "without  impeach- 
ment' should  be  privileged  to  cut  ornamental  trees;  and  assume,  further,  that 
a  statute  of  to-day  were  to  declare  that  any  tenant  "without  impeachment" 
should  be  under  a  duty  not  to  cut  ornamental  trees.  Would  any  one  hesitate 
to  admit  that  the  two  statutes  would  be  in  conflict  with  each  other,  and  that 
the  first  would  be  repealed  by  the  second?  A  similar  comparison  with  incon- 
sistent statutes  may  be  helpful  in  seeing  the  conflict  of  law  and  equity  as  re- 
gards the  various  other  examples  in  the  text. 

"At  this  point,  however,  it  may  be  necessary  to  guard  against  misunder- 
standing. When,  in  example  34,  it  is  said  that  the  legal  rule  is  'annulled,'  pro 
tanto,  by  the  equitable  rule,  this  refers  to  the  very  jural  relation  under  con- 
sideration, and  to  that  alone.  It  is  meant  simply  that,  in  the  last  analysis.  Y 
is  under  a  duty  not  to  cut  ornamental  trees.  As  said  by  Lord  Justice  Turner. 
in  Miekiethwait  v.  Micklethwait,  1  De  G.  &  J.  504,  524:  'This  doctrine  of 
equitable  waste,  although  far  too  well  settled  in  the  court  to  be  now  in  any 
way  disturbed  is  (it  is  to  be  observed)  an  encroachment  upon  a  legal  right' — 
the  learned  judge  here  meaning,  of  course,  what  would,  with  greater  dis- 
crimination, be  expressed  as  'a  legal  privilege.' 

"As  regards  that  particular  relation,  the  supposed  legal  rule  asserting  the 
privilege  is  really  invalid.  It  is,  to  that  extent,  only  an  apparent  rule,  so  far 
as  genuine  law  is  concerned.  But  such  'legal  rule,"  though  invalid,  may  have 
important  connotations  as  to  independent  land  valid)  legal  rules  governing 
certain  other  closely  associated  jural  relations.  Thus,  e.  g.,  despite  the  con- 
flict in  question  and  the  supremacy  of  the  equitable  rule,  it  would  still  be  the 
duty  of  the  common  law  judge,  in  case  an  action  at  law  were  brought  against 
Y.,  to  sustain  a  demurrer  as  against  a  declaration  alleging  the  true  facts  of 
the  case. 

"Conversely,  even  though  a  legal  primary  right  conflicts  with  an  equitable 
•no-right,'  it  would  be  the  duty  of  the  common  law  judge  to  overrule  a  demur- 
rer to  a  declaration  setting  forth  such  supposed  legal  right  and  its  violation, 


POSITION    OF    EQUITY    IN    THE    LEGAL   SYSTEM  1241 

and,  ultimately,  to  render  judgment  for  the  plaintiff;  and,  of  course,  an  execu- 
tion sale  based  on  such  judgment  would  be  valid.    See  example  46,  and  note  38, 
infra.    These  independent  (and  valid)  jural  relations,  though  connoted  by  the 
original  (invalid)  legal  right  in  question,  must  be  carefully  distinguished  from    . 
the  latter.     *     *     * " 

Story's  classification  of  equity  into  exclusive  jurisdiction,  concurrent  juris- 
diction and  auxiliary  jurisdiction  is  modified  by  Professor  Hohfeld,  who  holds 
that  all  rights  are  either  exclusively  equitable  or  concurrently  legal  and  equita- 
ble.   He  thus  expresses  it: 

"No  doubt  the  jural  relations  which  in  the  text  are  called  'concurrently  legal 
and  equitable'  have,  according  to  the  more  usual,  if  not  invariable,  practice, 
been  styled  'exclusively  legal,'  or  simply  'legal' ;  and  it  may  be  conceded  that 
at  first  glance  the  latter  usage  is  entirely  plausible.  It  is  submitted,  however, 
that,  as  a  matter  of  analysis,  the  division  of  all  jural  relations  into  but  two 
classes — those  concurrently  legal  and  equitable,  and  those  exclusively  equita- 
ble—is correct  in  every  fair  sense  of  the  terms  involved,  and  that  any  other  di- 
vision makes  for  confusion  of  both  thought  and  language.  There  is,  to  be 
sure,  a  third  group  of  rules  which,  being  very  different  from  the  'concurrent' 
rules  now  under  consideration,  might,  with  prima  facie  correctness,  be  called 
'exclusively  legal.'  But,  as  will  be  more  fully  urged  hereafter,  each  and  every 
one  of  the  latter  being  in  conflict  with  some  paramount  and  determinative 
equitable  rule,  proves,  in  the  last  analysis,  to  be  only  apparent,  so  far  as  genu- 
ine law  is  concerned.  For  that  reason,  in  any  true  classification  this  third 
group  of  so-called  rules  must  be  excluded. 

"As  regards  both  law  and  equity,  all  primary,  or  antecedent,  relations  and 
all  secondary,  or  remedial,  relations  can,  in  general,  be  ascertained  only  by 
inference  from  the  purely  adjective  juridical  processes,  that  is,  by  inference 
from  either  affirmative  or  negative  action  regularly  to  be  had  from  the  par- 
ticular courts  from  which  a  judgment  or  decree  may  be  sought.  As  said  by 
Maitland,  in  relation,  more  particularly,  to  the  early  law:  'De  Natura  Brevium, 
Of  the  Nature  of  Writs, — such  is  the  title  of  more  than  one  well  known  text- 
book of  our  mediaeval  law.  Legal  Remedies,  Legal  Procedure,  these  are  the 
all-important  topics  for  the  student.  These  being  mastered,  a  knowledge  of 
substantive  law  will  come  of  itself.  Not  the  nature  of  rights,  but  the  nature 
of  writs  must  be  his  theme.  The  scheme  of  "original  writs"  is  the  very  skele- 
ton of  the  Corpus  Juris.'  (History  of  the  Register  of  Original  Writs  [18S9]  3 
Harv.  L.  Rev.  97.) 

"Applying  this  eminently  sound  suggestion  to  the  bond  case  put  in  'example 
12,'  suppose,  in  the  very  early  days,  B.  had  paid  the  bond  at  or  before  ma- 
turity, but  had  failed  to  take  a  release  under  seal  or  a  surrender  of  the  bond 
instrument.  In  that  situation  the  legal  right  of  A.  and  the  corresponding  legal 
duty  of  B.  would,  according  to  the  rule  now  obsolete,  continue  to  exist,  despite 
the  fact  of  payment.  But  equity  would  say  that,  as  a  matter  of  substance,  B. 
had  the  privilege  of  not  paying  again,  and  that,  correlatively,  A.  had  no  right 
against  B.  If,  therefore,  A.  were  to  threaten  an  action  at  law,  B.  could  secure 
an  injunction  from  equity  restraining  A.  from  doing  the  acts  constituting  'the 
bringing  of  the  action.'  So,  too,  it  goes  without  saying  that  A.  could  not  se- 
cure 'discovery'  against  B.  from  a  court  of  equity. 

"But,  on  the  other  hand,  if  the  bond  has  not  been  actually  paid,  it  is  clear 
that  equity  indorses  and  sanctions  the  legal  primary  right  of  A.  If  no  ordi- 
nary affirmative  suit  can  be  maintained  in  equity,  that  must  be  because  the 
remedial  machinery  of  the  law  court  is  able  to  give  adequate  relief;  and  eq- 
uity indorses  and  sanctions  such  remedial  proceeding  in  the  law  court  by  re- 
fusing an  injunction  against  it.  Generally  speaking,  moreover,  to  the  extent 
that  the  law  court's  remedy  may  not  be  adequate,  equity  stands  ready  to  lend 
a  hand  and  give  direct  affirmative  relief.  See  Southampton  Dock  Co.  v.  South- 
ampton Harbour  &  Pier  Board  (1S70)  L.  R.  11  Eq.  254,  263.  If,  for  example— 
again  referring  primarily  to  days  gone  by — A.  needed  the  testimony  of  B.  for 
the  action  at  law,  a  separate  proceeding  in  equity  could  be  brought  for  that 
limited  purpose, — that  is,  to  secure  discovery.  In  such  a  case  it  might  fairly 
be  said  that  the  law  tribunal  and  the  equity  tribunal  were  acting  together  as 
a  single  court.  As  Coke  observed  in  relation  to  cases  where  a  chancery  court 
sends  an  issue  of  fact  to  a  law  court  to  be  tried,  'for  that  purpose  both  courts 
are  counted  but  one.'    4  Inst.  79.    And,  of  course,  it  will  not  be  forgotten  that 


1242  APPENDIX   I 

according  to  the  very  early  practice  in  England  and  the  modern  practice  in 
some  American  jurisdictions,  a  mere  bill  for  discovery  sufficed  as  a  foundation 
for  praying  and  securing  complete  and  final  relief  on  the  theory  of  avoiding 
multiplicity  of  suits.  Besides  all  this,  it  is  clear  that  under  various  other  cir- 
cumstances the  bond  right  of  A.  might  get  direct  vindication  by  the  remedial 
machinery  of  a  court  of  equity.  If,  for  example,  A.  held  such  bond  right  in 
trust  for  X.,  but  refused  to  proceed  against  B.,  X.  might  proceed  in  a  court  of 
equity  against  both  A.  and  B.  and  get  a  decree  for  payment  of  the  amount  di- 
rectly to  X.  See  the  exceptionally  instructive  opinion  in  Fletcher  v.  Fletcher 
(1S44)  4  Hare,  67,  76-78.  Similarly,  if  A.,  being  the  unencumbered  owner  of 
the  bond  right,  were  to  assign  half  of  it  to  M.,  either  A.,  the  assignor,  or  M.. 
the  partial  assignee,  might  sue  in  equity  for  a  decree  ordering  B.  to  pay  half 
the  amount  of  the  bond  to  A.  and  the  other  half  to  M. 

"So,  in  general,  what  are  commonly  called  'legal'  rights  are,  when  justice 
demands,  vindicated  in  equity  by  bills  for  discovery,  bills  for  an  accounting, 
bills  to  quiet  title,  bills  of  interpleader,  bills  of  peace  and  proceedings  under- 
taken to  avoid  'multiplicity'  or  'circuity'  of  action ;  and,  independently  of  these 
affirmative  remedies,  the  mere  refusal  of  a  court  of  equity  to  enjoin  the  plain- 
tiff's action  at  law  is,  as  has  already  been  suggested,  a  clear  and  decisive  equi- 
table vindication  of  the  primary  and  remedial  rights  on  which  such  action  at 
law  is  predicated. 

"When  a  jural  relation  is  such  as  to  be  recognized  and  vindicated  only  in 
equity,  it  is,  according  to  general  usage,  called  'exclusively  equitable' — for  in- 
stance, the  right  of  a  cestui  against  his  trustee;  and  that  usage  seems  jus- 
tified by  reason.  Why,  then,  in  aid  of  clear  thinking,  shouldn't  all  other  jural 
relations  be  considered,  by  a  precisely  similar  process  of  reasoning,  'concur- 
rently legal  and  equitable'?" 

This  writer  calls  attention  to  the  strict  and  loose  senses  of  the  term  "Equity 
Jurisdiction'  thus: 

"When  a  court  of  equity  has  neither  the  ordinary  jurisdiction  over  the  per- 
son of  the  defendant,  nor  the  statutory  jurisdiction  over  the  res,  there  is.  of 
course,  no  'power  to  "hear  and  determine'  in  the  regular  way;  that  is,  there  is 
a  want  of  jurisdiction  in  the  proper  sense  of  that  term. 

"But,  curiously  enough,  the  expression,  'want  of  equity  jurisdiction,'  is  in- 
veterately  employed  in  a  loose  and  confusing  way  to  indicate  merely  that  a 
case  presented  to  a  court  of  equity  is  such  that  according  to  the  principles  and 
rules  governing  equitable  primary,  remedial,  and  adjective  rights,  it  would  be 
error  for  the  court  to  exercise  its  admitted  power  to  grant  the  relief  asked. 
The  case  containing  the  best  discussion  of  this  important  distinction  between 
the  actual  jurisdiction  of  a  court  of  equity  and  error  in  its  exercise,  is  People 
v.  McKane  (1S94)  78  Hun,  154,  28  N.  Y.  Supp.  9S1. 

"Thus,  for  example,  if,  in  a  suit  for  breach  of  contract  to  sell  ordinary  per- 
sonalty, a  court  of  equity  should  render  a  decree  for  damages,  the  decree, 
though  erroneous  as  against  seasonable  objection,  would  be  good  until  set 
aside  by  some  form  of  direct  attack.  Bank  of  Utiea  v.  Mersereau  (1S48)  3 
Barb.  Ch.  (N.  Y.)  527,  574,  49  Am.  Dec.  189." 


APPENDIX   II 

MODERN  EQUITY  IN  ADMINISTRATIVE 
TRIBUNALS 


The  modern  conception  of  equity  is  manifesting  itself  in  forms  scarcely  rec- 
ognized hitherto  as  judicial,  viz.,  in  the  various  administrative  commissions, 
which,  while  in  form  arms  of  the  executive  power,  in  fact,  exercise  a  juris- 
diction in  character  essentially  like  that  of  a  court  of  equity.  These  adminis- 
trative commissions,  like  the  national  Interstate  Commerce  Commission,  and 
the  various  state  railroad  and  public  utility  commissions,  are  in  the  nature  of, 
administrative  courts  in  the  sense  that  they  represent  the  government  as  the 
agency  of  the  state,  but  in  their  conception  of  justice  and  their  freedom  in  its 
application  within  the  range  of  their  jurisdiction,!  they  may  be  said  to  rep- 
resent the  modern  conception  of  the  king's  conscience  listening  to  the  peti- 
tioner unable  to  secure  his  rights  by  reason  of  the  superior  advantage  of  his 
opponents.  It  is  to  these  administrative  commissions  that  we  look  now  to  see 
the  rule  of  grace  exercised  by  the  modern  sovereign,  the  state.  Here  is  the 
old  principle  of  throwing  the  power  and  authority  of  the  sovereign  upon  the 
side  of  the  weak  petitioner  reappearing  in  overcoming  the  advantage  of  the 
enormous  superiority  of  the  great  utilities  as  against  an  individual  shipper, 
consumer,  etc. 

We  must  look  to  see  the  new  equity  arising  in  this  conception  of  the  state 
establishing  new  modes  of  levelling  differences  in  power,  and  bringing  about 
a  balance  of  legal  position. 

Like  that  of  a  court  of  equity,  the  very  process  of  the  administi*ative  com- 
mission is  in  effect  in  personam  since  it  partakes  of  the  nature  of  an  order  to 
do  or  not  to  do  the  thing  commanded,  or  suffer  the  consequences  of  fine  or  im- 
prisonment for  disobedience. 

As  illustrations  of  the  analogy  of  these  administrative  courts  in  the  form 
of  commissions  to  courts  of  equity,  observe  the  mode  of  working  and  the  orders 
carried  out  under  the  California  Commission,  as  shown  in  its  report  for 
1911-12.2 

1  "The  provisions  of  the  Public  Utilities  Act  (1912)  with  reference  to  procedure  have  been 
drawn  with  considerable  care,  so  as  to  insure  swiftness  and  certainty  in  the  proceedings, 
both  before  the  Commission  and  before  the  courts.  The  decisions  of  the  Commission  on 
questions  of  fact  are  conclusive.  No  cause  of  action  can  arise  out  of  any  order  or  decision 
of  the  Commission  except  in  favor  of  a  person  or  corporation  which  shall  first  have  applied 
to  the  Commission  for  a  rehearing,  specifying  the  grounds  thereof.  If,  after  such  rehearing 
has  been  denied,  or  if,  after  the  same  has  been  granted,  such  person  or  corporation  is  still 
dissatisfied  with  the  Commission's  decision,  the  remedy  is  a  review  in  the  state  Supreme 
Court,  on  which  review  no  additional  evidence  can  be  introduced  and  the  sole  question  is 
whether  the  Commission  has  exceeded  its  jurisdiction.  In  this  way  it  is  possible  to  secure 
speedily  a  decision  of  the  highest  court  of  this  state."  Report  of  the  Railroad  Commission 
of  California    (1911-12)  p.  23. 

2  "Train  Connections. — One  of  the  most  important  provisions  of  the  present  Public  Utili- 
ties Act  is  that  which  gives  the  Commission  authority  to  regulate  the  service  of  transporta- 
tion companies.  The  Commission  has  directed  changes  in  time  cards,  in  order  more  con- 
veniently to  serve  the  public.  In  one  case  it  was  found  that  a  railroad  operating  but  one 
passenger  train  a  day  arranged  its  schedule  so  as  to  leave  the  junction  of  an  overland  sys- 
tem fifteen  minutes  before  the  arrival  of  the  train  at  the  connecting  point,  thereby  making 
it  necessary  for  passengers  to  wait  over  practically  twenty-four  hours.  This  road  ran  no 
trains  on  Sunday,  so  that  a  passenger  arriving  at  the  junction  Saturday  was  obliged  to  wait 

(1243) 


1244  APPENDIX    II 

For  the  illustrations  of  the  power  of  compulsory  process  on  the  person 
(corporation)  refusing  to  obey  the  decree  of  the  commission,  see  the  Cali- 
fornia Public  Utilities  Act  of  1912  below  in  note.3 


PACIFIC  TELEPHONE  &  TELEGRAPH  CO.  v.  ESHLEMAN  et  al. 

(Supreme  Court  of  California,  1913.     166  Cal.  C40,  137  Pac.  1119,  50  L.  R.  A.   [N.  S.]  652.) 

Application  by  the  Pacific  Telephone  &  Telegraph  Company  for  a  writ  of 
review  against  John  E.  Eshleman  and  others,  as  members  and  constituting 
the  Railroad  Commission  of  the  State  of  California. 

Henshaw,  J. ^  The  Tehama  County  Telephone  Company  and  the  Glenn 
County  Telephone  Company  lodged  with  the  Railroad  Commission  separate 
petitions  or  complaints,  seeking  orders  of  the  Railroad  Commission  com- 
pelling the  Pacific  Telephone  &  Telegraph  Company  to  permit  a  physical  con- 
nection or  physical  connections  to  be  made  between  its  telephone  lines  and 
the  lines  of  the  complaining  companies.  The  proceedings  were  consolidated, 
and,  after  hearing,  the  Railroad  Commission  made  certain  findings,  upon  which 
was  based  its  order  in  accordance  with  the  prayers  of  the  petitioners.  The 
Tehama  County  Telephone  Company  may  be  described  as  a  telephone  com- 
pany  doing  a  local  business  in  the  county  of  Tehama.  In  like  manner  the 
Glenn  County  Telephone  Company  is  engaged  in  the  same  business  in  the 
county  of  Glenn.  The  Pacific  Telephone  &  Telegraph  Company  does  a  similar 
local  business  in  each  of  those  counties,  and  in  addition  thereto  conducts  a 
long-distance  business,  reaching  into  many,  if  not  all,  of  the  counties  of  the 
state.  The  order  of  the  Railroad  Commission  gives  to  the  Tehama  County 
Telephone  Company  and  the  Glenn  County  Telephone  Company  and  their  sub- 
scribers the  use  of  all  the  extended  long-distance  service  maintained  by  the 
Pacific  Telephone  &  Telegraph  Company  within  the  state  of  California,  ex- 
cepting therefrom  an  interchange  for  use  of  the  Pacific  Company's  lines  be- 
tween the  two  counties  of  Tehama  and  Glenn  ;  the  petitioning  companies  be- 
tween themselves  having  established  such  communication. 

In  conformity  with  the  provisions  of  section  67  of  the  Public  Utilities  Act 
(St.  [Ex.  Sess.]  1911,  p.  55)  the  Pacific  Telephone  &  Telegraph  Company  made 
application  to  this  court  for  a  writ  of  review.     Hon.  Ralph  C.  Harrison,  as 

forty-eight  hours  for  a  connection.  *  *  *  The  Commission  immediately  directed  the  two 
roads  to  arrange  the  time  cards  so  that*  the  connection  would  be  made. 

"Better  Train  Service. — Complaints  have  frequently  bee-i  made  that  trains  were  not  oper- 
ating on  convenient  schedules.  One  case  in  particular  was  the  discontinuance  of  a  train 
serving  the  suburbs  of  San  Francisco,  which  inconvenienced  residents  of  that  district.  The 
Commission  arranged  to  have  the  train  put  back  into  service  on  its  old  schedule. 

"Neio  Depots.— The  Commission  has  found  on  investigation  at  different  times  that  shel- 
ters were  required  at  stations  where  trains  stopped  to  receive  and  discharge  passengers 
and  freight,  and  in  such  cases  as  these  it  arranged  for  the  construction  of  depots  and  side- 
track facilities  for  the  accommodation  of  the  public." 

Report  of  the  Railroad  Commission  of  California  (1911-12)  p.  35. 

3  "Sec.  76.  Any  public  utility  which  violates  or  fails  to  comply  with  any  provision  of 
the  constitution  of  this  state  or  of  this  act,  or  which  fails,  omits  or  neglects  to  obey,  observe 
or  comply  with  any  order,  decision,  decree,  rule,  direction,  demand  or  requirement  or  any 
part  or  provision  thereof,  of  the  commission,  in  a  case  in  which  a  penalty  has  not  herein- 
before, been  provided  for  such  public  utility,  is  subject  to  a  penalty  of  not  less  than  five 
hundred  dollars  nor  more  than  two  thousand  dollars  for  each  and  every  offense. 

"Sec.  77.  Every  officer,  agent  or  employee  of  any  public  utility,  who  violates  or  fails  to 
comply  with,  or  who  procures,  aids  or  abets  any  violation  by  any  public  utility  of  any  pro- 
vision of  the  constitution  of  this  state  or  of  this  act,  or  who  fails  to  obey,  observe  or  com- 
ply with  any  order,  decision,  rule,  direction,  demand  or  requirement  or  any  part  or  provi- 
sion thereof,  of  the  commission,  or  who  procures,  aids  or  abets  any  public  utility  in  its 
failure  to  obey,  observe  and  comply  with  any  such  order,  decision,  rule,  direction,  demand 
or  requirement,  or  any  part  or  provision  thereof  in  a  case  in  which  a  penalty  has  not  here- 
inbefore been  provided  for  such  officer,  agent  or  employee,  is  guilty  of  a  misdemeanor  and 
is  punishable  by  a  fine  not  exceeding  one  thousand  dollars,  or  by  imprisonment  in  a  county 
jail  not  exceeding  one  year,  or  by  both  such  fine  and  imprisonment.'' 

Report  of  the  Railroad  Commission  of  California  (1911-12)  pp.  549,  550. 

4  Parts  of  the  opinion  and  all  of  the  concurring  opinion  of  Sloss,  J.,  are  omitted. 


MODERN    EQUITY    IN    ADMINISTRATIVE    TRIBUNALS  1245 

amicus  curiae,  filed  a  brief  presenting  to  the  attention  of  this  court  consti- 
tutional questions  touching,  not  only  its  own  jurisdiction  in  the  matter,  but 
as  well  the  jurisdiction  of  the  superior  court.     *     *     * 

It  is  insisted  that,  the  attempt  to  confer  exclusive  jurisdiction  upon  the  Su- 
preme Court  to  review  the  proceedings  of  the  Railroad  Commission,  to  the 
impairment  of  the  general  jurisdiction  of  the  superior  court  is  itself  violative 
of  the  Constitution,  in  that  it  is  a  plain  legislative  attempt  to  curtail  the  juris- 
diction vested  in  the  superior  court  by  the  Constitution.  The  language  of  the 
legislative  act  in  this  regard  is  that,  "No  court  of  this  state  (except  the  Su- 
preme Court  to  the  extent  herein  specified)  shall  have  jurisdiction  to  review, 
reverse,  correct  or  annul  any  order  or  decision  of  the  Commission  or  to  sus- 
pend or  delay  the  execution  or  operation  thereof,  or  to  enjoin,  restrain  or  in- 
terfere with  the  Commission  in  the  performance  of  its  official  duties."  Public 
Utilities  Act,  §  67 ;  Stats.  Ex  Sess.  1911,  p.  55.  Therefore,  concludes  the  argu- 
ment of  the  learned  friend  of  the  court,  it  is  conceded  that  this  court  has  the 
constitutional  power  to  issue  a  writ  of  review.  In  the  case  at  bar,  admitting 
that  the  Railroad  Commission  in  the  matter  in  question  was  exercising  judi- 
cial functions,  this  court's  consideration  is  limited  to  the  single  proposition 
whether  or  not  the  Commission  has  exceeded  its  jurisdiction,  or,  what  is  the 
same  thing  in  other  words,  "has  regularly  pursued  its  authority" ;  that  this 
court  will  not,  under  the  writ,  undertake  to  determine  whether  constitutional 
rights  have  been  violated  or  other  errors  have  been  committed,  but  must  leave 
those  questions  to  the  superior  court  which,  under  the  Constitution,  has  au- 
thority to  determine  them  under  proper  application  to  enjoin  the  enforcement 
of  the  order  complained  of,  and  that  it  is  the  manifest  duty  of  this  court  so  to 
hold  and  to  declare. 

A  minor  branch  or  corollary  of  the  main  argument  upon  these  jurisdictional 
questions  rests  upon  the  proposition  that  in  the  matter  here  under  review  the 
Railroad  Commission  was  not  exercising  judicial  functions,  but  that  its  acts 
were  purely  legislative  or  legislative  administrative.  As  the  Public  Utilities 
Act  is  here  for  the  first  time  before  this  court,  as  the  question  is  thus  fairly 
within  this  case,  and  as  to  ignore  it  is  but  to  necessitate  its  consideration  in 
subsequent  litigation,  it  is  proper  to  say  that  we  hold  the  powers  and  functions 
of  the  Railroad  Commission  in  many  instances,  and  in  the  present  one,  to 
be  of  a  highly  judicial  nature.  That  judicial  powers  were  with  deliberation 
vested  in  the  Commission  the  language  of  the  Constitution  and  of  the  legis- 
lative enactments  following  the  Constitution  leave  no  doubt.  Thus  the  Consti- 
tution itself  declares:  "The  Commission  shall  have  the  further  power  *  *  * 
to  hear  and  determine  complaints  against  railroad  and  other  transportation 
companies ;  to  issue  subpoenas  and  all  necessary  process  and  send  for  persons 
and  papers;  and  the  Commission  and  each  of  the  commissioners  shall  have 
the  power  to  administer  oaths,  take  testimony  and  punish  for  contempt  in  the 
same  manner  and  to  the  same  extent  as  courts  of  record."  Section  22,  art. 
12.  While,  without  quoting,  a  reading  of  sections  22  and  23  of  article  12  of 
the  Constitution  and  of  sections  53  to  81  of  the  Public  Utilities  Act  will  es- 
tablish beyond  doubt  that  the  Railroad  Commission  is  empowered  to  sit,  and 
in  the  performance  of  its  most  important  duties  must  sit,  as  a  tribunal  exer- 
cising judicial  functions  of  great  moment.  It  may  be  said  that  the  final  order 
of  the  Commission  in  many  instances  is  legislative  administrative  in  char- 
acter, but  none  the  less  the  ordained  procedure  by  which  this  result  is  to  be 
reached,  the  determination  of  controverted  facts  between  private  litigants 
and  disputants,  and  the  decision  upon  these  controverted  matters,  are  strictly 
judicial.  Robinson  v.  Sacramento,  16  Cal.  208;  Imperial  Water  Co.  v.  Board 
of  Supervisors,  162  Cal.  14,  120  Pac.  780.     *     *     * 

Pursuant  to  this  grant  of  power  by  the  Constitution  s  to  the  Legislature,  the 
Public  Utilities  Act  was  passed  and  adopted.  The  act  is  altogether  too  long 
to  be  set  forth  in  extenso,  but,  summarized,  it  provides  for  the  organization 
of  the  Commission,  confers  upon  it  large  powers  of  control  over  all  public 
utilities,  prescribes  heavy  penalties  in  the  way  of  fines  upon  public  utilities 
violating  the  orders  of  the  Commission,  and  declares  guilty  of  a  misdemeanor 
the  person  who  so  violates  or  aids  in  violating  an  order,   with  punishment 

0  Constitution  of  the  State  of  California,  art.  12,  §  22,  as  amended  October  10,  1911   (St 
1911,  p.  2048). 


1246  APPENDIX    II 

fixed  by  a  fine  not  exceeding  $1,000,  by  imprisonment  not  exceeding  one  year, 
or  by  both.    Power  to  punish  for  contempt  is  likewise  conferred.    *     *     * 

Two  constructions  of  the  constitutional  provisions  above  quoted  have  been 
presented  to  the  consideration  of  the  court.  First,  that  the  Constitution  itself 
has  designedly  confered  upon  the  Legislature  the  fullest  possible  powers  to 
legislate  concerning  public  utilities  through  the  board  of  railroad  commis- 
sioners; that  it  was  designed  that  upon  the  board  of  railroad  commissioners 
should  be  conferred  whatsoever  powers  the  Legislature  saw  fit,  and  that  noth- 
ing in  any  other  provisions  of  the  Constitution  should  hamper  the  Legislature 
in  so  doing.     *     *     * 

That  this  was  the  view  of  the  law  to  which  the  respondent  inclined  at  the 
oral  argument  is  manifest  from  the  inquiries  put  by  the  Justices  of  this  court 
and  by  the  answers  thereto.     Thus,  the  Chief  Justice  said: 

"I  don't  think  there  is  any  more  important  question  in  this  case  than  the 
question  whether  there  is  anything  in  any  provision  of  the  Constitution  of  this 
state  which  limits  the  power  of  the  Legislature  to  confer  powers  upon  the 
Railroad  Commission,  and,  if  there  is  any  limitation,  I  would  like  Mr.  Thelen 
himself,  as  a  member  and  representative  of  the  board  of  commissioners,  to 
state  where  he  thinks  that  limitation  is — if  there  is  any  provision  of  the 
state  Constitution  of  California  to  which  the  powers  conferred  by  this  act  are 
in  opposition." 

"Mr.  Thelen:  No.  It  seems  to  me — my  own  personal  view  is  they  are  ab- 
solutely clear." 

Again: 

"Mr.  Thelen:  I  think  the  Constitution  has  given  to  the  Legislature  every 
possible  authority  on  this  question. 

"Mr.  Justice  Henshaw:  It  would  seem  the  sole  recourse  is  the  federal  Con- 
stitution. 

"Mr.  Thelen:  That  is  my  point.  *  *  *  My  view  is  that  the  Legislature 
has  the  right,  irrespective  of  other  provisions  of  the  Constitution  of  this  state, 
to  confer  power  upon  the  Commission,  *  *  *  subject  to  the  federal  Con- 
stitution." 

The  second  construction  of  these  constitutional  provisions  is  one  which 
would  limit  the  power  which  the  Constitution  authorizes  the  Legislature  to 
confer  upon  the  Railroad  Commission  strictly  to  the  matter  of  '"supervising 
and  regulating"  public  utilities.     *     *     * 

In  view  of  these  considerations  we  regard  the  conclusion  as  irresistible  that 
the  Constitution  of  this  state  has  in  unmistakable  language  created  a  Commis- 
sion having  control  of  the  public  utilities  of  the  state,  and  has  authorized  the 
Legislature  to  confer  upon  that  Commission  such  powers  as  it  may  see  fit, 
even  to  the  destruction  of  the  safeguards,  privileges,  and  immunities  guar- 
anteed by  the  Constitution  to  all  other  kinds  of  property  and  its  owners. 
And  while,  under  our  republican  form  of  government  (a  form  of  government 
under  which  the  three  departments — administrative,  executive,  and  judicial — 
have  in  the  past  one  and  all  been  controlled  by  the  limitations  of  a  written 
Constitution,  In  re  Duncan,  139  U.  S.  449,  11  Sup.  Ct.  573,  35  L.  Ed.  219),  it 
is  perhaps  the  first  instance  where  a  Constitution  itself  has  declared  that  a 
legislative  enactment  shall  be  supreme  over  all  constitutional  provisions, 
nevertheless  this  is  but  a  reversion  to  the  English  form  of  government  which 
makes  an  act  of  Parliament  the  supreme  law  of  the  land.     *     *     * 

We  may  now  sum  up  our  conclusions  as  follows: 

1.  The  Constitution  has.  in  the  Railroad  Commission,  created  both  a  court 
and  an  administrative  tribunal. 

'-'.  The  Constitution  has  authorized  the  Legislature  to  confer  additional  and 
different  powers  upon  this  Commission  touching  public  utilities  unrestrained 
by  other  constitutional  provisions. 

'■',.  The  legality  of  such  powers  as  the  Legislature  has  or  may  thus  confer 
upon  the  Commission,  if  cognate  and  germane  to  the  subject  of  public  utilities, 
may  not  be  questioned  under  the  state  Constitution. 

4.  That  therefore  the  deprivation  of  jurisdiction  of  the  courts  of  the  state 
may  not  be  questioued. 

5.  That  therefore  the  reasonableness  of  the  Railroad  Commission's  orders 
and  decrees  may  not  be  Inquired  into  by  any  court  of  this  state,  and  conse- 
quently is  of  federal  cognizance  only. 


MODERN    EQUITY   IN    ADMINISTRATIVE    TRIBUNALS  1247 

6.  That  the  right  to  exercise  the  power  of  eminent  domain  in  matters  in- 
volving public  utilities  has  been  vested  by  the  Legislature  in  the  Railroad 
Commission,  and  that  the  exercise  of  this  power  and  the  making  of  awards 
thereunder  without  the  intervention  and  verdict  of  a  jury  are  not  in  viola- 
tion of  the  Constitution  of  this  state  or  of  the  United  States. 

7.  That  payment  of  such  awards  must  be  made  in  advance  of  the  actual  tak- 
ing. 

8.  That  the  order  in  question  involves  an  exercise  of  the  power  of  eminent 
domain  and  not  of  the  police  power. 

9.  That  the  order  in  question  admittedly  gives  no  compensation  for  the 
taking  of  petitioner's  property,  and  is  therefore  void  by  force  and  virtue  of  the 
Constitution  of  the  state  and  of  the  United  States. 

10.  That  the  order  in  question  must  therefore  be,  and  it  hereby  is,  annulled. 
We  concur:     Lorigan,  J.;    Melvin,  J. 


INTERSTATE  COMMERCE  COMMISSION  v.  UNITED  STATES  ex  rel. 
HUMBOLDT  S.  S.  CO. 

(Supreme  Court  of  the  United  States,  1912.    224  U.  S.  474,  32  Sup.  Ct.  556,  56  L.  Ed.  849.) 

Mr.  Justice  McKenna  e  delivered  the  opinion  of  the  court: 

The  ultimate  question  in  the  case  is  whether  Alaska  is  a  territory  of  the 
United  States  within  the  meaning  of  the  interstate  commerce  act  as  amended. 

The  Interstate  Commerce  Commission  resolved  the  question  in  the  negative 
and  dismissed  the  petition  of  the  Humboldt  Steamship  Company,  the  relator, 
which  alleged  violations  of  the  act  by  the  White  Pass  &  Yukon  Railway  Com- 
pany, operating  in  Alaska,  applying  its  decision  in  Re  Jurisdiction  Over  Rail 
&  Water  Carriers  Operating  in  Alaska,  19  Interst.  Com.  R.  81. 

The  steamship  company  instituted  an  action  in  the  supreme  court  of  the 
District  of  Columbia,  praying  for  a  mandamus  against  the  Commission  to  re- 
quire it  to  take  jurisdiction  and  proceed  as  required  by  the  act  and  grant 
the  relief  for  which  the  steamship  company  had  petitioned,  hereinafter  spe- 
cifically mentioned.  The  proceeding  was  dismissed.  The  court  expressed  the 
view  that  the  Commission  had  "ample  authority  to  assume  jurisdiction  over 
common  carriers  in  Alaska,  the  same  as  in  any  other  territory,  and  over 
those  carriers  operating  between  the  state  of  Washington  and  Alaska,  and 
between  Alaska  and  Canada,  and  if  they  took  jurisdiction  no  one  could  suc- 
cessfully question  their  right  to  do  so."  The  court,  however,  held  that  it  had 
no  power  "to  require  the  Interstate  Commerce  Commission  to  act  contrary 
to  its  own  judgment  in  a  matter  wherein,  after  investigation,  it  had  reached 
a  conclusion,  honestly  and  fairly,  which  might  be  contrary  to  the  conclusion 
which  the  court  would  reach." 

The  court  of  appeals,  to  which  court  the  case  was  taken  by  the  steamship 
company,  entertained  the  same  view  of  the  interstate  commerce  act  as  that 
expressed  by  the  supreme  court,  but  took  a  different  view  of  the  power  of  the 
courts  to  compel  action  upon  the  part  of  the  Commission,  and  reversed  the 
judgment  of  the  supreme  court  and  remanded  the  cause,  "with  directions  to 
issue  a  peremptory  writ  of  mandamus  directed  to  the  Interstate  Commerce 
Commission,  requiring  it  to  take  jurisdiction  of  said  cause  and  proceed  therein 
as  by  law  required."  To  this  ruling  the  Interstate  Commerce  Commission 
prosecutes  this  writ  of  error.     *     *     * 

It  is  next  contended  by  the  Commission  that  "mandamus  is  not  a  proper 
proceeding  to  correct  an  error  of  law  like  that  alleged  in  the  petition." 

The  general  principle  which  controls  the  issue  of  a  writ  of  mandamus  is 
familiar.  It  can  be  issued  to  direct  the  performance  of  a  ministerial  act,  but 
not  to  control  discretion.  It  may  be  directed  against  a  tribunal  or  one  who 
acts  in  a  judicial  capacity,  to  require  it  or  him  to  proceed,  the  manner  of  doing 
so  being  left  to  his  or  its  discretion.  It  is  true  there  may  be  a  jurisdiction 
to  determine  the  possession  of  jurisdiction.  Ex  parte  Harding,  219  U.  S.  363, 
55  L.  Ed.  252,  31  Sup.  Ct.  324,  37  L.  R.  A.  (N.  S.)  392.  But  the  full  doctrine 
of  that  case  cannot  be  extended  to  administrative  officers.     The   Interstate 

6  Part  of  the  opinion  is  omitted. 


1248  appendix  ii 

Commerce  Commission  is  purely  an  administrative  body.  It  is  true  it  may 
exercise  and  must  exercise  quasi  judicial  duties,  but  its  functions  are  defined, 
and,  in  the  main,  explicitly  directed,  by  the  act  creating  it.  It  may  act  of  its 
own  motion  in  certain  instances, — it  may  be  petitioned  to  move  by  those  hav- 
ing rights  under  the  act.  It  may  exercise  judgment  and  discretion,  and,  it 
may  be,  cannot  be  controlled  in  either.  But  if  it  absolutely  refuse  to  act,  deny 
its  power,  from  a  misunderstanding  of  the  law,  it  cannot  be  said  to  exercise 
discretion.  Give  it  that  latitude  and  yet  give  it  the  power  to  nullify  its  most 
essential  duties,  and  how  would  its  nonaction  be  reviewed?  The  answer  of 
the  Commission  is,  by  "a  reversal  of  the  tribunal  of  appeal."  And  such  a 
tribunal,  it  is  intimated,  is  the  United  States  commerce  court. 

But  the  proposition  is  plainly  without  merit,  even  although  it  be  conceded, 
for  the  sake  of  argument,  that  the  commerce  court  is  by  law  vested  with  the 
exclusive  power  to  review  any  and  every  act  of  the  Commission  taken  in 
the  exertion  of  the  authority  conferred  upon  it  by  statute ;  that  is,  to  ex- 
clusively review,  not  only  affirmative  orders  of  the  Commission  granting 
relief,  but  also  the  action  of  that  body  in  refusing  to  award  relief  on  the 
ground  that  an  application  was  not  entitled  to  relief.  This  is  so  because  the 
action  of  the  Commission  refusing  to  entertain  a  petition  on  the  ground  that 
its  subject-matter  was  not  within  the  scope  of  the  powers  conferred  upon  it 
would  not  be  embraced  within  the  hypothetical  concessions  thus  made.  A 
like  view  disposes  of  the  cases  relied  upon  in  which  it  was  decided  that  certain 
departmental  orders  were  not  susceptible  of  being  reviewed  by  mandamus. 
We  do  not  propose  to  review  the  cases,  as  we  consider  them  to  be  plainly 
inapposite  to  the  subject  in  hand. 

In  the  case  at  bar  the  Commission  refused  to  proceed  at  all,  though  the  law 
required  it  to  do  so ;  and  to  so  do  as  required — that  is,  to  take  jurisdiction, 
not  in  what  manner  to  exercise  it — is  the  effect  of  the  decree  of  the  court 
of  appeals,  the  order  of  the  court  being  that  a  peremptory  writ  of  mandamus 
be  issued  directing  the  Commission  "to  take  jurisdiction  of  said  cause  and  pro- 
ceed therein  as  by  law  required."  In  other  words,  to  proceed  to  the  merits  of 
the  controversy,  at  which  point  the  Commission  stopped  because  it  was  "con- 
strained to  hold,"  as  it  said,  "upon  authority  of  the  decision  recently  an- 
nounced in  Re  Jurisdiction  over  Rail  &  Water  Carriers  operating  in  Alaska. 
19  Interst.  Com.  R.  SI,  that  the  Commission  is  without  jurisdiction  to  make 
the  order  sought  by  complainant,"  the  steamship  company. 

Judgment  affirmed. 


INTERSTATE  COMMERCE  COMMISSION  v.  ILLINOIS  CENT.  R.  CO. 
(Supreme  Court  of  the  United  States,  1910.    215  U.  S.  452,  30  Sup.  Ct.  155,  54  L..  Ed.  280.) 

Mr.  Justice  White  i  delivered  the  opinion  of  the  court: 

Whether  a  duty  rested  upon  the  Illinois  Central  Railroad  Company  to  obey 
an  order  made  by  the  Interstate  Commerce  Commission  is  the  question  here 
to  be  decided.    *     *     * 

From  the  final  decree  enjoining  the  Commission  from  enforcing  its  order,  in 
so  far  as  it  directed  the  taking  into  account  the  company  fuel  cars  in  the  dis- 
tribution of  coal  cars  in  times  of  car  shortage,  and  in  so  far  as  it  directed 
the  future  taking  such  cars  into  account,  the  Interstate  Commerce  Commission 
appeals. 

It  is  stated  in  the  brief  of  counsel  for  the  railroad  company  that,  at  the 
hearing  below,  despite  the  scope  of  the  prayer  of  the  bill,  no  question  was 
raised  by  the  railroad  company  as  to  the  validity  of  the  order  of  the  commis- 
sion to  the  extent  thai  it  controlled  private  cars  and  foreign  railway  fuel 
ears.  Irrespective,  however,  of  this  admission,  as  the  Interstate  Commerce 
Commission  alone  has  appealed,  the  correctness  of  the  conclusions  of  the  court 
below  on  these  subjects  is  not  open  to  inquiry.  And  this  also  renders  it  un- 
necessary to  consider  in  any  respect  the  effect  of  the  injunction  to  which 
we  have  previously  referred  as  issued  in  the  suit  filed  on  behalf  of  the  Majestic 
Coal  Company,  since  such  injunction  only  related  to  foreign  railway  fuel  cars 

'■  Parts  of  the  opinion  are  omitted. 


MODERN    EQUITY    IN   ADMINISTRATIVE    TRIBUNALS  1249 

and  private  cars.  Besides,  it  is  stated  in  the  brief  of  counsel  that,  before 
the  decision  of  this  case,  the  preliminary  injunction  in  favor  of  the  Majestic 
Coal  Company  was  dissolved,  and  no  appeal  was  taken  therefrom. 

In  consequence  of  one  of  the  comprehensive  amendments  to  the  act  to  reg- 
ulate commerce,  adopted  in  1006  (§  4.  act  June  29,  1906,  34  Stat,  at  L.  589. 
chap.  3591,  U.  S.  Comp.  Stat.  Supp.  1909.  p.  1158),  it  is  now  provided  that  "all 
orders  of  the  Commission,  except  orders  for  the  payment  of  money,  shall  take 
effect  within  such  reasonable  time,  not  less  than  thirty  days,  and  shall  con- 
tinue in  force  for  such  period  of  time,  not  exceeding  two  years,  as  shall  be 
prescribed  in  the  order  of  the  Commission,  unless  the  same  shall  be  suspended 
or  modified  or  set  aside  by  the  Commission,  or  be  suspended  or  set  aside  by  a 
court  of  competent  jurisdiction."  The  statute  endowing  the  Commission  with 
large  administrative  functions,  and  generally  giving  effect  to  its  orders  con- 
cerning complaints  before  it  without  exacting  that  they  be  previously  sub- 
mitted to  judicial  authority  for  sanction,  it  becomes  necessary  to  determine 
the  extent  of  the  powers  which  courts  may  exert  on  the  subject. 

Beyond  controversy,  in  determining  whether  an  order  of  the  Commission 
shall  be  suspended  or  set  aside,  we  must  consider  (a)  all  relevant  questions 
of  constitutional  power  or  right ;  (b)  all  pertinent  questions  as  to  whether  the 
administrative  order  is  within  the  scope  of  the  delegated  authority  under  which 
it  purports  to  have  been  made ;  and  (c)  a  proposition  which  we  state  inde- 
pendently, although  in  its  essence  it  may  be  contained  in  the  previous  one,  viz., 
whether,  even  although  the  order  be  in  form  within  the  delegated  power,  nev- 
ertheless it  must  be  treated  as  not  embraced  therein,  because  the  exertion  of 
authority  which  is  questioned  has  been  manifested  in  such  an  unreasonable 
manner  as  to  cause  it,  in  truth,  to  be  within  the  elementary  rule  that  the 
substance,  and  not  the  shadow,  determines  the  validitv  of  the  exercise  of  the 
power.  Postal  Teleg.  Cable  Co.  v.  Adams,  155  U.  S.  688,  69S,  39  L.  Ed.  311, 
316,  5  Interst.  Com.  R.  1,  15  Sup.  Ct.  268,  360.  Plain  as  it  is  that  the  powers 
just  stated  are  of  the  essence  of  judicial  authority,  and  which,  therefore, 
may  not  be  curtailed,  and  whose  discharge  may  not  be  by  us  in  a  proper  case 
avoided,  it  is  equally  plain  that  such  perennial  powers  lend  no  support 
whatever  to  the  proposition  that  we  may,  under  the  guise  of  exerting  judicial 
power,  usurp  merely  administrative  functions  by  setting  aside  a  lawful  ad- 
ministrative order  upon  our  conception  as  to  whether  the  administrative  power 
has  been  wisely  exercised. 

Power  to  make  the  order,  and  not  the  mere  expediency  or  wisdom  of  having 
made  it,  is  the  question.     *     *     * 

We  think  the  issues  for  decision  will  be  best  disposed  of  by  at  once  con- 
sidering the  contentions  advanced  by  the  railroad  company  to  establish  that 
there  was  a  want  of  power  in  the  Commission  to  make  that  portion  of  the 
order  which  the  court  below  enjoined.  The  contentions  on  this  subject  are 
stated  in  argument  in  many  different  forms,  and,  if  not  in  some  respects  con- 
tradictory, are,  at  all  events,  confusing,  since,  considered  logically,  we  think 
they  virtually  intermingle  power  and  expediency  as  if  they  were  one  and  the 
same  thing.  We  shall  not,  therefore,  in  making  an  analysis  of  the  contentions, 
follow  their  mere  form  of  statement,  but  shall  treat  them  all  as  reducible  to 
two  propositions,  viz.:  First.  That  the  act  to  regulate  commerce  has  not  del- 
egated to  the  Commission  authority  to  consider,  where  a  complaint  is  made 
on  such  subject,  the  question  of  the  distribution  of  company  fuel  cars  in  times 
of  car  shortage  as  a  means  of  prohibiting  unjust  preference  or  undue  dis- 
crimination. Second.  That,  even  if  such  power  has  been  delegated  to  the  Com- 
mission by  the  act  to  regulate  commerce,  the  order  whose  continued  enforce- 
ment was  enjoined  by  the  court  below  was  beyond  the  authority  conferred 
by  the  statute.     *     *     * 

The  right  to  buy  is  one  thing,  and  the  power  to  use  the  equipment  of  the 
mad  fur  the  purpose  of  moving  the  articles  purchased  in  such  a  way  as  to  dis- 
criminate or  give  preference  are  wholly  distinct  and  different  things.  The  in- 
sistence that  the  necessary  effect  of  an  order  compelling  the  counting  of  com- 
pany fuel  cars  in  fixing,  in  case  of  shortage,  the  share  of  cars  a  mine  from 
which  coal  has  been  purchased  will  be  entitled  to,  will  be  to  bring  about  a  dis- 
crimination against  the  mine  from  which  the  company  buys  its  coal,  and 
a  preference  in  favor  of  other  mines,  but  inveighs  against  the  expediency  of 
Boke  Eq. — 79 


1250  APPENDIX    II 

the  order.  And  this  is  true  also  of  a  statement  in  another  form  of  the  same 
proposition;  that  is,  that  if.  when  coal  is  bought  from  a  mine  by  a  railroad, 
the  road  is  compelled  to  count  the  cars  in  which  the  coal  is  moved  in  case 
of  car  shortage,  a  preference  will  result  in  favor  of  the  mine  selling  coal| 
and  making  delivery  thereof  at  the  tipple  of  the  mine  to  a  person  who  is  able 
to  consume  it  without  the  necessity  of  transporting  it  by  rail.  At  best,  these 
arguments  but  suggest  the  complexity  of  the  subject,  and  the  difficuly  in- 
volved in  making  any  order  which  may  not  be  amenable  to  the  criticism  that  it 
leads  to  or  may  beget  some  inequality.  Indeed,  the  arguments  just  stated, 
and  others  of  a  like  character  which  we  do  not  deem  it  essential  to  specially 
refer  to,  but  assail  the  wisdom  of  Congress  in  conferring  upon  the  Commission 
the  power  which  has  been  lodged  in  that  body  to  consider  complaints  as  to 
violations  of  the  statute,  and  to  correct  them  if  found  to  exist,  or  attack  as 
crude  or  inexpedient  the  action  of  the  Commission  in  performance  of  the  ad- 
ministrative functions  vested  in  it,  and  upon  such  assumption  invoke  the  ex- 
ercise of  unwarranted  judicial  power  to  correct  the  assumed  evils.  It  follows 
from  what  we  have  said  that  the  court  below  erred  in  enjoining  the  order  of 
the  Commission,  in  so  far  as  it  related  to  company  fuel  cars,  and  its  decree 
is  therefore  reversed,  and  the  case  remanded  for  further  proceedings  in  con 
fortuity  with  this  opinion. 

Mb.  Justice  Brewer  dissents. 


ATCHISON,  T.  &  S.  F.  RY.  CO.  v.  FOSTER  LUMBER  CO. 

(Supreme  Court  of  Oklahoma,  1911.     31  Okl.  661,  122  Pac.  139.) 

Error  from  District  Court,  I^oMe  County;    W.  M.  Bowles,  Judge. 

Action  by  the  Foster  Lumber  Company  against  the  Atchison,  Topeka  & 
Santa  Fe  Railway  Company.  Judgment  for  plaintiff,  and  defendant  brings 
error. 

Dunn,  J.s  This  action  presents  error  from  the  district  court  of  Noble 
county.  For  the  consideration  thereof  the  court  will  assume  the  facts  have 
been  established  in  accordance  with  the  contention  of  defendant  in  error,  which 
was  plaintiff  in  the  lower  court.  Action  was  begun  on  the  1st  day  of  June, 
1908,  by  defendant  in  error  as  plaintiff  against  the  plaintiff  in  error  to  re- 
cover in  replevin  a  car  of  shingles  in  its  possession  at  its  station  at  Red  Rock. 
The  shingles  involved  had  been  shipped  from  Everett,  Wash.,  on  May  9,  190S, 
to  Red  Rock,  Okl.,  over  the  lines  of  the  Northern  Pacific  Railway  Company  to 
Billings,  Mont.,  from  that  station  to  Concordia,  Kan.,  over  the  Chicago,  Bur- 
lington &  Quincy  Railway  line,  and  from  Concordia  to  Red  Rock,  over  defend- 
ant's line.  When  the  car  arrived  at  its  destination,  the  plaintiff  offered  to 
pay  the  freight  on  the  same  at  the  rate  of  74%  cents  per  100  pounds.  The 
agent  of  the  defendant  company  declined  to  accept  the  same  and  demanded 
79%  cents  per  100  pounds  under  the  theory  that  the  latter  was  the  legal  rate 
duly  established  according  to  law.  Without  going  into  detail,  it  may  be  stated 
that  the  controversy  between  them  over  the  rate  grew  out  of  substantially  the 
following  facts:  Prior  to  November  1,  1907,  certain  railway  companies,  among 
which  were  those  named  above  with  the  exception  of  the  defendant,  had  for 
such  shipments  an  established  rate  of  74%  cents,  but,  desiring  to  put  into 
force  the  higher  rate  and  the  one  claimed  by  the  agent  of  the  defendant,  duly 
.published  the  same  to  take  effect  November  1,  1907.  Prior  to  that  date  and  in 
October,  1907.  the  lumber  companies  claiming  that  the  proposed  rate  was  un- 
reasonable and  excessive  secured  of  the  United  States  Circuit  Court  for  the 
Western  District  of  Washington,  Northern  Division,  an  injunction  against  the 
said  rate,  and  it  is  the  (hum  of  plaintiff  in  this  case  that  by  virtue  of  said 
injunction  the  lower  rate  controlled  and  that  the  defendant  was  not  justified 
in  demanding  the  higher  rate.  The  defendanl  claims  that  it  was  bound  by  the 
published  rate  of  7!)%  cents,  and  that  t<-  collect  a  lower  rate  would  be  in  vio- 
lation of  the  Interstate  Commerce  Law,  for  which,  if  knowingly  done,  it  would 
be  criminally  liable.  It  is  the  claim  of  counsel  for  defendant  that  the  court 
which  granted  the  injunction  was  without  jurisdiction  of  the  subject-matter  in 

8  Parts  of  the  opinion  are  omitted. 


MODERN    EQUITY    IN    ADMINISTRATIVE    TRIBUNALS  1251 

that  action,  and  that  the  decree  rendered  therein  was  void.  As  plaintiff  must 
rely  to  succeed  upon  the  validity  of  thi.s  dec  ice  or  at  least  upon  the  jurisdic- 
tion of  the  court  to  render  it,  and  as  a  decision  on  that  question  adversely  to 
it  would  be  conclusive  of  the  case,  we  first  address  ourselves  thereto. 

•The  proposition  is  one  which  has  had  the  attention  of  a  number  of  the  fed- 
eral and  state  courts,  and  there  is  no  little  conflict  of  opinion  ;  hence  counsel 
for  the  respective  parties  are  each  able  to  cite  a  respectable  array  of  authori- 
ties to  sustain  their  various  contentions.  It  is  needless  to  say,  however,  that 
the  final  arbiter  of  this  question  is  the  Supreme  Court  of  the  United  States. 
and  its  conclusion  thereof  is  one  to  which  all  other  authority  must  bow. 
*  *  *  [In]  the  case  of  Southern  Railway  Co.  v.  Tift,  206  U.  S.  428,  27  Sup. 
Ct  700,  51  L.  Ed.  1124,  11  Ann.  Cas.  846  (in  which  distinguishing  the  case  of 
Texas  &  Pacific  R.  Co.  v.  Abilene  Cotton  Oil  Co.,  204  U.  S.  420,  27  Sup.  Ct. 
350,  51  L.  Ed.  553,  9  Ann.  Cas.  1075),  Justice  McKenna,  considering  the  facts 
there  involved,  said:  "In  the  case  at  bar,  however,  there  are  assignments  of 
error  based  on  the  objections  to  the  jurisdiction  of  the  Circuit  Court.  These 
might  present  serious  questions  in  view  of  our  decisions  in  Texas  &  Pacific  R. 
Co.  v.  Abilene  Cotton  Oil  Co.,  204  U.  S.  426,  27  Sup.  Ct.  350,  51  L.  Ed.  553  [9 
Ann.  Cas.  1075J,  upon  a  different  record  than  that  before  us.  We  are  not  re- 
quired to  say,  however,  that,  because  an  action  at  law  for  damages  to  recover 
unreasonable  rates  which  have  been  exacted  in  accordance  with  the  schedule 
of  rates  as  filed  is  forbidden  by  the  Interstate  Commerce  Act,  a  suit  in  equity 
is  also  forbidden  to  prevent  a  filing  or  enforcement  of  unreasonable  rates  or 
a  change  to  unjust  or  unreasonable  rates."    *     *     * 

The  Tift  Case,  decided  in  May,  1907,  seems  to  have  afforded  the  only  ap- 
parent authority  for  the  decisions  of  the  inferior  courts  ol:  the  state  and  na- 
tion which  have  asserted  jurisdiction  to  enjoin  excessive  rates  proposed  by 
interstate  carriers.  While  the  doctrine  that  jurisdiction  existed  has  been 
accepted  by  some  of  the  courts,  it  has  not  been  without  adverse  declaration  on 
the  part  of  others,  which,  while  their  conclusions  are  no  more  final  than  those 
holding  otherwise,  yet  as  they  are  in  the  majority  an  accord  with  the  ulti- 
mate expression  of  the  Supreme  Court  of  the  United  States,  we  do  not  deem 
it  amiss  to  notice  a  few  of  them  to  have  the  benefit  of  some  of  the  reasons 
giveu.  For  instance,  the  Circuit  Court  of  Appeals  of  the  Fifth  Circuit,  in  the 
case  of  Atlantic  Coast  Line  R.  Co.  v.  Macon  Grocery  Co.  et  al.,  166  Fed.  206. 
218,  92  C.  C.  A.  114,  126,  Judge  McCormick  after  quoting  from  the  Tift  Case. 
says:  "We  are  clear  in  our  conviction  that  there  is  nothing  in  the  Tift  Case 
to  support  the  jurisdiction  of  the  Circuit  Court  in  entertaining  the  bill  ex- 
hibited by  the  appellees  in  this  case,  aud  because  we  find  nothing  in  the 
numerous  decisions  of  the  Supreme  Court  which  we  have  examined  to  weaken 
the  conviction  we  have  expressed  that  the  reasoning  which  is  convincing  and 
controlling  against  the  entertaining  of  an  action  at  law  for  damages  occa- 
sioned by  the  enforcement  of  unreasonable  rates  which  have  been  exacted  in 
accordance  with  the  schedule  of  rates  as  filed  is  forbidden  by  the  Interstate 
Commerce  Act,  for  a  stronger  reason,  a  suit  in  equity  is  also  forbidden  to  pre- 
vent a  filing  or  enforcement  of  a  schedule  of  rates,  or  a  change  to  unjust  or 
unreasonable  rates,  it  is  also  forbidden  by  the  Interstate  Commerce  Act,  be- 
cause it  would  work  au  incalculably  greater  mischief."     *     *     * 

The  conclusion  reached  in  the  cases  above  noted  finds  further  support  in  the 
case  of  United  States  v.  New  York  Central  &  Hudson  River  R.  Co..  212  U.  S. 
509,  29  Sup.  Ct.  313,  53  L.  Ed.  629.  See,  also,  Thacker  Coal  &  Coke  Co.  v.  Nor- 
folk &  Western  Ry.  Co.,  67  W.  Ya.  448,  68  S.  E.  107,  28  L.  R.  A.  (N.  S.)  108. 
the  best  considered  state  case  we  have  seen  wherein  jurisdiction  is  denied  and 
a  great  number  of  the  federal  decisions  are  noted  and  reviewed. 

Speakiug  of  the  effect  of  the  allowance  of  the  jurisdiction  contended  for  by 
counsel  for  plaintiff  in  this  case,  Justice  White,  speaking  for  the  Supreme 
Court  of  the  United  States  in  the  case  of  Baltimore  &  Ohio  Ry.  Co.  v.  Dnited 
States  ex  rel.  Pitcairn  Coal  Co.  et  al.  [215  U.  S.  481,  30  Sup.  Ct.  164.  54  L. 
Ed.  292]  supra,  in  part  says:  "In  consideraing  section  4  in  the  case  of  Inter- 
state Commerce  Commission  v.  Illinois  C.  R.  Co.,  245  U.  S.  4")L',  30  Sup.  Ct. 
155,  54  L.  Ed.  280,  just  decided,  it  was  pointed  out  that  the  effect  of  the  sec- 
tion was  to  cause  it  to  come  to  pass  that  courts,  in  determining  whether  an  or- 
der of  the  commission  should  be  suspended  or  enjoined,  were  without  power  to 
invade  the  administrative  functions  vested  in  the  commission,  and  therefore 


lL.Ti2  APPENDIX    II 

could  not  set  aside  an  order  duly  made  ou  a  more  exercise  of  judgment  as  to 
its  wisdom  or  expediency.  Under  these  circumstances  it  is  apparent,  as  we 
have  said,  that  these  amendments  add  to  the  cogency  of  the  reasoning  which  . 
led  to  the  conclusion  in  the  Abilene  Case  that  the  primary  interference  of  the 
cun rls  with  the  administrative  functions  of  the  commission  was  wholly  in- 
compatible with  the  act  to  regulate  commerce.  This  result  is  easily  illustrated. 
A  particular  regulation  of  a  carrier  engaged  in  interstate  commerce  is  as- 
sailed in  the  courts  as  unjustly  preferential  and  discriminatory.  Upon  the 
facts  found,  the  complaint  is  declared  to  be  well  founded.  The  administrative 
I mwers  of  the  commission  are  invoked  concerning  a  regulation  of  like  character 
upon  a  similar  complaint.  The  commission  finds,  from  the  evidence  before  it, 
that  the  regulation  is  not  unjustly  discriminatory.  Which  would  prevail?  If 
both,  then  discrimination  and  preference  would  result  from  the  very  preva- 
lence of  the  two  methods  of  procedure.  If,  on  the  contrary,  the  commission 
was  bound  to  follow  the  previous  action  of  the  courts,  then  it  is  apparent  that 
its  power  to  perform  its  administrative  functions  would  be  curtailed,  if  not  de- 
stroyed. On  the  other  hand,  if  the  action  of  the  commission  were  to  prevail, 
then  the  function  exercised  by  the  court  would  not  have  been  judicial  in  char- 
acter, since  its  final  conclusion  would  be  susceptible  of  being  set  aside  by  the 
action  of  a  mere  administrative  body.  That  these  illustrations  are  not  imagi- 
nary is  established  not  only  by  this  record,  but  by  the  record  in  the  case  of 
Interstate  Commerce  Commission  v.  Illinois  C.  It.  Co.,  215  U.  S.  452  [30  Sup. 
Ct.  155]  54  L.  Ed.  2S0." 

These  decisions  of  the  United  States  Supreme  Court  must  be  held  to  deter- 
mine the  question  for  all.  Those  which  limited  the  force  of  the  language  of 
the  Tift  Case  had  not  been  promulgated  when  this  case  was  filed  and  tried, 
hence  counsel  and  the  lower  court  did  not  enjoy  the  light  which  we  have  had 
in  reaching  the  conclusion  here  found.  That  it  was  competent  to  inquire  into 
the  jurisdiction  of  the  court  issuing  the  injunction,  see  Southern  Pine  Lum- 
ber Co.  v.  Ward,  16  Okl.  131,  85  Pac.  459;  Elliott  v.  Piersol,  1  Pet.  (26  U.  S.) 
340,  7  L.  Ed.  164. 

It  therefore  follows  that  the  judgment  therein  is  reversed  and  the  cause  re- 
manded to  the  lower  court  with  instructions  to  set  the  same  aside  and  enter 
one  iu  accordance  with  this  opinion. 


INDEX 


[the  figures  refer  to  pages] 


ACCOUNT— BILL  OF  ACCOUNT, 

Concurrent  jurisdiction— equity  and  law,  1209,  D.  v.  B.,  1212,  1217,  1223, 

1231n. 
Stewards — fiduciaries — quasi   fiduciaries — agents,  1209.   1215,  1217. 
Discovery,  1212. 

Complicated  accounts,   1214,  1219,  1221,  1223,  1227.  1231n. 
Accounts  mutual,  1215,  1221. 
Balance  of  inconvenience,  1227. 
Account  not  given  in   equity   where  plaintiff  action  at  law.  1217,  1219, 

1223,  1224,  1234. 
Partnership,  1222,  1226n. 
Modern  practice — where  referee  at  law  can  get  at  facts — no  ground  for 

account  in  equity,  1232,  1233. 
Federal  equity  rule,  1221n. 

APPENDIX  I, 

Position  of  equity  iu  the  legal  system 
Story's  definition  of  equity,  1259. 
Story's  analysis  of  jurisdiction,  1239. 
Relation  between  law  and  equity,  1239. 

APPENDIX  II, 

Modern  equity  in  administrative  tribunals,  1243. 

ASSIGNMENTS, 

See  Specific  Performance. 

AUXILIARY  JURISDICTION, 
See  Appendix. 

BILL  OF   PEACE, 

Nature  of  a  bill  of  peace.  1137,  1137n. 
Establish  right  at  law,  1138. 

To  prevent  multiplicity  of  suits,  1138,  1138n.  1139. 
Not  multifarious,  1142,  1144. 
Two  kinds  of  bills  of  peace,  1141. 
-Multiplication  of  suits  and  repetition  of  suits,  1145. 
Where  affect  numerous  different  plaintiffs,  1146. 

Where  rights  of  claimants  not  identical,  but  one  suit  will  settle  all ;    il- 
legal collection  of  tax,  1152,  1149. 

BILL  QUIA  TIMET, 

Instrument  "casting  fear,"  1115. 

Removal  of  cloud  on  title,  1155,  1156n,  1157,  1163,  1170,  1170n,  1175,  1184. 

Party  entitled  to  bill — possession  requirement,  1166,  1176,  11S0. 

Essential  to  have  prima  facie  case,  1160. 

Test  to  determine  cloud  on  title,  1170n,  1174n. 

Verbal  claim  not  cloud,  1171. 

Prevention  of  cloud  on  title  by  injunction ;    when  had.  as  in  tax  sales, 

1163,  1165n,  or  notes,  1186. 
Service  by  publication  to  obtain  jurisdiction,  1173,  1182. 

Boke  Eq.  (1253) 


ii!r,4  INDEX 

[The  figures  refer  to  pages] 

CANCELLATION  AND  RESCISSION. 
Misdescription  by  vendor,  773. 
Fraud  and  deception,  774,  7S1.  702. 
Mutual  mistake.  776,  780. 
Non  consensus,  778. 
Failure  of  consideration,  7S1.  783. 
False  public  record,  785. 

Re-execution  of  mistakenly  cancelled  mortgage,  9S9. 
Misrepresentation,  792. 
Notice  of  rescission,  796n. 
Laches,  796. 

See.  also.  Reformation  and  Re-execution. 

CERTAINTY, 

See  Specific  Performance. 

CHANCERY. 

See  Court  of  Chancery. 

CHANCERY  JURISDICTION, 
See  Jurisdiction. 

CHATTELS, 

See  Specific  Performance. 

CLEAN  HANDS, 

See  Specific  Performance. 

CLOUD  ON  TITLE. 

See  Bill  Quia  Timet. 

COMPENSATION, 

See  Specific  Performance. 

( :OMMON-LAW  RIGHTS, 

See  Injunctions  in  Relation  to  Torts. 

CONCEALMENT. 

See  Specific  Performance. 

CONSCIENCE, 

Maxim — equity  acts,  according  to  conscience,  1. 

Definition  of  conscience,  In,  12,  13. 

Matters  in  conscience,  2. 

To  correct  men's  consciences,  9. 

The  conscience  of  the  chancellor,  14u, 

CONSIDERATION, 

See  Specific  Performance. 

CONTRACTS, 

See  Specific  Performance. 

CONVERSION. 

See  Specific  Performance. 
COURT  OF  CHANCERY, 

Relation  to  court  of  law,  10,  lOn.  11. 

Function  of  court  of  chancery,  2,  9,  11,  13,  14. 

Changes  in,  18,  22,  23,  24. 

COVENANTS, 

See  Restrictive  Covenants. 

DISCRETION, 

Sense  of  conscience.  12. 

Sense  of  "grace,"   17. 

A  science  or  principle  of  establishing  truth  of  a  question,  14,  10,  17. 

Not  a  variable;    early  and  modern  defining,  Ion,  16n. 

DISTURBANCE  OF  EASEMENT, 

See  Injunctions  in  Relation  to  Torts. 


INDEX  1255 

[The  figures  refer  to  pages] 

EQUITABLE  WASTE, 

See  Waste. 

EQUITY, 

Nature  of  equity, 

Discourse  betweeu  Doctor  and  Student,  5.    • 
Founded  on  "conscience,"  1,  2,  2n. 
Relation  to  the  law,  early  conceptions,  7,  S. 
Modern  statement,  addenda,  1238. 

See  Conscience;    Discretion:    Grace;    Court  of  Chancery. 
Development  of  equity, 

Chapter  on,  beginning  p.  18. 
Chancellor's  extraordinary  jurisdiction,  24. 
Changes  in  the  United  States,  22,  23. 
Changes  in  England,  25,  26. 
EQUITY  RULES  IN  FEDERAL  COURTS,  49,  50. 

EXTENT    AND    POWER    OF    EQUITY    JURISDICTION    THROUGH    ITS 
MODE  OF  OPERATION, 
Chapter  on,  47. 

Mode  of  operation, 

Illustrated  in  federal  equity  rules,  49. 
Professor  Langdell's  discussion.  47. 
In  personam,  51. 

Where  the  res  is  in  another  jurisdiction,  53,  56,  57,  57n,  64,  66,  79. 
Where  the  res  is  partly  in  foreign  jurisdiction,  70. 
Restraining  court  proceedings  by  enjoining  plaintiff,  72.   7*:. 
Where  the  plaintiff  is  absent  from   the  jurisdiction,  74,   82. 
Statute  for  obtaining  jurisdiction,  82,  87,  88. 
Effect  of  statute  of  conveyance  by  decree,  84. 
Where  land  is  without  jurisdiction,  82. 
Where  incapacity  to  obey  court  physical,  SI. 
Mental, 

Lunatic,  81,  81n. 
Infant,  79,  SOn. 
Restraining  infant  defendant   from   interfering  with  plain- 
tiff's possession  until  conveyance,  80. 

FAIR  TRADE, 

See  Interference  with  Business   and   Contract  Relations,   under   Injunc- 
tions, etc. 
FEDERAL  EQUITY  RULES,  49,  50. 

FRAUD, 

See  Reformation. 

GRACE, 

See  Discretion. 

GROUNDS  OF  EQUITABLE  RELIEF, 

Where  there  is  good  legal  remedy,  20,  31,  35. 
Where  not  an  adequate  legal  remedy,  27,  30,  40. 
Land  contracts, 

Almost  universally  relief  given,  but  occasionally  not,  36. 
Chattels,  30,  31,  37,  42. 
Trust,  28,  29. 
Insolvency,  37. 

HARDSHIP, 

See  Specific  Performance. 

INFRINGEMENT  OF  STATUTORY  MONOPOLY  RIGHTS, 
See  Injunctions,  etc. 


1256  INDEX 

[The  figures  refer  to  pages] 

INJUNCTIONS  IN  RELATION  TO  TORTS, 
Injunctions, 

Basis  of  granting  general,  70s.  800n,  819. 

Modern  rule  more  favorable  to,  798.  II.  v.  S. 

Interim  or  preliminary,  801,  805,  S07,  S09,  SOOn,  811,  811n,  S13. 

Temporary   rest  raining  order,  805,  Slln. 

Basis  of  granting  special. 

Property    right  involved,   801. 

Shutting  off  water,  gas,  etc..  supply,  820,  821n. 

Protecting  electoral  franchise,  808. 
Offices  enforcing  state  statute,  826,  827. 

Boycotts,  831. 
Perpetual  injunction,  S20,  838. 

Ex  parte  application.  801,  805,  807,  SOOn,  813,  838. 
Pending  appeal,  Slln. 

Mandatory  injunction,  S15,  817.  818,  819,  819n,  827. 
Violation  of  injunction,  831,  836n,  838. 
Distinguished  from  writ  of  prohibition.  837n. 
Waste, 

Commission  of,  may  be  enjoined,  S41  et  seq. 

Relation  to  trespass,  S4S. 

What  is  enjoinable  waste,  848. 

Development  of  mine  not  waste.  854,  862. 

Where  property  injured  or  altered  or  benefited,  851. 

Permissive  waste,  843,  846,  846n,  851. 

Meliorating  waste,  843,  S51. 

Equitable  waste, 

Nature  of,  857,  858,  SOln,  S62,  S63n. 

Fruits  of,  S64,  SOS,  867,  S6S,  S69. 
Who  may  bring  waste.  87.1,  873*  878,  SSI,  8Sln. 
Where  action  pending  at  law,  S7S. 
Mortgagor  committing  waste,  882,  886. 
Trespass, 

Ordinary  trespass,  8SS. 

Damage  irreparable  or  not,  891,  894. 

Cutting  timber,  cutting  fruit  trees,  894. 

Defacing  landmarks,  918. 

Making  permanent  changes  in  premises,  895,  S97. 
Continuing  trespass,  901,  917. 
Multitudinous  suit,  900,  920. 
Importance  of  possession.  903,  916. 

Where  plaintiff  out  of  possession,  013. 
Where  title  in  dispute,  002,  OOo,  000,  010,  020. 
Effect  of  insolvency,  01S. 
Where  damage  remote,  920,  C.  v.  T. 

Where  crime  about  to  be  committed  or  law  violated,  020. 
Balance  of  benefit,  923,  924. 

Where  great  injury  to  one  and  little  benefit  to  other,  923,  924. 

Discretion  to  award  damages  under  statute,  928. 
Nuisance, 

Whether  the  injunction  will  lie,  930. 
Private  nuisance,  930,  934. 

Ordinary  noise,  936,  938. 

Where  noisome  gases  injure  plaintiff's  property,  938,  C.  v.  S. 

Speculative   nuisance,  010,  943. 

Whether  trial  at  law  necessary  first,  945. 
Public  nuisance, 

In  case  of  threatened    illegal   prize   fight,   917. 

Statutory  nuisance — liquor  selling,  051,  953. 
Municipal   sewage   plant,  957. 
Municipal  ordinance,  enforcement,  9s.°.,  '.>^.">. 
Balance  of  convenience,  960,  964,  973n,  974n,  976. 
Purprestures,  990,  '.)!)},  996,  1000,  1003. 


INDEX  1257 

[The  figures  refer  to  pages] 

INJUNCTIONS  IN  RELATION  TO  TORTS— Continued, 
Easement, 

Where  substantial  interference  with,  as  serious,  damage,  1007. 

Mandatory  injunction  used,  if  necessary,  1012. 

Where  interference,  as  with   ancient  light,  is  not  substantial,   1012. 

1014n,  1017. 
Where  interference  is  obstruction  of  a  way.  becomes  a  nuisance,  1019, 
1020,  102.:. 
Interference  with  contract  and  business  relations, 
Boycott,  1024,  1025,  1028.  10.31,  1035. 
Enjoining  city  from  violating  eight-hour  law,  1029. 
Strike,  1035. 

Employer's  right  to  have  non-union  labor  let  alone,  1037. 
Bill  to  enjoin  moving  picture  censorship.  1044. 
To  restrain  enforcement  of  eight-hour  law,  1052. 
Infringement,  of  trade  rights,  trade-names,  trade-mark,  and  trade  secret, 

1057,  1059. 
Violation  of  common-law  rights  relating  to  literary  and  similar  produc- 
tions. 
Injunction  asked  for: 

To  protect  dramatic  pieces  from  being  pirated  by  cinematograph, 

1061. 
To  protect  personal  name  from  being  used  other  than  for  business 

purposes,  1065,  106Sn. 
To  protect  news  from  being  stolen  from  "electric  tickers,"  1070. 
To  protect  private  letters  from  publication,  1077,  1089. 
To  protect  plays,  1081. 

To  prevent  commercial   use  of  one's  photograph  or  life  history. 
1087,  1090,  1091. 
Invasion  of  so-called  right  of  privacy, 

Is  there  a  right  to  have  replica  of  one's  features  free  from  commer- 
cial use,  1094,  1098n. 
Effect  of  statute  in  giving  right  of  privacy,  1101. 
Infringement  of  statutory  monopoly  rights, 
Copyrights,  1102.  1104. 
Patents,  1108,  1112. 

Licensee  of  copyright  not  under  copyright  act,  1115. 
Libel, 

Whether  injunction  lies  to  restrain  libel,  1119,  1121. 

IN  PERSONAM, 

See  Extent  and  Power  of  Equity  Jurisdiction,  etc. 

INTERFERENCE   WITH  CONTRACT  AND  BUSINESS   RELATIONS, 
See  Injunctions  in  Relation  to  Torts. 

INTERLOCUTORY  INJUNCTION, 

See  Injunctions,  etc. 

INTERPLEADER, 

Strict  interpleader — stakeholder's   remedy,   1188. 

Must  be  no  collusion,  1190,  B.  v.  H. 

No  collateral  liability  to  either  defendant,  1190,  C.  v.  J. 

No  interest  in  matter  at  issue,  direct  or  indirect,  1195,  1196. 

The  remedy  closes  third  person's  right  to  participate  in  subsequent  suit. 

1202. 
Bill  "in  nature  of"  interpleader,  119S,  1204. 
Not  interplead  paramount  title,  1199. 
Disputed  taxation,  1203. 
Disputed  jurisdiction  of  taxation,  1204. 

JURISDICTION  IN  EQUITY,  22,  23,  24. 

See,  also,  Extent  and  Tower  of  Equity  Jurisdiction. 


1258  INDEX 

[The  figures  refer  to  pages] 

LACHES, 

See  Delay. 

LIBEL. 

See  Injunctions  in  Relation  to  Torts. 

LIMITATIONS  (STATUTE  OF), 

See  Specific  Performance:    Reformation. 

MANDATORY  INJUNCTION, 
See  Injunction. 

MELIORATING  WASTE, 

See  Waste,  under  Injunctions. 

MISREPRESENTATION, 

See  Specific  Performance. 

MISTAKE, 

See  Specific  Performance. 

MUTUAL  MISTAKE, 
See  Reformation. 

MUTUALITY, 

See  Specific  Performance. 

NAME, 

See  Injunctions  in  Relation  to  Torts,  infringement  of  trade-names. 

NEGATIVE    CONTRACTS, 

See  Specific  Performance. 
NEGLIGENCE, 

See  Mistake,  under  Specific  Performance. 

NOTICE. 

See  Purchaser  for  Value. 
NUISANCE, 

See  Injunctions  in  Relation  to  Torts. 

OPTION, 

See  Specific  Performance,  inadequacy  of  consideration  and  lack  of  mu- 
tuality. 

PAROL  EVIDENCE, 

See  Statute  of  Frauds,  under  Reformation. 

PART  PERFORMANCE, 

See  Statute  of  Frauds,  under  Specific  Performance. 

PART   PERFORMANCE  WITH   COMPENSATION, 
See  Specific  Performance. 

PERMISSIVE   WASTE. 

See  Waste,  under  Injunction. 

PERSONAL  AGREE. M ENTS, 
See  Specific  Performance. 

PERSONAL  PROPERTY, 

See  Chattels,  under  Si>ecifie  Performance. 

PERSONAL  RIGHTS, 

See  Common-Law  Rights;    Rights  of  Privacy,  under  Injunctions,  etc. 

PERSONAL  SERVICES, 

See  Specific  Performance. 

PETITIONS  TO  THE  CHANCELLOR,  3-5.  19. 


INDEX  1259 

[The  figures  refer  to  pages] 

POWERS  OF  COURT  OF  EQUITY, 

See  Extent  and  Power  of  Equity  Jurisdiction. 

PRIVACY,  RIGHT  OF, 

See  Injunction. 

PROCESS  IN  EQUITY,  27,  49.  50. 

PROCEDURE  IN  EQUITY,  23. 

PURCHASER  FOR   VALUE, 
See  Specific  Performance. 

QUIA  TIMET, 

See  Bills  Quia  Timet. 

REFORMATION  AND  RE-EXECUTION, 

Equitable  ground  for  reformation,  (374,  691n. 
Mutual  mistake  of  fact,  675.  676.  677n,  680,  681,  689. 

Draftsman's  mistake,  675,  6S2,  690. 

Conditional  reformation.  677. 

Limitation  on  rule,  677,  681,  683. 

Mere  misapprehension,  6S7. 

"Left  to  honor,"  683,  687. 

Gross  variation,  689. 

Misdescription,  692,  700. 

Transferee's  right  to  reformation,  694. 

Reforming  a  mortgage,  694,  697,  697n. 

Absolute  conveyance  intended  as  security,  697. 

Volunteer's  title  or  deed,  700,  701,  703. 

Creditor's  equity  in  misdescribed  property,  704. 

Unilateral  mistake,  705. 
Negligence  as  cause  of  mistake,  707,  70S. 
Fraud  as  inducing  other's  mistake,  710. 
Usury  as  affecting  reformation,  714. 
Mutual  mistake  of  law, 

Legal  effect  of  terms,  715,  720,  722,  726,  729. 

Mere  ignorance  of  the  law,  716,  717,  73  9n,  725n,  729,  734. 

Legal  facts,  725. 

Agent's  or  scrivener's  mistake  in  legal  statement,  731. 

Fraud,  734. 
Parol  evidence, 

Admissibility,  735,  738,  739,  744. 

Degree  needed,  737,  738. 
Reformation  in  relation  to  statutory  requirements, 

Statute  of  frauds,  739,  744n,  745,  747,  753n,  755,  758n. 

Correction  of  existing  agreement  not  making  an  agreement,  747. 
Objection  to  doctrine,  755,  758n. 
Enlargement  of  amount  conveyed,  760. 
Surety  of  interest  under  reformation,  762. 
Statute  of  wills, 

Reformation  lacking  in  testamentary  form,   763. 

Limitation  of  power  to  reform  a  will,  765. 

Misdescription  in  will,  766.' 
Statute  of  limitations, 

Whether  applicable,  767,  770,  770n. 

Complainant  in  constant  possession,  767. 

Time  from  which  statute  begins  to  run,  767,  769,  770n. 
See,  also,  Cancellation  and  Rescission. 

RESTRICTIVE   COVENANTS, 
See  Specific  Performance. 

RIGHT  OF  PRIVACY, 

See  Injunctions,  etc. 


1260  INDEX 

[The  figures  refer  to  pages] 

SPECIFIC  PERFORMANCE, 
Assignment,  306,  309. 

Assignee,  306,  309. 
Certainty, 

Concord,  267,  26S. 

Difference  between  legal  and  equitable  view,  26S,  26Sn,  269n,  270n. 
Compensation  for  deficiency  on,  350. 

Performance  in  part  with  compensation  for  deficiency. 

Principle  of  performance  with  compensation,  350,  354,  357. 

Where  substance  of  contract  or  benefit  lost,  354,  357. 

Application  of  the  principle,  357. 

Absolute  right  of  vender.  363. 

Husband  and  wife,  365,  366n,  367,  368,  369. 
Concealment, 

Obvious  defect,  551. 

No  duty  to  inform,  551,  559,  576. 

"Industrious  concealment,"  ">.".. 

Defendant  "surprised"  into  the  bargain,  552,  560. 

Duty  to  inform, 

Fiduciary  relation,  556. 

Inequality  of  position,  572,  578. 
Equality  of  parties— arm's  length,  563,  566,  572.  576. 
Mere  artless  confidence,  563. 

Intentional  suppression  of  material  facts,  553,  570,  572,  573,  578,  579. 
"Put.  on  inquiry,"  576. 
Non-reliance,  580. 
Negligence  of  defendant,  5S0. 
Conversion, 

Equitable  principle  involved,  270.  271,  274n. 
Effect  on  property  interests  of  parties, 

Assignee,  295,  304. 

Vendor  and  vendee,  274n,  277. 

Heir,  275,  277. 

Electoral  statute,  301. 

Administrator  and  executor,  277. 

Devisee,  280,  282,  292,  293. 

Legatee,  284. 

Next  of  kin.  290. 

Mortgagee's  heir,  292. 

Rents  and  profits,  300. 
Consideration, 

Where  seal,  but  no  consideration.  258,  260.  260n. 
Delay, 

In  performance, 

Equitable  principle  involved,  407. 

Mere  lapse  of  time,  410. 

Time  not  of  essence,  413:   no  forfeiture,  421. 

Contrary  rule — time  of  essence,  416;    forfeiture,  417. 
In  bringing  suit, 

Laches,  423,  423n,  426,  J2S,  429n,  436n,  437n,  445n. 
Mere  lapse  of  time,  435. 
Foreclosure, 

Strict,  438,  438n. 
Conditions,  440. 

Statute  of  limitations,  442,  445. 
Hardship, 

.Mere  "bad  bargains,"  583,  620,  623,  625,  633. 

Unconscionable  bargain,  585,  586,  591. 

Effect  of  subsequent  events  or  changes  of  circumstances,   593,  609, 

615,  620,  623,  625,  633,  637,  638,  639. 
Effectof  subsequent  discovery  of  undesirable  nature  of  bargain,  614,  618. 
When  a  forfeiture  involved.  593,  601. 
Plaintiff's  running  bis  legal  right  too  fine,  591. 


INDEX  1261 

[The  figures  refer  to  pages] 

SPE(  TFIC  PERFORMANCE—*  'ontiimed. 

Too  close  insistence  of  plaintiff  on  firmly  put  legal  rights,  591,  604. 
Inutility  of  performance  to  plaintiffs,  G04,  633. 
Undue  advantage,  606,  606n,  615. 
Equal  footing.  618,  646. 
Execution  oppressive.  629,  646. 
Inadequacy  of  consideration, 

Principle  involved,  4S0,  481n,  482. 
Mere  inadequacy  or  gross  inadequacy,  483,  4S5,  4S5n. 
Laches,  see  Delay. 
Lack  of  mutuality. 

Principle  involved,  447.  449n. 

Vendor.  447. 

"Where  not  enforceable  against  one  party, 

Infant.  448. 

Statute  of  frauds.  449.  449n.  450,  451. 

Memorandum  signed  after  contract  made,  453. 

Vendor  of  annuity,  453. 

Non-negligent  party.  455n. 

Defendant's  duty  too  uncertain,  456. 

Married   women,   457. 

Where  personal   service  involved,   458,  461. 

Contingency  merely  unfavorable,  464. 

Contingency  subject  to  personal  determination,  465,  46S. 

Leases  with  option,  468,  477. 

Options,  474,  476,  479n. 
Mistake, 

Material  mistake.  490.  499,  505. 
Plaintiff's  misleading,  492.  497. 
Defendant's  negligence.  494,  517. 
Whether  enforced  with  compensation.  499. 
Ambiguity  of  terms.  502. 
Knowledge  of  plaintiff.  503,  510. 
Mistake  in  identity  of  res,  513. 
Mistake  in  meaning  of  term,  515. 
Mistake  in  fact  of  legal  value  of  title.  517. 
Mistake  in  law.  519.  520. 
Mistake  in  legal  rights,  521,  523,  525. 
Misrepresentation   and    fraud, 

Doctrine  of  "unclean  hands,"  527,  531,  532. 
Material  misrepresentation,  531,  550n. 
Defendant's  imprudence  or  neslisence.  532,  533.  550n. 
Effect  of  reliance,  533,  548. 
Plaintiff's  innocent  misrepresentation,  536. 
Defendant's  knowledge  of  truth,  536.  549. 
Third  person's  misrepresentation.  539. 
Obvious  defect.  540. 
Misrepresentation  in  prospectus,  541. 
Fraud,  549. 
Mutuality,  see  Lack  of  Mutuality. 
Negative  contracts, 

Trade  contracts,  173-194. 

Persona]  service  not  unique.  196-199. 

Where  agreement  is  unenforceable  against  complainant,  202-210. 

Enforcement   of  part  of  defendant's   contract,  not  enforceable  as  a 

whole,  213-215. 
Subsidiary  or  interdependent  parts  as  distinguished  from  substantial 
or  equal  and  independent  parts  of  positive  and  negative  contracts. 
218,  219. 
Where  affirmative  part  is  unenforceable. 

Enforcement  of  negative  part  of  contract,  224. 
Historical  development  of  rule, 

Whether  negative  part  express  or  implied. 


1262  INDEX 

[The  figures  refer  to  pages] 

SPEI JIFIC  PERFORMANCE— Continued, 
Notice,  see  Purchaser  for  Value. 
Positive  contracts. 

Grounds  of  equity  jurisdiction, 

Where  compensation  in  money  damages  of  legal  remedy  not  suf- 
ficient satisfaction.  91. 
Character  of  subject-matter  as  text, 
Uniqueness.  93. 

Where  standard  market  value,  94,  95. 
Jurisdiction  from  nature  of  the  contract, 
Subject-matter, 

Personalty.  97,  99. 
Laud,  100. 

<  'an  damages  be  a  satisfaction.  103. 
Land  and  personalty  together,  105. 

Crops.  110:    stock,  112;    shares.  113,  114,   117;    debts,  117: 
mortgage.  119.  120;    loan,   123:    services.   124;    good  will, 
12.-,. 
Other  elements  that  may  or  may  not  influence  jurisdiction, 
Installment  contracts,  120.  126n,   127,  130n. 
"Mining  opt  ions"  fur  development,  131. 
"Continuous  acts."  132,  133,  136n,  137,  140n. 
To  loan  on  security,  140;    to  execute  a  mortgage,  141. 
Covenant  to  rebuild.  142:    or  build.  143,  144.  145,  147. 
Compulsory  purchase,  149. 
Securing  infant's  conveyance,  150. 
To  devise  realty,  152  :    wife's  interest,  154. 
Alternative  decrees,  157,  157n ;  to  sell  "workingmeu's  tickets," 

159 :    to  maintain  building  scheme,  161. 
To    enforce    ordinance,    162 ;     Insolvency    as   defense,    166n : 
liquidated  damages,  166,  168n. 
Purchaser  for  value  without  notice, 

Effect  in  equity  of  second  purchaser  getting  legal  title  first,  650,  654u. 
Volunteer,  661. 

Purchaser  of  equitable  interest,  656. 
Equitable  lien  of  vendor  against  third  person,  65S. 
Notice.  665,  666,  666n,  667,  667n.  670. 
Nominal  or  small  consideration,  665. 
Purchase  money  not  paid.  666,  666n. 

Purchase  money  paid,  but  conveyance  after  notice,  666n. 
Purchaser  with  note  from  purchaser  without  notice,  667a. 
Restrictive  agreements. 
General  principle,  331. 

Doctrine  of  Tulk  v.  Moxhay,  313,  315,  316n,  328. 
Attempted  limitation,  316. 
Limitation  on  the  doctrine,  322. 

Benefit  rule,  322,  325. 
Mere  occupier,  326. 
Adverse  possessor,  331. 
Affirmative  burden,  :•.:;.-..  336n,  339,  341. 
Abandonment  of  neighborhood  scheme,  348. 
Statute  of  frauds,  371-406. 

Part  performance  of  oral  contract,  371. 

Whether  marriage  part   performance,  371.  400. 
Why  equity  takes  contract  out   of  the  statute,  372. 
What  facts  sufficient,  375,  ."."<'>,  .';7s,  380n,  3S1. 
General  rules, 

Payment  alone,  3S0,  386n,  3S7. 
Payment  and  possession,  3S0,  3S6n. 
Special   rules. 

Payment  alone,  38]  . 
Full  payment  alone,  39S. 
Massachusetts  rule  384. 


INDEX  12G.3 

[The  figures  refer  to  pages] 

SPECIFIC  PERFORMANCE— Continued, 
Insolvency,  395. 
Where  possession  is  completion  of  unilateral  contract,  3S7,  389n, 

396. 
Equivocal  acts,  3S9,  391. 
Claim  for  betterment,  393. 
Direct  fraud, 

In  obtaining  the  marriage,  400. 
Contracts  to  be  performed  within  one  year;   oral  and  partly  per- 
formed, 403. 

STATUTE  OF  FRAUDS, 

See  Specific  Performance;   Reformation. 

STATUTE  OF  LIMITATIONS, 

See  Specific  Performance  :    Reformation. 

SUBPOENA,  WRIT  OF, 

Precise  means  of  acquiring  jurisdiction,  2.  10. 

Not  used  in  law,  6. 

"Process  in  equity."  27. 

In  the  federal  equity  rules,  49,  50. 

SUPREME  COURT  OF  JUDICATURE  ACT,  25. 

TITLE, 

Marketable  title,  261,  262n,  263. 

TORTS, 

See  Injunctions,  respective  subtitles,  waste,  trespass,  etc. 

TRADE-MARKS.  TRADE-NAMES,  TRADE  RIGHTS,  TRADE  SECRETS, 

See  Injunctions,  etc. 

TRESPASS. 

See  Injunction,  etc. 

TRUSTS.  28. 

UNCONSCIONABLE  BARGAINS, 

See  Specific  Performance,  hardship. 

VENDOR, 

See  Specific  Performance. 
VOLUNTARY  WASTE, 
See  Waste. 

WASTE, 

See  Injunction. 
WILLS, 

See  Reformation. 


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